State v. Wright
| Docket Number | 28368 |
| Decision Date | 19 November 2021 |
| Citation | 2021 Ohio 4107 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. DEMARCO WRIGHT Defendant-Appellant |
| Court | Ohio Court of Appeals |
Criminal Appeal from Common Pleas Court Trial Court Case No 2018-CR-1554
MATHIAS H. HECK, JR., by JAMIE J. RIZZO, Atty. Reg. No 0099218, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Plaintiff-Appellee
SCOTT S. DAVIES, Atty. Reg. No. 0077080, Attorney for Defendant-Appellant
{¶ 1} Demarco Wright pled guilty in the Montgomery County Court of Common Pleas to aggravated burglary (physical harm), aggravated robbery (deadly weapon), kidnapping (terrorize), felonious assault (serious physical harm), grand theft (motor vehicle), theft (R.C. 2913.71 property), and gross sexual imposition (by force). The trial court sentenced him to 15 years in prison, designated him both a Tier I sex offender and a violent offender, and ordered him to pay restitution and court costs.
{¶ 2} Wright appeals from his convictions, challenging the trial court's application of the Violent Offender Database duties in Sierah's Law to his case. For the following reasons, the portion of the trial court's judgment imposing Wright's Violent Offender Database duties in accordance with Sierah's Law will be reversed, and the matter will be remanded for the trial court to provide him the notifications under R.C. 2903.42(A)(1)(a), to provide him an opportunity to file a motion to rebut the statutory presumption, and for a new ruling on whether he is required to enroll in accordance with R.C. 2903.42. In all other respects, the trial court's judgment will be affirmed.
{¶ 3} In May 2018, Wright was charged in a 14-count indictment with two counts of aggravated burglary, two counts of aggravated robbery, three counts of kidnapping, two counts of rape, two counts of felonious assault, and one count each of robbery, grand theft, and theft. Wright subsequent reached a plea agreement with the State in which he agreed to plead guilty to seven charges: aggravated burglary (Count 1), aggravated robbery (Count 3), kidnapping (Count 7), felonious assault (Count 11), grand theft (motor vehicle (Count 13), theft (R.C. 2913.71 property) (Count 14), and gross sexual imposition (by force) (added by bill of information). The prosecutor represented to the court that, in exchange for Wright's pleas, "the balance of the indictment would be nollied, and the defendant would receive an agreed sentence between 9 and 15 years."
{¶ 4} During the March 27, 2019 plea hearing, the prosecutor informed the trial court in a sidebar discussion that "[t]here's been a change in the law," namely the creation of a violent offender registry, effective March 20, 2019. The prosecutor indicated that the requirement to enroll as a violent offender would apply to the kidnapping count. The parties discussed with the court whether the new enrollment requirement applied to Wright and what advisements needed to be made at the plea hearing, with the court commenting that it had not been informed that it "had to do this." Neither the court, the prosecutor, nor defense counsel knew the details of Sierah's Law's requirements.
{¶ 5} Following the discussion and with defense counsel's agreement, the court informed Wright:
(Plea Tr. at 15.) After additional advisements pursuant to Crim.R. 11, Wright pled guilty to the seven charges in accordance with the plea agreement.
{¶ 6} After a presentence investigation, the trial court sentenced Wright to 15 years in prison and designated him a Tier I sex offender and a violent offender. The trial court reviewed with Wright the forms that notified him of his duties as a Tier I sex offender and his duties to enroll, re-enroll and provide notice of a change of address under the violent offender statute. The court ordered Wright to pay restitution and court costs, including extradition costs.
{¶ 7} Wrights appeals from his convictions. His original appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Upon our Anders review, we found that non-frivolous issues existed as to whether the trial court provided adequate notice of the violent offender registration requirements under R.C. 2903.42 and whether the trial court failed to comply with R.C. 2903.42 at sentencing. We therefore rejected the Anders brief and appointed new counsel for Wright.
{¶ 8} Wright, with new counsel, now raises three assignments of error.
{¶ 9} In his first assignment of error, Wright claims that "[t]he Trial Court's application of Ohio's Violent Offender Registry provisions of ORC 2903.41 is unconstitutional because the offenses occurred prior to March 20, 2019."
{¶ 10} In 2018, the 132nd General Assembly enacted S.B. 231, commonly known as Sierah's Law. Sierah's Law established the Violent Offender Database and requires violent offenders convicted of specified offenses, including kidnapping, to enroll in the database. Sierah's Law creates a presumption that violent offenders enroll in the database and mandates enrollment for a minimum of ten years. Re-enrollment in the database is required on an annual basis. See R.C. 2903.41 through R.C. 2903.43; State v. Hall, 2021-Ohio-1894, 173 N.E.3d 166, ¶ 26 (2d Dist.); State v. Garst, 2d Dist. Clark No. 2020-CA-51, 2021-Ohio-1516, ¶ 4.
{¶ 11} Wright first argues that the Violent Offender Database duties do not apply to him, because his offenses occurred prior to March 20, 2019, the effective date of Sierah's Law. Of relevance here, R.C. 2903.41(A) defines a "violent offender" to include, among others, any person who is "convicted of or pleads guilty to" kidnapping in violation of R.C. 2905.01 on or after the effective date of Sierah's Law. See R.C. 2903.41(A)(1)(a). Wright pled guilty to kidnapping on March 27, 2019 and was convicted of the offense on April 22, 2019, when the judgment entry was filed. Accordingly, Wright was subject to Sierah's Law under R.C. 2903.41(A)(1)(a).
{¶ 12} Wright asserts that application of Sierah's Law to him violates the Retroactivity Clause of Article II, Section 28 of the Ohio Constitution. "The Retroactivity Clause of the Ohio Constitution prohibits the General Assembly from passing retroactive laws and protects vested rights from new legislative encroachments." Garst at ¶ 17, citing Bielat v. Bielat, 87 Ohio St.3d 350, 352, 721 N.E.2d 28 (2000). "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].'" Bielet at 352-353, quoting Miller v. Hixson, 64 Ohio St. 39, 51, 59 N.E. 749 (1901). However, not all retroactive laws are forbidden. Id. at 353; In re Forfeiture of Property of Astin, 2018-Ohio-1723, 111 N.E.3d 894, ¶ 14 (2d Dist.).
{¶ 13} The Supreme Court of Ohio has articulated a two-part test for determining whether a statute is unconstitutionally retroactive. The first step asks whether the Ohio legislature had expressly made the statute retroactive. See State v. Jarvis, Ohio Slip Opinion No. 2021-Ohio-3712, ___ N.E.3d___, ¶ 9; Van Fossen v. Babcock & Wilcox Co., 36 Ohio St.3d 100, 105, 522 N.E.2d 489 (1988); State v. Irvin, 2020-Ohio-4847, 160 N.E.3d 388, ¶ 25 (2d Dist.); R.C. 1.48 (). If the legislature expressly intended the statute to apply retroactively, the second step is to determine whether the statute is substantive, as opposed to merely remedial. Bielat at 353. A statute is substantive if it impairs vested, substantial rights or imposes new burdens, duties, obligations, or liabilities in regard to a past transaction, "such as a retroactive increase in punishment for a criminal offense." Jarvis at ¶ 9. A statute that both applies retroactively and is substantive violates the Retroactivity Clause. Bielat at 353.
{¶ 14} We have previously concluded that the Ohio legislature expressly intended for Sierah's Law to apply retroactively. State v. Williams, 2d Dist. Montgomery No. 28648, 2021-Ohio-1340, ¶ 141; Garst at ¶ 19. Moreover, upon review of the requirements imposed by Sierah's Law, we have concluded that those requirements are remedial in nature and are not unconstitutionally retroactive. Williams at ¶ 144; see also Garst at ¶ 23.
{¶ 15} The Supreme Court of Ohio recently reached the same conclusions. Addressing a conflict between the Fifth and Twelfth District Courts of Appeals, the supreme court considered whether the retroactive application of Sierah's Law to offenders who committed their offenses prior to March 20, 2019, the effective date, violated the Retroactivity Clause of Article II, Section 28 of the Ohio Constitution. The Court, in a plurality opinion, [1] held that it did not, with the following summarization:
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