State v. Jarvis

• Decision Date: 23 March 2020
• Docket Number: No. CT 2019-0029,CT 2019-0029
• Citation: 2020 Ohio 1127,152 N.E.3d 1225
• Parties: STATE of Ohio, Plaintiff-Appellee v. Albert JARVIS, Defendant-Appellant
• Court: Ohio Court of Appeals

152 N.E.3d 1225

2020 Ohio 1127

STATE of Ohio, Plaintiff-Appellee

v.Albert JARVIS, Defendant-Appellant

No. CT 2019-0029

Court of Appeals of Ohio, Fifth District, Muskingum County.

DATE OF JUDGMENT ENTRY: March 23, 2020

D. MICHAEL HADDOX, Prosecuting Attorney, BY: TAYLOR BENNINGTON, Assistant Prosecuting Attorney, 27 North Fifth St., Box 189, Zanesville, OH 43701, For Plaintiff-Appellee

STEPHEN HARDWICK, Assistant Public Defender, 250 East Broad Street, Suite 1400, Columbus, OH 43215, For Defendant-Appellant

JUDGES: Hon. W. Scott Gwin, P.J., Hon. John W. Wise, J., Hon. Craig R. Baldwin, J.

OPINION

Gwin, P.J.

{¶1} Defendant-appellant, Albert B. Jarvis, IV ["Jarvis"] appeals from the Muskingum County Court of Common Pleas finding that the violent offender registration statute that became effective March 20, 2019, could be retroactively applied to his offense which occurred November 4, 2018.

Facts and Procedural History

{¶2} On March 4, 2019, Jarvis entered negotiated guilty pleas to Kidnapping, with a firearm specification, Disrupting Public Service, and Improper Handling of a Loaded Firearm in a motor vehicle. The events that formed the basis for the charges occurred on November 4 and 5, 2018. Plea Transcript , March 4, 2019 at 12-13. Sentencing was deferred pending the preparation of a Pre-Sentencing Investigation Report. Id. 15.

{¶3} On March 20, 2019, R.C. 2903 41, et seq. , "Sierah's Law" became effective. Sierah's Law creates a Violent Offender Database ["VOD"], establishes a presumption that violent offenders will be required to enroll in it, and provides that a violent offender enroll in the database for a minimum of ten years. Re-enrollment is required on an annual basis.

{¶4} On March 28, 2019, counsel for Jarvis filed a "Notice of Objection & Motion for a Hearing on the Violent Offender Database." (Docket Entry No. 23). Counsel requested a hearing "pursuant to ORC 2903.41 et al on the issue of whether the defendant shall be required to register with the Violent Offender Database."

{¶5} The sentencing hearing in the Jarvis' case occurred April 1, 2019. At the start of the hearing, Jarvis, through counsel, objected to the violent offender database enrollment requirements. Counsel argued that since Jarvis' crimes were committed in November 2018, application of the registration requirements would violate the prohibition against retroactive laws contained in Section 28, Article II of the Ohio Constitution and "ex post facto laws." Sentencing Transcript, Apr. 1, 2019 at 5. Counsel noted that Jarvis signed the Notice; however, he objected to the stipulation to the violent offender database. Id. at 6-7; 17.

{¶6} The trial court overruled Jarvis' motion and objection. See, Judgment Entry , filed Apr. 2, 2019 at 1. (Docket No. 25). The trial court sentenced Jarvis to four years on the Kidnapping offense, mandatory three years on the firearm specification, 18 months on the Disrupting Public Services offense, and 18 months on the Improper Handling Offense. The court ordered the sentences be served concurrent to each other but consecutive to the mandatory firearm specification, for an aggregate sentence of seven years. The trial court also provided Jarvis with "A Notice of Duties to Register as a Violent Offender ( ORC 2903.41, et seq. )". (Docket No. 24). The trial court advised Jarvis of his duties to register on the violent offender registry. Sentencing Transcript, Apr. 1, 2019 at 8.

Assignment of Error

{¶7} Jarvis raises one Assignment of Error,

{¶8} "I. OHIO'S VIOLENT OFFENDER REGISTRY IS PUNITIVE AND NOT REMEDIAL. AS A RESULT, THE TRIAL COURT ERRED BY RETROACTIVELY APPLYING THE STATUTE TO MR. JARVIS."

{¶9} Jarvis argues that the provisions of R.C. 2903.41, et seq cannot be constitutionally applied to a defendant whose offense occurred before March 20, 2019.

STANDARD OF APPELLATE REVIEW.

{¶10} "When a court's judgment is based on an erroneous interpretation of the law, an abuse-of-discretion standard is not appropriate."

Medical Mutual of Ohio v. Schlotterer , 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13 (citing, Swartzentruber v. Orrville Grace Brethren Church , 163 Ohio App.3d 96, 2005-Ohio-4264, 836 N.E.2d 619 (9th Dist.), ¶ 6 ; Huntsman v. Aultman Hosp. , 5th Dist. Stark No. 2006 CA 00331, 2008-Ohio-2554, 2008 WL 2572598, ¶ 50 ). Application of statutory language, to determine whether it can apply to an offender whose offense occurred before the effective date of the enactment is a question of law that we must review de novo.

Ohio's Violent Offender Registration Requirement, R.C 2903.41, et seq

{¶11} Effective March 20, 2019, Ohio's sub. S.B. 231, "Sierah's Law," created a violent offender database. The database defines a "violent offender" as (1) on or after the act's effective date is convicted or pleads guilty to aggravated murder [ R.C. 2903.01 ], murder [ R.C. 2903.02 ], voluntary manslaughter [ R.C. 2903.03 ], kidnapping [ R.C. 2905.01 ], abduction [F2] [ R.C. 2905.02 ], or any attempt or conspiracy to commit or complicity in committing any of those offenses, or (2) on the date has been convicted of any of those offenses and is serving a term of confinement for the offense. R.C. 2903.41(A) (emphasis added).The act creates a rebuttable presumption that the violent offender is required to enroll in the violent offender database (VOD) with respect to the offense that so classifies the person. R.C. 2903.42(A)(1).

{¶12} Each violent offender is also presumed to have a duty to enroll, duty to re-enroll, and duty to provide notice of a change of address (VOD duties) with respect to the qualifying offense for ten years after the offender initially enrolls. Each violent offender must be informed of the following:

(1) The presumption of VOD duties;

(2) The offender's right to file a motion to rebut the presumption;

(3) The procedure and criteria for rebutting the presumption; and

(4) The effect of a rebuttal and the post-rebuttal hearing procedures and possible outcome.

{¶13} The entity responsible for making the notification varies, depending on the date of conviction. If the person is classified a violent offender based on a conviction that occurs on or after the act's effective date (March 20, 2019), the sentencing court must inform the offender before sentencing. R.C. 2903.42(A)(1)(a). If the person is classified a violent offender on the basis of a conviction preceding that date, the official in charge of the institution in which the offender is confined, or the official's designee, must provide that information in writing a reasonable period of time before the offender is released . R.C. 2903.42(A)(1)(b). (Emphasis added).

{¶14} If the offender files a motion to rebut the presumption that he or she is required to register, the offender has the burden of proof, by a preponderance of the evidence, that the offender was not the principal offender in the commission of the offense that classifies the person as a violent offense. R.C. 2903.42 (A)(4). However, even if the offender successfully rebuts the presumption, the trial court can still issue an order that the offender be required to enroll. The trial court must consider (1) whether the offender has any convictions for any offense of violence prior to the one at issue, and whether those prior convictions indicate that the offender has a propensity for violence; (2) the results of a risk assessment conducted through use of a single validation risk assessment tool, (3) the offender's degree of culpability or involvement in the offense at issue and (4) the public interest and safety. R.C. 2903.42(A)(4)(a)(i)-(iv).

Manner of Enrollment.

{¶15} An offender who has VOD duties must obtain from the sheriff or sheriff's designee a copy of the enrollment form prescribed by the Attorney General, complete and sign the form, and return it together with fingerprints, palm prints, and a photograph. R. C. 2903.43 (C)(1) and (C) (3). The VOD enrollment form must include all of the following information:

(1) The offender's full name, any alias used, and residence address;

(2) The offender's Social Security number;

(3) Any driver's license number, commercial driver's license number, or state identification card number issued to the offender by Ohio or another state;

(4) The offense of which the offender was convicted;

(5) The name and address of any place where the offender is employed and of any school or institution of higher education that the offender is attending;

(6) The identification license plate number of each vehicle owned or operated by the offender or registered in the offender's name, the vehicle identification number of each vehicle, and a description of each vehicle;

(7) A description of any scars, tattoos, or other distinguishing marks on the offender.

{¶16} R.C. 2903.43(C)(2). The offender must re-enroll annually, in person, with the sheriff of the county in which the offender resides, or with the sheriff's designee, within ten days prior to the anniversary of the calendar date on which the offender initially enrolled. The duty to re-enroll remains in effect for the entire ten-year enrollment period of the offender. The enrollee must re-enroll by completing, signing, and returning to the sheriff or designee a copy of the enrollment form prescribed by the Attorney General amending any information that has changed since the last enrollment, and providing any additional enrollment information required by the Attorney General. The sheriff or designee with whom the offender re-enrolls must obtain a new photograph of the offender annually at re-enrollment. Additionally, if the offender's most recent enrollment or re-enrollment was in a different county, the offender must provide written notice of the change of address to the sheriff or designee where the offender previously resided. R.C. 2903.43(D)(1).

{¶17} With the exception of the offender's Social Security number, driver's license number, or state identification number, any statements, information, photographs,...