Stewart v. State

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[Cite as Stewart v. State, 2009-Ohio-4317.] COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT CHRIS STEWART Petitioner-Appellee -vsSTATE OF OHIO Respondent-Appellant : : : : : : : : : : JUDGES: Hon. W. Scott Gwin, P. J. Hon.William B. Hoffman, J. Hon.John W. Wise, J. Case No. 2008-CA-0290 OPINION CHARACTER OF PROCEEDING: Civil appeal from the Richland County Court of Common Pleas, Case No. 08CV242D JUDGMENT: Reversed and Remanded DATE OF JUDGMENT ENTRY: August 14, 2009 APPEARANCES: For Petitioner-Appellee For Respondent-Appellant CHRIS STEWART 139 East Vine Street Wooster, OH 44691 FRANK ARDIS, JR. KIRSTEN PSCHOLKA-GARTNER Richland County Prosecutor's Office 38 South Park [Cite as Stewart v. State, 2009-Ohio-4317.] 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, Chris Stewart, 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} According to appellee s petition, appellee was convicted in the Wayne County Court of Common Pleas of one count of Rape1. {¶4} On or about December 30, 2007, appellee received a Notice of New Classification and Registration Duties, based on Ohio's Adam Walsh Act, from the 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-0290 3 Office of the Attorney General2. The Notice indicated that he was being reclassified as a Tier III Sex Offender. {¶5} On January 29, 2008, appellee, pro se, 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 itself3. {¶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 14, 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 7, 2009, this Court sua sponte assigned this case to the accelerated calendar. {¶10} Appellee has not filed a brief in this case. 2 A copy of the notice was attached to appellee s Petition to Contest Reclassification filed February 14, 2008 in the trial court. 3 The trial court overruled appellee s motion to appoint counsel by Judgment Entry filed February 6, 2008. Appellee has not attempted to appeal the trial court s ruling. See, State v. King, 119 Ohio St.3d 1471, 894 N.E.2d 331 (Table), 2008 -Ohio- 4911; Chojnacki v. Rogers, Warren App. No. CA2008-03-040; State ex rel. King v. Welbaum, Miami App. No. 2008-CA-1. Richland County, Case No.2008-CA-0290 4 {¶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 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. Richland County, Case No.2008-CA-0290 {¶14} III. WHETHER SENATE 5 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 [sic.] FOR THE CRIMES THEY COMMITTED. {¶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 Richland County, Case No.2008-CA-0290 6 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. 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. Richland County, Case No.2008-CA-0290 7 {¶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. IV. {¶23} In the 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. Richland County, Case No.2008-CA-0290 8 {¶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., Hoffman, J., and Wise, J., concur _________________________________ HON. W. SCOTT GWIN _________________________________ HON. WILLIAM B. HOFFMAN _________________________________ HON. JOHN W. WISE WSG:clw 0805 [Cite as Stewart v. State, 2009-Ohio-4317.] IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT CHRIS STEWART Petitioner-Appellee -vsSTATE OF OHIO Respondent-Appellant : : : : : : : : : : : JUDGMENT ENTRY CASE NO. 2008-CA-0290 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas, Richland County, Ohio, is reversed, and the cause is remanded to the court for further proceedings in accord with law and consistent with this opinion. Costs to appellee. _________________________________ HON. W. SCOTT GWIN _________________________________ HON. WILLIAM B. HOFFMAN _________________________________ HON. JOHN W. WISE

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