OH- THE ADAM WALSH ACT ON APPEAL

A judge discusses the current cases on appeal in Ohio that pertain to reclassification of offenders required by the newly enacted Adam Walsh Act.

11-25-2008 Ohio:

Ohio’s first sex offender registration statute was enacted in 1963 at former R.C. Chapter 2950. The first major revisions were enacted in 1996 in what was referred to as Megan’s Law, which included registration and community notification requirements. Megan’s Law was a federal law passed in 1996 that authorized local law enforcement agencies to notify the public about convicted sex offenders living or working in their communities. Ohio had 15,716 registered sex offenders as of May 30, 2007.

The most recent development occurred when Ohio adopted the Adam Walsh Act, AWA, effective on January 1, 2008. This changed the former law in several significant ways.

Prior to the AWA, trial courts were required to determine whether sex offenders fell into one of three classifications: (1) sexually oriented offender; (2) habitual sex offender; or (3) sexual predator. The sexual predator classification required a finding by the court, following a hearing, that the defendant had committed a sexually oriented offense and was likely to commit another sexually oriented offense in the future. In reviewing a sexual predator determination, an appellate court reviewed the determination under a civil manifest weight of the evidence standard. A trial court’s determination would not be disturbed if it was supported by some competent, credible evidence.

The AWA abolished the requirement that the trial court conduct a hearing and find that the offender was likely to commit another sexually oriented offense in the future. The Megan’s law prior classifications of sexually oriented offender, habitual sex offender and sexual predator were replaced with new classifications. The AWA automatically places sex offenders into one of three tiers based solely on the offense of which they were convicted. Tier III includes the most serious sex offenses, such as rape and sexual battery. The AWA also requires the Ohio Attorney General to reclassify, by tier based on the offense committed, all offenders who were classified prior to its enactment.

The AWA also increased the registration and community notification requirements of sex offenders. Under the former law, sexually oriented offenders and habitual sex offenders were required to register with the county sheriff where they resided once a year for ten or 20 years, respectively, and sexual predators were required to register every 90 days for life. Under the AWA, Tier I offenders are required to register once a year for 15 years; Tier II offenders must register every 180 days for 25 years; and Tier III offenders must register every 90 days for life. As to community notification, under Megan’s law, the sheriff notified the offender’s adjacent neighbors, local schools, and day care centers of the offender’s name, address, and conviction. Under the AWA, the sheriff must give this notice to all residents, schools, and day care centers within 1,000 feet of the offender’s residence. As with Megan’s law, the registration and notification requirements of the AWA are retroactive in that they apply to offenders whose crimes were committed before the effective date of the statute.

Finally, the AWA prohibits all sex offenders from residing within 1,000 feet of a school or day care center. It allows the owner of property who lives within 1,000 feet of such institutions or the local law director to file for an injunction to enforce this provision.

There are now pending in our court about 40 cases wherein the appellants assert various constitutional challenges to the AWA. They include challenges based on the AWA’s alleged violation of the ex post facto clause of the United States Constitution and the retroactivity clause of the Ohio Constitution; procedural and substantive due process; and the separation of powers doctrine.

To date, the Second, Third, Fourth, Eighth, and Ninth Appellate Districts See, State v. Desbiens, 2d Dist.No. 22489, 2008-Ohio-3375 (no ex post facto or substantive or procedural due process violation); In re Smith, 3d Dist. No. 1- 07-58, 2008-Ohio-34 (no ex post facto, retroactive clause, or separation of powers violation); State v. Longpre, 4th Dist. No. 08CA3017, 2008-Ohio-3832 (no ex post facto or retroactive clause violation); State v. Holloman-Cross, 8th Dist. No. 90351, 2008-Ohio-2189 (no ex post facto violation); In re G.E.S., 9th Dist. No. 24079, 2008-Ohio-4076 (no ex post facto or separation of powers violation). Each of these courts relied on the Supreme Court of Ohio’s decision in State v. Cook, 83 Ohio St.3d 404, 1998-Ohio-291 as precedent. In Cook, the Court held that, although Megan’s Law is retroactive, because the purpose of its registration and notification requirements was to protect the public from released sex offenders and the law was remedial and not punitive, it did not violate the ex post facto clause or the retroactivity provision. To date, no Ohio Appellate District has found the AWA to be unconstitutional.

The Ohio Supreme Court has recently held that an amendment to Megan’s Law which, like the AWA, prohibited sex offenders from residing within 1,000 feet of a school, could not be applied retroactively because the former statute was not expressly made retroactive. Hyle v. Porter, 117 Ohio St.3d 165, 2008-Ohio- 542. As a result, the Court held it could not address whether the residency restriction violated the prohibition of the Ohio Constitution against retroactive laws. Since the AWA also does not expressly provide the residency restriction is retroactive, it would appear that Hyle is precedent to a similar challenge under the AWA.

In State v. Ferguson, Slip Opinion No. 008-Ohio-4824, the Supreme Court held three other amendments to Megan’s Law do not violate the ex post facto and retroactivity clauses: (1) the provision that the former sexual predator classification and duty to register remain for life; (2) the provision that offenders are required to register with the sheriff where they work and go to school, in addition to where they reside; and (3) the provision that any information required to be provided in the registration process be included on an internet database. Since these provisions survive in nearly identical form in the AWA, it appears that Ferguson will be precedent to similar challenges made to the AWA.

In light of the aggressive manner in which these issues are being appealed, I would expect the Ohio Supreme Court will rule on them in the near future. ..Source.. by Judge Cynthia Westcott Rice, 11th District Court of Appeals