State v. Blankenship

• Decision Date: 12 November 2015
• Docket Number: No. 2014–0363.,2014–0363.
• Parties: The STATE of Ohio, Appellee, v. BLANKENSHIP, Appellant.
• Court: Ohio Supreme Court

145 Ohio St.3d 221

48 N.E.3d 516

2015 Ohio 4624

The STATE of Ohio, Appellee,

v.BLANKENSHIP, Appellant.

No. 2014–0363.

Supreme Court of Ohio.

Submitted March 10, 2015.

Decided Nov. 12, 2015.

D. Andrew Wilson, Clark County Prosecuting Attorney, and Ryan A. Saunders, Assistant Prosecuting Attorney, for appellee.

Timothy Young, Ohio Public Defender, and Katherine R. Ross–Kinzie, Assistant Public Defender, for appellant.

Ron O'Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor, Chief Counsel, Appellate Division, urging affirmance for amicus curiae Franklin County Prosecuting Attorney.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, urging affirmance for amicus curiae Ohio Prosecuting Attorneys Association.

LANZINGER, J.

{¶ 1} Appellant, Travis Blankenship, challenges as cruel and unusual punishment the sex-offender-registration and address-verification requirements imposed upon him as part of his sentence for violating R.C. 2907.04 by engaging in unlawful sexual conduct with M.H., a 15–year–old, when he was 21. Because we hold that the Tier II registration requirements imposed upon him are not so extreme as to be grossly disproportionate to the crime or shocking to a reasonable person and to the community's sense of justice, we affirm the judgment of the court of appeals.

I. Background

{¶ 2} In 2011, Blankenship began communicating with M.H. through a social media site called PhoneZoo.com. During an online conversation he told M.H. that he was 21, and she informed him that she was 15. After meeting in person, they began a sexual relationship and had intercourse on two different dates. M.H. reported that it was consensual each time.

{¶ 3} A bill of information charged Blankenship with one count of unlawful sexual conduct with a minor who was over 13 but less than 16 years of age, a violation of R.C. 2907.04, a fourth-degree felony. Blankenship pled guilty and was evaluated by a psychologist as part of the presentence investigation ordered by the court. The psychologist characterized Blankenship as showing none of the characteristics of what he considers a sex offender despite his commission of a sex offense and concluded that Blankenship's risk of reoffending was low. Yet while the presentence investigation was pending, Blankenship contacted the victim and lied to the psychologist about it. As a result, the court postponed sentencing and ordered a reevaluation. After the new evaluation, the psychologist's opinion and recommendations remained the same.

{¶ 4} The trial court then sentenced Blankenship to five years of community control with conditions, including a six-month jail sentence, which was suspended after Blankenship served 12 days. Blankenship was also designated a Tier II sex offender/child-victim offender, R.C. 2950.01(F)(1)(b), and pursuant to R.C. 2950.04(A)(2) was required to register in person with the sheriff of the county where he establishes residency within three days of coming into that county, as well as with the sheriff of the county in which he attends school or in which he is employed immediately upon coming into that county. He is also required to verify his residence address, place of employment, and place of education in person every 180 days for 25 years. R.C. 2950.06(B)(2) and 2950.07(B)(2).

{¶ 5} On appeal, Blankenship argued that these Tier II sex–offender requirements imposed upon him violated the prohibition of the Eighth Amendment to the United States Constitution against cruel and unusual punishment. Blankenship stressed the psychologist's opinion to support the contention that he was not a sex offender. He argued that his relationship with M.H. was "caring" and that the circumstances showed no aggravating facts. He contended that a 25–year registration period would serve no legitimate penological purpose in his case.

{¶ 6} The Second District, in a two-to-one decision, affirmed the judgment of the trial court and concluded that Blankenship's sentence did not violate the Eighth Amendment.

{¶ 7} Blankenship appealed to this court, and we accepted jurisdiction on his sole proposition of law: "Mandatory sex offender classifications under Senate Bill 10 constitute cruel and unusual punishment where the classification is grossly disproportionate to the nature of the offense and character of the offender." 139 Ohio St.3d 1404, 2014-Ohio-2245, 9 N.E.3d 1062.

{¶ 8} Although the proposition of law refers only to the mandatory sex-offender classification, Blankenship's brief also contains numerous references to the registration requirements. Indeed, it would be difficult to discuss the impact of being classified as a sex offender without referring to those mandatory requirements. We therefore will address both classification and registration in our discussion.

II. Analysis

{¶ 9} We have already set forth the history of Ohio's sex-offender-registration legislation in State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 3–28. While classification and registration schemes vary across states, most states addressing Eighth Amendment challenges to mandatory sex-offender classification for adults have dismissed those challenges based on their findings that the registration schemes are remedial rather than punitive.¹ We, however, have held that the enhanced sex-offender reporting and notification requirements contained in R.C. Chapter 2950 enacted by Am.Sub.S.B. No. 10 ("S.B. 10") are punitive in nature: "Following the enactment of S.B. 10, all doubt has been removed: R.C. Chapter 2950 is punitive." State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶ 16. In addition, we also have held unconstitutional the prospective, automatic application of those reporting and notification requirements to certain juvenile offenders. In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729.

{¶ 10} Blankenship, although not a juvenile, claims that his classification and requirement to register as a sex offender violate the Eighth Amendment's prohibition against cruel and unusual punishment. He relies heavily on his psychologist's opinion that he is not a sex offender. But this reliance is misplaced because the state statutory scheme provides for automatic consequences.

{¶ 11} Ohio's current sex-offender-registration statutes create a three-tier classification system. Unlike the earlier "labeling" classification system under Megan's Law, 146 Ohio Laws, Part II, 2560, in which a judge could consider the characteristics of an offender before sentencing, "tier" classification is based solely upon the offense for which a person is convicted and the judge has no discretion to modify the classification. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶ 20.

{¶ 12} Blankenship pled guilty to a violation of R.C. 2907.04, unlawful sexual conduct with a minor. Generally, a violation of R.C. 2907.04 is a fourth-degree felony; the statute prohibits sexual conduct between a person 18 or older and someone 13, 14, or 15 years old. R.C. 2907.04(A) and (B)(1). The offense is a third-degree felony if the age span is ten or more years, R.C. 2907.04(B)(3), and becomes a second-degree felony if the offender has certain prior offenses, R.C. 2907.04(B)(4). The offense is reduced to a misdemeanor of the first degree if the age span is less than four years. R.C. 2907.04(B)(2).

{¶ 13} For purposes of R.C. Chapter 2950, certain violations of R.C. 2907.04 qualify as "sexually oriented offenses." R.C. 2950.01(A)(2) and (3). A "sex offender" is a person who is convicted of "any sexually oriented offense." R.C. 2950.01(B)(1).

{¶ 14} A person convicted of violating R.C. 2907.04 is a Tier I sex offender if the offender was less than four years older than the victim, there was no consent, and the offender has not been convicted of or pled guilty to certain sex offenses.

R.C. 2950.01(E)(1)(b). But if the offender is at least four years older than the victim, or if the offender is less than four years older but has been convicted of or pled guilty to certain sex offenses, the classification is raised to that of Tier II sex offender. R.C. 2950.01(F)(1)(b).

{¶ 15} Blankenship was convicted of the fourth-degree-felony version of R.C. 2907.04 in this case because he was six years older than M.H., the person with whom he engaged in sexual conduct, and he did not have prior offenses. His Tier II classification requires him to register and verify his address semiannually for 25 years as specified by R.C. 2950.06(B)(2) and 2950.07(B)(2).

{¶ 16} Blankenship bases his claim of cruel and unusual punishment on both the Eighth Amendment to the United States Constitution and Article I, Section 9 of the Ohio Constitution. We will therefore examine his claim under both federal and state law.

A. Federal Law

{¶ 17} The Eighth Amendment to the United States Constitution states, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." "The Amendment proscribes ‘all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive.’ " Kennedy v. Louisiana, 554 U.S. 407, 419, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008), quoting Atkins v. Virginia, 536 U.S. 304, 311, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), fn. 7. It is elementary that the Eighth Amendment prohibits torture. Wilkerson v. Utah, 99 U.S. 130, 136, 25 L.Ed. 345 (1878). But the bulk of Eighth Amendment jurisprudence concerns not whether a particular punishment constitutes torture, but whether it is disproportionate to the crime. The central precept is that "punishment for crime should be graduated and proportioned to [the] offense." Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910).

{¶ 18} The United States Supreme Court has observed that its cases addressing proportionality fall into two categories. The first involves "challenges to the length of term-of-years sentences given all the...