Office of the Ohio Public Defender Office of the Ohio Public Defender
 
 

| Home |About Us | Divisions | Reimbursement | OPD Resources | Internet Links | Press | County PD's |

Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

SEX OFFENDERS AND SEXUAL PREDATOR LAWS (210)

Also see Child-Victim Oriented Offenses and Offenders

 

Sexually oriented offenses; Sexually oriented offenders

S.B. 10 cases

Habitual sex offenders

Sexual predators, constitutional issues

Sexual predators, procedural issues

Sexual predators, adjudication issues

Sexual predators, other issues

Sexually violent predators

Civil commitment

Reporting violations

Juveniles; Delinquency adjudications

Other issues

 

R.C. 2950.01 -- Definitions.

R.C. 2950.02 -- Legislative determinations and intent to provide information to protect public safety.

R.C. 2950.03 -- Notice to offender of duty to register and update address.

R.C. 2950.04 -- Duty to register.

R.C. 2950.05 -- Notice of change of address; registration of new address.

R.C. 2950.06 -- Periodic verification of current address.

R.C. 2950.07 -- Commencement of duty to register; duration.

R.C. 2950.08 -- Persons authorized to inspect information and records.

R.C. 2950.09 -- Classification as sexual predator; determination hearing; petition for removal from

classification.

R.C. 2950.10 -- Notice to victim of offender's registration or change of information.

R.C. 2950.11 -- Persons to be notified within geographical area.

R.C. 2950.12 -- Immunity.

R.C. 2950.13 -- Duties of attorney general.

R.C. 2950.14 -- Information to be provided to Bureau of Criminal Identification and Investigation prior to

release.

R.C. 2950.99 -- Penalties.

Sexually oriented offenses; Sexually oriented offenders

State v. Champion, 106 Ohio St. 3d 120, 2005-Ohio-4098 -- Syllabus: "A person whose prison term for a sexually oriented offense was completed before July 1, 1997, is not required to register under R.C. 2950.04(A)(1)(a) or periodically verify a current address under R.C. 2950.06(A), even if the person returns to prison on a parole violation for a term served concurrently with the sexually oriented offense.(R.C. 2950.04(A)(1)(a), construed and applied.)

State v. Moyers (2000), 137 Ohio App. 3d 130 -- Trial court found defendant not to be a sexual predator, but did find him to be a "sexually oriented offender." Such status arises by operation of law, not judicial determination, and is not a matter forming the basis for an appeal.

State v. Grider (2001), 144 Ohio App. 3d 323 -- Sexually oriented offender status attaches by operation of law. There is no right to a classification hearing, nor must the indictment carry notice such status will result upon conviction.

State v. Small, 162 Ohio App. 3d 375, 2005-Ohio-3813 -- Automatic classification of a person who kidnapped an infant as a sexually oriented offender, leading to prosecution for failure to register, violated substantive due process.  Offense involved a carjacking with no sexual overtones.  On reconsideration this reverses the initial ruling in State v. Small, 162 Ohio App. 3d 325, 2005-Ohio-2291.

State v. Turner, Richland App. No. 2004-CA-36, 2004-Ohio-6573 -- Trial court was without authority to rescind classification as a sexually oriented offender.

State v. Cooper, Hamilton App. No. C-030921, 2004-Ohio-6428 -- Court failed to conduct a classification hearing at the time of sentencing, but informed the defendant he had to register as a sexually oriented offender at a hearing towards the end of his period of community control.(1) Since classification is automatic, delay was not prejudicial. (2) Court abrogates it's previous holding that the registration requirements of R.C. 2950.05 through 2950.06 are unconstitutional as applied to sexually oriented offenders. See State v. Anthony, Hamilton App. No. C-030510, 2004-Ohio-3894; State v. Boeddeker (Feb. 13, 1998), 1st Dist. No. C-970471.

State v. Hayden, 96 Ohio St. 3d 211, 2002-Ohio-4169 -- Syllabus: "The Confrontation Clauses of the Sixth Amendment to the United States Constitution and of Section 10, Article I of the Ohio Constitution do not apply to R.C. Chapter 2950. (2) The Due Process Clauses of the Fourteenth Amendment to the United States Constitution and of Section 10, Article I of the Ohio Constitution do not require a trial court to conduct a hearing to determine whether a defendant is a sexually oriented offender. Instead, according to R.C. Chapter 2950, if a defendant has been convicted of a sexually oriented offense as defined in R.C. 2950.01(D), and is neither a habitual sex offender nor a sexual predator, the sexually oriented offender designation attaches as a matter of law."

State v. Slade (Dec. 28, 1999), Franklin App. No. 98AP-1818 -- "Whether or not an assault is classified as one which was committed with a purpose to gratify the sexual desires of the offender is a question of fact which rests upon the unique facts and circumstances of each offense." Also see State v. Barnes, Franklin App. No. 02AP-275, 2003-Ohio-86.

State v. Barksdale, Montgomery App. No. 19294, 2003-Ohio-43 -- Defendant burglarized a house where four children were present. Upon pleading guilty to burglary and four counts of kidnapping he was found to be a sexually oriented offender, even though it was stipulated that the kidnappings were not sexually motivated. Though this is a proper interpretation of the controlling statute, court finds a due process violation as such a result is unreasonable and arbitrary, and bears no relationship to the purposes of the statute.  Also see State v. Reine, Montgomery App. No. 19167, 2003-Ohio-50; State v. Young, Montgomery App. Nos. 19472 and 19473, 2003-Ohio-2205; State v. Hickman, Portage App. No. 2003-P-0087, 2004-Ohio-3929, State v. Washington (Nov. 14, 2001), 11th Dist. App. No. 99-L-015.

State v. Bowman, Franklin App. No. 02AP-1025, 2003-Ohio-5341 -- In court defendant found guilty of abduction was declared a sexual predator, but entry stated he was a sexually oriented offender. (1) Evidence supported conclusion offense was sexually motivated. (2) Post-notice of appeal efforts by the trial court to put on entries declaring the defendant a sexual predator were inconsistent with the jurisdiction of the court of appeals, and thus a nullity.

State v. Childs (2001), 142 Ohio App. 3d 389 -- In 1985 inmate was acquitted of rape but convicted of felonious assault. Court could consider victim's testimony in determining that the felonious assault was sexually motivated and thus a sexually oriented offense. Even if it were not, defendant had previously been convicted of a sexually oriented offense and was subject to being adjudicated a sexual predator though he was no longer serving a term of imprisonment on that charge.

State v. McPherson (2001), 143 Ohio App. 3d 741, 747 -- Soliciting for prostitution after a positive HIV test, though a felony, is not a sexually oriented offense.

State v. Wilkerson (2000), 138 Ohio App. 3d 861 -- Defendant was erroneously classified an habitual sex offender where there was not proof of a prior conviction under one of the qualifying subsections of the pandering obscenity statute.

Return to top of page

State v. Bodyke, 126 Ohio St. 3d 266, 2010-Ohio-2424 – Syllabus: “(1) The power to review and affirm, modify, or reverse other court’s judgments is strictly limited to appellate courts. (Section 3(B)(2), Article IV, Ohio Constitution, applied.) (2) R.C. 2950.031 and 2950.032, which require the attorney general to reclassify sex offenders who have already been classified by court order under former law, impermissibly instruct the executive branch to review past decisions of the judicial branch and thereby violate the separation-of-powers doctrine. (3) R.C. 2950.031 and 2950.032, which require the attorney general to reclassify sex offenders whose classifications have already been adjudicated by a court and made the subject of a final order, violate the separation-of-powers doctrine by requiring the opening of final judgments.” Reconsideration denied: State v. Bodyke, 126 Ohio St. 3d 1235, 2010-Ohio-3737. Related cases: Chojnacki v. Cordray, 126 Ohio St. 3d 321, 2010-Ohio-3212; In re Sexual Offender Reclassification Cases, 126 Ohio St. 3d 322, 2010-Ohio-3753; In re Sexual Offender Reclassification Cases, 126 Ohio St. 3d 505, 2010-Ohio-4725.

State v. Williams, 129 Ohio St. 3d 344, 2011-Ohio-3374 – Syllabus: “2007 Am.Sub.S.B. No. 10, as applied to defendants who committed sex offenses prior to its enactment, violates Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly from passing retroactive laws.” Changes compel the conclusion revised Chapter 2950 has become punitive, not remedial. Court does not address ex post facto claim under the federal constitution.

In re D.J.S., 130 Ohio St. 3d 257, 2011-Ohio-5342, 957 N.E.2d 291 – The Court of Appeals had rejected various constitutional challenges in the context of S.B. 10 juvenile sex offender registrants. ¶1: “The judgment of the court of appeals is reversed, and the cause is remanded for application of State v. Williams, 129 Ohio St. 3d 344, 2011-Ohio-3374, 952 N.E. 2d 1108.”

State v. Palmer, Slip Opinion No. 2012-Ohio-580 -- Bodyke does excise R.C. 2950.031 and .032 in toto, and thus not eliminate petitions for relief from classification. Nor does the S.B. 10 version of Chapter 2950 bring all sex offenders within the current tier system notwithstanding its constitutional defects. Syllabus: “(1) State v. Bodyke, 126 Ohio St. 3d 266, 2010-Ohio-2424, 933 N.E. 2d 753, did not invalidate the petition process for challenging a sex-offender classification under R.C. 2950.031(E) and 2950.032(E). (2) A trial court may dismiss an indictment for violations of R.C. Chapter 2950 when it determines that the chapter’s regulations do not apply to the accused.” Reverses State v. Palmer, Franklin App. Nos. 09AP-956, 957, 2010-Ohio-2421.

State v. Clayborn, 125 Ohio St. 3d 450, 2010-Ohio-2123 – Syllabus: “An appeal from an R.C. Chapter 2950 sexual-offender classification is an appeal in a criminal case that must be filed pursuant to App. R 4(A) within 30 days after judgment is entered.” If more than thirty days have gone by a delayed appeal is possible. Case involved a defendant sentenced after the effective date of S.B. 10 for an offense committed before that date. Constitutional challenges may be heard on appeal. The court rejects the state’s claim that they may not be addressed as classification is an automatic consequence of conviction.

State v. Bundy, Montgomery App. Nos. 23063, 23064, 2009-Ohio-5395 – Defendant completed his sentence on a sexually oriented offense prior to the 1997 effective date of the H.B. 180 version of Chapter 2950. Though according to State v. Champion, 106 Ohio St. 3d 120, 2005-Ohio-4098, he had no obligation to register, he did so anyway, and was on community control for a prior failure to register violation. Subsequent to the effective date of the S.B. 10 version of Chapter 2950 he was again charged with a new registration violation. (1) ¶45-49: Under the current law, the obligation to register applies regardless of when the offense was committed. Summarily reversed: In re Sexual Offender Reclassification Cases, 126 Ohio St. 3d 3753, ¶55. Abrogated by State v. Palmer, Slip Opinion No. 2012-Ohio-580.

State v. Adams, Franklin App. No. 09AP-141, 2010-Ohio-171 – Reclassification under the new tier system must be based on the record of conviction. Defendant pleaded guilty in 2000 to the former offense of corruption of a minor as a first degree misdemeanor. Under former law this was a sexually oriented offense. Under the tier system, Adams would be placed in a tier only if there was no consent or if he was four or more years older than the victim. The record of conviction was silent as to both issues. Defendant was not now required to prove consent. Nor may the prosecutor put on additional proof as to the age disparity. The state is bound by the plea bargain it struck in 2000.

State v. McConville, 182 Ohio App. 3d 99, 2009-Ohio-1713 – Relief from community notification as provided for in R.C. 2950.11(F)(2) is not limited to those classified under former law. Defendant in this case was sentenced in July 2008 after the effective date of S.B. 10. Case is pending before the Supreme Court as No. 2009-0893. Affirmed: State v. McConnville, 124 Ohio St. 3d 556, 2010-Ohio-958. Syllabus: “The community-notification provisions of R.C. 2950.11(F)(2) apply to defendants who are notified of their sexual-offender status after January 1, 2008, the effective date of Am.Sub.S.B. No.10.” R.C. 2950.11(F) is phrased in the present tense. Decision reached as a matter of statutory construction.

Sewell v. State, 181 Ohio App. 3d 280, 2009-Ohio-872 – Declaratory judgment action challenging retroactive application of S.B. 10 version of Chapter 2950 is unsuccessful.

State v. Spangler, Lake App. No. 2008-L-062, 2009-Ohio-3178 – Retroactive application of S.B. 10 amended version of Chapter 2950 to alter judicially determined classification under former law violates separation of powers. S. Euclid v. Jemison (1986), 28 Ohio St. 3d 157, followed.

State v. Williams, 177 Ohio App. 3d 865, 2008-Ohio-3586 – Defendant was returned to court to have postrelease control added to her sentence. The judge took the opportunity to classify her as a Tier III offender and relieved her of the community portion of reporting duties. Reversed. Reclassification of those convicted prior to changes in the law is the duty of the Attorney General.

Miller v. Cordray, 184 Ohio App. 3d 754, 2009-Ohio-3617 – Petitioner in a declaratory judgment action was required to register as a sex offender in Illinois, but never registered after moving to Ohio. He was prosecuted for failure to register and struck a plea bargain, before initiating the declaratory judgment action. (1) The Illinois statute under which he was convicted was premised on strict liability, and thus was substantially equivalent to its Ohio counterpart which required proof of recklessness. (2) Effort to fashion an argument that the petitioner was exempt from registration based on AG classification language in R.C. 2950.031 is unavailing. Duty to register is manifest in other provisions within Chapter 2950.

Cook v. Ohio, 192 Ohio App. 3d 674, 2011-Ohio-906 – Following the decision in State v. Bodyke the trial court dismissed an offender’s reclassification petition as moot. Offender appealed. State claimed severance of the provisions which provided for reclassification challenges individuals meant individuals could no longer obtain relief under those provisions. Reversed. Trial court is to put on an entry restoring the petitioner to his status under former (Megan’s) law. In Bodyke the remedy was not remand to the trial court for dismissal. A court of appeals must follow the decisions of that court. Compare Lyttle v. State, 191 Ohio App. 3d 487, 2010-Ohio-6277.

Core v. Ohio, 191 Ohio App. 3d 651, 2010-Ohio-6292 – Individual convicted in California maintained violation of Cal. Penal Code 288(a) was not the equivalent of GSI under Ohio law. ¶7-22: Trial court properly found equivalence, despite absence of non-spouse element, different age requirements, and variation with regard to areas of prohibited contact. Also see Miller v. Cordray, 184 Ohio App. 3d 754, 2009-Ohio-3617. ¶ State argued Bodyke did not apply as Mr. Core had not been judicially classified. While this may be a “conceivably correct” interpretation of Bodyke, the court finds the better view being that Bodyke extends severance of the provisions allowing reclassification by the A.G. to all offenders. Also see State v. Hazlett, 191 Ohio App. 3d 105, 2010-Ohio-6119.

In re W.A.S., 188 Ohio App. 3d 390, 2009-Ohio-4331 – Juvenile convicted of a sex offense in Illinois registered as a sex offender upon moving to Ohio to live with grandparents. Offense was committed shortly after S.B. 10 went into effect. Following registration the Attorney General reclassified the juvenile. He filed a petition for relief which was granted. (1) Though a declaratory judgment action would also lie, a petition for relief pursuant to R.C. 2950.032 was an alternative. Case was decided before Bodyke excised that statute. (2) The Attorney General was without statutory authority to reclassify in these circumstances.

State v. Kase, 187 Ohio App. 3d 590, 2010-Ohio-2688 – After pleading to a life-rape charge for which the punishment was either 15-life or life without parole, the defendant made a rude comment about the victim and was sentenced to “life imprisonment.” Remanded as it is unclear which sentence this referred to. Advice in court as to Tier III status at the time the plea was entered was OK, but error not to include tier status in judgment entry.

State v. Smith, Franklin App. No. 11AP-311, 2011-Ohio-6669 – When the defendant was sentenced in 1997 the court found him to be a sexual predator, but failed to include that finding in the judgment entry. Subsequently in an S.B. contest proceeding the state claimed this could be remedied by a nunc pro tunc entry. The court of appeals rejects this claim. Without a transcript of the sentencing hearing it would be speculation whether the omission was mere clerical error. Moreover, “res judicata bars the state from challenging the sentencing entry now, given that it could have previously filed an appeal when the entry was issued 14 years ago..” Also see State v. Hayes, Franklin App. No. 03AP-574, 2004-Ohio-591, ¶8-10.

Burbink v. State, 185 Ohio App. 3d 130, 2009-Ohio-5346 – Court rejects Contracts Clause and breach of plea agreement challenges to retroactive application of S.B 10.

State v. Graves, 179 Ohio App. 3d 107, 2008-Ohio-5763 – Defendant was convicted of gross sexual imposition, found to be a sexual predator and appealed. Appeal dismissed as moot. Before the appeal was decided S.B. 10 went into effect, and applies retroactively, classifying the defendant as a Tier II offender. Opinion comments the Ohio Supreme Court will have little difficulty finding S.B. 10 constitutional in view of its decision in Cook and the U.S. Supreme Court decision in Smith v. Doe

Return to top of page

Habitual sex offenders

State v. Gopp, 154 Ohio App. 3d 385, 2003-Ohio-4908 -- A judgement entry must affirmatively state whether or not an individual convicted of a sexually oriented offense is an habitual sex offender as well as whether or not the individual is a sexual predator.

State v. Melton (2001), 142 Ohio App. 3d 129 -- Since habitual sex offender status rests on the existence of qualifying convictions, recitation of the victim's police statement, even if erroneous, had no bearing on the court's determination. Court had declined to classify the defendant as a sexual predator.

State v. West (1999), 134 Ohio App. 3d 45 -- (1) Defendant was improperly found to be an habitual sex offender where there were multiple charges disposed of at the same time, but no prior conviction for a qualifying offense. (2) Claimed advice of former counsel that revised Chapter 2950 was unconstitutional did not require court grant motion to withdraw guilty pleas.

State v. Baker, Franklin App. No. 03AP-1104, 2004-Ohio-3380 -- Classification as an habitual sex offender requires a prior conviction.  Prior uncharged activity is not enough.

State v. Zupan (2000), 138 Ohio App. 3d 172 -- Child endangering is not a "sexually oriented offense." Thus the trial court erroneously determined defendant to be an habitual sex offender. Nor may the court conduct a sexual predator classification hearing upon remand.

State v. Griffin, Cuyahoga App. No. 82549, 2003-Ohio-4661 -- Second reversal based on trial court's failure to provide reasoning in support of its conclusion that the defendant was an habitual sex offender, but not subject to community notification. Prosecutor appealed based on sufficiency of the evidence. Court of appeals wants to know what evidence and factors the trial court considered before passing on the merits of the state's claim.

State v. Prether (2001), 141 Ohio App. 3d 6 -- Prior to January 1, 2002, a juvenile delinquency adjudication did not qualify as a prior conviction in determining habitual sex offender status for an adult. But according to amended R.C. 2950.01(B) such adjudications count, and juveniles may be classified as habitual sex offenders.

State v. Douglas (1989), 66 Ohio App. 3d 788 -- Ohio's former habitual sex offender registration law held not to be cruel and unusual punishment.

Return to top of page

Sexual predators, constitutional issues

State v. Ferguson, 120 Ohio St. 3d 7, 2008-Ohio-4824 – Retroactive law and ex post facto challenges rejected with respect to the 2003 amendments to Chapter 2950 in a 4-3 decision.

Smith v. Doe (2003), 123 S.Ct. 1140 -- Alaska's Sex Offender Registration Act held to be civil and nonpunitive. Thus its retroactive application does not violate the Ex Post Facto Clause.

Connecticut Department of Public Safety v. Doe (2003), 123 S.Ct. 1160 -- Connecticut law required convicted sex offenders to register and provided for information to be made available to the public on the Internet and at some state offices. Due process held not to require an opportunity for the offender to prove that he is not currently dangerous, since dangerousness is of no consequence under the statutory scheme. Registration requirements apply to all sex offenders. At 1165: "Plaintiffs who assert a right to a hearing under the Due Process Clause must show that under the facts they seek to establish in that hearing are relevant under the statutory scheme."

State v. Baron, 156 Ohio App. 3d 241, 2004-Ohio-747 -- Post-S.B. 5 constitutional challenge summarily rejected. Also see State v. Kennedy, 161 Ohio App. 3d 127, 2005-Ohio-2461.

State v. Dick (2000), 137 Ohio App. 3d 260 -- Inmate faced sexual predator classification hearing, but Court of Appeals found the statute unconstitutional. Proceedings in the trial court were dismissed and the state took no appeal. Even though the Supreme Court later upheld the statute, further proceedings were barred by res judicata.

State ex rel. Mason v. Griffin 90 Ohio St. 3d 299, 2000-Ohio-62 -- Judge refused to conduct a hearing to determine whether an inmate was a sexual predator, because ODRC had not filed a statement in compliance with R.C. 2950.09(C)(1) and because he believed the statute violated procedural due process and the separation of powers doctrine. Prosecutor brought a mandamus action. Judge could determine inmate was not a sexual predator without conducting a hearing, but was required to make such a finding on the record. However, writ is denied because the prosecutor was not entitled to the specific relief prayed for. Court finds it unnecessary to address the constitutional issues.

State v. Griffin (2000), 140 Ohio App. 3d 433 -- (1) Court summarily rejects claims that Ohio's sexual predator statute violates the concept of separation of powers because it forces a trial court to investigate, prosecute and adjudicate individuals as sexual predators, and that the classification scheme is systematically flawed, thus violating due process. (2) Cruelty during an extended period of restraint, ended by the victim's escape, and lack of remorse warranted classification as a sexual predator. That the victim wrote to the defendant in prison is viewed as her own foolishness, and was not relevant at the classification hearing.

State v. Abelt (2001), 143 Ohio App. 3d 168 -- (1) Court rejects claim that practice conducting sex offender classification hearings far in advance of possible parole is a systemic flaw violating due process. (2) Psychological evaluation was called for where offense was committed long ago and the defendant has participated in counselling programs while imprisoned. (3) Dissenting judge argues that since the majority held the evidence insufficient to support the finding, the proper remedy is judgment for the defendant, not remand for a further hearing.

Return to top of page

Sexual predators, procedural issues

State v. Jones, 93 Ohio St. 3d 391, 397, 2001-Ohio-1341 -- "...R.C. 2950.09 prohibits a trial court from classifying a defendant as a sexual predator once that defendant has been acquitted of a sexually violent predator specification."

State v. Eppinger (2001), 91 Ohio St. 3d 158, 2001-Ohio-247 -- Syllabus: "An expert witness shall be provided to an indigent defendant at an 2950.09(B)(1) sexual offender classification hearing if the court determines within its sound discretion that such services are reasonably necessary to determine whether the offender is likely to engage in the future in one or more sexually oriented offenses within the meaning of R.C. 2950.01(E)." Case involved an inmate returned pursuant to 2950.09(C). Opinion suggest appointment of an expert is particularly desirable for those convicted of a single offense. At p. 166 the court describes a model sex offender classification hearing.

State v. Hillis, 162 Ohio App. 3d 280, 2005-Ohio-3591 -- The trial court abused its discretion by refusing a brief continuance to allow the testimony of a defense psychologist who was out of town. The defendant had been examined without the benefit of his hearing aid.  Even the judge recognized problems with the state expert's report.  The defense expert had been the state expert's professor at Xavier and told counsel her report would have earned a failing grade.

State v. Austin, Allen App. No. 1-03-95, 2004-Ohio-2359 -- Under the version of R.C. 2950.09(C)(1)(b) effective on July 31, 2003, trial courts do not have the authority to conduct a sex offender classification hearing absent a recommendation from the Department of Corrections that an inmate be declared a sexual predator.

State v. Purser, 153 Ohio App. 3d 144, 2003-Ohio-3345, ¶ 41 -- In contrast to Eppinger's focus on experts, here, lower court are encouraged to rely on "statistics," meaning court opinions and "other literature evidencing the statistical likelihood that sexual offenders of children will reoffend in the future." Court rejects res judicata claim based on prior reversal as claim was not raised in the trial court. Furthermore, prior reversal was based on notice of hearing, not failure of proof. "Sentencing attachment" used to reflect classification is OK.

State v. Lowe, Cuyahoga App. No. 82893, 2004-Ohio-367 -- Prior reversal was due to trial court's failure to direct analysis of the facts to the likelihood of reoffending. Rehearing was not barred by res judicata, relying on Erbia v. Chrysler Plastic Products Corp., (6th Cir 1989), 891 F.2d 1212.

State v. Jones, Montgomery App. No. 19355, 2003-Ohio-3240 -- Failure to discuss on the record the statutory factors relating to classification as a sexual predator requires reversal. Also see State v. Wenzler, Greene App. No. 2003-CA-16, 2004-Ohio-1811.

State v. Jenkins, Hamilton App. No. C-020594, 2003-Ohio-3057 -- Judge had a first offender evaluated by a court-appointed psychiatrist, but at the classification hearing refused to hear from the defendant's therapist on the basis he was paid, thus biased. Reversed.

State v. Brown, 151 Ohio App. 3d 36, 2002-Ohio-5207 -- (1) Failure by the Department of Corrections to state the reasons for its recommendation that a classification hearing be conducted is not a jurisdictional defect. Also see State v. Riffle, Summit App. No. C.A. 21191, 2003-Ohio-725. (2) ¶36: "...(W)e hold that in sexual predator determination hearings, a trial court may rely on unauthenticated evidence as long as that evidence indicates some indicia of reliability." See accompanying discussion on due process, authentication, and application of the Rules of Evidence.

State v. Chambers, 151 Ohio App. 3d 243, 2002-Ohio-7345 -- 83-year old inmate with Alzheimer's was found incompetent to understand the nature of a sex offender classification hearing. Though it was error to proceed with the hearing, since he was not found to be a sexual predator, classification as a sexually oriented offender was automatic. Judgment affirmed. Compare State v. Kendrick (Sept 30, 1999), Franklin App. No. 98AP-1305 holding civil nature of proceedings meant defendant was not entitled to a competency hearing.

State v. Dobies, 147 Ohio App. 3d 568, 2001-Ohio-8823 -- Applying State v. Eppinger, 91 Ohio St. 3d 158, 2001-Ohio-247, the trial court abused its discretion in denying an inmate a psychological evaluation at state's expense to determine the likelihood of recidivism. The only evaluation available was six years old and only assessed drug and alcohol dependency.

State v. Gowdy, 88 Ohio St. 3d 387, 397-399, 2000-Ohio-355 -- The notice requirement for sexual offender classification hearings under R.C. 2950.09(B) is mandatory. Strict compliance is required. Notice of the sentencing hearing is not sufficient. Reversal is warranted as plain error notwithstanding the essentially civil nature of such proceedings. Also see <State v. Hatfield, 2nd Dist. App. No. 2002 CA 4, 2002-Ohio-4968>; State v. Wilson, Montgomery App. No. 19618, 2003-Ohio-6229.

State v. Nyel, Hamilton App. No. C-020640, 2003-Ohio-4961 -- A written "waiver of notice of sexual offender classification hearing," if knowingly and voluntarily entered is sufficient to permit the classification hearing to proceed.

State v. Ake (1999), 133 Ohio App. 3d 459 -- Inmate appeared for the initially scheduled hearing on whether he was a sexual predator shortly before his release, but the hearing was continued and the issue was determined well after release. Following State v. Brewer (1999), 86 Ohio St. 3d 160, trial court lost jurisdiction.

State v. Johnson (September 24, 1998), Franklin Co. App. No. 97APA12-1585, unreported -- An inmate who has completed serving the sentence for a sexually oriented offense, but remains imprisoned on other charges, is subject to being adjudicated a sexual predator pursuant to R.C. 2950.09(C).

State v. Philpott, 147 Ohio App. 3d 505, 2002-Ohio-808 -- Judge's initial decision not to conduct a classification hearing does not bar later conducting a hearing at the prosecutor's request unless the initial refusal amounts to a dismissal of classification proceedings on the merits.

State v. Barr, Cuyahoga App. No. 81904, 2003-Ohio-2652 -- Scoutmaster agreed to being classified a sexual predator even though the offenses he pled to "did not fall into the classification arena of Ohio's sexual predator law." Request to be declassified at a hearing on remand based on the imposition of an excessive sentence following revocation of community control was beyond the mandate of the appellate court. Such relief requires filing a petition. See R.C. 2950.09(D)(1).

Return to top of page

Sexual predators, adjudication issues

State v. Clay, 177 Ohio App. 3d 78, 2008-Ohio-2980 – Classification of long time inmate as a sexual predator was not supported by the record. Notwithstanding the newly applicable tier system put into effect by S.B. 10, the appeal is not moot, as had the inmate been classified as a sexually oriented offender he might have petitioned to avoid community notification now automatically required for those convicted of his past offense. Remedy is remand to the trial court for a further classification hearing.

State v. Thompson, 92 Ohio St. 3d 584, 2001-Ohio-1288 -- Syllabus: "(1) A judge must consider the guidelines set out in R.C. 2950.09(B)(2), but the judge has discretion to determine what weight, if any, he or she will assign to each guideline. Pursuant to R.C. 2950.09(B)(2), a judge may also consider any other evidence that he or she deems relevant to determining the likelihood of recidivism. (2) Because R.C. 2950.09(B)(2) does not encroach upon the trial court's fact-finding authority, it does not violate the separation-of-powers doctrine."

State v. Winchester (2001), 145 Ohio App. 3d 92 -- Predator finding was not supported by clear and convincing evidence. (1) Facts of the original prosecution were unsavory but not indicative of future offending. (2) Prison discipline record was not indicative of future sex offenses. (3) Two week old Abel Assessment indicated no interest in sadistic sexual behavior and that the subject did not have any persistent sexual interests that might be problematic. Also see State v. Thompson (1999), 140 Ohio App. 3d 638 (Trial judge's statement he would never forget the facts of the case was inadequate for purposes of the statutory scheme and for purposes of appellate review).

State v. Hunter (2001), 144 Ohio App. 3d 116 -- The only R.C. 2950.09(B)(2) factor which weighed against the defendant was the age of the victim. On a review of the record as a whole, and applying the civil standard for appellate review of sufficiency of the evidence, the state did not present competent, credible evidence that the defendant would commit sexually oriented offenses in the future.

State v. Youlten, 151 Ohio App. 3d 518, 2003-Ohio-430 -- Evidence did not support finding inmate a sexual predator. Though he may have fantasized to some degree about illegal sexual activity, and had a past that was somewhat unsavory, he had benefited from prison programs and tested low as to the likelihood of reoffending.

State v. Hall (2000), 138 Ohio App. 3d 522 -- The only evidence before the court at inmate's hearing arose from the initial prosecution. State did not meet its burden of proving likelihood to reoffend. Adjudication reversed as against the manifest weight of the evidence and cause remanded. Also see State v. Tasseff (2000), 139 Ohio App. 3d 753; State v. Grimes (2001), 143 Ohio App. 3d 86; State v. Allen (2001), 142 Ohio App. 3d 291.

State v. Maynard (1999), 132 Ohio App. 3d 820 -- (1) The need to establish the likelihood that a subject will commit future offenses is not at odds with the ultimate burden of proof by clear and convincing evidence. (2) Children depicted in pornographic materials are victimized by the continued possession of such materials. Also see State v. Meadows (1986), 28 Ohio St. 3d 43; Meadows v. Osborne (1990), 495 U.S. 103.

State v. Overcash (1999), 133 Ohio App. 3d 90 -- (1) Trial court's determination an inmate was a sexual predator deemed deficient because it lacked specificity as to the factors the court considered and based its determination on, but affirmed based on appellate court's own assessment of the record. Also see State v. Bryant, Montgomery App. No. C.A. 18846, 2003-Ohio-609. (2) Two days notice of the hearing was sufficient.

State v. Burke (September 21, 2000), Franklin Co. App. No. 00AP-54, unreported -- "The statute makes it mandatory that the court consider the factors listed in R.C. 2950.09(B)(2). Although a court is under no obligation to 'tally up' or list the R.C. 2950.09(B)(2) factors in any particular fashion...in order to assure that the trial court indeed considered such factors for the purposes of appellate review, some indication in the record is necessary." Also see State v. Boshko (2000), 139 Ohio App. 3d 827, 840, which also states: "Neither party to a sexual predator adjudicatory hearing is required to present new evidence or call and examine witnesses. All that is required is that the parties are given the opportunity to do so."

State v. High (200), 143 Ohio App. 3d 232, 255 -- Since the Rules of Evidence do not strictly apply in sexual predator determination hearings, a court may consider a prior conviction more than 10 years old, as would be excludable under Evid. R. 609(B).

State v. Bowers (September 6, 2001), Franklin Co. App. No. 00AP-1453, unreported -- Although consideration of "reliable hearsay" in probation reports has been endorsed, this is not a blanket rule regarding the admissibility of any and all statements, no matter how lacking of indicia of reliability, to be found within the PSI. The broadening of the scope of admissible evidence for...sexual predator classification hearings, is not unlimited but nonetheless subject to the fundamentals of due process." Citing United States v. Streeter (8th Cir. 1990), 907 F. 2d 781; United States v. Fortier (8th Cir. 1990), 911 F. 2d 100; United States v. Cammisano (8th Cir. 1990), 917 F. 2d 1057.

State v. Kelly (2001), 142 Ohio App. 3d 179 -- Report prepared by a psychology assistant at a prison deemed admissible as "reliable hearsay."

State v. Parker (1999), 134 Ohio App. 3d 660 -- Inmate was convicted of GSI in 1974 and rape in 1975. Though he was in and out of prison over the next 25 years, there were no further sex offenses. In the absence of other evidence, this weighs heavily against finding him a sexual predator.

State v. Anderson (1999) 135 Ohio App. 3d 759, 764 -- "We are aware that testimony relating to charges for which the defendant was acquitted may not generally be considered for purposes of sentencing...However, we believe that sexual offender classification proceedings are sufficiently different from sentencing to left the admission of such testimony." Trial court was permitted to consider testimony related to acquitted charge, and also testimony offered at classification hearing pertaining to earlier incidents.

State v. Lewis (May 9, 2000), Franklin Co. App. No. 99AP-752, unreported -- Majority finds no due process violation in the judge's reliance on his own recollection of the facts of the case without stating what those facts are, but reverses the finding that the inmate is a sexual predator as against the manifest weight of the evidence because the judge failed to state a basis for his conclusion. Concurring judge doesn't fault the lack of analysis, but would remand for the trial judge to specify what information he recalled.

State v. Randall (2001), 141 Ohio App. 3d 160 -- Finding the defendant a sexual predator was at odds with the psychological evaluation, but the trial court offered no explanation of its contrary finding. Since this precludes meaningful review of a manifest weight challenge, case is reversed and remanded for the trial court to provide an explanation.

State v. Morales, 153 Ohio App. 3d 635, 2003-Ohio-4200 -- Recidivism tests such as the Static-99 are not binding on the trial court. Other factors, including step-parent status, supported the conclusion the defendant was a sexual predator.

State v. Davis, Lake App. No. 2000-L-190, 2002-Ohio-1957 -- A court must make independent reference to the R.C. 2950.09(B) factors it finds support the conclusion that a defendant is a sexual predator. Stating agreement with the prosecutor's argument is insufficient. Nor does simply reciting in the judgment entry that the factors were considered meet the court's obligation to support its determination.

State v. Austin (2000), 138 Ohio App. 3d 547 -- Testimony concerning a 13-year old allegation of sexual abuse was improperly admitted. Information came from Children Services records. No charges had been brought and the witness had no personal knowledge of that investigation.

State v. Hardie (2001), 141 Ohio App. 3d -- The sexual predator statutes apply to women. The evidence was sufficient to support classification as a sexual predator, though the conduct leading to conviction was consensual and did not involve force.

State v. Robertson, 147 Ohio App. 3d 94, 2002-Ohio-494 -- Defendant pled guilty to raping the 22-year old driver of a broken down car, and was adjudicated a sexual predator. No error in trial court considering co-defendant's rape of the 12-year old passenger as a part of the overall circumstances of the crime. Defendant had been indicted for complicity in that attack, but charges were dismissed as a part of his plea bargain.

State v. Lewis, Hamilton App. No. C-020357, 2003-Ohio-1368 -- First appeal led to reversal as all that was before the court was a single conviction for a sexually oriented offense. At the second hearing the trial court properly considered the inmate's refusal to cooperate with a psychologist as relevant in determining the danger of recidivism.

Return to top of page

Sexual predators, other issues

State v. Townsend, 181 Ohio App. 3d 53, 2009-Ohio-467 – Sixty-one year old parolee had spent forty-two years in prison on various charges, including a term for rape which would have been completed by 1984. Majority concludes State v. Champion, 106 Ohio St. 3d 120, 2005-Ohio-4098 means he is not subject to being classified as a sexual predator since his term for a sexually oriented offense was completed before the effective date of the 1997 version of Chapter 2950. Dissent believes the SB5 version of the sexual predator statutes, effective between 2005 and January 1, 2008, opens him to classification as a predator.

State v. Leftridge, 174 Ohio App. 3d 314, 2007-Ohio-6807 – Amendment of R.C. 2950.09 effective July 31, 2003 eliminates the possibility of obtaining relief from classification as a sexual predator.

State v. Taylor, 100 Ohio St. 3d 172, 2003-Ohio-5452 -- Adjudication as a sexual predator and the duty to register are separate issues. R.C. 2950.04(A)(1) imposes no duty to register upon those adjudicated sexual predators while serving time for a non-sexually oriented offense.

State v. Riley (2001), 142 Ohio App. 3d 580 -- There is a gap in the coverage of R.C. 2950.04 concerning the duty of adjudicated sexual predators to register. Defendant had completed serving his time on a prior GSI conviction in 1985. Because he was in prison following the 1997 effective date of R.C. 2950.09, he could be adjudicated a sexual predator. But because he was not in prison on a sexually oriented offense, R.C. 2950.04 did not place him under an obligation to register.

State v. Furlong (February 6, 2001), Franklin Co. App. No. 00AP-637, unreported -- Because sexual predator determinations are civil proceedings, even when adjunct to post-1997 sentencing hearings, the time for filing the notice of appeal does not begin to run until the latter of (1) entry of the judgment or order appealed if the notice mandated by Civ.R. 58(B) is served within three days of the entry of judgment; or (2) service of the notice of judgment and its date of entry if service is not made upon the party within that three-day period. If the entry is not endorsed with directions to the clerk to serve all parties, time does not begin to run even though the defendant is in fact aware of the court's decision.

State v. Wesley, 149 Ohio App. 3d 453, 2002-Ohio-5192 -- Because sexual predator adjudications are civil in nature, Civil Rule 60(B), including its time limits, control post-judgment relief.

State v. Wilson, 113 Ohio St. 3d 382, 2007-Ohio-2202 -- Syllabus: "Because sex-offender-classification hearings under Chapter 2950 are civil in nature, a trial court's determination in a sex-offender-classification hearing must be reviewed under a civil manifest-weight-of-the-evidence standard and may not be disturbed when the judge's findings are supported by some competent credible evidence." Abrogates State v. Morrison (September 20, 2001), Franklin Co. App. No. 01AP-66 holding the criminal law standard applies.

State v. Morrison (September 20, 2001), Franklin Co. App. No. 01AP-66, unreported -- The criminal standard for appellate review of weight and sufficiency, as set forth in State v. Thompkins (1997), 78 Ohio St. 3d 380, applies in sexual predator cases. Also see State v. Messer, Franklin App. No. 03AP-169, 2004-Ohio-2127.

Return to top of page

Sexually violent predators

R.C. 2971.01 -- Definitions.

R.C. 2971.02 -- Determination of sexually violent predator specification by court or by jury.

R.C. 2971.03 -- Sentencing of sexually violent offender with predator specification.

R.C. 2971.04 -- Termination of parole board's control after offender has served minimum term; transfer to

court.

R.C. 2971.05 -- Hearing on modification or termination of prison term after transfer of control to court;

conditional release, final release.

R.C. 2971.06 -- Detention of offender for violation of condition of modification or conditional release or upon

likelihood of additional offense.

R.C. 2971.07 -- Application of chapter; warrantless searches after modification or conditional release.

State v. Vlahopoulos, 154 Ohio App. 3d 450, 2003-Ohio-5070 -- Forty-nine year old given consecutive 9 to life sentences fails on claim they amount to life without parole and impose an undue burden on the state's resources. Concurring opinion adds that the legislature declined to carve out an exception for older offenders to the imposition of indefinite terms for those convicted as sexually violent predators.

State v. Smith, 104 Ohio St. 3d 106, 2004-Ohio-6238 -- Syllabus: "Conviction of a sexually violent offense cannot support the specification that the offender is a sexually violent predator as defined in R.C. 2971.01(H)(1) if the conduct leading to the conviction and the sexually violent predator specification are charged in the same indictment." State v. Smith, Morrow App. No. CA-957, 2003-Ohio-3416, affirmed. Also see State v. Reigle (November 9, 2000), Hancock App. No. 5-2000-14.

Kansas v. Hendricks (1997), 521 U.S. 346 -- Kansas "civil commitment" proceedings permitting those found to be sexually violent predators to continue in custody on a year by year basis after completing their prison sentences found to comport with substantive due process and not to violate double jeopardy or ex post facto provisions of the Constitution. Also see Selling v. Young (2001), 121 S.Ct. 727.

Return to top of page

Civil commitment

U.S. v. Comstock (2010), 130 S.Ct. 1949 – Federal statute enacted as part of the Walsh Act permitting civil commitment of mentally ill, sexually dangerous offenders beyond he date their sentence has been completed is found constitutional under the Necessary and Proper Clause. It reflects a “modest addition” to the existing statutory scheme, has a sound basis, is narrow in scope and does not invade the province of the states.

Kansas v. Crane (2002), 122 S.Ct. 867 -- The constitutional safeguards with respect to human liberty in the area of civil commitment proceedings require involuntary commitment of dangerous sex offenders be limited to those individuals who exhibit a lack of control over their actions.

Return to top of page

Reporting violations

State v. Gingell, 128 Ohio St. 3d 444, 2011-Ohio-1481 – As to how Bodyke affects individuals reclassified and subsequently charged with registration and verification offenses under the S.B. 10 version of Chapter 2950, obligations under Megan’s Law were reinstated. Therefore the current version of R.C. 2950.06 requiring Tier III offenders to register every 90 days does not apply. Gingel had an obligation to register annually for ten years previously. He cannot be prosecuted for violation of the 90-day address verification requirement of R.C. 2950.06.

State v. Blanton, 184 Ohio App. 3d 611, 2009-Ohio-5334 – Sexually oriented offender failed to give 20 days notice he planned to move from a motel he could no longer afford to a relative’s home, leading to conviction and lengthy imprisonment for failure to register. (1) ¶8-11: S.B. 10 did not create a six month hiatus in the registration requirements for sex offenders between July 1, 2007 and January 1, 2008. (2) ¶12-27: Failure to register is a strict liability offense. (3) ¶28-53: Reversible error for prosecution witnesses to relate what they were told in the process of investigating the defendant’s whereabouts.

State v. Williams, 189 Ohio App. 3d 111, 2010-Ohio-3334 – In an Anders brief case, the defendant’s response indicated he had been unable to register because he did not have an address. Trial court had indicated impossibility was not a defense to failure to register, which is a strict liability offense. No contest plea was entered so defendant could appeal this ruling. Because the issue was in the nature of a motion in limine, the issue was not ripe for review. Thus the plea was not voluntary. Opinion suggests that in fact impossibility is a defense.

State v. Chessman, 188 Ohio App. 3d 428, 2010-Ohio-3239 – Defendant was given a cell phone. Pay as you go minutes had expired, but he hoped to reactivate. When he was taken by his parole officer to fulfill an address verification requirement he did not furnish the number of the cell phone, as required. But there was no punishable offense as none is provided in R.C. 2950.99.

State v. Doyle, 188 Ohio App. 3d 434, 2010-Ohio-3339 – Prosecution for failure to verify a current address requires sending a 7-day letter. Williams was instructed to verify again by September 5th, the Saturday of the Labor Day weekend. Because the office was closed that day, and through Monday, he actually had until the 8th. But someone came in on Labor Day, the 7th, and sent out a seven day letter. Though more than seven days elapsed before he was ultimately arrested, and it does not appear he attempted to verify during that period, on appeal Williams successfully maintained that the Sheriff’s failure to comply with the 7day notice requirement meant he could not be prosecuted. See State v. Williams, 114 Ohio St. 3d 103, 2007-Ohio-3268 for the proposition R.C. 2950.06 must be construed strictly against the state. Compare State v. Willis, Cuyahoga App. No. 92237, 2010-Ohio-1751, where sending the 7-day letter a day late was held non-prejudicial.

State v. Ohmer, 162 Ohio App. 3d 150, 2005-Ohio-3487 -- Homelessness is not a defense to failure to register a change of address.  The defendant should have notified the sheriff he was homeless.  Impossibility of providing 20 days advance notice doesn't apply as defendant's parole officer did not tell him he had to move because his hotel was across the street from a school. Compare State v. Ascione, Stark App. No. 2003CA00001, 2003-Ohio-4145.

State v. Williams, 114 Ohio St. 3d 103, 2007-Ohio-3268 -- Syllabus: "A sheriff must send the statutorily required notification to an offender's last known address before a sex offender may be prosecuted for failure to periodically verify a current address. (R.C. 2950.06(F) and (G)(1), construed and applied.)" Offender had registered as homeless, so sheriff didn't bother sending out notice. But if notice is sent to the last known address the resident might be able to contact the offender. Reverses State v. Williams, 166 Ohio App. 3d 444, 2006-Ohio-1409.

State v. Hardy, Summit App. No. 21015, 2002-Ohio-6457 -- Failure to verify address in violation of R.C. 2950.06 is a strict liability offense. Also see State v. Beasley (Sept 27, 2001), 8th Dist. No. 77761 reaching the same conclusion as to failure to provide notice of a change of address in violation of R.C. 2950.05.

Return to top of page

Juveniles; Delinquency adjudications

In re G.M., 188 Ohio App. 3d 318, 2010-Ohio-2295 – On the date G.M. turned 21 and was released by the Department of Youth Services the juvenile court conducted a sex offender classification hearing and placed G.M. in Tier III. According to R.C. 2152.83 the court is to classify “at the time of the child’s release from a secure facility.” But as of his birthday G.M. was no longer a child, and neither 2152.83 nor 2152.831 grant the juvenile court authority to classify. Opinion is silent as to G.H.’s status. Compare In re A.R.R., 52 Ohio App. 3d 40, 2011-Ohio-1186 where the offender passed his 21st birthday while the case was on appeal. Remand was based on erroneous belief placement in Tier III was mandatory, though it was in fact discretionary. Terms of remand permitted reclassification despite age.

In re W.Z., 194 Ohio App. 3d 610, 2011-Ohio-3238 – Juvenile was found delinquent based on rapes committed when he was 14 and 15, and given a blended sentence. The court interprets R.C. 2152.86 as requiring immediate classification as a Tier III offender. Such premature and automatic classification is at odds with provision of a separate court system for juveniles and violates procedural due process and fundamental fairness.

State ex rel. N.A. v. Cross, 125 Ohio St. 3d 6, 2010-Ohio-1471 – Defendant who was a juvenile at the time of alleged rapes was denied writ of prohibition barring trial going forward after he had turned twenty-one. First trial took place after he turned eighteen, but was reversed. Second trial began before he turned twenty-one but was set over until after his birthday. Though he could no longer be sentenced to the Department of Youth Services, other dispositions were open and he was subject to consequences of being a convicted sex offender.

In re A.E., 184 Ohio App. 3d 812, 2009-Ohio-6094 – Children 13 and under are not subject to sex offender classification and registration. 14 and 15 year olds with no priors “may” have a hearing. Those with priors “shall.” Fifteen year old convicted of rape had no prior sex offenses. Judge believed classification as a Tier III offender was mandatory. Defense counsel and prosecutor said nothing. Reversed based on ineffective assistance of counsel.

In re Antwon C., 182 Ohio App. 3d 237, 2009-Ohio-2567 – Juvenile fled the state before sentencing. Thus Juv. R. 35 did not apply, because when he returned to court it was not an exercise of continuing jurisdiction. Court placed juvenile in Tier II, stating classification was mandatory, and sent him to DYS. Reversed. Classification was discretionary. Court was misled by a pamphlet distributed by the Attorney General. Classification must take place after release from DYS.

In re P.M., 182 Ohio App. 3d 168, 2009-Ohio-1694 – Upon release from DYS the trial court classified juvenile as a Tier II offender, determined he was not a "public registry qualified juvenile offender registrant," but made him subject to community notification. State conceded Tier II offenders were not subject to community notification, but claimed the classification was void and sought a new classification hearing. Held that it was routine error, and remanded with instructions notification requirement be deleted.

In re K.S., 192 Ohio App. 3d 472, 2011-Ohio-755 – Juvenile was found delinquent based on attempted rape, and classified as a Tier II sex offender by the juvenile court. State appealed. Appeal dismissed for failure to seek leave to appeal. Absent a timely motion, the Court of Appeals does not have jurisdiction.

In re Goodman, 161 Ohio App. 3d 192, 2005-Ohio-2364 -- Court rejects constitutional challenges to Chapter 2950 as applied to juveniles for the same reasons as prior challenges in adult cases.

State v. Prether (2001), 141 Ohio App. 3d 6 -- Prior to January 1, 2002, a juvenile delinquency adjudication did not qualify as a prior conviction in determining habitual sex offender status for an adult. But according to amended R.C. 2950.01(B) such adjudications count, and juveniles may be classified as habitual sex offenders.

In re Callahan, Ashland App. No. 04COA-064, 2005-Ohio-735 -- The juvenile court was permitted to find the juvenile a sexual predator subject to registration prior to his period of treatment in a secure facility.

In re McLeod, Licking App. No. 04 CA 2, 2004-Ohio-3897 -- In finding a juvenile a sexual predator the court is not required to make findings corresponding to those sometimes required under the adult sentencing statutes.

Return to top of page

Other issues

Reynolds v. United States (2012), 132 S.Ct. 975 – The federal Sex Offender Registration and Notification Act took effect with respect to sex offenders whose convictions predated the effective date of the act only after the Attorney General has so specified. At issue is the ability to prosecute individuals who failed to register as required between July 2006 and February 2007.

Carr v. United States (2010), 130 S.Ct. 2229 – The federal Walsh Act created the federal crime of traveling in interstate commerce while under a duty to register and failing to register or update a registration. Defendant was released from prison in Alabama under a duty to register and subsequently moved to Indiana where he failed to register. This move took place before the effective date of the Walsh Act. Supreme Court holds travel must take place after the effective date.

State v. Powell, 188 Ohio App. 3d 232, 2010-Ohio-3247 -- Military officer retained a Dayton law firm to represent him in Greene County on charges of voyeurism, obstructing official business, and criminal trespass. On counsel’s advice he turned dorm the opportunity to plead to the non sex offenses, but ultimately pled to voyeurism. Though the offense predated the effective date of S.B. 10 he was classified as a Tier I offender. This forced his separation from the military. The trial court denied a motion to withdraw the guilty. Powell appealed pro se and the court of appeals reversed based on ineffective assistance of counsel. Counsel appeared to have no understanding of S.B. 10 and was unaware that voyeurism was a registration exempt offense under former law. Pre-Bodyke case.

State v. Clere, 187 Ohio App. 3d 682, 2010-Ohio-2884 – Semi literate defendant on psych meds sought to withdraw guilty plea to sexual battery. Counsel conceded he had given erroneous advice as to duration of registration obligation as a Tier III offender. Judge denied motion saying, “And my general rule, policy, is that I don’t let people withdraw their plea.” Reversed. A court acts arbitrarily and abuses its discretion when it applies a fixed policy rather than considering the facts and circumstances presented. Concurring judge would direct the trial court to strike the plea rather than remanding for a hearing.

Hyle v. Porter, 117 Ohio St. 3d 165, 2008-Ohio-542 – Syllabus: "Because R.C. 2950.031 (initial version banning sex offenders living within 1,000' of only schools) was not expressly made retrospective, it does not apply to an offender who bought his home and committed his offense before the effective date of the statute." Case is resolved applying the presumption of prospective application set forth in R.C. 1.48. The court does not reach the claim that the provision violates the ban against retroactive legislation set forth in Article I, Section 28 of the Ohio Constitution.

State v. Smith, Franklin App No. 11AP-6, 2012-Ohio-465 – Defendant pled guilty to a registration violation following the enactment of S.B. 10. Trial court abused its discretion by denying a pre-sentencing motion to withdraw guilty plea based on claims S.B 10 did not apply.

McKune v. Lile (2002), 122 S.Ct. 2017 -- Inmate brought 1983 action contending his Fifth Amendment rights were abridged by worsening the terms of confinement upon refusal to admit prior offenses as a part of a prison rehabilitation program. No violation found, even though admissions might lead to further prosecution for uncharged incidents. Admission of responsibility serves a valid penological objective. Loss of privileges deemed not to be compulsion encumbering the constitutional right. 4-1-4 decision. Four dissenters and concurring justice believe compulsion for Fifth Amendment purposes is broader than the "atypical and significant hardship" standard adopted in evaluating due process claims concerning prison conditions.

State v. Pasqua, 157 Ohio App. 3d 427, 2004-Ohio-2992 -- Missouri misdemeanor child molestation convictions required lifetime registration and quarterly address verification in that state. Upon moving to Ohio R.C. 2950.09(F) challenge to automatic classification as a sexual predator entitled the defendant to a hearing to determine: (1) whether the Missouri offense is the equivalent of a sexually oriented offense under Ohio law; and (2) whether the offender can demonstrate by clear and convincing evidence that he is not likely to commit a sexually oriented offense in the future.

Small v. United States (2005), 125 S.Ct. 1752 -- The federal weapon under a disability statute, referring to convictions "in any court" encompasses a Japanese conviction with a penalty exceeding one year of imprisonment.

State v. Mutter, 171 Ohio App. 3d 563, 2007-Ohio-1052 -- Retroactive application of the statute banning sex offenders living within 1000 feet of a school to those who acquired the property before the effective date of the statute violates the ban on retroactive laws set forth in Article II, Section 28 of the Ohio Constitution. Defendant moved in well before the statute went into effect and was ordered to move or face a year in prison for violation of community control. Though those retroactively made subject to reporting and registration requirements for sex offenders were stuck with the determination such measures were "remedial", the court views property rights as substantive rights. Also see Nasal v. Dover, 169 Ohio App. 3d 262, 2006-Ohio-5584.

State ex rel. White v. Billings, 139 Ohio Misc.2d 76, 2006-Ohio-4743 -- State was not entitled to an injunction preventing sex offender's wife from allowing her husband to live at her house which is within 1000 feet of a school. Otherwise the court rejects constitutional challenges to the statute.

Logue v. Leis, 169 Ohio App. 3d 356, 2006-Ohio-5597 -- Subject who served time in Alabama and was subject to a lifetime registration requirement there fell victim to an Ohio statute that automatically classified him as a sexual predator. No procedural due process violation found in R.C. 2950.09(F)(2) which places the burden of proof on the person seeking relief from such classification. Equal protection argument rejected as well.

Return to top of page

Return to Index

| Web Mail | Log-in | Privacy Policy | Disclaimer | Accessibility | Contact Us |