Brumley v. State

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[Cite as Brumley v. State, 2009-Ohio-4245.] COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT WILLIE BRUMLEY Petitioner-Appellee -vsSTATE OF OHIO Respondent-Appellant : : : : : : : : : JUDGES: Hon. W. Scott Gwin, P.J. Hon. Julie A. Edwards, J. Hon. Patricia A. Delaney, J. Case No. 2008-CA-260 OPINION CHARACTER OF PROCEEDING: Civil appeal from the Richland County Court of Common Pleas, Case No. 08-CV-564D JUDGMENT: Reversed and Remanded DATE OF JUDGMENT ENTRY: August 19, 2009 APPEARANCES: For Petitioner-Appellee For Respondent-Appellant WILLIE BRUMLEY PRO SE #A194204 Richland County Correctional Institute Box 8107 Mansfield, OH 44901 FRANK ARDIS, JR KIRSTEN PSCHOLKA-GARTNER 38 South Park Mansfield, OH 44902 [Cite as Brumley v. State, 2009-Ohio-4245.] Gwin, P.J. {¶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 [ S.B. ] 10, Ohio s sexual offender classification and registration scheme, to be unconstitutional in its entirety. {¶2} Petitioner-appellee Willie G. Brumley, 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 Ohio's Senate Bill 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 in the Portage County Court of Common Pleas of one count of murder and one count of kidnapping.1. {¶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 classified as a Tier III Sex Offender. 1 Nothing within the trial court file informs us as to what classification, if any, appellee was assigned as a result of his original conviction. Richland County, Case No. 2008-CA-260 {¶5} 3 On March 4, 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. {¶6} The trial court found that Senate Bill 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, 2009-Ohio-210. {¶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 has not filed a brief in this case. {¶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 Richland County, Case No. 2008-CA-260 4 THE STATUTORY PROVISIONS ACTUALLY AT ISSUE IN THIS MATTER. HENCE, BY INVALIDATING THE "ADAM WALSH ACT," THE COURT APPARENTLY PURPORTED TO INVALIDATE EVERY STATUE [sic.] 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 COMMITTED. [sic.] FOR THE CRIMES THEY Richland County, Case No. 2008-CA-260 5 {¶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. Richland County, Case No. 2008-CA-260 6 I, II & III {¶20} In appellant s first, second, and third assignments of error, appellant contends that the trial court erred in finding Senate Bill 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. Richland County, Case No. 2008-CA-260 7 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. We agree. {¶24} We find the State s argument to be well taken based upon our decision in Sigler, supra, and we therefore sustain the fourth Assignment of Error. {¶25} For the foregoing reasons, we find appellant s arguments to be meritorious and sustain all four 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. {¶26} 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. By Gwin, P.J., Edwards, J., and Delaney, J., concur _________________________________ HON. W. SCOTT GWIN _________________________________ HON. JULIE A. EDWARDS _________________________________ HON. PATRICIA A. DELANEY WSG:clw 0717 [Cite as Brumley v. State, 2009-Ohio-4245.] IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT WILLIE BRUMLEY Petitioner-Appellee -vsSTATE OF OHIO Respondent-Appellant : : : : : : : : : : : JUDGMENT ENTRY CASE NO. 2008-CA-260 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. _________________________________ HON. W. SCOTT GWIN _________________________________ HON. JULIE A. EDWARDS _________________________________ HON. PATRICIA A. DELANEY

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