Spangler v. State, 2009 Ohio 3178 (Ohio App. 6/30/2009)

• Decision Date: 30 June 2009
• Docket Number: No. 2008-L-062.,2008-L-062.
• Citation: 2009 Ohio 3178
• Parties: Raymond J. Spangler, Plaintiff-Petitioner-Appellant, v. State of Ohio, Defendant-Respondent-Appellee.
• Court: Ohio Court of Appeals

Page 1

2009 Ohio 3178

Raymond J. Spangler, Plaintiff-Petitioner-Appellant, v. State of Ohio, Defendant-Respondent-Appellee.

No. 2008-L-062.

Court of Appeals of Ohio, Eleventh District, Lake County.

June 30, 2009.

Civil Appeal from the Lake County Court of Common Pleas, Case No. 08 MS 000029.

Reversed.

William P. Bobulsky, William P. Bobulsky Co., L.P.A., 1612 East Prospect Road, Ashtabula, OH 44004 (For Plaintiff-Petitioner-Appellant).

Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Defendant-Respondent-Appellee).

OPINION

DIANE V. GRENDELL, J.

{¶1} Appellant, Raymond J. Spangler, appeals the judgment of the Lake County Court of Common Pleas, denying his Petition to Contest Reclassification and classifying him a Tier II Sex Offender. The fundamental principle of the "separation of powers" doctrine as written by our forefathers in the United States Constitution is inviolate, and, therefore, mandates reversal of the decision of the court below. However, Spangler must still comply with the notification and registration requirements under his original sentence.

{¶2} On January 23, 2001, Spangler was convicted, in Case No. 2000-CR-276, of the Ashtabula County Court of Common Pleas, of Attempted Corruption of a Minor, a felony of the fifth degree in violation of R.C. 2923.02 and R.C. 2907.04(A), and Public Indecency, a misdemeanor of the fourth degree in violation of R.C. 2907.09(A). At the time of his conviction, Spangler was seventy-three years old. The charges against Spangler stemmed from allegations that he had exposed himself to and fondled neighborhood children six or seven years previously.

{¶3} On April 27, 2001, Spangler was sentenced to five years of community control, fined $350, and ordered to register for a period of ten years as a sexually oriented offender. Spangler was also required to annually verify his current residence and/or place of employment by personally appearing before the sheriff of the county, pursuant to former R.C. 2950.06(A) and (B)(2).

{¶4} On November 26, 2007, the Office of the Attorney General issued Spangler Notice of New Classification and Registration Duties Tier II Sex Offender (Adult). Spangler was advised "of changes to Ohio's Sex Offender Registration and Notification Act (Ohio Revised Code Chapter 2950, `SORN') *** due to Ohio Senate Bill 10, passed to implement the federal Adam Walsh Child Protection and Safety Act of 2006." Under the new classification, Spangler is a "Tier II Sex Offender" and "required to register personally with the local sheriff's office every 180 days for 25 years."

{¶5} On January 23, 2008, Spangler filed a Petition to Contest Reclassification, pursuant to R.C. 2950.031(E) and R.C. 2950.032(E), in the Lake County Court of Common Pleas, the county in which he resides and currently registers.

{¶6} On March 20, 2008, a hearing was held on Spangler's Petition. At the conclusion of the hearing, the trial judge denied the Petition and reclassified Spangler a Tier II Sex Offender. On March 24, 2008, the trial court memorialized its decision in a written Judgment Entry.

{¶7} On April 22, 2008, Spangler filed his Notice of Appeal with this court. Spangler raises the following assignments of error on appeal.

{¶8} "[1.] The retroactive application of Ohio's SB 10 violates the prohibition on ex post facto laws in Article I, Section 10 of the United States Constitution."

{¶9} "[2.] The retroactive application of Ohio's AWA violates the prohibition on retroactive laws in Article II, Section 28 of the Ohio Constitution."

{¶10} "[3.] Reclassification of defendant-appellant constitutes a violation of the separation of powers[] doctrine."

{¶11} "[4.] Reclassification of defendant-appellant constitutes impermissible multiple punishments under the Double Jeopardy Clauses of the United States and Ohio Constitutions."

{¶12} "[5.] The residency restrictions of the AWA violate Due Process Clauses in the Fourteenth Amendment of the United States Constitution and Article I of the Ohio Constitution."

{¶13} "[6.] Defendant-appellant cannot be subjected to the community notification requirements under pre-AWA law."

{¶14} "[7.] Defendant-appellant cannot be subjected to the community notification requirements under the AWA because it would violate the contract clause of the Ohio Constitution and the plea agreement entered into with the State of Ohio in the underlying criminal proceeding."

{¶15} These assignments will be considered out of order for the sake of clarity of presentation.

{¶16} In his first assignment of error, Spangler contends that Ohio's current Sex Offender Registration and Notification Act violates Section 10, Article I of the United States Constitution, which provides: "No State shall *** pass any *** ex post facto Law." "Any statute which punishes as a crime an act previously committed, which was innocent when done, [or] which makes more burdensome the punishment for a crime, after its commission, *** is prohibited as ex post facto." State v. Cook, 83 Ohio St.3d 404, 414, 1998-Ohio-291, quoting Beazell v. Ohio (1925), 269 U.S. 167, 169-170. The prohibition against ex post facto legislation only applies to criminal statutes, i.e. statutes punitive in nature. Id. at 415 (citation omitted).

{¶17} To determine the nature of a particular statute, it is necessary to consider both the legislative intent in enacting the statute and the effect of the statute in practice. This analysis is known as the "`intent-effects' test." Id. "If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is `"so punitive either in purpose or effect as to negate [the State's] intention" to deem it "civil."`" Smith v. Doe (2003), 538 U.S. 84, 92, quoting Kansas v. Hendricks (1997), 521 U.S. 346, 361, quoting United States v. Ward (1980), 448 U.S. 242, 248-249.

{¶18} Enactments of the Ohio Generally Assembly are presumed constitutional. State ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142, at paragraph one of the syllabus. The "presumption applies to amended R.C. Chapter 2950 ***, and remains unless [the challenger] establishes, beyond reasonable doubt, that the statute is unconstitutional." State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, at ¶12 (citation omitted); Smith, 538 U.S. at 92, quoting Hudson v. United States (1997), 522 U.S. 93, 100, quoting Ward, 448 U.S. at 249 ("`only the clearest proof' will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty").

{¶19} The Legislature's intent in passing the Sex Offender Registration and Notification Act, expressed in the Act itself, is to provide "adequate notice and information about offenders *** who commit sexually oriented offenses or who commit child-victim oriented offenses," so that "members of the public and communities can develop constructive plans to prepare themselves and their children for the offender's or delinquent child's release from imprisonment, a prison term, or other confinement or detention." R.C. 2950.02(A)(1). The Act also asserts that the "protection of members of the public from sex offenders and child-victim offenders is a paramount governmental interest" and that "[t]he release of information about sex offenders and child-victim offenders to public agencies and the general public will further the governmental interests of public safety and public scrutiny of the criminal, juvenile, and mental health systems." R.C. 2950.02(A)(2) and (6). Finally, "it is the general assembly's intent to protect the safety and general welfare of the people of this state" and "the policy of this state to require the exchange *** of relevant information about sex offenders and child-victim offenders among public agencies and officials and to authorize the release *** of necessary and relevant information about sex offenders and child-victim offenders to members of the general public as a means of assuring public protection *** is not punitive." R.C. 2950.02(B). The Legislature's effort to further protect the public is well within its authority and the prospective application of the Adam Walsh Act is constitutional. However, to the extent the application of the Adam Walsh Act requires final sentencing orders to be vacated, modified or rewritten, such application to previously journalized orders, no matter how well-intended, violates the separation of powers doctrine and res judicata.

{¶20} The Ohio Supreme Court has construed this language as a definitive statement that the Legislature's intent in enacting the Sex Offender Registration and Notification Act was not punitive. Cook, 83 Ohio St.3d at 417; Ferguson, 2008-Ohio-4824, at ¶29 ("we have held consistently that R.C. Chapter 2950 is a remedial statute").¹

{¶21} Spangler maintains that the intent and effect of the Act are, nonetheless, punitive. Spangler notes that the Act's provisions are codified within Ohio's Criminal Code, Title 29; the failure to comply with the registration and notification provisions subjects the person to criminal penalties; and, under the prior law, a person's classification was tied to a determination that they posed an ongoing threat to the community, while under the current amendments one's classification "flow[s] directly from the offense of conviction." We disagree.

{¶22} The fact that the Act is contained in the Criminal Code and prescribes criminal penalties for failure to comply does not render it punitive. Both of these provisions were part of the prior version of the Act upheld by the Ohio Supreme Court in Cook. Moreover, the United States Supreme Court has held that neither of these characteristics necessarily renders a civil regulatory statute punitive. Smith, 538 U.S....