Tucker v. State

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[Cite as Tucker v. State, 2009-Ohio-4732.] COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT JUSTIN TUCKER Petitioner-Appellee JUDGES: Hon. Sheila G. Farmer, P. J. Hon. W. Scott Gwin, J. Hon. John W. Wise, J. -vsCase No. 08 CA 183 STATE OF OHIO Respondent-Appellant OPINION CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 08 CV 230D JUDGMENT: Reversed and Remanded DATE OF JUDGMENT ENTRY: September 9, 2009 APPEARANCES: For Petitioner-Appellee For Respondent-Appellant FREDRICK PITINII 101 Central Plaza South Suite 1000 Canton, Ohio 44702 FRANK ARDIS, JR. KIRSTEN PSCHOLKA-GARTNER ASSISTANT PROSECUTORS 38 South Park Mansfield, Ohio 44902 Richland County, Case No. 08 CA 183 2 Wise, J. {¶1} Respondent-Appellant, the State of Ohio, through the Richland County Prosecutor's Office, appeals the Richland County Court of Common Pleas ruling finding Senate Bill [S.B.] 10, Ohio's sexual offender classification and registration scheme, to be unconstitutional in its entirety. The relevant facts leading to this appeal are as follows. {¶2} Via a petition filed in the Richland County Court of Common Pleas, Appellee Justin Tucker contested his reclassification as a tier-level sex offender under R.C. 2950.01, et seq., as amended by S.B. 10, also known as the Adam Walsh Act ( A.W.A. ), a law which was in effect on the date the State 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 S.B. 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, that it violates the Ohio Constitution s prohibition against retroactive laws, that it violates the separation of powers doctrine and constitutes a double jeopardy violation, and that it violates due process and the right to contract. {¶3} According to his petition, in 2004, Appellee was convicted of unlawful sexual conduct with a minor in the Richland County Court of Common Pleas. As a result, Appellee was classified under the pre-2008 sexual offender registration system. Richland County, Case No. 08 CA 183 {¶4} 3 On or about December 1, 2007, the Office of the Attorney General issued a Notice of New Classification and Registration Duties, based on Ohio's Adam Walsh Act. The notice indicated that appellee was being reclassified accordingly. {¶5} On January 29, 2008, Appellee timely filed a Petition to Contest Application of the Adam Walsh Act with the Richland County Court of Common Pleas (hereinafter trial court ) pursuant to R.C. 2950.031(E) and 2950.032(E). {¶6} Via an entry filed on September 29, 2008, 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. {¶7} Appellant State of Ohio, through the Richland County Prosecuting Attorney's Office, thereupon 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. {¶9} On April 27, 2009, this Court reversed the trial court's decision in Sigler. This Court thereafter sua sponte assigned this case to the accelerated calendar. {¶10} Appellant, State of Ohio, herein raises the following four Assignments of Error: {¶11} 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 Richland County, Case No. 08 CA 183 4 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. {¶12} 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. {¶13} 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 Richland County, Case No. 08 CA 183 5 NOT IMPACT OFFENDERS' SENTENSES [SIC] FOR THE CRIMES THEY COMMITTED. {¶14} 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 {¶15} This case comes to us on the accelerated calendar. App.R. 11.1, which governs accelerated calendar cases, provides, in pertinent part: {¶16} (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. {¶17} 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. Richland County, Case No. 08 CA 183 6 I., II., & III. {¶18} In its First, Second, and Third Assignments of Error, Appellant State of Ohio contends that the trial court erred in finding Senate Bill 10 to be unconstitutional on multiple grounds. We agree. {¶19} This Court has examined the identical arguments that were accepted by the trial court in order to find S.B. 10 unconstitutional; we have now rejected those arguments. See State v. Gooding, Coshocton App. No. 08 CA 5, 2008-Ohio-5954; See also, Sigler v. State, Richland App. No. 08-CA-79, 2009-Ohio-2010. Virtually every Appellate District in the State of Ohio has upheld the A.W.A. against the identical challenges the trial court relied upon to find S.B. 10 unconstitutional. See, State v. Graves, 179 Ohio App.3d 107, 2008-Ohio-5763; Holcomb v. State, 3rd Dist. Nos. 8-0823, 8-08-25, 8-08-26, 8-08-24, 2009-Ohio-782; State v. Bodyke, 6th Dist. Nos. H-07040, H07-041, H07-042, 2008-Ohio-6387; State v. Byers, 7th Dist. No. 07CO39, 2008Ohio-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, 2008Ohio-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. {¶20} 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. {¶21} In its Fourth Assignment of Error, Appellant State of Ohio argues that the trial court erred by finding Senate Bill 10 to be unconstitutional on the basis that it Richland County, Case No. 08 CA 183 7 violates the right to contract pursuant to Article II, Section 28 of the Ohio Constitution. We agree. {¶22} Although the right to contract issue was not explicitly addressed in the trial court s entry in this particular case, we note we have previously examined this issue. See Sigler v. State, Richland App. No. 08-CA-79, 2009-Ohio-2010, ¶ 88. Upon thorough review of Appellant's arguments, we shall follow the law set forth in our decision in Sigler. To the extent that the trial court implicitly relied on any right to contract argument by Appellee, Appellant's Fourth Assignment of Error is well taken. {¶23} 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 Ohio have repeatedly held, does not violate prohibitions against retroactive or ex post facto laws. {¶24} The judgment of the Court of Common Pleas, Richland County, Ohio, is therefore reversed and this case is remanded for proceedings in accordance with our opinion and the law. By: Wise, J. Farmer, P. J., and Gwin, J., concur. ___________________________________ ___________________________________ ___________________________________ JUDGES JWW/d 92 Richland County, Case No. 08 CA 183 8 IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT JUSTIN TUCKER Petitioner-Appellee -vsSTATE OF OHIO Respondent-Appellant : : : : : : : : : JUDGMENT ENTRY Case No. 08 CA 183 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Richland County, Ohio, is reversed and remanded for further proceedings consistent with this opinion. Costs assessed to appellee. ___________________________________ ___________________________________ ___________________________________ JUDGES

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