Sears v. Ohio, 2009 Ohio 3541 (Ohio App. 7/20/2009), No. CA2008-07-068.
| Decision Date | 20 July 2009 |
| Docket Number | No. CA2008-07-068. |
| Citation | 2009 Ohio 3541 |
| Parties | Rodney Lee Sears, Petitioner-Appellant, v. State of Ohio, Respondent-Appellee. |
| Court | Ohio Court of Appeals |
Appeal from Clermont County Court of Common Pleas, Case No. 2008 Cvh 00212.
W. Stephen Haynes, Suite D, 196 East Main Street, Batavia, Ohio 45103, for petitioner-appellant.
Donald W. White, Clermont County Prosecuting Attorney, David H. Hoffmann, 123 North Third Street, Batavia, Ohio 45103-3033 and Jeffrey W. Clark, 16th Floor, 30 East Broad Street, Columbus, Ohio 43215, for respondent-appellee.
Jeffrey Clark, Tara L. Paciorek, Assistant Attorneys General, 150 East Gay Street, 25th Floor, Columbus, Ohio 43215, for respondents-appellees, Attorney General and Steven Raubenolt.
{¶1} Petitioner-appellant, Rodney Lee Sears, appeals the decision of the Clermont County Court of Common Pleas denying his challenges to the constitutionality of his sexual offender reclassification.
{¶2} In March 2006, appellant was convicted in Greene County of importuning in violation of R.C. 2907.07(D)(2) and attempted unlawful sexual conduct with a minor in violation of R.C. 2923.02(A) and R.C. 2907.04(A). Appellant was sentenced to community control and found to be a sexually-oriented offender pursuant to prior R.C. Chapter 2950.
{¶3} On November 26, 2007, appellant received a letter from the Ohio Attorney General stating that he has been reclassified as a Tier II sexual offender as the result of the Ohio General Assembly's passage of Senate Bill 10 amendments to R.C. Chapter 2950, Ohio's Sex Offender Registration and Notification Act.1 Appellant was advised that as a result of his reclassification, he was subject to registration as such every 180 days for 25 years.
{¶4} Appellant filed a petition contesting his reclassification and a complaint for declaratory judgment, arguing that his reclassification under Ohio's Adam Walsh Act is unconstitutional. The trial court overruled his motions, and found that Ohio's Adam Walsh Act is constitutional. Appellant appeals the trial court's decision and raises two assignments of error.
{¶5} Assignment of Error No. 1:
{¶6} "THE TRIAL COURT ERRED IN FINDING THAT THE RETROACTIVE APPLICATION OF SENATE BILL 10 DOES NOT VIOLATE THE EX POST FACTO, DUE PROCESS, AND DOUBLE JEOPARDY CLAUSES OF THE UNITED STATES CONSTITUTION AND THE RETROACTIVITY CLAUSE OF SECTION 28, ARTICLE II, OHIO CONSTITUTION; AS WELL AS THE PROHIBITION AGAINST CRUEL AND UNUSUAL
PUNISHMENTS AND REQUIREMENTS OF THE SEPARATION OF POWERS; FIFTH, EIGHTH AND FOURTEENTH AMENDMENTS, UNITED STATES CONSTITUTION; SECTIONS 9 AND 10, ARTICLE I, OHIO CONSTITUTION."
{¶7} In his first assignment of error, appellant presents six specific constitutional challenges to Ohio's Adam Walsh Act. Appellant argues that Ohio's Adam Walsh Act violates the Ex Post Facto, Due Process, and Double Jeopardy Clauses of the United States Constitution, the Retroactivity Clause of the Ohio Constitution, the prohibition against cruel and unusual punishment, and the requirements of the separation of powers. This court has previously held that the law in Ohio's Adam Walsh Act does not violate the Ex Post Facto Clause, the Double Jeopardy Clause, and the prohibition against cruel and unusual punishment of the United States and Ohio Constitutions. See State v. Bell, Clermont App. No. CA2008-05-044, 2009-Ohio-2335, ¶104, citing State v. Williams, Warren App. No. CA2008-02-029, 2008-Ohio-6195, ¶72, 74-75, 106, 111. Likewise, this court has held that Ohio's Adam Walsh Act does not violate the Ohio Constitution's prohibition against retroactive laws. Ritchie v. State, Clermont App. No. CA2008-07-073, 2009-Ohio-1841, ¶16, citing Williams at ¶36. Further, Ohio's Adam Walsh Act does not violate appellant's due process rights. Bell at ¶104, citing Williams at ¶49, 60, 66, 72, 74. See, also, In re S.R.P., Butler App. No. CA2007-11-027, 2009-Ohio-11, ¶31.
{¶8} While this court has not previously determined whether the law in Ohio's Adam Walsh Act violates the separation of powers requirement of the United States Constitution, this court has held that it does not violate the separation of powers requirement of the Ohio Constitution. Williams, 2008-Ohio-6195, ¶97. In Williams at ¶98, this court quoted the Third Appellate District in In re Smith, Allen App. No. 1-07-58, 2008-Ohio-3234, ¶39, which held,
{¶9} Further, in Williams at ¶100-101, this court quoted the Clermont County Common Pleas Court in Slagle v. State, 145 Ohio Misc.2d 98, 2008-Ohio-593, ¶21, which stated, See, also, State v. Byers, Columbiana App. No. 07 CO 39, 2008-Ohio-5051, ¶73-74 ().
{¶10} We now apply this reasoning to appellant's claim that the law in Ohio's Adam Walsh Act violates the separation of powers doctrine of the United States Constitution. Accordingly, we find that Ohio's Adam Walsh Act does not violate the separation of powers doctrine of the Ohio or the United States Constitutions. See, also, Brooks v. State, Lorain App. No. C.A. No. 08CA009452, 2009-Ohio-1825, ¶26.
{¶11} We recognize that the Eleventh Appellate District recently held in Spangler v. State, Lake App. No. 2080-L-062, 2009-Ohio-3178, ¶67, that
{¶12} However, we agree with the dissenting opinion in Spangler at ¶112, which states:
{¶13}
{¶14} Appellant's first assignment of error is overruled.
{¶15} Assignment of Error No. 2:
{¶16} "THE TRIAL COURT ERRED IN FINDING THAT THE RETROACTIVE APPLICATION OF S.B. 10 TO PERSONS WHOSE CONVICTIONS WERE OBTAINED PURSUANT TO PLEAS OF GUILTY OR NO CONTEST RATHER THAN THROUGH TRIAL VERDICTS DOES NOT IMPAIR THE OBLIGATION OF CONTRACTS
PROTECTED BY ARTICLE 1, SECTION 10, CLAUSE I OF THE UNITED STATES CONSTITUTION AND SECTION 28, ARTICLE II OF THE OHIO CONSTITUTION."
{¶17} In his second assignment of error, appellant argues that his reclassification and the associated requirements under Ohio's Adam Walsh Act constitutes a breach of contract and is a violation of the right to contract under the United States and Ohio Constitutions. However, this court has recently held that Senate Bill 10 does not interfere with any vested contractual right and, therefore, does not violate the contract clauses of the United States and Ohio Constitutions. Ritchie, 2009-Ohio-1841, ¶13.
{¶18} Appellant's second assignment of error is overruled.
{¶19} Judgment affirmed.
{¶20} I respectfully dissent because I believe the retroactive modification of judicially-determined sex offender classifications by the Adam Walsh Act in this case violates the separation of powers doctrine.
{¶21} It is well-settled that a statute enacted in Ohio is presumed constitutional. State ex rel. Jackman v. Cuyahoga Cty. Court of Common Pleas (1967), 9 Ohio St.2d 159, 161; Roosevelt Properties Co. v. Kinney (1984), 12 Ohio St.3d 7, 13. A statute will be given a constitutional interpretation if one is reasonably available. State v. Keenan, 81 Ohio St.3d 133, 150, 1998-Ohio-459. This constitutional presumption remains unless it is proven beyond a reasonable doubt that the legislation is unconstitutional. State v. Williams, 88 Ohio St.3d 513, 521, 2000-Ohio-428.
{¶22} For further context, I provide a history of Ohio's sex offender law, which has been recited in numerous decisions addressing challenges to the Adam Walsh Act.
{¶23} Although seldom used, Ohio first enacted a sex offender registration statute in 1963. As it is now, the...
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