OH- Sex offender attacks new law

9-10-2008 Ohio:

His partial win in Franklin County on registration rules faces likely appeal

A man convicted of rape seven years ago won a partial victory yesterday in a Franklin County lawsuit challenging a new state law that retroactively imposed stricter registration requirements for sex offenders.

Rubin T. Toles must register his address with the sheriff more frequently and for the rest of his life, but many other requirements contained in the law are unconstitutional in his case, Common Pleas Judge Charles A. Schneider ruled.

Toles' lawsuit is among numerous challenges that have been filed across the state since Ohio adopted the Adam Walsh Act late last year, but it's the first to be ruled on in Franklin County. In May, a Cuyahoga County judge found the retroactive aspects of the law to be unconstitutional in the case of a man convicted of sexual battery in 2003.

"I anticipate that one or both of the parties in the case will appeal," Schneider said. "It won't rest until the Court of Appeals and ultimately the Supreme Court rules on this decision. So, I encourage them to appeal. Only the Supreme Court can render the ultimate decision."

Toles pleaded guilty in 2001 to the rape of a 12-year-old girl. The court classified him as a sexually oriented offender and determined that he was not a sexual predator. Under state law at the time, Megan's Law, he was required to register annually for 10 years when he was released.

Under the Adam Walsh Act, which took effect Jan. 1 in Ohio, Toles was reclassified as a Tier III offender, requiring him to register quarterly for the rest of his life. He also became subject to community notification, under which the sheriff is required to notify his neighbors and others in the community of his residence.

Schneider ruled that Toles, 38, is not subject to community notification because a hearing at the time of his conviction determined he was not a sexual predator.

The judge also ruled that much of the information required on the registration form under the new law posed an unreasonable burden in Toles' case, such as license-plate numbers of vehicles available to him, where those vehicles are usually kept, telephone numbers he uses, and "any other information required by (the state Bureau of Criminal Identification and Investigation) without limitation."

"How does anyone know what telephone numbers he might use?" Schneider wrote. "Most troubling is the open invitation to BCI to add additional requirements without limitation."

However, the change in frequency and duration of registration was not punitive or burdensome enough to violate the state's retroactivity clause, the judge ruled.

Paul Skendelas, who served as Toles' public defender, expects the ruling to be appealed.

Franklin County Prosecutor Ron O'Brien could not be reached for comment.

Although Schneider's ruling applies only to Toles, Skendelas expects it to be "persuasive" when other Franklin County judges consider similar cases.

The county public defender's office is handling more than 500 challenges to the law, he said.

Nearly 1,000 such cases had been filed in Cuyahoga County when the ruling was issued there in May, The (Cleveland) Plain Dealer reported.

Amy Borror, a spokeswoman for the Ohio Public Defender, said that "26,000 people were reclassified under the new law. Nobody has a good number for how many have filed challenges, but it's in the thousands." ..News Source.. by John Futty and Jodi Andes, THE COLUMBUS DISPATCH