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Wednesday, Nov. 4, 2009

In 2007 the General Assembly enacted S.B. 10, also known as the Ohio Adam Walsh Act. The legislation eliminated the state’s former classification scheme and post-release registration requirements for persons convicted of sex-related crimes, and replaced them with a new classification system and new, more restrictive registration and community notification requirements. The bill, which took effect Jan. 1, 2008, directed state courts to assign all persons convicted of specified sex crimes after that date to one of three new sex-offender classifications based solely on the criminal offense for which the defendant had been convicted, and to include in an offender’s sentencing order a requirement that upon release from prison he or she must comply with the post-release registration and community notification requirements set forth in S.B. 10 for that category of offenders.

The bill also directed the state attorney general to review the status of approximately 22,000 former offenders who were then subject to the state’s pre-S.B. 10 sex offender registration and notification requirements, reassign each of those offenders to one of the three new S.B. 10 classifications according to the offense(s) for which that person was convicted, and notify each of those persons that as of Jan. 1, 2008, he or she must comply with the more stringent registration and community notification requirements imposed by S.B. 10.

All four cases on the Court’s oral argument calendar for Nov. 4 involve constitutional challenges to the provisions of S.B. 10 that require the attorney general to retroactively reclassify sex offenders whose crimes were committed before S.B. 10 was enacted.

State of Ohio v. Christian N. Bodyke, David A. Schwab [and] Gerald E. Phillips, Case no. 2008-2502
6th District Court of Appeals (Huron County)

Roman Chojnacki v. Marc Dann, Ohio Atty. General [Richard Cordray], in his Official Capacity, Case nos. 2008-0991 and 2008-0992
12th District Court of Appeals (Warren County)

In the Matter of: Darian J. Smith, Alleged Delinquent Child, Case no. 2008-1624
3rd District Court of Appeals (Allen County)

In re: Adrian R., Delinquent Child, Case no. 2009-0189
5th District Court of Appeals (Licking County)


Is Application of S.B. 10 to Sex Offenders Whose Crimes Were Committed Before Law Enacted Unconstitutional?

State of Ohio v. Christian N. Bodyke, David A. Schwab [and] Gerald E. Phillips, Case no. 2008-2502
6th District Court of Appeals (Huron County)

ISSUE: Does the retroactive application of heightened sex-offender registration and public notification requirements included in S.B. 10 to offenders whose crimes were committed before that bill was enacted violate the constitutional prohibition against “ex post facto” laws (i.e., laws that increase the punishment for a defendant’s past conduct “after the fact”)?

BACKGROUND: Christian Bodyke, David Schwab and Gerald Phillips, all residents of Huron County, were separately convicted of sex-related crimes prior to 2007. Under the pre-S.B. 10 statutory scheme for classifying sex offenders, after entering a conviction for a sex-related crime, trial courts were required to conduct a post-conviction hearing at which evidence was presented by the state and the defendant to help the court assess the likelihood that the defendant would reoffend.

At the conclusion of the required hearing, the court assigned the offender to one of three categories. Those assessed as least likely to commit future offenses were designated “sexually oriented offenders” and required to register with the local county sheriff once each year for 10 years after leaving prison. Those with a prior conviction for a sex-related crime but determined not to be predatory were designated “habitual sexual offenders” and required to register twice each year for 20 years. Offenders whose criminal conduct and psychological profiles indicated the highest likelihood of reoffending  were designated “sexual predators” and required to register every 90 days for life. The pre-2007 law also required sheriffs to notify nearby residents, school officials and other designated parties in writing whenever an offender categorized as a sexual predator established or changed his residence address; and allowed a sentencing court to determine on a case-by-case basis whether or not to require community notification for those categorized as habitual offenders.

Following their convictions and classification hearings under the pre-S.B. 10 statutory scheme, Bodyke and Phillips were classified as sexually oriented offenders and Schwab agreed as part of a  plea bargain to his classification as an habitual offender without a requirement of community notification. 

Following the enactment of S.B. 10 in July 2007, Bodyke, Schwab and Phillips were among approximately 22,000 prior sex offenders across the state who received a registered letter from the state attorney general stating that they had been reclassified.  Bodyke, Schwab and Phillips were all advised that effective Jan. 1, 2008, they would be classified as Tier III (highest risk) offenders and would therefore be subject to quarterly registration for the rest of their lives.  All three men appealed the attorney general’s reclassification in the Huron County common pleas court, asserting that the retroactive application of S.B. 10 to abolish their prior classifications and impose new and more restrictive requirements on them was unconstitutional.  In each case, the common pleas court upheld the reclassification as constitutional, but granted all three offenders’ petitions to be exempted from the requirement of community notification.

Bodyke, Schwab and Phillips each appealed the trial court’s ruling to the 6th District Court of Appeals, which consolidated their cases for review. The 6th District affirmed the trial court’s decisions upholding the constitutionality of the reclassifications.  In its opinion, the court of appeals relied on several earlier decisions of the Supreme Court of Ohio holding that the registration and notification provisions of the pre-2007 sex offender statute were intended to protect the public rather than to punish offenders, and therefore retroactive changes in those provisions did not violate the constitution because they did not “increase the punishment” of reclassified sex offenders.

Bodyke and his co-appellants sought and were granted Supreme Court review of the 6th District’s ruling. Their attorneys argue that the changes to the pre-2007 sex offender classification system imposed by S.B. 10 are punitive rather than remedial in their intent and effects, and therefore may not be imposed retroactively against offenders whose crimes were committed prior to enactment of those changes.

Among other arguments, the appellants contend that:

Attorneys for the Huron County prosecutor’s office and the Ohio attorney general’s office, who will jointly argue on behalf of the state, respond that:

Contacts
Jeffrey M. Gamso, 419.243.3800, for Appellants Bodyke, Schwab and Phillips.

Russell V. Leffler, 419.668.8215, for the Huron County prosecutor’s office.

Benjamin C. Mizer, 614.466.8980, for Ohio Attorney General Richard Cordray.

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Does Sex Offender Appealing Reclassification Under S.B. 10 Have Right to Legal Counsel at Hearing?

Roman Chojnacki v. Marc Dann, Ohio Atty. General [Richard Cordray], in his Official Capacity, Case nos. 2008-0991 and 2008-0992
12th District Court of Appeals (Warren County)

ISSUES:

BACKGROUND: Roman Chojnacki was convicted of sexual conduct with a minor in 2006 and sentenced to 12 years in prison. Following a post-conviction court hearing under Ohio’s pre-2007 sex offender statute, Chojnacki was placed in the lowest-risk category of “sexually oriented offender” which required him to register with the sheriff in his county of residence once a year for 10 years following his release from prison. In late 2007, like other prior sex offenders subject to registration, Chojnacki received a registered letter from the attorney general’s office informing him that he had been reclassified under S.B. 10.  Chojnacki was advised that he had been reclassified as a Tier II offender, and under provisions of the new law would be subject to registration twice each year for 25 years from the date of his conviction.

Chojnacki exercised his right to appeal his reclassification to the Warren County Court of Common Pleas. Along with his appeal petition, Chojnacki filed a request for court-appointed counsel.  When that request was denied by the trial court, Chojnacki attempted to appeal that ruling to the 12th District Court of Appeals. The court of appeals declined jurisdiction, holding that a ruling denying appointed counsel was not a final order subject to immediate appeal. The 12th District later certified that its denial of jurisdiction was in conflict with a decision of the 2nd District holding that denial of appointed counsel was a final, appealable order.  The Supreme Court heard oral argument on that conflict issue in March 2009.  Following that argument, rather than ruling on the initial question of law, the Court asked the parties to submit further written briefs addressing whether a S.B. 10 reclassification appeal hearing is a civil or criminal proceeding, and whether, if the hearing is civil in nature, the appellant is entitled to legal representation at such hearings.

Attorneys for Chojnacki advance many of the same arguments put forward by the appellants in Bodyke v. Cordray (see case preview above) that the changes made by S.B. 10 to Ohio’s prior sex-offender classification scheme are punitive rather than protective in nature. They contend that because an offender’s classification under S.B. 10 is completely determined by the crime for which he was convicted,  an offender’s appeal of reclassification must be considered a continuation of the criminal proceedings that resulted in his conviction. They cite due process case law holding that defendants must have access to legal counsel during every critical stage of a criminal proceeding.

They also argue that, even if the Court finds that S.B. 10 reclassification appeals are civil in nature, prior U.S. Supreme Court decisions have held that when adversary civil proceedings between a governmental entity and an individual place a fundamental right or vital interest of the individual at risk, and the state is represented by attorneys, the individual has a right to legal counsel and an indigent individual has a right to court-appointed counsel. They point to court decisions holding that individuals have a due process right to legal counsel in government-initiated civil actions that seek to revoke citizenship, establish or deny paternity, terminate parental rights, impose civil commitments and in some probation/parole revocation proceedings, and assert that offenders opposing the retroactive imposition of life-long registration and community notification requirements have a similar entitlement.

Attorneys representing Ohio Attorney General Richard Cordray urge the Court to affirm its earlier holdings in State v. Cook and State v. Ferguson that Ohio’s sex offender classification statutes are not criminal in nature because the registration and community notification requirements they impose are not intended as punishment but rather to protect the public by keeping track of prior offenders and making information about their whereabouts accessible to their former victims, parents of vulnerable children and other concerned citizens. They point out that S.B. 10 includes specific language reaffirming the legislature’s protective rather than punitive intent, and note that while the bill changed the basis upon which offenders are assigned to classifications, it still imposes on offenders only the same types of duties (i.e. periodic registration with law enforcement and prompt updating of information about changes in residency, employment and school attendance) that were imposed under the pre-2007 statutory schemes that the Court upheld as constitutional in Cook and Ferguson.

Contacts
Sarah M. Schregardus, 614.466.5394, for Roman Chojnacki.

Benjamin C. Mizer, 614.466.8980, for Ohio Attorney General Richard Cordray.

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Does Retroactive Application of S.B. 10 to Juvenile Sex Offenders Violate Their Constitutional Rights?

In the Matter of: Darian J. Smith, Alleged Delinquent Child, Case no. 2008-1624
3rd District Court of Appeals (Allen County)

In re: Adrian R., Delinquent Child, Case no. 2009-0189
5th District Court of Appeals (Licking County)

The two cases captioned above will be argued separately, but are summarized together below because they involve the same legal issues and advance very similar arguments.

In both of the above cases, juvenile offenders who were convicted of sex-related crimes prior to enactment of S.B. 10 were subsequently classified under S.B. 10 as Tier III (highest risk) offenders based solely on the offense for which they were convicted. As a result of that classification, both juveniles were ordered to register with local law enforcement officials every 90 days for the rest of their lives.

Both youthful offenders appealed the retroactive application of S.B. 10’s offense-based classification scheme to their cases. In both cases the reviewing court of appeals upheld the offender’s offense-based classification under S.B. 10 as constitutional, and found that the new law effectively eliminated the discretion of juvenile judges in assigning a youthful offender to one of the three statutory tiers subject to progressively more restrictive registration requirements. The Supreme Court agreed to review both cases, and has scheduled oral arguments to coincide with its review of appeals in similar cases involving adult sex offenders (see Bodyke and Chojnacki case summaries above).

In challenging the court of appeals rulings in their respective cases, the youthful offenders point out that the former Ohio juvenile sex-offender statute in effect at the time their crimes were committed required a juvenile court to consider a number of specified factors including the youth of the defendant, and to make specific findings regarding an individual offender’s likelihood of reoffending before it could place a youthful offender in a classification requiring registration or community notification. Attorneys for both offenders argue that the courts of appeals in their cases erred in reading S.B. 10 to eliminate the discretion of juvenile courts to assign juvenile offenders to any of the three new tier classifications. They urge the Court to follow the opinions of five other Ohio appellate districts that have ruled that the mandatory language in S.B. 10 basing an offender’s tier assignment exclusively to the crime for which he was convicted applies only to adults and not to juvenile offenders.

If the Court finds that S.B. 10’s offense-based classification scheme does impose the same mandatory offense-based classifications on juvenile offenders as it does on adults, they argue that retroactive application of an offense-based Tier III classification to the youthful offenders in these cases would: 1) violate the defendants’ right to due process under the juvenile registration statute that was in force at the time of their offenses, 2) impose an unconstitutional ex post facto (after the fact) increase in the punishment that was applicable to their crimes at the time they were committed, 3) violate the provision of the Ohio Constitution that bars retroactive application of a state law where such application deprives a party of a vested right or interest; and 4) constitute cruel and unusual punishment by imposing life-long registration and community notification requirements for crimes committed when the offenders were respectively 14 and 15 years old.

Attorneys for the state respond that retroactive application of S.B. 10’s classification scheme cannot violate the constitutional bar against ex post facto increases in punishment for a crime because the U.S. and Ohio Supreme Courts have determined that classification and community notification requirements imposed on sex offenders are not “punishment,” but rather remedial procedures to protect the public.  In light of those rulings, they argue, simply changing the criteria for classification of adult or youthful offenders or extending the length of an offender’s non-punitive registration requirement does not trigger due process requirements that are applicable only to criminal proceedings or to civil actions in which an individual’s fundamental right or liberty interest is at stake.

They urge the Court to affirm the holdings of the 3rd and 5th district courts of appeals in these two cases that S.B. 10 imposes a clear requirement that all adult and qualifying juvenile sex offenders subject to classification at the time of the bill’s enactment, and all offenders convicted of sex-related offenses thereafter, must be assigned to one of the three tiers set forth in the statute based exclusively on the offense for which the offender was convicted.  In determining the legislative intent behind S.B. 10, they urge the Court to consider that it was enacted in response to the 2006 adoption by Congress of the Adam Walsh Act, which established a strictly offense-based federal offender classification system and required the states to follow suit or face a loss of federal funding for health and safety programs.

Contacts
Brooke M. Burns, 614.466.5394, for juvenile offenders D. Smith and A.R.

Christina L. Steffan, 419.695.9080, for the Allen County prosecutor’s office (In re Smith).

Alice L. Robinson-Bond, 740.670.5243, for the Licking County prosecutor's office (In re A.R.)

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.