Black v. State

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[Cite as Black v. State, 2009-Ohio-4295.] COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT LONNIE BLACK Petitioner-Appellee -vs- STATE OF OHIO : : : : : : : : : JUDGES: W. Scott Gwin, P.J. John W. Wise, J. Julie A. Edwards, J. Case No. 08-CA-214 OPINION Respondent-Appellant CHARACTER OF PROCEEDING: Civil Appeal from Richland County Court of Common Pleas Case No. 08-CV-336D JUDGMENT: Reversed and Remanded DATE OF JUDGMENT ENTRY: August 20, 2009 APPEARANCES: For Petitioner-Appellee For Respondent-Appellant LONNIE BLACK Inmate #A144741 Richland Correctional Institution 1001 Olivesburg Rd. P.O. Box 8107 Mansfield, Ohio 44901 FRANK ARDIS, JR. KIRSTEN PSCHOLKA-GARTNER Assistant Prosecuting Attorney s Richland County Prosecutor s Office 38 South Park Mansfield, Ohio 44902 [Cite as Black v. State, 2009-Ohio-4295.] Edwards, J. {¶1} Appellant, the State of Ohio, appeals a judgment of the Richland County Common Pleas Court finding Senate Bill 10, Ohio s Adam Walsh Act, to be unconstitutional. Appellee is Lonnie Black. STATEMENT OF FACTS AND CASE {¶2} Appellee Lonnie Black was convicted of aggravated murder and aggravated robbery in Cuyahoga County in December 1975. Appellee is incarcerated in Richland County. While incarcerated, appellee received notice that effective January 1, 2008, he would be classified for purposes of sex offender registration as a Tier III offender pursuant to Senate Bill 10, the Adam Walsh Act, effective July 1, 2007. On February 7, 2008, appellee filed a petition in the Richland County Common Pleas Court to contest his sex offender registration classification. In his petition, appellee argued that he was not convicted of any sex offense, his conviction of aggravated murder did not include a specification of sexual motivation, and his Tier III classification is therefore inapplicable. Appellant moved to dismiss his petition. In response, appellee filed a reply stating that R.C. 2950.031(E) authorizes the court to determine whether the new registration requirements apply to the offender at all. Appellee again asserted that he has not been convicted of any offense which would subject him to the registration requirements of the AWA. {¶3} The trial court found that based on Sigler v. State of Ohio, Case Number 07 CV 1863, in which the trial court had found the Adam Walsh Act to be an unconstitutional violation of the ex post facto clause and the prohibition on retroactive Richland County App. Case No. 08-CA-214 3 laws, application of the Act to appellee was barred because he had been previously sentenced and classified under the law in existence when he was sentenced. {¶4} The state assigns four errors on appeal: {¶5} 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 THE STATUTORY PROVISIONS ACTUALLY AT ISSUE IN THIS MATTER. HENCE, BY INVALIDATING THE ADAM WALSH ACT, THE COURT APPARENTLY PURPORTED TO INVALIDATE EVERY STATUTE AMENDED BY THE SB10, DESPITE THE NARROW CLAIM BEFORE IT. PROPERLY APPLY, OR SUBSTANTIATE THE COURT BELOW DID NOT DIVERGENCE FROM, THE PRESUMPTION OF CONSTITUTIONALITY. {¶6} 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 Richland County App. Case No. 08-CA-214 4 ITS INTENT THAT R.C. CHAPTER 2950, AS AMENDED, REMAIN REMEDIAL IN NATURE. {¶7} III. WHETHER SENATE BILL 10 S LEGISLATIVE 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 [SIC] FOR THE CRIMES THEY COMMITTED. {¶8} 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. CLASSIFICATIONS OF SB 10, AND PRIOR CLASSIFICATIONS THE 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. I, II, III, IV {¶9} The assignments of error raised by the appellant are identical to those raised by the State of Ohio in Sigler v. Ohio, Richland App. No. 08-CA-79, 2009-Ohio2010. In Sigler, we sustained all four assignments of error, finding that the trial court erred in finding the Adam Walsh Act facially unconstitutional, and erred in finding the Act is unconstitutionally retroactive and violates the ex post facto clause. We further found that the changes in the registration law did not impinge upon an offender s right to contract by way of a plea agreement. Richland County App. Case No. 08-CA-214 5 {¶10} For the reasons stated in Sigler, supra, we sustain all four of appellant s assignments of error. {¶11} The judgment of the Richland County Court of Common Pleas is reversed and this case is remanded to that court for consideration of appellee s argument that he was not convicted of an offense which would subject him to the registration requirements of the Adam Walsh Act. By: Edwards, J. Gwin, P.J. and Wise, J. concur ______________________________ ______________________________ ______________________________ JUDGES JAE/r0721 [Cite as Black v. State, 2009-Ohio-4295.] IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT LONNIE BLACK Petitioner-Appellee -vsSTATE OF OHIO Respondent-Appellant : : : : : : : : : : JUDGMENT ENTRY CASE NO. 08-CA-214 For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Richland County Court of Common Pleas is reversed and this matter is remanded to the trial court for further proceedings. Costs assessed to appellee. _________________________________ _________________________________ _________________________________ JUDGES

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