Slagle v. State
| Decision Date | 01 February 2008 |
| Docket Number | No. 2008 CVH 00037.,2008 CVH 00037. |
| Citation | 174 Ohio App.3d 593,145 Ohio Misc.2d 98,174 Ohio App.3d 658,884 N.E.2d 109 |
| Parties | SLAGLE, Petitioner, v. The STATE of Ohio, Respondent. |
| Court | Ohio Court of Common Pleas |
Michael L. Slagle, pro se.
Donald W. White, Clermont County Prosecuting Attorney, and William Ferris, Assistant Prosecuting Attorney, for respondent.
{¶ 1} This cause is before the court on a petition to contest reclassification of the petitioner's sex offender status pursuant to R.C. 2950.031(E).
{¶ 2} The court scheduled and held a hearing on the petition on January 14, 2008. At the conclusion of the hearing, the court took the issues raised by the petition under advisement.
{¶ 3} Upon consideration of the petition, the record of the proceeding, the oral and written arguments of the parties, the evidence presented for the court's consideration, and the applicable law, the court now renders this written decision.
{¶ 4} On February 26, 2002, a judgment entry finding the petitioner, Michael Slagle, guilty of the offense of unlawful sexual conduct with a minor in violation of R.C. 2907.04 was filed in Clermont County Municipal Court. The petitioner was sentenced to 120 days in the Clermont County Jail, with 119 of those days suspended, and the petitioner was ordered to pay a fine of $500, with $250 of that fine suspended. Additionally, the petitioner was placed on probation for two years.
{¶ 5} In November 2002, the petitioner was classified as a sexually oriented offender, which required him to register his address with the sheriff of the county of his residency annually for ten years.
{¶ 6} On December 1, 2007, the petitioner received a notice of new classification and registration duties from the Ohio Attorney General.1 This notice informed the petitioner that beginning January 1, 2008, his new classification status is that of a Tier I sex offender under the implementation of Ohio Senate Bill 10.2 A Tier I sex offender is required to register with the sheriff annually for 15 years.
{¶ 7} The petitioner filed the present petition with this court, requesting a hearing to contest the application of the new registration requirements to him pursuant to R.C. 2950.031(E). Additionally, the petitioner filed a short two-page memorandum of law that challenges the new classification laws on the following bases: (1) violation of the separation of powers, (2) violation of Article II, Section 28 of the Ohio Constitution, which prohibits retroactive laws, (3) violation of the Ex Post Facto clause of the United States Constitution and the Double Jeopardy clauses of the United States and Ohio Constitutions, and (4) breach of the plea agreement.
{¶ 8} The petitioner's action represents the first of several petitions of this nature filed with this court in the wake of the Ohio legislature's enactment of Senate Bill 10, which implements the federal Adam Walsh Child Protection and Safety Act of 2006. The new law went into effect in Ohio on January 1, 2008.
{¶ 9} Michael Slagle's petition indicates that he filed this action pursuant to R.C. 2950.031(E) and 2950.032(E). However, R.C. 2950.032(E) deals only with the classification of sex offenders serving a prison term as of December 1, 2007. There is no indication that the petitioner in the case at bar was serving a prison term for a sexually oriented offense or child-victim oriented offense on December 1, 2007. Therefore, R.C. 2950.032(E) is inapplicable to the present case.
{¶ 10} R.C. 2950.031(E) applies to the classification of sex offenders who have registered a residence * * * or place of employment address pursuant to section 2950.04, 2950.041, or 2950.05 of the Revised Code prior to December 1, 2007. The petitioner was classified as a sexually oriented offender in 2002, a status that required him to register his residence annually. As a result, R.C. 2950.031(E) is applicable to this petitioner and states:
An offender or delinquent child who is in a category described in division (A)(2) or (B) of this section may request as a matter of right a court hearing to contest the application to the offender or delinquent child of the new registration requirements under Chapter 2950. of the Revised Code as it will exist under the changes that will be implemented on January 1, 2008. The offender or delinquent child may contest the manner in which the letter sent to the offender or delinquent child pursuant to division (A) or (B) of this section specifies that the new registration requirements apply to the offender or delinquent child or may contest whether those new registration requirements apply at all to the offender or delinquent child. To request the hearing, the offender or delinquent child not later than the date that is sixty days after the offender or delinquent child received the registered letter sent by the attorney general pursuant to division (A)(2) of this section shall file a petition with the court specified in this division. If the offender or delinquent child resides in or is temporarily domiciled in this state and requests a hearing, the offender or delinquent child shall file the petition with, and the hearing shall be held in, the court of common pleas or, for a delinquent child, the juvenile court of the county in which the offender or delinquent child resides or temporarily is domiciled.
* * *
If an offender or delinquent child requests a hearing in accordance with this division, at the hearing, all parties are entitled to be heard, and the court shall consider all relevant information and testimony presented relative to the application to the offender or delinquent child of the new registration requirements under Chapter 2950. of the Revised Code as it will exist under the changes that will be implemented on January 1, 2008. If, at the conclusion of the hearing, the court finds that the offender or delinquent child has proven by clear and convincing evidence that the new registration requirements do not apply to the offender or delinquent child in the manner specified in the letter sent to the offender or delinquent child pursuant to division (A) or (B) of this section, the court shall issue an order that specifies the manner in which the court has determined that the new registration requirements do apply to the offender or delinquent child. If at the conclusion of the hearing the court finds that the offender or delinquent child has proven by clear and convincing evidence that the new registration requirements do not apply to the offender or delinquent child, the court shall issue an order that specifies that the new registration requirements do not apply to the offender or delinquent child. The court promptly shall serve a copy of an order issued under this division upon the sheriff with whom the offender or delinquent child most recently registered under section 2950.04, 2950.041, or 2950.05 of the Revised Code and upon the bureau of criminal identification and investigation. The offender or delinquent child and the prosecutor have the right to appeal the decision of the court issued under this division.
{¶ 11} Therefore, pursuant to R.C. 2950.031(E), at the hearing on a petition brought under that provision, the court must determine whether the new registration requirements were properly applied to the petitioner in the manner specified in the notice sent to that petitioner by the Attorney General.
{¶ 12} In the present case, the notice sent to the petitioner indicates that he is to be classified as a Tier I Sex Offender under the new law. Pursuant to R.C. 2950.01(E)(1)(b), a Tier I sex offender includes:
A sex offender who is convicted of, pleads guilty to, has been convicted of, or has pleaded guilty to * * *[a] violation of section 2907.04 of the Revised Code when the offender is less than four years older that the other person with whom the offender engaged in sexual conduct, the other person did not consent to the sexual conduct, and the offender previously has not been convicted of or pleaded guilty to a violation of section 2907.02, 2907.03, or 2907.04 of the Revised Code or a violation of former section 2907.12 of the Revised Code.
{¶ 13} At the hearing on this matter, the petitioner did not argue that he had been misclassified under the new law. He did not argue that he did not meet the definition of a Tier I sex offender under R.C. 2950.01(E)(1)(b). As noted above, R.C. 2950.031(E) places the burden on the petitioner to show by clear and convincing evidence that the new registration requirements do not apply to him or her in the manner specified in the notice.
{¶ 14} The petitioner in the case sub judice has failed to demonstrate by clear and convincing evidence that he has been improperly classified as a Tier I sex offender or that the new law does not apply to him. As a result, the court finds that the petitioner's classification as a Tier I sex offender is proper and that his petition contesting classification is not well taken and shall be denied.
{¶ 15} The petitioner has raised a number of constitutional challenges to the new classification laws. The petitioner did not indicate the procedural posture by which he seeks to challenge the new laws. R.C. 2950.031(E) does not appear to contemplate any legal consideration by the court other than whether the petitioner has been properly classified as a particular tier sex offender under R.C. 2950.01 et seq. {¶ 16} Hearings on petitions to contest classifications are civil in nature.3 While Michael Slagle was the defendant in his original criminal case, he is now the plaintiff/petitioner in the present civil action. Therefore, the court finds it difficult to classify these constitutional arguments as "defenses." Instead, the constitutional arguments appear to be a de facto request for declaratory...
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