State v. Scott
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[Cite as State v. Scott, 2010-Ohio-3452.] IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO Plaintiff-Appellee v. DONALD F. SCOTT Defendant-Appellant : : Appellate Case No. 23565 : : Trial Court Case No. 09-CR-1559 : : : (Criminal Appeal from : (Common Pleas Court) : : ........... OPINION Rendered on the 20th day of July, 2010. ........... MATHIAS H. HECK, JR., by JOHNNA M. SHIA, Atty. Reg. #0067685, Montgomery County Prosecutor s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee JEREMIAH DENSLOW, Atty. Reg. #0074784, 130 West Second Street, Suite 1600, Dayton, Ohio 45402 Attorney for Defendant-Appellant ............. BROGAN, J. {¶ 1} Donald Scott appeals from his conviction on July 2, 2009, of failure to notify in violation of R.C. 2950.05(A) and, in particular, the reclassification consequences of that conviction. Scott pleaded guilty to that offense, but now raises constitutional objections to registration and residency requirements of Senate 2 Bill 10 ( S.B. 10") made applicable to him. {¶ 2} The facts underlying his appeal are not in dispute. They are set out in the State s brief as follows: {¶ 3} Scott s initial duty to register was a result of a February 23, 1996, conviction for a lewd, lascivious offense in Case No. 95-02997 in the Circuit Court of Leon County, Florida, a felony of the second degree in Florida. (Tr. 6) Scott then moved to Ohio, where he registered an address with the Montgomery County Sheriff s Office. (Id.) In March 2009, Scott failed to notify the sheriff of a change in his address. In May 2009, Scott was indicted for failure to notify in violation of R.C. 2950.05(A). After Scott pleaded guilty to the offense, the trial court sentenced him to community control sanctions and classified him as a Tier II offender. {¶ 4} Scott was classified as a Tier II offender by the trial court and notified he would have to verify his residence every 180 days for 25 years and notify the Sheriff of any changes during that time. {¶ 5} In his assignments of error, Scott raises several constitutional challenges to Senate Bill 10. He contends the legislation (1) violates the ex post facto clause; (2) violates the prohibition on retroactive laws; (3) violates the separation of powers doctrine; (4) violates the double jeopardy clause; and (5) the residence restriction violates the due process clause. {¶ 6} This Court has addressed the arguments made in Scott s assignments in State v. Moore, 2nd Dist. No. 07-CA-93, 2008-Ohio-6238, where we held that S.B. 10 is civil and remedial in purpose and effect, citing, State v. King, Miami App. No. 08-CA-02, 2008-Ohio-2594. In State v. Desbiens, 2nd Dist. No. 22489, 3 2008-Ohio-3375, we held that Chapter 2950 does not offend the Ex Post Facto Clause, Substantive or Procedural Due Process, nor is it overbroad. In State v. Barker, 2nd Dist. No. 22963, 2009-Ohio-2774, we held that the registration and notification requirements in R.C. Chapter 2950 do not violate the double jeopardy, ex-post facto, retroactivity or separation of powers clauses. In State v. Heys, 2nd Dist. No. 09-CA-04, 2009-Ohio-5397, we held that S.B. 10 does not violate the non-delegation doctrine, substantive (property interest) and procedural due process (liberty interest), the commerce clause, separation of powers, double jeopardy, cruel and unusual punishment clause, the purposes of felony sentencing, the Sixth Amendment right to a jury trial, or the First Amendment for overbreath or vagueness. {¶ 7} Recently, the Ohio Supreme Court in State v. Bodyke, ___ Ohio St.3d ___, 2010-Ohio-2424, held as unconstitutional two sections of the Adam Walsh Act that authorized the Ohio Attorney General to reclassify sex offenders who had already been classified by judges under a previous version of the law, Megan s Law. The court held these provisions violated the separation of powers doctrine of the Ohio Constitution. Scott, however, was not reclassified by the Attorney General. He was classified as a Tier II offender by the trial court. {¶ 8} The appellant s assignments of error are overruled. The judgment of the trial court is Affirmed. ............. GRADY and FROELICH, JJ., concur. Copies mailed to: 4 Mathias H. Heck, Jr. Johnna Shia Jeremiah Denslow Hon. Michael Tucker
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