State v. Cook, 97-1985

Citation83 Ohio St.3d 404,700 N.E.2d 570
Decision Date30 September 1998
Docket NumberNo. 97-1985,97-1985
PartiesThe STATE of Ohio, Appellant, v. COOK, Appellee.
CourtUnited States State Supreme Court of Ohio

SYLLABUS BY THE COURT

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.

2. R.C. 2950.09(B)(1), as applied to conduct prior to the effective date of the statute, does not violate the Ex Post Facto Clause of Section 10, Article I of the United States Constitution.

On November 14, 1996, defendant-appellee, Tony Cook, was indicted on two counts of violating R.C. 2907.05(A)(4), gross sexual imposition, based on allegations that defendant was involved with two female children under the age of thirteen years during June 1996. Defendant pled guilty to one count of gross sexual imposition and the other count was dismissed. On January 9, 1997, the plea was entered on the record and defendant was convicted in accordance with his plea. At the sentencing hearing held on February 14, 1997, the trial court found defendant to be a sexual predator pursuant to R.C. 2950.01.

Defendant appealed from the trial court's finding, and the Allen County Court of Appeals reversed. The appellate court found that R.C. 2950.09 significantly changed the law as it existed when the offense was committed, imposing additional duties and attaching new disabilities to past transactions. The court found that the statute was unconstitutionally retroactive as applied to defendant and that defendant could not be required to register as a sexual predator under the new law, although he could still be required to register as a sex offender under the law in force at the time of the offense. Having found the law unconstitutional under the Ohio Constitution on the basis of retroactivity, the court of appeals declined to address the federal ex post facto claim raised by defendant.

In addition, the court of appeals concluded that the trial court had improperly conducted the sexual predator determination hearing and sustained defendant's assignment of error on that issue. Accordingly, the appellate court reversed the trial court's finding that defendant was a sexual predator and remanded the cause for further proceedings.

This cause is now before this court upon the allowance of a discretionary appeal.

Betty D. Montgomery , Attorney General, Jeffrey S. Sutton, State Solicitor, David M. Gormley and Kathleen S. Peterson, Assistant Attorneys General, and David E. Bowers, Allen County Prosecuting Attorney, for appellant.

Brian M. Fisher, Lima, for appellee.

Gray & Duning and Donald E. Oda, II, Lebanon, urging affirmance for amicus curiae, Ohio Association of Criminal Defense Lawyers.

David H. Bodiker, Ohio Public Defender, and Robert L. Lane, Chief Appellate Counsel, urging affirmance for amicus curiae, Ohio Public Defender.

Jeffrey M. Gamso, Toledo, and Joan M. Englund, Cleveland, urging affirmance for amicus curiae, American Civil Liberties Union of Ohio Foundation, Inc.

LUNDBERG STRATTON, Justice.

Today we are presented with the questions of whether R.C. 2950.09(B), as applied to conduct prior to the effective date of the statute, is a retroactive law that violates Section 28, Article II of the Ohio Constitution, and whether R.C. Chapter 2950 is an ex post facto law prohibited by Section 10, Article I, United States Constitution. Because we find that R.C. Chapter 2950 is neither impermissibly retroactive nor an ex post facto law, we find that R.C. 2950.09 is constitutional.

I HISTORY AND OVERVIEW

In the summer of 1994, seven-year-old Megan Kanka was raped and murdered in Hamilton Township, New Jersey, by a convicted sex offender, Jesse Timmendequas, who had moved in with two other convicted child abusers across the street from the Kankas. 1 Concerned citizens demanded legislation in New Jersey that would require community notification when a sex offender moves into the neighborhood. Three months later, on October 31, 1994, New Jersey Similar crimes resulted in so-called sex offender statutes on both the state and federal levels. A federal crime bill passed in 1994 included the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, Section 14071, Title 42, U.S.Code. Today, all fifty states have enacted sex offender registration laws of varying degrees. 3

                Governor Christine Todd Whitman signed "Megan's Law," a legislative package that included a provision for public notification. 2  N.J. Stat.Ann. 2C:7-1 et seq
                

Since 1963, Ohio has had a sex offender registration statute. See former R.C. Chapter 2950, 130 Ohio Laws 669. However, in 1996, the General Assembly rewrote R.C. Chapter 2950 as part of Am.Sub.H.B. No. 180 ("H.B. 180"), 146 Ohio Laws, Part II, 2560, 2601. H.B. 180 was passed in May 1996 and signed by Governor Voinovich in July 1996. Some provisions became effective January 1, 1997, including the classification provision, R.C. 2950.09. Section 3 of H.B. 180, 146 Ohio Laws, Part II, 2668. Other provisions, such as the registration and notification requirements, R.C. 2950.04, .05, .06, .10, and .11, became effective July 1, 1997. Section 5 of H.B. 180, 146 Ohio Laws, Part II, 2669.

The General Assembly, in repealing and reenacting R.C. Chapter 2950, stated that its intent was "to protect the safety and general welfare of the people of this state." R.C. 2950.02(B). The General Assembly stated that "[i]f the public is provided adequate notice and information about sexual predators, habitual sex offenders, and certain other offenders who commit sexually oriented offenses, members of the public and communities can develop constructive plans to prepare themselves and their children for the sexual predator's, habitual sex offender's, or other offender's release from imprisonment, a prison term, or other confinement. This allows members of the public and communities to meet with members of law enforcement agencies to prepare and obtain information about the rights and responsibilities of the public and the communities and to provide education and counseling to their children." R.C. 2950.02(A)(1).

Further, the General Assembly declared that "[s]exual predators and habitual sex offenders pose a high risk of engaging in further offenses even after being released from imprisonment, a prison term, or other confinement and that protection of members of the public from sexual predators and habitual sex offenders is a paramount governmental interest." R.C. 2950.02(A)(2). Finally, the General Assembly stated that "[a] person who is found to be a sexual predator or a habitual sex offender has a reduced expectation of privacy because

of the public's interest in public safety and in the effective operation of government." R.C. 2950.02(A)(5).

A Classification Provisions of R.C. Chapter 2950

R.C. Chapter 2950 contains three primary provisions: classification, registration, and community notification. The first phase of H.B. 180 took effect on January 1, 1997, when the General Assembly established a new classification system for convicted sex offenders. Under the new system, a sentencing court must determine whether sex offenders fall into one of the following classifications: (1) sexually oriented offender; (2) habitual sex offender; or (3) sexual predator. R.C. 2950.09. A sexually oriented offender is one who has committed a "sexually oriented offense" as that term is defined in R.C. 2950.01(D) but who does not fit the description of either habitual sex offender or sexual predator. A habitual sex offender is "a person who is convicted of or pleads guilty to a sexually oriented offense and who previously has been convicted of or pleaded guilty to one or more sexually oriented offenses." R.C. 2950.01(B). Finally, a sexual predator is "a person who has been convicted of or pleaded guilty to committing a sexually oriented offense and is likely to engage in the future in one or more sexually oriented offenses." R.C. 2950.01(E).

In those cases where an offender is convicted of a violent sexually oriented offense and also of a specification alleging that he or she is a sexually violent predator, the sexual predator label attaches automatically. R.C. 2950.09(A). However, in all other cases of sexually oriented offenders, only the trial court may designate the offender as a predator, and it may do so only after holding a hearing where the offender is entitled to be represented by counsel, testify, and call and cross-examine witnesses. R.C. 2950.09(B)(1) and (C)(2).

In making a determination as to whether an offender is a sexual predator, the judge must consider all relevant factors, including, but not limited to, all of the following: the offender's age; prior criminal record; the age of the victim of the sexually oriented offense; whether the sexually oriented offense involved multiple victims; whether the offender used drugs or alcohol to impair the victim or prevent the victim from resisting; if the offender previously has been convicted of or pleaded guilty to any criminal offense, whether the offender completed any sentence imposed for the prior offense, and if the prior offense was a sex offense or a sexually oriented offense, whether the offender participated in available programs for sex offenders; any mental illness or mental disability of the offender; the nature of the offender's sexual conduct with the victim and whether that contact was part of a demonstrated pattern of abuse; whether the offender, during commission of the offense, displayed cruelty or threatened cruelty; and The conclusion by the trial court that an offender is a sexual predator must be supported by clear and convincing evidence. R.C. 2950.09(B)(3). The offender and the prosecutor may appeal as a matter of right the judge's determination regarding sexual predator status. Id. In addition, upon expiration of the applicable time period,...

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