Burbrink v. State

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[Cite as Burbrink v. State, 2009-Ohio-5346.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO ROBERT BURBRINK, Petitioner-Appellee, vs. STATE OF OHIO, Respondent-Appellant. : : : APPEAL NO. C-081075 TRIAL NO. SP-0800354 D E C I S I O N. : : Civil Appeal From: Hamilton County Court of Common Pleas Judgment Appealed From Is: Reversed and Cause Remanded Date of Judgment Entry on Appeal: October 9, 2009 Herbert J. Haas, for Petitioner-Appellee, Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Respondent-Appellant. Please note: This case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS S UNDERMANN , Judge. {¶1} On April 29, 2005, petitioner-appellee Robert Burbrink pleaded guilty in a plea bargain to sexual battery in violation of R.C. 2907.03(A)(3). Prior to accepting the plea, the trial court stated, There is an agreement that he be a sexually-oriented offender. Defense counsel stated that he had explained to Burbrink that sexually-oriented offender was the lowest classification. The court informed Burbrink about his registration requirements. The court then accepted the plea, found Burbrink guilty of sexual battery, imposed sentence, and found that Burbrink was a sexually-oriented offender. Under former R.C. Chapter 2950, Burbrink was required to annually register as a sexual offender for ten years. {¶2} In 2007, the General Assembly enacted Am.Sub.S.B. No. 10 ( Senate Bill 10 ) to implement the federal Adam Walsh Child Protection and Safety Act of 2006. Senate Bill 10 amended various sections of R.C. Chapter 2950. Burbrink was notified that he had been reclassified under Senate Bill 10 as a Tier III sex offender and that he was required to register with the local sheriff every 90 days for life. {¶3} On February 14, 2008, Burbrink filed a petition contesting his reclassification. At the October 16, 2008, hearing on Burbrink s petition, defense counsel submitted a copy of the transcript of the April 29, 2005, plea hearing. The trial court stated, And then as part of the plea we talked about what classification he was going to be, and that was all part of the whole agreement of the case. The court further stated, I don t think - - I don t like to go back on deals when you promise somebody something. * * * I ll grant your motion contesting reclassification based on the fact that I think there was an agreement here. The court noted that Burbrink would still have to register as a sexually-oriented offender until the ten years expired. {¶4} We note that the trial court s entry, captioned entry denying petition for reclassification, is confusing. The court s entry states that the court denies the 2 OHIO FIRST DISTRICT COURT OF APPEALS state s motion to reclassify. He remains a sexual offender with all reporting requirements in place. It is clear from the record that the court granted Burbrink s petition to contest his reclassification and determined that Burbrink was not subject to Senate Bill 10 s tier-classification and registration requirements. {¶5} The state has appealed and has raised one assignment of error for our review, which alleges that the trial court erred in finding that a plea agreement as to a criminal charge constituted a contractual agreement as to a sexual offender s registration duties. The state argues that the retroactive application of Senate Bill 10 s tier-classification and registration requirements did not violate the Contract Clause of the Ohio and United States Constitutions because it did not impair Burbrink s rights under any contract with the state of Ohio that, under his plea agreement, he would be obligated to register as a sex offender for only ten years. The application of Senate Bill 10 s registration requirements, the state argues, does not constitute a breach of Burbrink s plea agreement or an impairment of his right to contract. {¶6} Burbrink argues that reclassifying him as a Tier III sex offender under Senate Bill 10 would constitute a breach of his plea agreement and an impairment of an obligation of contract in violation of Section 28, Article II of the Ohio Constitution and Clause I, Section 10, Article I of the United States Constitution. {¶7} Section 28, Article II of the Ohio Constitution and Clause I, Section 10, Article I of the United States Constitution provide that no laws shall be passed that impair the obligation of contracts. [A]ny change in the law which impairs the rights of either party, or amounts to a denial or obstruction of the rights accruing by contract, is repugnant to the Constitution. 1 Plea agreements are contracts between 1 See Kiser v. Coleman (1986), 28 Ohio St.3d 259, 503 N.E.2d 753. 3 OHIO FIRST DISTRICT COURT OF APPEALS the state and criminal defendants.2 Principles of contract law are applicable to the interpretation and enforcement of plea agreements.3 {¶8} The Fifth Appellate District stated in Sigler v. State4 that the real issue is whether the law in effect at the time the defendant entered into his plea bargain provided that the General Assembly could change things, and * * * ex post facto and retroactivity principles do allow the General Assembly to impose new community notification on prior offenders. Not only are existing laws read into contracts in order to fix obligations as between the parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order. 5 {¶9} At the time he entered his plea, Burbrink had no reasonable expectation that his sex offense would never be made the subject of future sexoffender legislation and no vested right concerning his registration duties.6 [W]here no vested right has been created, a later enactment will not burden or attach a new disability to a past transaction or consideration in the constitutional sense, unless the past transaction or consideration * * * created at least a reasonable expectation of finality. 7 Sex offenders have no expectation of finality in the consequences of the judgments against them.8 The state could not and did not contract to bar the legislature from modifying sex-offender registration and notification statutes.9 Burbrink had no vested contractual right with which the legislature could interfere.10 See State v. Netherland, 4th Dist. No. 08CA3043, 2008-Ohio-7007, citing State v. Adkins, 161 Ohio App.3d 114, 2005-Ohio-2577, 829 N.E.2d 729. 3 See State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150; State v. Vega, 1st Dist. No. C-020486, 2003-Ohio-1548. 4 5th Dist. No. 08-CA-79, 2009-Ohio-2010. 5 See id., citing El Paso v. Simmons (1965), 379 U.S. 497, 85 S.Ct. 577. 6 See State v. Cook, 83 Ohio St.3d 404, 1998-Ohio-291, 700 N.E.2d 570. 7 See id., citing State ex rel. Maltz v. Brown (1988), 37 Ohio St.3d 279, 525 N.E.2d 805; State v. Randlett, 4th Dist. No. 08CA3046, 2009-Ohio-112. 8 See State v. Cook, supra, at fn. 5; Sewell v. State, 181 Ohio App.3d 280, 2009-Ohio-872, 908 N.E.2d 995. 9 See Sigler v. State, supra, at fn. 3. 10 See State v. Randlett, supra; Gildersleeve v. State, 8th Dist. Nos. 91515 through 91519 and 91521 through 91532, 2009-Ohio-2031; Moran v. State, 12th Dist. No. CA2008-05-057, 2009Ohio-1840; Ritchie v. State, 12th Dist. No. CA2008-07-073, 2009-Ohio-1841. 2 4 OHIO FIRST DISTRICT COURT OF APPEALS Therefore, the retroactive application of Senate Bill 10 s tier-classification and registration requirements does not violate the Contract Clause of the Ohio and United States Constitutions. {¶10} Future sex-offender registration and notification statutes are remedial and not punitive.11 They are not punishment and they are not part of any sentence imposed on the sex offender.12 The new tier-classification and registration requirements are merely collateral consequences of the underlying criminal offense.13 Therefore, they do not affect any plea agreement previously entered between the state and the defendant.14 {¶11} Under former R.C. Chapter 2950, Burbrink was a sexually-oriented offender by operation of law. The state fulfilled its part of the plea agreement by not requesting a higher sexual-offender classification under the former law. The trial court accepted the plea agreement and classified Burbrink as a sexually-oriented offender. Once Burbrink had pleaded guilty and the trial court had sentenced him, both Burbrink and the state had performed their respective parts of the plea agreement.15 No action taken after that time could have breached the plea agreement.16 The assignment of error is sustained. {¶12} The judgment of the trial court is reversed, and the cause is remanded with instructions to the trial court to enter an order that Burbrink is subject to Senate Bill 10 s tier-classification and registration requirements as a Tier III sex offender. Judgment reversed and cause remanded. D INKELACKER , J., concurs separately. H ENDON , P.J., dissents. See Sewell v. State, supra, at fn. 7. See id. 13 See State v. Paris, 3rd Dist. No. 2-2000-04, 2000-Ohio-1886. 14 See In re J.M., 8th Dist. No. 91800, 2009-Ohio-2880; State v. Patterson, 6th Dist. No. E-08052, 2009-Ohio-1817; State v. Paris, supra, at fn. 12. 15 See In re J.M., supra, at fn. 10; State v. Netherland, supra, at fn. 1; Slagle v. State, 145 Ohio Misc.2d 98, 2008-Ohio-593, 884 N.E.2d 109. 16 See id. 11 12 5 OHIO FIRST DISTRICT COURT OF APPEALS D INKELACKER , Judge, concurring. {¶13} I concur with the foregoing well-reasoned decision. I further write separately because I would also hold that the record in this case does not support the trial court s finding that there was an agreement between the state and Burbrink as to his sexual-offender classification and registration requirements. For a court to enforce a contract, the record must contain evidence of the terms of the contract. The record does not demonstrate that a ten-year registration requirement was a term of Burbrink s plea agreement. {¶14} Under former R.C. Chapter 2950, Burbrink was classified by operation of law as a sexually-oriented offender. As a sexually-oriented offender, Burbrink had to register annually for ten years. The ten-year registration requirement existed by operation of law and not by virtue of any plea agreement. HENDON, Presiding Judge, dissenting. {¶15} I respectfully dissent. Both the Ohio and the United States Constitutions provide that no laws shall be passed that impair the obligations of contracts.17 Any change in the law impairing the rights of parties to a contract, or denying or obstructing the rights accruing to either party under a contract, is unconstitutional.18 {¶16} A plea agreement is a contract between a criminal defendant and the state that is governed by contract-law principles.19 The law in effect at the time a plea is entered is part of the contract.20 The nature of the plea agreement must be See Section 28, Article II, Ohio Constitution; Clause I, Section 10, Article I, United States Constitution. 18 See Kiser v. Coleman, supra, at fn. 1. 19 See Ridenour v. Wilkinson, 10th Dist. No. 07AP-200, 2007-Ohio-5965, citing Ankrom v. Hageman, 10th Dist. No. 04AP-984, 2005-Ohio-1546, State v. Butts (1996), 112 Ohio App.3d 683, 679 N.E.2d 1170, and Santobello v. New York (1971), 404 U.S. 257, 92 S.Ct. 495. 20 See id. 17 6 OHIO FIRST DISTRICT COURT OF APPEALS examined to determine the understanding of the parties at the time of the plea.21 The United States Supreme Court stated in Santobello v New York22 that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. {¶17} Burbrink resolved the criminal charge against him by entering into a plea agreement with the state of Ohio. Prior to accepting the plea, the trial court stated that there was an agreement that Burbrink was to be classified as a sexually-oriented offender. In fact, the trial court informed Burbrink about his registration requirements as a sexually-oriented offender before accepting the plea. There was a clear meeting of the minds between the prosecutor and Burbrink that he was to be classified as a sexually-oriented offender and that he would be required to register as a sex offender annually for ten years. The record supports the trial court s determination that Burbrink s sexual-offender classification under former R.C. Chapter 2950 was a bargained-for term of the plea agreement. {¶18} I would hold that the plea agreement entered by Burbrink and the state was a valid contract, the terms of which provided that Burbrink was to be classified as a sexually-oriented offender with a ten-year annual registration requirement, and that applying Senate Bill 10 to change Burbrink s classification and registration requirements violates the constitutional prohibition against laws that impair the obligation of contracts. I would affirm the judgment of the trial court. Please Note: The court has recorded its own entry this date. 21 22 See State v. Pointer, 8th Dist. No. 85195, 2005-Ohio-3587, at ¶7. See, Santobello, supra, at fn. 17. 7

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