State v. Pasqua
| Decision Date | 11 June 2004 |
| Docket Number | Appeal No. C-030133. |
| Citation | 811 NE 2d 601 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Vincent Pasqua, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Michael K. Allen, Hamilton County Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
H. Fred Hoefle, for Defendant-Appellant.
{¶1} Defendant-appellant Vincent Pasqua appeals the trial court's denial of his petition for reclassification pursuant to R.C. 2950.09(F)(2). For the following reasons, we reverse the trial court's judgment.
{¶2} On December 2, 2002, Pasqua pleaded guilty to two counts of child molestation, both of which were class A misdemeanors, in the circuit court of Iron County, Missouri.1 Under Missouri law, Pasqua was required to register for life and to verify his address on a quarterly basis.2 When Pasqua relocated to Ohio on December 12, 2002, he presented himself to the Hamilton County Sheriff's Department, where he was automatically classified as a sexual predator.3
{¶3} On January 8, 2003, Pasqua filed a petition pursuant to R.C. 2950.09(F) asking the common pleas court to determine that he was not a sexual predator in Ohio for purposes of the registration and notification requirements in R.C. Chapter 2950. On February 7, 2003, the trial court held a hearing on Pasqua's petition. During the hearing, Pasqua's counsel argued that Ohio's classification of Pasqua as a sexual predator denied him due process of law. Pasqua's counsel reasoned that because Ohio law does not intend to classify misdemeanor defendants such as Pasqua as sexual predators, and because Pasqua could have demonstrated that he would not have met Ohio's definition of a sexual predator under R.C. 2950.09, Ohio's classification of him as a sexual predator violated his rights to notice and a hearing under the Due Process Clause of the United States Constitution. Pasqua further contended that the trial court was required under R.C. 2950.09(F)(2) to compare Ohio's categories of sex offenders with Missouri's requirements to determine if he was a sexual predator in Ohio.
{¶4} The state argued, on the other hand, that Ohio's classification of Pasqua as a sexual predator was not violative of his due-process rights. The state contended that because R.C. 2950.09(F)(2) only requires a trial court to compare registration requirements, not the substantive level of the offenses, and because Missouri's reporting requirements for sexual predators were similar to Ohio requirements, Pasqua could not demonstrate that he had been improperly classified as a sexual predator.
{¶5} On February 11, 2003, the trial court issued a decision in which it denied Pasqua's petition. The trial court held that adopting Pasqua's construction of R.C. 2950.09(F)(2) would be a "recipe for problems." The trial court was concerned that should it adopt Pasqua's proposed analysis, sexual predators would be able to escape reporting requirements by merely traveling to Ohio and using different terminology to describe a "sexually oriented offense." This, the trial court stated, would grossly undermine states' enforcement of their registration requirements. Consequently, the trial court determined that a plain reading of R.C. 2950.09(F)(2) required it to compare Ohio's registration requirements for sexual predators with Missouri's registration requirements. Because Ohio law required sexual predators to register for life and to verify their address on at least a quarterly basis, and because Missouri likewise required Pasqua to register for life and to register his address every ninety days, the trial court concluded that Pasqua had not proved by clear and convincing evidence that he was not a sexual predator. As a result, the trial court denied his petition.
{¶6} On appeal, Pasqua now raises three assignments of error. In his first and second assignments of error, Pasqua contends that the trial court's denial of his reclassification petition under R.C. 2950.09(F)(2) deprived him of due process of law and further constituted cruel and unusual punishment. In his third assignment of error, Pasqua contends that because the sheriff's office, as an arm of the executive branch, is initially responsible for classifying out-of-state offenders as sexual predators, rather than the trial court, which is a part of the judicial branch, the separation of powers doctrine has been violated.
{¶7} Before addressing Pasqua's assignments of error, we must initially determine which section of R.C. 2950.09 applied to Pasqua's petition. Effective July 31, 2003, the General Assembly amended R.C. 2950.09.4 Under the amendments relevant here, the legislature expanded the category of persons who are subject to registration under R.C. 2950.09(A) based upon a non-Ohio conviction to include persons convicted in courts of foreign countries. The amendments further deleted the portion of R.C. 2950.09(A) that required the non-Ohio jurisdiction to subject the offender to verification of his address on at least a quarterly basis each year. With respect to R.C. 2950.09(F)(2), the amendments retained the trial court's authority under R.C. 2950.09(F)(2) to remove a sexual-predator classification automatically made under R.C. 2950.09(A), but required the trial court to provide findings of fact and conclusions of law if it determined that an out-of-state offender was not a sexual predator under Ohio law.
{¶8} Because Pasqua's application and the trial court's decision regarding his application occurred prior to the effective date of Am.Sub.S.B. No. 5, the amended version of R.C. 2950.09 would apply only if the legislature had intended it to have retroactive application.5 There is no language in amended R.C. 2950.09(F) that provides for retroactive application. Rather, Section 1, Am.Sub.S.B. No. 5 provides that the amendments do not become effective until July 31, 2003. Even if we were to assume arguendo that the amendments to R.C. 2950.09(F) applied retrospectively, the amendments made no changes to the statute that would have altered Pasqua's substantive rights.6 Pasqua was still afforded the right to challenge his automatic classification under the newly amended R.C. 2950.09(F)(2). Because the legislature did not intend for the amendments to R.C. 2950.09(F) to apply retrospectively, and because the amendments do not change the substance of the statute as it applied to Pasqua's petition, we consider Pasqua's arguments under the version of R.C. 2950.09 in effect at the time he filed his petition.
{¶9} In his first and second assignments of error, Pasqua contends that because the crucial factor in Ohio for determining an offender's classification as a sexual predator is the offender's likelihood of engaging in the future in one or more sexually-oriented offenses, the trial court was obligated under R.C. 2950.09(F) to determine for itself whether he was likely to commit sex offenses in the future. Pasqua contends that because he was labeled as a sexual predator without the benefit of an evidentiary hearing, as contemplated by R.C. 2950.09(F)(2), he was denied his due-process rights under the Ohio and United States Constitutions. We agree.
{¶10} The version of R.C. 2950.09 that was in effect at the time Pasqua sought reclassification provided, in relevant part, as follows:
{¶11} "(A) * * * If a person * * * pleads guilty to * * * committing, a sexually oriented offense in another state * * * and if, as a result of that * * * plea of guilty * * * the person is required, under the law of the jurisdiction in which the person * * * pleaded guilty * * * to register as a sex offender until the person's death and is required to verify the person's address on at least a quarterly basis each year, that * * * plea of guilty * * * automatically classifies the person as a sexual predator for the purposes of this chapter, but the person may challenge that classification pursuant to division (F) of this section* * *."
{¶12} R.C. 2950.09(F) provided the following in relevant part:
{¶13} "(1) An offender * * * classified as a sexual predator may petition the court of common pleas * * * of the county in which the offender * * * resides or temporarily is domiciled to enter a determination that the offender * * * is not an adjudicated sexual predator in this state for purposes of the sex offender registration requirements of this chapter or the community notification provisions contained in section 2950.10 and 2950.11 of the Revised Code if all of the following apply:
{¶14} "(a) The offender * * * pleaded guilty to * * * committing, a sexually oriented offense in another state * * *.
{¶15} "(b) As a result of the * * * plea of guilty * * * described in division (F)(1)(a) of this section, the offender * * * is required under the law of the jurisdiction under which the offender * * * pleaded guilty * * * to register as a sex offender until the offender's * * * death and is required to verify the offender's * * * address on at least a quarterly basis each year.
{¶16} "(c) The offender * * * was automatically classified as a sexual predator under division (A) of this section in relation to the * * * guilty plea * * * described in division (F)(1)(a) of this section.
{¶17} ...
To continue reading
Request your trial