Opinion
No. 2008 CA 312.
DATE OF JUDGMENT ENTRY: August 28, 2009.
Civil Appeal from Richland County Court of Common Pleas, Case No. 08-CV-63D.
Reversed and Remanded.
Marty Barnett, for Petitioner-Appellee.
Frank Ardis, Jr., Kirsten Pscholka-Gartner, Assistant Prosecuting Attorney's, for Respondent-Appellant.
Before: Sheila G. Farmer, P.J., W. Scott Gwin, J., Julie A. Edwards, J.
OPINION
{¶ 1} Appellant, the State of Ohio, appeals a judgment of the Richland County Common Pleas Court finding Senate Bill 10, Ohio's Adam Walsh Act, to be unconstitutional. Appellee is Marty Barnett.
STATEMENT OF FACTS AND CASE
{¶ 2} Appellee Marty Barnett was convicted of unlawful sexual conduct with a minor in 2002, in Richland County, Ohio. Appellee, who resides in Richland County, received notice that effective January 1, 2008, he would be reclassified for purposes of sex offender registration as a Tier II sex offender pursuant to Senate Bill 10, the Adam Walsh Act effective July 1, 2007. On January 10, 2008, appellee filed a petition in the Richland County Common Pleas Court to contest his sex offender registration reclassification alleging that the Act is unconstitutional.
{¶ 3} The trial court found that based on Sigler v. State of Ohio, Case Number 07 CV 1863, in which the trial court had found the Adam Walsh Act to be an unconstitutional violation of the ex post facto clause and the prohibition on retroactive laws, application of the Act to appellee was barred because he had been previously sentenced and classified under the law in existence when he was sentenced.
{¶ 4} The state assigns four errors on appeal:
{¶ 5} "I. WHETHER, BEYOND A REASONABKE [SIC] DOUBT, SENATE BILL 10 AND THE CONSTITUTIONAL PROVISIONS CITED BY THE TRIAL COURT ARE CLEARLY INCOMPATIBLE, AND WHETHER THERE IS NO SET OF CIRCUMSTANCES UNDER WHICH THE SENATE BILL 10 WOULD BE VALID. THE TRIAL COURT PURPORTED TO INVALIDATE THE LEGISLATION, RATHER THAN THE STATUTORY PROVISIONS ACTUALLY AT ISSUE IN THIS MATTER. HENCE, BY INVALIDATING THE `ADAM WALSH ACT,' THE COURT APPARENTLY PURPORTED TO INVALIDATE EVERY STATUTE AMENDED BY THE SB 10, DESPITE THE NARROW CLAIM BEFORE IT. THE COURT BELOW DID NOT PROPERLY APPLY, OR SUBSTANTIATE DIVERGENCE FROM, THE PRESUMPTION OF CONSTITUTIONALITY.
{¶ 6} "II. WHETHER SENATE BILL 10'S LEGISLATIVE ADJUSTMENT TO THE FREQUENCY AND DURATION OF APPELLE'S [SIC] PRE-EXISTING DUTY TO REGISTER RENDERED THE STATUTE UNCONSTITUTIONALLY RETROACTIVE. A STATUTE FOUND TO BE RETROACTIVE IS ONLY UNCONSTITUTIONAL IF IT SIGNIFICANTLY BURDENS A VESTED SUBSTANTIVE RIGHT, BUT NOT IF IT IS REMEDIAL. AS THE OHIO SUPREME COURT HAS CONSISTENTLY HELD UNDER THE STATUTORY FRAMEWORK AMENDED BY THE SENATE BILL 10, THAT FRAMEWORK IS REMEDIAL IN NATURE. THE GENERAL ASSEMBLY EXPRESSED ITS INTENT THAT R.C. CHAPTER 2950, AS AMENDED, REMAIN REMEDIAL IN NATURE.
{¶ 7} "III. WHETHER SENATE BILL 10'S LEGISLATIVE ADJUSTMENT TO THE FREQUENCY AND DURATION OF APPELLEE'S PRE-EXISTING DUTY TO REGISTER CONSTITUTED SUCCESSIVE PUNISHMENT IN VIOLATION OF THE EX POST FACTO CLAUSE. IT WAS, INSTEAD, A REMEDIAL, CIVIL STATUTE THAT DID NOT IMPACT OFFENDERS' SENTENSES [SIC] FOR THE CRIMES THEY COMMITTED.
{¶ 8} "IV. WHETHER A PLEA AGREEMENT BETWEEN AN OFFENDER AND THE PROSECUTING ATTORNEY CREATED A VESTED, SETTLED EXPECTATION THAT THE OFFENDER'S CLASSIFICATION WOULD NEVER CHANGE. THE CLASSIFICATIONS OF SB 10, AND PRIOR CLASSIFICATIONS IMPOSED PURSUANT TO STATUTE BY THE COURT, DO NOT, AND DID NOT, CREATE THE EXPECTATION THAT CONVICTED SEX OFFENDERS WOULD NEVER AGAIN BE THE SUBJECT OF LEGISLATIVE ACTION."
I, II, III, IV
{¶ 9} The assignments of error raised by appellant are identical to those raised by the State of Ohio in Sigler v. Ohio, Richland App. No. 08-CA-79, 2009-Ohio-2010. In Sigler, we sustained all four assignments of error, finding that the trial court erred in finding the Adam Walsh Act facially unconstitutional, and erred in finding the Act is unconstitutionally retroactive and violates the ex post facto clause. We further found that the changes in the registration law did not impinge upon an offender's right to contract by way of a plea agreement.
{¶ 10} For the reasons stated in Sigler, supra, we sustain all four of appellant's assignments of error.
{¶ 11} The judgment of the Richland County Court of Common Pleas is reversed and this matter is remanded to the trial court for further proceedings.
Edwards, J. Farmer, P.J. and Gwin, J. concur.
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Richland County Court of Common Pleas is reversed, and this matter is remanded to the trial court for further proceedings. Costs assessed to appellee.