The trial court further dismissed Mr. Lasko s constitutional challenges to the Act. Lasko was properly reclassified as his classification and duty to register arose by operation of law solely by the virtue of his convictions for sexual battery and corruption of a minor.
Further, we find the new sexual offender registration provisions, when viewed through the prism of prior precedent set by the Supreme Court of Ohio, are constitutional. Lasko s constitutional challenge is without merit. Lasko was convicted of one count of sexual battery, a third degree felony in violation of R. He was classified as a sexually oriented offender shortly before his release from incarceration in the spring of Lasko timely filed a petition to contest his reclassification and a motion for immediate relief from community notification.
After holding a hearing, the trial court denied his petition for reclassification, finding: Lasko was properly reclassified from a sexually oriented offender to a Tier III offender under the new Act, his new classification arose automatically by operation of law, his constitutional challenges were without merit, and he was not subject to the community notification provisions because he was not subject to community notification under the former classification and registration scheme.
Lasko now timely appeals, raising the following assignment of error: The legislation was enacted so that the state law would be consistent with the federal Adam Walsh Child Protection and Safety Act of The prior statutory scheme provided that a defendant s designation under the three categories would be predicated upon the nature of the underlying offense and findings of fact made by the trial court during a sexual classification hearing.
Instead, a defendant who has committed a sexually oriented offense can only be designated as either a sex offender or a child victim offender. There are now three tiers of sexual offenders. The extent of the defendant s registration and notification requirements will depend on the tier.
Furthermore, the placement in a tier turns solely on the crime committed. Prior to Senate Bill 10, if a defendant was deemed a sexually oriented offender, he was required to register once each year for a period of 10 years, but there was no notification requirement; if he was labeled as a habitual sex 3 offender, he had to register once every six months for 20 years, and the community could be given notice of his presence at the same rate; and if he was designated a sexual predator, the duty to register was once every three months for life, and notification could also take place at the same rate for life.
Chapter , the registration and community notification requirements are increased for sex offenders. If the defendant s sexual offense places him in the Tier I category, he is required to register once every year for a period of 15 years, but there is no community notification; if the defendant s offense falls under the Tier II category, registration must take place once every six months for 25 years, and there is still no notification requirement; and, if the sexual offense places the defendant in the Tier III category, the requirements are essentially the same as for a sexual predator, in that there is a duty to register once every three months for life, and community notification can occur at that same rate for life.
Community notification under the new scheme requires the sheriff to give the notice of an offender s name, address, and conviction to all residents, schools, and day care centers within 1, feet of the offender s residence.
The new law also prohibits all sex offenders from residing within 1, feet of a school or day care center. These registration and notification requirements under the Adam Walsh Act are retroactive and applicable to offenders whose crimes were committed before the effective date of the statute. Lasko s reclassification as a Tier III offender arises solely as an operation of law due to his conviction of sexual battery and corruption of a minor.
Lasko raises five specific constitutional arguments, arguing that the new Act is in contravention of his rights against ex post facto laws, retroactivity, separation of powers, as well as procedural and substantive due process.
State, Ohio App. H, H, and H, Ohio; State v. We note, however, as we did in Charette, that the Supreme Court of Ohio has become more divided on the issue of whether the registration and notification statute has evolved from a remedial and civil statute into a punitive one.
As Justice Lanzinger stated in her concurring in part and dissenting in part opinion in State v. Wilson, Ohio St. I do not believe that we can continue to label these proceedings as civil in nature. These restraints on liberty are the consequences of specific criminal convictions and should be recognized as part of the punishment that is imposed as a result of the offender s actions. See, also, State v.
Ferguson, Ohio St. We believe Senate Bill 10 merits review by the Supreme Court of Ohio to address the issue of whether the current version of R. Chapter has been transformed from remedial to punitive law. Before that court revisits the issue, however, we, as an inferior court, are bound 5 G. Lasko s contention that application to him of S. The original version of the sexual offender law stated that the defendant only had to register with the sheriff of the county where he was a resident.
See Cook, supra, at Under the latest version of the scheme, though, the places where registration is required has been expanded to now include: Cook , 83 Ohio St. Williams , 88 Ohio St. Similarly, the extent of the information which must be provided by an offender has increased. As part of the general registration form, the offender must indicate: Lasko argues that S.
Ex post facto challenges will only lie against criminal statutes. When considering such challenges, courts must apply the intent-effects test. Lasko argues that the intent of the Ohio General Assembly to pass a criminal statutory scheme in S.
He further argues that the effect of S. He asserts that the effects of the notification procedures embodied in the statute are similar to the shaming and public humiliations 7 used to punish criminals in colonial times. He notes that, unlike the classification system formerly in effect, which was based on a determination by the trial court, following hearing and the introduction of evidence, including psychological tests, of how likely an offender was likely to reoffend, the present system classes offenders solely on the basis of the crime for which they were convicted or pleaded guilty.
He remarks on the fact that failure to comply with S. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. Every law that aggravates a crime, or makes it greater than it was, when committed. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. Every law that alters the legal rules of evidence, and receives less, or different, testimony than the law required at the time of the commission of the offense, in order to convict the offender.
Tennessee , U. Bull , 3 U. Doe , U. Speaking for the Court, Justice Kennedy wrote: If the intention of the legislature was to impose punishment, that ends the inquiry.
If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is so punitive either in purpose or effect as to negate the State s intention to deem it civil. Because we ordinarily defer to the legislature s stated intent, Hendricks, supra, at , only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty, Hudson v.
United States, U. One Assortment of 89 Firearms, U. Hendricks, supra, at internal quotation marks omitted ; see also Hudson, supra, at We consider the statute s text and its structure to determine the legislative objective. A conclusion that the legislature intended to punish would satisfy an ex post facto challenge without further inquiry into its effects, so considerable deference must be accorded to the intent as the legislature has stated it. However, a closer reading of S.
The United States Supreme Court rejected the notion that a statute s placement within a criminal code is solely determinative of whether the statute is civil or criminal in Smith. However, it is clearly indicative of the statute s purpose. Ohio , Case No. LEXIS , at Sweeney of the Eighth Appellate District recently noted regarding the intent of S. However, the stated purpose of protecting the public from those likely to reoffend is substantially undermined by the total removal of any discretion or consideration in applying the tier labels to a particular offender.
The fact of conviction alone controls the labeling process, but simply is not in and of itself indicative of a realistic likelihood of a person to recidivate. In addition, the severity of the potential penalty for violating [the registration and notification] provisions of [S. When considering whether a statute s effects are punitive under the ban of ex post facto laws, courts are required to consider the factors set forth by the United States Supreme Court in Kennedy v.
Mendoza-Martinez , U. Cook, supra, at I am indebted to my colleague, Judge Timothy P. Cannon, for these insights into the intent of S.
They must register personally with the sheriffs of any county in which they live, work, or attend school, as often as quarterly. Failure to do so may result in felony prosecution even if the offender is, for instance, hospitalized, and unable to go to the sheriff s office.
Some of this information bears no relationship to any conceivable matter of public safety, such as where the offender parks his or her automobile. Some of the information is so vaguely described as to render compliance impossible.
What, for instance, is included amongst automobiles available to an offender, or telephones used by an offender? Is an offender required to report to the sheriff when he or she has a loaner from the auto body shop? Is an offender required to report if he or she stopped in a mall and used a public phone? Must an offender register the cell phone number of a spouse or child, which the offender only uses on rare occasions?
The right to live where one wishes is a fundamental attribute of personal liberty, protected by the United States Constitution. The affirmative duties to register constantly with law enforcement, and turn over to them vast amounts of private information, the limitations upon where an offender may live, and the duty to answer any question posed by the BCI renders the registration requirements of S.
Clearly they do not. There are strict liability sex offenses, such as statutory rape. Nevertheless, as the Supreme Court of Alaska remarked in considering this factor in a challenge to Alaska s version of Megan s Law, the vast majority of sex offenses do require a finding of scienter.
Alaska , P. I conclude, as did the Alaska court, that this factor provides some support for the punitive effect of S. Retribution is vengeance for its own sake.