State v. Howard

• Decision Date: 06 December 2012
• Docket Number: No. 2011–2126.,2011–2126.
• Citation: 134 Ohio St.3d 467,983 N.E.2d 341
• Parties: The STATE of Ohio, Appellant, v. HOWARD, Appellee.
• Court: Ohio Supreme Court

134 Ohio St.3d 467

983 N.E.2d 341

The STATE of Ohio, Appellant,

v.HOWARD, Appellee.

No. 2011–2126.

Supreme Court of Ohio.

Submitted Aug. 22, 2012.

Decided Dec. 6, 2012.

Recognized as Unconstitutional

R.C. §§ 2950.031, R.C. 2950.032

Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and Johnna M. Shia, Assistant Prosecuting Attorney, for appellant.

Marshall G. Lachman, for appellee.

William D. Mason, Cuyahoga County Prosecuting Attorney, and Daniel T. Van, Assistant Prosecuting Attorney, urging reversal for amicus curiae, Cuyahoga County Prosecutor's Office.

PFEIFER, J.

[Ohio St.3d 468]{¶ 1} The issue we address in this case is whether current R.C. 2950.99 or former R.C. 2950.99 governs the penalty for sex offenders originally classified under Megan's Law who violate former R.C. 2950.05 by failing to give proper notice of an address change. We hold that former R.C. 2950.99 governs the penalty in such cases, specifically, the version of R.C. 2950.99 in place immediately prior to the repeal of Megan's Law by the Adam Walsh Act.

Factual and Procedural Background

{¶ 2} The factual background in this case is as much about the changing landscape of sex-offender-registration law in Ohio as it is about defendant-appellee DonnyHoward. There is no dispute regarding the operative facts. In September 2000, Howard was convicted of rape, a first-degree felony, and sentenced to four years in prison. At that time, Howard was designated a habitual sex offender pursuant to Ohio's Megan's Law, which had been adopted in 1996 and became effective on January 1, 1997. Am.Sub.H.B. No. 180, 146 Ohio Laws, Part II, 2560, 2601. Pursuant to that designation, Howard was required to verify his address on an annual basis and to notify the sheriff of any change of address. Former R.C. 2950.06(B)(2) and 2950.07(B)(2). For offenders whose underlying offense was a felony, failure to comply with the reporting requirements of Megan's Law was a fifth-degree felony. Former R.C. 2950.99, 146 Ohio Laws, Part II, 2634.

{¶ 3} Effective July 31, 2003, the General Assembly passed amendments to Megan's Law in Am.Sub.S.B. No. 5 (“S.B. 5”), 150 Ohio Laws, Part IV, 6558, 6687–6702. One change in the law was an increase in the punishment for failure to comply with former R.C. 2950.05; for offenders whose underlying sex offense was a first-, second-, or third-degree felony, the violation of R.C. 2950.05 was a third-degree felony.

{¶ 4} In 2007, the General Assembly passed Am.Sub.S.B. No. 10, Ohio's version of the federal Adam Walsh Act (“AWA”), which repealed Megan's Law effective January 1, 2008. Pursuant to the AWA, Howard was reclassified by the Ohio Attorney General as a Tier III sex offender, subjecting Howard to Tier III notification provisions for life. Am.Sub.S.B. No. 97 also became effective on January 1, 2008; it amended R.C. 2950.99 to make a violation of the reporting requirements of the AWA a felony of the same degree as the most serious sex-offense felony that was the basis for the classification. Thus, if applied to Howard, an R.C. 2950.05 reporting violation would be a first-degree felony.

{¶ 5} On June 3, 2010, Howard was indicted for a first-degree felony for failing to notify the sheriff of a change of address 20 days prior to the change. Howard pled no contest to the charge; on October 28, 2010, the trial court sentenced Howard to the mandatory minimum prison term of three years.

[Ohio St.3d 469]{¶ 6} Also on June 3, 2010—the day of Howard's indictment—this court declared unconstitutional the reclassification provisions of the AWA in State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753. Pursuant to Bodyke, the classifications and community-notification and registration orders imposed by judges before the AWA were reinstated. Bodyke at ¶ 66. Thus, for Howard, his original classification as a habitual sex offender and the registration and notification requirements for that classification were reinstated.

{¶ 7} On June 13, 2011, Howard filed a delayed appeal with the Second District Court of Appeals, claiming that the trial court had erred in convicting him of a first-degree felony; Howard based his appeal on State v. Milby, 2d Dist. No. 23798, 2010-Ohio-6344, 2010 WL 5480656. In Milby, the defendant had been convicted of a rape in 1983 and was classified as a sex offender. In 2003, while incarcerated, he was reclassified as a sexual predator. He was apparently reclassified under the AWA as a Tier III sex offender. He violated his reporting requirements in 2009.

{¶ 8} In a decision subsequent to Bodyke, the Milby court struck down the Tier III reclassification and reinstated the previous sexual-predator classification and the attendant reporting order. The court further held that the increased penalty imposed by the AWA could not be applied to the defendant. The cause was remanded for resentencing as a third-degree instead of a first-degree felony.

{¶ 9} In the instant case, the court below applied Milby:

As in Milby, when Howard's original classification and registration requirements are applied, his conviction for failure to notify is not offended. There is no dispute that under former law, Howard was required to provide written notice of a change of address at least 20 days prior to changing his address of residence. See former R.C. 2950.05(A). However, the amendment of R.C. 2950.99 changed the penalty for failure to notify from a felony of the fifth degree to a felony of the first degree, based upon the penalty for the underlying offense of rape, and Howard was subject to a mandatory term of incarceration. As in Milby, the fact that Howard had committed his offense of failure to notify after the effective date of S.B. 97 does not affect the outcome herein as the state asserts. Pursuant to Milby, we find that the trial court erred when it convicted Howard of a first-degree felony and sentenced him accordingly, instead of finding him guilty of a fifth-degree felony.

State v. Howard, 195 Ohio App.3d 802, 2011-Ohio-5693, 961 N.E.2d 1196, ¶ 12. The court reversed Howard's sentence and remanded the matter to the trial court for resentencing.

[Ohio St.3d 470]{¶ 10} The appellate court applied the penalty that existed on the date of the defendant's original classification under Megan's Law in September 2000. The dissenter in Howard argued that the applicable penalty was the Megan's Law penalty provision in place immediately before the AWA repealed Megan's Law, i.e., the third-degree-felony provision first instituted in 2003 via S.B. 5:

Based on Milby, as followed in [ State v.] Johnson [2d Dist. No. 24029, 2011-Ohio-2069, 2011 WL 1661497] and [ State v.] Alexander, [2d Dist. No. 24119, 2011-Ohio-4015, 2011 WL 3557880], this court has held that when a failure-to-notify case is reversed after an improper AWA reclassification, the penalty for violation of failure to notify [sic] reverts to that penalty that was in effect before the “offending” AWA legislation, which was effective January 1, 2008. Prior to enactment of AWA, the penalty for failure to notify for underlying [first-degree felonies through third-degree felonies] was a felony of the third degree. Consequently, I would remand this case for resentencing of the defendant for a conviction of [a third-degree felony].

Howard at ¶ 21 (Hall, J., concurring in part and dissenting in part).

{¶ 11} The state appealed, raising the following proposition of law: “The felony sentencing statute R.C. 2950.99 is not applied retroactively when the conduct for which a defendant is convicted and sentenced occurred after the effective date of the statute or January 1, 2008.”

{¶ 12} The cause is before this court upon the acceptance of a discretionary appeal. State v. Howard, 131 Ohio St.3d 1472, 2012-Ohio-896, 962 N.E.2d 803.

Law and Analysis

{¶ 13} This is an appeal brought by the state. The only issue we address is which penalty provision—that of Megan's Law or the AWA—applies to sex offenders originally classified under Megan's Law who commit violations of notice-of-address-change requirements after the effective date of the AWA. The defendant has not raised the issue whether he was properly indicted in this case, that is, whether he can be convicted of a failure to provide notice of a change of address under Megan's Law when he was indicted for a notice violation under the AWA. We address that issue in another case announced today, State v. Brunning, 134 Ohio St.3d 438, 2012-Ohio-5752, 983 N.E.2d 316.

The Effect of Bodyke, Gingell, and Williams

{¶ 14} In Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, this court held that the reclassification provisions in the AWA, R.C. 2950.031 and [Ohio St.3d 471]2950.032, were unconstitutional and severed them from the AWA. The court spelled out what that meant for offenders who were originally classified under Megan's Law and were then reclassified under the AWA: “R.C. 2950.031 and 2950.032 may not be applied to offenders previously adjudicated by judges under Megan's Law, and the classifications and community-notification and registration orders imposed previously by judges are reinstated.” Bodyke at ¶ 66.

{¶ 15} In State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, 946 N.E.2d 192, the defendant—who was originally classified as a sexually oriented offender under Megan's Law—was charged with an R.C. 2950.06 registration violation under the AWA. This court held that pursuant to Bodyke, “Gingell's original classification under Megan's Law and the associated community-notification and registration order were reinstated.” Id. at ¶ 8. The court held that the current version of R.C. 2950.06 did not apply to Gingell. Id. Instead, “Gingell remained accountable for the yearly reporting requirement under Megan's Law * * *.” Id.

{¶ 16} In State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, this court addressed the case of a defendant who had committed a sex offense before, but was sentenced after, the AWA...