State v. Williams

• Citation: 2011 -Ohio- 3374,129 Ohio St.3d 344,952 N.E.2d 1108
• Decision Date: 13 July 2011
• Docket Number: No. 2009–0088.,2009–0088.
• Parties: The STATE of Ohio, Appellee,v.WILLIAMS, Appellant.
• Court: United States State Supreme Court of Ohio

129 Ohio St.3d 344
952 N.E.2d 1108
2011 -Ohio- 3374

The STATE of Ohio, Appellee,
v.
WILLIAMS, Appellant.

No. 2009–0088.

Supreme Court of Ohio.

Submitted March 1, 2011.Decided July 13, 2011.

West CodenotesUnconstitutional as AppliedR.C. §§ 2950.01, 2950.011, 2950.02, 2950.03, 2950.031, 2950.032, 2950.033, 2950.034, 2950.04, 2950.041, 2950.042, 2950.043, 2950.05, 2950.06, 2950.07, 2950.08, 2950.081, 2950.10, 2950.11, 2950.111, 2950.12, 2950.13, 2950.131, 2950.132, 2950.14, 2950.15, 2950.16.

[952 N.E.2d 1108]

[Ohio St.3d 344] Syllabus of the Court

2007 Am.Sub.S.B. No. 10, as applied to defendants who committed sex offenses prior to its enactment, violates Section 28,

[952 N.E.2d 1109]

Article II of the Ohio Constitution, which prohibits the General Assembly from passing retroactive laws.

David P. Fornshell, Warren County Prosecuting Attorney, and Michael Greer and Stacy C. Brown, Assistant Prosecuting Attorneys, for appellee.

Timothy Young, Ohio Public Defender, and Katherine A. Szudy, Assistant Public Defender, for appellant.Ron O'Brien, Franklin County Prosecuting Attorney and Steven L. Taylor, Assistant Prosecuting Attorney, urging affirmance for amicus curiae Franklin County Prosecuting Attorney.Michael DeWine, Attorney General, Alexandra T. Schimmer, Solicitor General, and David M. Lieberman, Deputy Solicitor, urging affirmance for amicus curiae Ohio Attorney General.Gamso, Helmick, & Hoolahan and Jeffrey M. Gamso; and James L. Hardiman and Carrie L. Davis, Cleveland, urging reversal for amicus curiae American Civil Liberties Union of Ohio Foundation, Inc.Margie Slagle, urging reversal for amici curiae Cleveland Rape Crisis Center and Texas Association Against Sexual Assault.

PFEIFER, J.Factual and Procedural Background

{¶ 1} In November 2007, appellant, George Williams, was indicted for unlawful sexual contact with a minor, a felony of the fourth degree under R.C. 2907.04. The indictment stated that Williams, “being eighteen years of age or older, did engage in sexual conduct with another, not the spouse of the offender, when the offender knows such other person is thirteen years of age or older but less than sixteen years of age, or the offender is reckless in that regard.” Williams pleaded guilty in open court. During the plea colloquy, the trial court twice stated that Williams's conviction would not subject him to reporting requirements.

{¶ 2} Williams subsequently moved to be sentenced under the version of R.C. Chapter 2950 in effect at the time that he committed the offense. He argued that major changes to R.C. Chapter 2950 took effect on January 1, 2008, and that “[t]he sentencing law and reporting law that should apply to the Defendant is the law that was in effect at the time of the criminal conduct and at the time of the plea.” The state opposed the motion, arguing that Williams could not point to any basis for his motion or any justification for the trial court to ignore the law, because none existed. The trial court denied the motion.

[Ohio St.3d 345] {¶ 3} At his sentencing hearing, Williams was informed that he would be designated a Tier II sex offender under the current version of R.C. Chapter 2950, 2007 Am.Sub.S.B. No. 10 (“S.B. 10”). The judge ordered Williams to register in person in the county in which he resided, in the county in which he was being educated, and in the county in which he was employed, to “provide written notice within three days of any change of vehicle information, e-mail addresses, Internet identifiers or telephone numbers,” and to verify the addresses “for a period of 25 years with in person verification every 180 days.” See R.C. 2950.04, 2950.05, 2950.06(B)(2), and 2950.07(B)(2).

{¶ 4} On appeal, Williams argued that the provisions of S.B. 10 cannot constitutionally be applied to a defendant whose offense occurred before July 1, 2007. The court of appeals disagreed and affirmed the decision of the trial court, concluding that “the classification and registration provisions of Senate Bill 10 do not violate the Ohio Constitution's ban on retroactive laws.”

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State v. Williams, 12th Dist. No. CA2008–02–029, 2008-Ohio-6195, 2008 WL 5052748, ¶ 112.

{¶ 5} We accepted Williams's discretionary appeal. State v. Williams, 121 Ohio St.3d 1449, 2009-Ohio-1820, 904 N.E.2d 900.

Analysis S.B. 10

{¶ 6} S.B. 10 is one step of an evolution in the treatment of convicted sex offenders in the state of Ohio. See State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 3–28. Because the issue before us is narrow, it is not necessary to again discuss that history.

{¶ 7} The statutory scheme for the classification and registration of sex offenders in effect at the time Williams committed the offense and when he entered his plea, Ohio's version of the federal Megan's Law, Section 14071, Title 42, U.S.Code, was enacted in 1996, Am.Sub.H.B. No. 180, 146 Ohio Laws, Part II, 2560, and significantly amended in 2003 by Am.Sub.S.B. No. 5 (“S.B. 5”), 150 Ohio Laws, Part IV, 6558. The current statutory scheme, S.B. 10, was enacted in 2007, and is based on the federal Adam Walsh Act, Section 16901 et seq., Title 42, U.S.Code. The classification scheme for sex offenders changed under S.B. 10: an offender is now subject to additional reporting and registration requirements and is subject to those requirements for a longer time. See Bodyke at ¶ 24–28. The issue before us is whether these changes, when applied to a person whose crime was committed prior to the enactment of S.B. 10, violate the prohibition against ex post facto laws contained in Section 10, Article I of the United States Constitution or the prohibition against retroactive laws contained in Section 28, Article II of the Ohio Constitution. Because we conclude that S.B. 10 violates the [Ohio St.3d 346] Ohio Constitution, we need not discuss whether S.B. 10 also violates the United States Constitution.

Prohibition against retroactive laws

{¶ 8} Section 28, Article II of the Ohio Constitution states that “[t]he general assembly shall have no power to pass retroactive laws.” When analyzing whether a statute is unconstitutionally retroactive, we use a two-part test. Hyle v. Porter, 117 Ohio St.3d 165, 2008-Ohio-542, 882 N.E.2d 899, ¶ 7–9. In the first part of the test, we “ask whether the General Assembly expressly made the statute retroactive.” Id. at ¶ 8. See Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489, paragraph one of the syllabus (“The issue of whether a statute may constitutionally be applied retrospectively does not arise unless there has been a prior determination that the General Assembly specified that the statute so apply”). R.C. 2950.03, for example, imposes registration requirements for offenders sentenced on or after January 1, 2008, regardless of when the offense was committed. Because this portion of S.B. 10 was intended to apply retroactively, we now turn to the second part of the test, which requires us to determine whether the statutory provisions are substantive or remedial. Hyle at ¶ 8. See also State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, 871 N.E.2d 1167, ¶ 10.

{¶ 9} In Pratte v. Stewart, 125 Ohio St.3d 473, 2010-Ohio-1860, 929 N.E.2d 415, ¶ 37, we stated that “[i]t is well established that a statute is substantive if it impairs or takes away vested rights, affects an accrued substantive right, imposes new or additional burdens, duties, obligations, or liabilities as to a past transaction, or creates a new right. Van Fossen, 36 Ohio St.3d at 107, 522 N.E.2d 489. Remedial laws, however, are those affecting only the remedy provided, and include laws that merely substitute a new or more appropriate

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remedy for the enforcement of an existing right.” See Bielat v. Bielat (2000), 87 Ohio St.3d 350, 352–353, 721 N.E.2d 28, quoting Miller v. Hixson (1901), 64 Ohio St. 39, 51, 59 N.E. 749 (“The retroactivity clause nullifies those new laws that ‘reach back and create new burdens, new duties, new obligations, or new liabilities not existing at the time [the statute becomes effective]’ ” [bracketed material sic] ).S.B. 5 v. S.B. 10 and remedial v. punitive

{¶ 10} This court has consistently held that “R.C. Chapter 2950 is a remedial statute.” State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, ¶ 29. We have also stated, “There is no absolute test to determine whether a retroactive statute is so punitive as to violate the constitutional prohibition against ex post facto laws; such a determination is a ‘matter of degree.’ ” State v. Cook (1998), 83 Ohio St.3d 404, 418, 700 N.E.2d 570. In Cook, we examined the guideposts listed in [Ohio St.3d 347] Kennedy v. Mendoza–Martinez (1963), 372 U.S. 144, 168–169, 83 S.Ct. 554, 9 L.Ed.2d 644, for determining whether a statute is punitive and concluded that “R.C. Chapter 2950 serves the solely remedial purpose of protecting the public.” Cook at 423, 700 N.E.2d 570.

{¶ 11} After Cook was issued, R.C. Chapter 2950 was amended by S.B. 5. This court again concluded that despite the changes effected by S.B. 5, R.C. Chapter 2950 was a remedial statute. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, at ¶ 43. Some factors pertaining to the statutory scheme governing sex offenders, however, suggested that the statutory scheme was punitive. First, the procedures for registration and classification of sex offenders were placed within Ohio's criminal code, R.C. Title 29. Second, failure to comply with certain registration requirements subjected a sex offender to criminal prosecution. R.C. 2950.99.

{¶ 12} In a dissent in Ferguson, Justice Lanzinger wrote as follows:

{¶ 13} “Although the majority continues to rely on State v. Cook (1998), 83 Ohio St.3d 404, 409, 700 N.E.2d 570, the first case that considered retroactive application of R.C. 2950.09(B), R.C. Chapter 2950 has been amended. The simple registration process and notification procedures are now different from those considered in C...