State v. Ward
| Decision Date | 08 February 1999 |
| Docket Number | No. 72371.,72371. |
| Citation | 720 NE 2d 603,130 Ohio App.3d 551 |
| Parties | The STATE of Ohio, Appellee, v. WARD, Appellant. |
| Court | Ohio Court of Appeals |
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Melody A. White, Assistant Prosecuting Attorney, for appellee. Scott Roger Hurley, Assistant Public Defender, for appellant.
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In 1994, defendant Bobby Ward pleaded guilty to one count of attempted felonious sexual penetration of a person under thirteen years of age, an aggravated second-degree felony under former R.C. 2907.12.1 In 1997, the state filed a motion seeking to have defendant declared a sexual predator under Am.Sub.H.B. No. 180 ("H.B. 180"), Ohio's sexual predator law, R.C. 2950.09(C). The court convened a hearing at which defendant stipulated to the facts of the underlying case, including the victim's age and threats of violence defendant made to the victim. The court entered a sentencing addendum finding defendant to be a sexual predator.
We stayed resolution of this appeal, as well as all others filed in this court that raised issues relating to the constitutionality of the sexual predator law, pending resolution of State v. Cook (Aug. 7, 1997), Allen App. No. 1-97-21, unreported, 1997 WL 452014. In Cook, the Third District Court of Appeals vacated Cook's sexual predator determination because it found that R.C. Chapter 2950 violated the ban against retroactive legislation. The Ohio Supreme Court reversed the Third District Court of Appeals in State v. Cook (1998), 83 Ohio St.3d 404, 700 N.E.2d 570, and reinstated the sexual predator determination. With Cook now decided, we lifted the stay on all pending H.B. 180 appeals.
The first assignment of error complains that R.C. Chapter 2950 is unconstitutional because it is an ex post facto law in violation of Section 10, Article I of the United States Constitution and Section 28, Article II of the Ohio Constitution. We summarily overrule this assignment on authority of the second paragraph of the syllabus to Cook, which states, "R.C. 2950.09(B)(1), as applied to conduct prior to the effective date of the statute, does not violate the Ex Post Facto Clause of Section 10, Article I of the United States Constitution."
"II. The sexual predator hearing in the case at bar violated appellant's due process rights, guaranteed by the United States and Ohio Constitution, when the hearing failed to comport with the mandates of H.B. 180 which include "witnesses," `evidence,' and the `right to cross-examine' the evidence against appellant.
The second assignment of error complains that the hearing in this case violated defendant's due process rights because the hearing failed to comport with the mandates of R.C. 2950.09, which include the right to present witnesses, evidence and cross-examine the evidence.
Section 16, Article I of the Ohio Constitution provides that every person who sustains a legal injury "shall have remedy by due course of law." The Supreme Court of Ohio considers the "due course of law" provision of the Ohio Constitution to be the equivalent of the "due process of law" provision in the Fourteenth Amendment to the United States Constitution. Sorrell v. Thevenir (1994), 69 Ohio St.3d 415, 422-423, 633 N.E.2d 504, 510-511; Direct Plumbing Supply Co. v. Dayton (1941), 138 Ohio St. 540, 544, 21 O.O. 422, 423-424, 38 N.E.2d 70, 72.
The Due Process Clause has been interpreted to contain two components: substantive due process and procedural due process. "Procedural due process" ensures that a state will not deprive a person of life, liberty, or property unless fair procedures are used in making that decision, Zinermon v. Burch (1990), 494 U.S. 113, 125, 110 S.Ct. 975, 983, 108 L.Ed.2d 100, 113-114. "Substantive due process" guarantees that the state will not deprive a person of those rights for an arbitrary reason regardless of how fair the procedures are that are used in making the decision. Eastlake v. Forest City Ent., Inc. (1976), 426 U.S. 668, 676, 96 S.Ct. 2358, 2363, 49 L.Ed.2d 132, 139. Defendant's argument under this assignment of error concerns procedural due process only.
Procedural due process is a "guarantee of fair procedure." Procedural due process guarantees an affected individual the right to some form of hearing, with notice and an opportunity to be heard, before that individual is divested of a protected interest. See Cleveland Bd. of Edn. v. Loudermill (1985), 470 U.S. 532, 542, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494, 503-504. The requirements of procedural due process are "flexible" and call for such procedural protections "as the particular situation demands." Mathews v. Eldridge (1976), 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18, 33; State v. Hamilton (1996), 75 Ohio St.3d 636, 639, 665 N.E.2d 669, 671-672. The process due an individual varies according to the type of proceeding involved.
In Cook, the Supreme Court stated that the sexual predator law serves "the wholly remedial purpose of protecting the public"; hence, "there is no clear proof that R.C. Chapter 2950 is punitive in its effect." Cook, 83 Ohio St.3d at 423, 700 N.E.2d at 585. The Supreme Court analogized the sexual predator determination to "miscellaneous criminal proceedings" like probation revocation, where a probationer in a revocation proceeding does not have available all procedural rights possessed by a criminal trial defendant. Id. at 425, 700 N.E.2d at 586-587; see, also, State ex rel. Wright v. Ohio Adult Parole Auth. (1996), 75 Ohio St.3d 82, 92, 661 N.E.2d 728, 736.
The procedural requirements of the sexual predator law are set forth in R.C. 2950.09(B)(1), which provides:
R.C. 2950.09(B)(1) fully comports with procedural due process because the statute protects an offender's right to a hearing, with notice and an opportunity to be heard. Cleveland Bd. of Edn. v. Loudermill, supra. As with the analogous probation revocation hearing, R.C. 2950.09(B)(1) also guarantees the right to counsel, the right to present evidence, and the right to cross-examine witnesses under oath.
Defendant, however, complains that the court violated his right to due process by determining him to be a sexual predator solely on evidence of a prior conviction—something on which he could not cross-examine. We will address the substance of this claim in our discussion of the third assignment of error. Nevertheless, we wish to emphasize our disagreement in principle with any argument that an offender's prior convictions, standing alone, cannot be clear and convincing evidence that an offender is likely to engage in the future in one or more sexually oriented offenses as required by R.C. 2950.09(B)(3).
An offender's prior criminal record on all offenses, including but not limited to sexual offenses, is relevant in the court's sexual predator determination. See R.C. 2950.09(B)(2)(b). This section codifies the notion that past conduct can often be a reliable indicator of future conduct. Sexually oriented offenders in particular are thought to pose a great risk of recidivism, a point specifically noted by the General Assembly when it stated that sexual predators and habitual sex offenders "pose a high risk of engaging in future offenses even after being released from imprisonment." See R.C. 2950.02(A)(2). As a factor in a sexual predator determination, prior convictions serve a very useful function.
Given that a court can consider a prior conviction, we fail to see how defendant can complain that he did not have the right to cross-examine the evidence of his prior conviction. R.C. 2945.75(B) states that whenever the state must prove a defendant's prior conviction, "a certified copy of the judgment entry in such prior conviction together with evidence sufficient to identify the defendant * * * is sufficient to prove such prior conviction." A certified copy of a judgment entry of a prior conviction is not the exclusive method to prove a prior conviction. An offender may, and often does, stipulate to the prior conviction, as defendant did in this case. Having stipulated to the prior conviction, defendant cannot complain that he could not cross-examine on the substance of that conviction.
We hold that R.C. Chapter 2950 does not violate due process because it affords adequate notice and an opportunity to defend. The second assignment of error is overruled.
The third assignment of error raises the substantive issue whether the court had clear and convincing evidence to show that defendant should be classified as a sexual predator. Defendant argues that the state's evidentiary standard to prove an offender is a sexual predator requires more than just certified copies of prior convictions and that standard of proof has not been met in this case.
A sexual predator is defined in R.C. 2950.01(E) as "a person who has been convicted of or pleaded guilty...
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