Opinion
Case No. 98 CA 11
April 12, 1999
Hon. John W. Wise, P. J., Hon. William B. Hoffman, J., Hon. Julie A. Edwards, J., JUDGES.
CHARACTER OF PROCEEDING:
Appeal from the Court of Common Pleas, Case No. 94 CR 14.
JUDGMENT:
Reversed.
APPEARANCES:
For Plaintiff-Appellee/Cross-Appellant
KENNETH W. OSWALT, ASSISTANT PROSECUTOR.
For Defendant-Appellant/Cross-Appellee
ANDREW SANDERSON.
This appeal arises from a decision, by the Licking County Court of Common Pleas, that found Appellant/Cross-Appellee Michael Trott is a "sexual predator" as defined in R.C. 2950.01(E). The trial court also determined the community notification provisions of Chapter 2950 et seq. violate the Retroactivity Clause of Section 28, Article II of the Ohio Constitution. Appellee/Cross-Appellant the State of Ohio filed a cross-appeal concerning the retroactivity issue.
The record indicates Appellant Michael Trott was convicted of gross sexual imposition in 1994. After the enactment of Ohio's version of Megan's Law, in R.C. Chapter 2950, the warden of the Ohio penal institution where appellant is incarcerated recommended that appellant be classified a "sexual predator". Prior to the hearing in this matter, appellant filed a motion challenging the constitutionality of R.C. Chapter 2950. The trial court conducted the hearing on January 7, 1998.
On January 8, 1998, the trial court made a factual finding that appellant met the definition of "sexual predator" as defined in R.C. 2950.01(E). On this same date, the trial court also concluded the notification provisions of R.C. Chapter 2950 violate the Retroactivity Clause of the Ohio Constitution. Therefore, the trial court refused to order the Department of Rehabilitation and Corrections to have their files reflect such a finding.
Appellant filed a notice of appeal on February 3, 1998. The state filed a cross-appeal on February 9, 1998. On June 1, 1998, we stayed this matter, during the pendency of the appeal of State v. Cook (1998), 83 Ohio St.3d 404, to the Ohio Supreme Court. Following the Ohio Supreme Court's decision, in Cook, Appellee State of Ohio filed a brief. Appellant Michael Trott did not file a brief.
Appellee State of Ohio sets forth the following assignment of error for our consideration:
I. THE TRIAL COURT ERRED IN RULING THAT REVISED CODE SECTION 2950.09 WAS UNCONSTITUTIONAL AS BEING A RETROACTIVE LAW IN VIOLATION OF THE OHIO CONSTITUTION.
I
Appellee State of Ohio contends, in its sole assignment of error, the retroactive provisions of R.C. Chapter 2950 do not violate Section 28, Article II of the Ohio Constitution. We agree.
In the recent case of State v. Cook, supra, the Ohio Supreme Court addressed this issue. The Court held in paragraph one of the syllabus as follows:
1. R.C. 2950.09(B)(1), as applied to conduct prior to the effective date of the statute, does not violate the Retroactivity Clause of Section 28, Article II of the Ohio Constitution.
Based on the above paragraph, of the syllabus in Cook, we sustain Appellee State of Ohio's sole assignment of error on cross-appeal.
Appellee State of Ohio's assignment of error, on cross-appeal, is sustained. Appellant Michael Trott's appeal is dismissed.
For the foregoing reasons, the judgment of the Court of Common Pleas, Licking County, Ohio, is hereby reversed.
By: Wise, P. J., Edwards, J., concurs. Hoffman, J., concurs separately.
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I concur in the result reached by the majority.
The trial court found R.C. 2950.09(C)(2) was unconstitutional. Paragraph one of the syllabus in State v. Cook (1998), 83 Ohio St.3d 404, only address R.C. 2950.09(B)(1). Accordingly, I find the majority's relance on the syllabus as its authority for sustaining appellee/cross-appellant's assignment of error to be misplaced.
Nevertheless, I would sustain appellee/cross-appellant's assignment of error for the reason stated in State v. Leach (March 15, 1999), Licking Appeal No. 1997CA148, unreported.
----------------------------- JUDGE WILLIAM B. HOFFMAN
For the reasons stated in the Memorandum-Opinion on file, the judgment of the Court of Common Pleas of Licking County, Ohio, is reversed, as it pertains to Appellee/Cross-Appellant State of Ohio's sole assignment of error. Appellant/Cross-Appellee's appeal is dismissed for failure to prosecute.
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