Sheriff Must Send Notice to Last Known Address Before Failure To Register Charge Can Be Filed

July 11, 2007 Ohio:

2006-0875. State v. Williams, 2007-Ohio-3268.
Allen App. No. 1-05-74, 166 Ohio App.3d 444, 2006-Ohio-1409. Judgment reversed.
Moyer, C.J., Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger and Skow, JJ., concur.
William J. Skow, J., of the Sixth Appellate District, sitting for Cupp, J.
Court Opinion:

(July 11, 2007) The Supreme Court of Ohio held today that a sheriff must send a statutorily required written notification to a sex-offender's last known address before the offender may be prosecuted for failure to periodically verify his current address. The Court's unanimous decision was authored by Justice Judith Ann Lanzinger.

Based on a prior conviction for a qualifying sex offense, Derrick Williams of Lima was required under R.C. Chapter 2950 to register annually with the Allen County Sheriff to verify his current address. On June 25, 2004, Williams went to the sheriff's office for his required annual address verification. He advised the sheriff that he was currently homeless. The sheriff provided Williams with a paper explaining his registration requirements and informing him that his next registration was to be completed by June 15, 2005. Williams signed the document.

Williams failed to appear or contact the sheriff's office to update his address by June 15, 2005. He was later indicted for failure to comply with the sex offender registration statute, a third-degree felony. Williams filed a motion to dismiss the complaint because the sheriff had not sent a written warning required under R.C. 2950.06(G)(1) advising Williams that he had missed his registration deadline and that charges would be filed against him if he did not register within seven days. The Allen County Court of Common Pleas granted the motion to dismiss.

On review, the 3rd District Court of Appeals reversed the trial court and reinstated the charge against Williams. The appellate panel held that R.C. Chapter 2950 was a “remedial” rather than a “punitive” statute, which meant that provisions of the statute need not be strictly construed against the state. Applying that standard, the court of appeals found that, under the facts of Williams' case, the sheriff did not need to send the seven-day warning notice before prosecuting Williams for failure to periodically verify current address.

Williams appealed the 3rd District's ruling, and the Supreme Court agreed to hear arguments in the case.

In today's decision, Justice Lanzinger noted that the 3rd District relied on State v. Cook, a 1998 decision in which the Supreme Court of Ohio reviewed the overall purpose of R.C. Chapter 2950 and held that it was remedial rather than punitive.

“Reliance on Cook is misplaced here,” wrote Justice Lanzinger. “R.C. Chapter 2950 has been amended since Cook ... and the simple registration process and notification procedures considered in that are now different.... The registration requirements of R.C. Chapter 2950 may have been enacted generally as remedial measures, but R.C. 2950.06 defines a crime: the offense of failure to verify current address. R.C. 2901.04 requires that statutes defining offenses or penalties shall be strictly construed against the state and liberally in favor of the defendant. Therefore, this section of the law is subject to strict interpretation against the state, and must be liberally interpreted in favor of the accused.”

Having made that determination, Justice Lanzinger wrote that the Court disagreed with the 3rd District's holding “that mailing of the required notices operates independently of the seven day period, i.e. that prosecution may commence seven days after the yearly verification deadline, even if the warning letter has not been sent.... Because the statute clearly states that the offender must be given a new compliance date (which is seven days from the date the warning is sent), an R.C. 2950.06(F) prosecution is dependent on the sending of that notification.... We hold that the sheriff must fulfill the duty to send a notification to the offender's last known address before a sex offender may be prosecuted for failure to periodically verify a current address under R.C. 2950.06(F). We therefore reverse the judgment of the Allen County Court of appeals and reinstate the trial court's dismissal of this action.”

Justice Lanzinger's opinion was joined by Chief Justice Thomas J. Moyer, Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O'Connor and Terrence O'Donnell, and Judge William J. Skow of the 6th District Court of Appeals, who sat by assignment in place of Justice Robert R. Cupp.

Contacts
Jana E. Emerick, 419.222.2462, for the State of Ohio and Allen County prosecutor's office.

Michael J. Short, 419.228.0189, for Derrick Williams. ..more.. by Ohio Supreme Court