State v. Hubbard

• Decision Date: 21 October 2021
• Docket Number: 2020-0625,2020-0544
• Citation: 2021 Ohio 3710
• Parties: The State of Ohio, Appellee, v. Hubbard, Appellant.
• Court: Ohio Supreme Court

2021-Ohio-3710

The State of Ohio, Appellee,
v.
Hubbard, Appellant.

Nos. 2020-0544, 2020-0625

Supreme Court of Ohio

October 21, 2021

Submitted April 14, 2021

Appeal from and Certified by the Court of Appeals for Butler County, No. CA2019-05-086, 2020-Ohio-856.

Michael T. Gmoser, Butler County Prosecuting Attorney, and Michael Greer, Assistant Prosecuting Attorney, for appellee.

Timothy Young, Ohio Public Defender, and Victoria Bader, Assistant Public Defender, for appellant.

Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, Michael J. Hendershot, Chief Deputy Solicitor General, and Stephen P. Carney, Deputy Solicitor General, urging affirmance for amicus curiae Ohio Attorney General Dave Yost.

Alexandra S. Naiman, urging reversal for amici curiae Ohio Justice & Policy Center, Advocating Opportunities, Ohio Domestic Violence Network, and Ohio Association of Reentry Coalitions.

JUDGMENT

KENNEDY, J.

{¶ 1} In this discretionary appeal from a judgment of the Twelfth District Court of Appeals, which also certified a conflict between its judgment and a judgment of the Fifth District Court of Appeals, we consider whether the retroactive

1

application of "Sierah's Law," R.C. 2903.41 through 2903.44, to offenders who committed their offenses prior to the effective date of those provisions violates the Retroactivity Clause of Article II, Section 28 of the Ohio Constitution

{¶ 2} The Retroactivity Clause states that the "general assembly shall have no power to pass retroactive laws." This court has held that a statute is unconstitutionally retroactive if (1) the General Assembly expressly made the statute retroactive and (2) the statute is substantive-impairing vested, substantial rights or imposing new burdens, duties, obligations, or liabilities as to a past transaction, such as a retroactive increase in punishment for a criminal offense. State v. White, 132 Ohio St.3d 344, 2012-Ohio-2583, 972 N.E.2d 534, ¶ 27, 32, 34; State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶ 8-9.

{¶ 3} Sierah's Law presumptively requires offenders who are convicted of or plead guilty to aggravated murder, murder, voluntary manslaughter, kidnapping, or second-degree-felony abduction, or an attempt to commit, conspiracy to commit, or complicity in committing any of those offenses, to enroll in Ohio's "Violent Offender Database" for a period of ten years. R.C. 2903.41(A)(1) and 2903.42(A)(1). And it presumptively requires an offender to enroll in the database if he or she was convicted of or pleaded guilty to any of those offenses or was serving a term of confinement for the offense on or after the provisions' effective date. R.C. 2903.41(A)(2).

{¶ 4} We have recognized that registration schemes such as Sierah's Law apply retroactively when the duty to register attaches to conduct committed prior to the effective date of the statute. See, e.g., Williams at ¶ 8, 21. A review of our caselaw considering registration schemes imposing duties on par with the duties established by Sierah's Law shows that Sierah's Law does not impair a vested, substantial right or impose new burdens, duties, obligations, or liabilities as to a past transaction. In fact, a comparison of the requirements of Sierah's Law to other registration schemes that we have upheld against retroactivity challenges

2

demonstrates that it is less burdensome and less invasive than those other schemes. See, e.g., State v. Cook, 83 Ohio St.3d 404, 700 N.E.2d 570 (1998), superseded by statute on other grounds as stated in Williams at ¶ 11; State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, superseded by statute on other grounds as stated in Williams at ¶ 16. And unlike the registration scheme that this court held to be punitive and therefore unconstitutionally retroactive in Williams, Sierah's Law does not retroactively increase the punishment for an offense committed prior to its enactment.

{¶ 5} For these reasons, we determine that the application of Sierah's Law to conduct that occurred prior to its effective date does not violate the Retroactivity Clause of Article II, Section 28 of the Ohio Constitution. We affirm the judgment of the Twelfth District Court of Appeals.

Facts and Procedural History

{¶ 6} On March 7, 2019, appellant, Miquan D. Hubbard, pleaded guilty in the Butler County Common Pleas Court to one count of murder with a firearm specification for the August 2018 killing of Jaraius Gilbert Jr. Before Hubbard was sentenced on April 30, 2019, the trial court informed him that he would be subject to registration as a violent offender under Sierah's Law, which had gone into effect on March 20, 2019, through the enactment of 2018 Sub.S.B. No. 231. Hubbard objected, asserting that Sierah's Law violated the Ohio Constitution's Retroactivity Clause. The trial court overruled the objection, notified Hubbard of his duty to register, and imposed a sentence of 16 years to life in prison and a $250 fine.

{¶ 7} The Twelfth District Court of Appeals affirmed Hubbard's convictions and sentence. The appellate court determined that Sierah's Law does not affect a substantive right, because it does not retroactively increase the punishment for an eligible offense and classification as a violent offender is merely a collateral consequence of the offender's criminal conduct. 2020-Ohio-856, 146 N.E.3d 593, ¶ 32. And after reviewing our caselaw considering the

3

constitutionality of other registration schemes that had been subjected to retroactivity challenges, the court held that Sierah's Law does not "impose a new burden in the constitutional sense," id. at ¶ 37, and therefore it may be applied to conduct that occurred prior to its effective date, id.

{¶ 8} The Twelfth District certified that its judgment conflicts with the judgment of the Fifth District in State v. Jarvis, 2020-Ohio-1127, 152 N.E.3d 1225 (5th Dist), in which the court of appeals held that the Ohio Constitution prohibits the state from applying Sierah's Law retroactively to an offender whose conduct occurred prior to the legislation's effective date, id at ¶ 37. We determined that a conflict exists between the judgments and agreed to answer the following question of law:

"Does retroactive application of the violent offender database enrollment statutes codified in sections 2903.41 through 2903.44 of the Revised Code, commonly known as 'Sierah's Law,' violate the Retroactivity Clause of the Ohio Constitution, as set forth in Article II, Section 28 of the Ohio Constitution?"

159 Ohio St.3d 1427, 2020-Ohio-3473, 148 N.E.3d 568, quoting 12th Dist. Butler No. CA2019-05-086 (May 14, 2020).

{¶ 9} We also accepted Hubbard's discretionary appeal to review the following proposition of law: "The retroactive application of Senate Bill 231- Sierah's Law-is unconstitutional as applied to offenses committed prior to the effective date of the statute. Section 28, Article II of the Ohio Constitution." See 159 Ohio St.3d 1427, 2020-Ohio-3473, 148 N.E.3d 569.

Positions of the Parties

{¶ 10} Hubbard maintains that Sierah's Law imposes new burdens, duties, obligations, and liabilities that did not exist at the time that he committed his offense

4

and that the requirement to register as a violent offender is punitive and affects a substantial right, in violation of the Ohio Constitution's Retroactivity Clause. He points out that Sierah's Law is codified in Ohio's criminal code, that the General Assembly did not express a remedial purpose for it, that its registration duties attach to the commission of a criminal offense, that the failure to comply with those duties subjects the registrant to criminal prosecution and the possibility of being required to register for life, and that personally identifiable information in the registration documents is accessible to the public through a public-records request. The application of Sierah's Law, Hubbard asserts, "removes an offender's expectation of sentence finality" and exposes registrants "to continued and unwarranted suspicion of future conduct."

{¶ 11} The state responds that Sierah's Law neither impairs a vested right nor imposes a burden or disability based on a prior transaction, because a felony offender has no reasonable expectation that his or her conviction will never be the subject of future regulation. The state argues that the registration duties imposed by Sierah's Law are less burdensome in comparison to the Revised Code's sex-offender-registration schemes that were previously reviewed by this court-the duty to register as a violent offender does not attach automatically, the registrant has to verify his or her information less frequently and in only one county, and the scheme involves no residential restrictions, publicly accessible databases, or community-notification provisions. For those reasons, the state maintains, Sierah's Law is remedial and may be applied retroactively without violating the Retroactivity Clause.

Law and Analysis

The Prohibition Against Retroactive Laws

{¶ 12} " 'Retroactive laws and retrospective application of laws have received the near universal distrust of civilizations.'" State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 9, quoting Van Fossen v. Babcock &

5

Wilcox Co., 36 Ohio St.3d 100, 104, 522 N.E.2d 489 (1988), superseded by statute on other grounds as stated in Hannah v. Dayton Power & Light Co., 82 Ohio St.3d 482, 484, 696 N.E.2d 1044 (1998)." '[T]he presumption against retroactive legislation is deeply rooted * * * and embodies a legal doctrine centuries older than our Republic'" Id., quoting Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). We have explained that" '[t]he prohibition against retroactive laws * * * is a protection for the individual who is assured that he may rely upon the law as it is written and not later be...