Opinion
No. 2008 CA 324.
DATE OF JUDGMENT ENTRY: August 6, 2009.
Civil Appeal from Richland County Court of Common Pleas Case No. 2008 CV 1111D.
Reversed and Remanded.
John Douse, Inmate # A368118, 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} Respondent-appellant, the State of Ohio, appeals from the October 10, 2008, Conditional Final Order of the Richland County Court of Common Pleas finding Senate Bill 10, Ohio's sexual offender classification and registration scheme, to be unconstitutional in its entirety. Petitioner-appellee is John Douse.
STATEMENT OF FACTS AND CASE
{¶ 2} In January of 1999, appellee John Douse was convicted in Cuyahoga County of illegal use of a minor in nudity oriented material or performance in violation of R.C. 2907.323, unlawful sexual conduct with a minor in violation of R.C. 2907.04, gross sexual imposition in violation of R.C. 2907.05, and voyeurism in violation of R.C. 2907.08.
{¶ 3} On January 9, 2008, while incarcerated, appellant received notice that effective January 1, 2008, he would be reclassified for purposes of sex offender registration as a Tier III sex offender pursuant to Senate Bill 10, the Adam Walsh Act which became effective on July 1, 2007. On June 2, 2008, appellee, who is incarcerated in Richland County, filed a Petition to Contest Reclassification under the Adam Walsh Act pursuant to R.C. 2950.031(E) or 2950.032(E). Appellee, in his petition, alleged that he did not receive notice of new classification and registration duties prior to December 1, 2007 as required, because he did not receive notice until January 9, 2008. On June 5, 2008, appellant filed a Memorandum in Opposition and Motion to Dismiss Petition to Contest Reclassification Under the Adam Walsh Act.
{¶ 4} 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.
{¶ 5} The state now assigns four errors on appeal:
{¶ 6} "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.
{¶ 7} "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.
{¶ 8} "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.
{¶ 9} "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
{¶ 10} 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, this Court 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.
{¶ 11} For the reasons stated in Sigler, supra, we sustain all four of appellant's assignments of error.
{¶ 12} 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.