Opinion
No. 2008-CA-221.
DATE OF JUDGMENT ENTRY: July 15, 2009.
Civil appeal from the Richland County Court of Common Pleas, Case No. 08-CV-0341(D).
Reversed and Remanded.
Robert Vasquez, #398-193 Mansfield Correctional Institute, for Petitioner-Appellee.
Kirsten Pscho Gartner, Frank Ardis, Jr, for Respondent-Appellant.
Before: Hon. W. Scott Gwin, P.J., Hon. William B. Hoffman, J., Hon. John W. Wise, J.
OPINION
{¶ 1} Respondent-appellant, the State of Ohio, through the Richland County Prosecuting Attorney's Office, appeals the Richland County trial court's ruling finding Senate Bill 10 ["S.B.10"], Ohio's sexual offender classification and registration scheme, to be unconstitutional in its entirety.
{¶ 2} Defendant-appellee Robert Vasquez, contested his reclassification as a sex offender under R.C. 2950.01, et seq., as amended by S.B. 10, also known as the "Adam Walsh Act" a law which was in effect on the date the trial court re-classified appellee, but which was not in effect on the date he committed the sexual offense in question. Appellee challenged the constitutionality of S.B. 10, effective January 1, 2008, which eliminated the prior sex offender classifications and substituted a three-tier classification system based on the offense committed. Appellee argued that R.C. Chapter 2950, as amended by S.B. 10, violates the prohibition against ex post facto laws, the separation of powers doctrine, constitutes a double jeopardy violation, and that it violates both procedural and substantive due process. Briefly, the relevant facts of this case are as follows.
{¶ 3} Appellee was convicted after a jury trial in the Cuyahoga County Court of Common Pleas of Rape in violation of R.C. 2907.02 and kidnapping in violation of R.C. 2905.01, with a sexual motivation specification. As a result, appellee was classified as a sexual predator and ordered to adhere to the reporting requirements set forth for that classification.
{¶ 4} On or about January 8, 2008, appellee received a Notice of New Classification and Registration Duties, based on Ohio's Adam Walsh Act, from the Office of the Attorney General. The Notice indicated that he was being reclassified as a Tier III Sex Offender.
{¶ 5} On February 7, 2008, appellee, pro se, timely filed a Petition to Contest Application of the Adam Walsh Act with the Court of Common Pleas pursuant to Ohio Rev. Code 2950.031(E) and 2950.032(E), challenging both the level of his classification and the application of the Act itself .
The trial court overruled appellee's motion to appoint counsel by Judgment Entry filed February 13, 2008. Appellee has not filed a cross-appeal contesting the trial court's ruling.
{¶ 6} The trial court found that S.B. 10 was unconstitutional both facially and as applied to appellee because it violated the prohibitions against both retroactive and ex post facto laws. The trial court relying upon its decision in Sigler v. State, Richland County Court of Common Pleas, Case No. 07 CV 1863 granted judgment in favor of appellee on October 7, 2008.
{¶ 7} Appellant, State of Ohio, through the Richland County Prosecuting Attorney's Office, filed a notice of appeal, raising four assignments of error.
{¶ 8} On January 14, 2009, this Court sua sponte stayed all further proceedings in this, as well as numerous other, Richland County Adam Walsh cases pending our decision in Sigler v. State, Richland App. No. 08-CA-79.
{¶ 9} On April 27, 2009, this Court reversed the trial court's decision in Sigler. On May 8, 2009, this Court sua sponte assigned this case to the accelerated calendar.
{¶ 10} Appellee, pro se, filed a brief in this case on June 4, 2009.
{¶ 11} Appellant's four Assignments of Error are as follows:
{¶ 12} "I. WHETHER, BEYOND A REASONABKE [sic] DOUBT, SENATE BILL 10 AND THE CONSTITUTIONAL PROVISIONS CITED BY THE TRIAL COURT ARE CLEARLY INCOMPATIBLE, AND WHETHER THERE IS NO SET OF CIRCUMSTANCES UNDER WHICH THE SENATE BILL 10 WOULD BE VALID. THE TRIAL COURT PURPORTED TO INVALIDATE THE LEGISLATION, RATHER THAN THE STATUTORY PROVISIONS ACTUALLY AT ISSUE IN THIS MATTER. HENCE, BY INVALIDATING THE "ADAM WALSH ACT," THE COURT APPARENTLY PURPORTED TO INVALIDATE EVERY STATUE AMENDED BY THE SB 10, DESPITE THE NARROW CLAIM BEFORE IT. THE COURT BELOW DID NOT PROPERLY APPLY, OR SUBSTANTIATE DIVERGENCE FROM, THE PRESUMPTION OF CONSTITUTIONALITY.
{¶ 13} "II. WHETHER SENATE BILL 10'S LEGISLATIVE ADJUSTMENT TO THE FREQUENCY AND DURATION OF APPELLE'S [sic] PRE-EXISTING DUTY TO REGISTER RENDERED THE STATUTE UNCONSTITUTIONALLY RETROACTIVE. A STATUTE FOUND TO BE RETROACTIVE IS ONLY UNCONSTITUTIONAL IF IT SIGNIFICANTLY BURDENS A VESTED SUBSTANTIVE RIGHT, BUT NOT IF IT IS REMEDIAL. AS THE OHIO SUPREME COURT HAS CONSISTENTLY HELD UNDER THE STATUTORY FRAMEWORK AMENDED BY THE SENATE BILL 10, THAT FRAMEWORK IS REMEDIAL IN NATURE. THE GENERAL ASSEMBLY EXPRESSED ITS INTENT THAT R.C. CHAPTER 2950, AS AMENDED, REMAIN REMEDIAL IN NATURE.
{¶ 14} "III. WHETHER SENATE BILL 10'S ADJUSTMENT TO THE FREQUENCY AND DURATION OF APPELLEE'S PRE-EXISTING DUTY TO REGISTER CONSTITUTED SUCCESSIVE PUNISHMENT IN VIOLATION OF THE EX POST FACTO CLAUSE. IT WAS, INSTEAD, A REMEDIAL, CIVIL STATUTE THAT DID NOT IMPACT OFFENDERS' SENTENSES [sic] FOR THE CRIMES THEY COMMITTED.
{¶ 15} "IV. WHETHER A PLEA AGREEMENT BETWEEN AN OFFENDER AND THE PROSECUTING ATTORNEY CREATED A VESTED, SETTLED EXPECTATION THAT THE OFFENDER'S CLASSIFICATION WOULD NEVER CHANGE. THE CLASSIFICATIONS OF SB 10, AND PRIOR CLASSIFICATIONS IMPOSED PURSUANT TO STATUTE BY THE COURT, DO NOT, AND DID NOT, CREATE THE EXPECTATION THAT CONVICTED SEX OFFENDERS WOULD NEVER AGAIN BE THE SUBJECT OF LEGISLATIVE ACTION.
STANDARD OF REVIEW
{¶ 16} This case comes to us on the accelerated calendar. App. R. 11.1, which governs accelerated calendar cases, provides, in pertinent part:
{¶ 17} "(E) Determination and judgment on appeal. The appeal will be determined as provided by App. R. 11. 1. It shall be sufficient compliance with App. R. 12(A) for the statement of the reason for the court's decision as to each error to be in brief and conclusionary form. The decision may be by judgment entry in which case it will not be published in any form."
{¶ 18} One of the important purposes of accelerated calendar is to enable an appellate court to render a brief and conclusory decision more quickly than in a case on the regular calendar where the briefs, facts and legal issues are more complicated. Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App.3d 158.
{¶ 19} This appeal shall be considered in accordance with the aforementioned rules.
I, II III
{¶ 20} In appellant's first, second, and third assignments of error, appellant contends that the trial court erred in finding S.B. 10 to be unconstitutional on multiple grounds. We agree.
{¶ 21} This court has examined the identical arguments that were accepted by the trial court in order to find SB 10 unconstitutional; we have rejected those arguments. State v. Gooding, 5th Dist. No. 08 CA 5, 2008-Ohio-5954 at ¶ 37; See also, Sigler v. State, Richland App. No. 08-CA-79, 2009-Ohio-2010; State v. Perkins, Coshocton App. No. 08-CA-0020, 2009-Ohio-2404; State v. Hughes, Coshocton App. No. 2008-CA-23, 2009-Ohio-2406. Virtually every Appellate District in the State has upheld the AWA against the identical challenges that were raised by the appellee in the trial court. See, State v. Graves, 179 Ohio App.3d 107, 2008-Ohio-5763; Holcomb v. State, Third Dist. Nos. 8-08-23, 8-08-25, 8-08-26, 8-08-24, 2009-Ohio-782; State v. Bodyke, 6th Dist. Nos. H-07-040, H07-041, H07-042, 2008-Ohio-6387; State v. Byers, 7th Dist. No. 07CO39, 2008-Ohio-5051; State v. Ellis, 8th Dist. No. 90844, 2008-Ohio-6283; State v. Honey, 9th Dist. No. 08CA0018-M, 2008-Ohio-4943; State v. Christian, 10th Dist. No. 08AP-170, 2008-Ohio-6304; State v. Swank, 11th Dist. No. 2008-L-019, 2008-Ohio-6059; State v. Williams, 12th Dist. No. CA2008-02-029, 2008-Ohio-6195.
{¶ 22} Upon thorough review of appellant's arguments, we shall follow the law set forth in our decisions in Gooding and Sigler. On the authority of the foregoing decisions, appellant's first, second and third assignments of error are well taken.
IV.
{¶ 23} In its fourth assignment of error, appellant argues that the trial court erred by finding Senate Bill 10 to be unconstitutional on the basis that it violates the right to contract pursuant to Article II, Section 28 of the Ohio Constitution.
{¶ 24} In the case at bar, appellee was convicted after a jury trial. Accordingly, there was no "plea agreement" as set forth in appellant's fourth assignment of error. Accordingly, the "right to contract" argument is not properly before this Court.
{¶ 25} Appellant's fourth assignment of error is not well taken.
{¶ 26} For the foregoing reasons, we find appellant's arguments to be meritorious and sustain appellant's first, second and third assignments of error. Senate Bill 10 is constitutional and, as courts across the Ohio have repeatedly held, does not violate substantive or procedural due process, nor does it violate prohibitions against retroactive or ex post facto laws.
{¶ 27} The decision of the Richland County Court of Common Pleas is therefore reversed and this case is remanded for proceedings in accordance with our opinion and the law.
Gwin, P.J., Hoffman, J., and Wise, J., concur.
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion, The decision of the Richland County Court of Common Pleas is therefore reversed and this case is remanded for proceedings in accordance with our opinion and the law. Costs to appellee.