In Re Von ( 2016 )


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  • [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
    re Von, Slip Opinion No. 2016-Ohio-3020.]
    NOTICE
    This slip opinion is subject to formal revision before it is published in an
    advance sheet of the Ohio Official Reports. Readers are requested to
    promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
    South Front Street, Columbus, Ohio 43215, of any typographical or other
    formal errors in the opinion, in order that corrections may be made before
    the opinion is published.
    SLIP OPINION NO. 2016-OHIO-3020
    IN RE VON.
    [Until this opinion appears in the Ohio Official Reports advance sheets, it
    may be cited as In re Von, Slip Opinion No. 2016-Ohio-3020.]
    Criminal         law―Sex            offenders―Registration             requirements―R.C.
    2950.15―Retroactive application―Registration-termination procedure in
    R.C. 2950.15 does not apply to sex offenders who committed their offenses
    prior to January 1, 2008.
    (No. 2015-0619—Submitted February 24, 2016—Decided May 18, 2016.)
    APPEAL from the Court of Appeals for Trumbull County,
    No. 2013-T-0085, 2015-Ohio-943.
    ____________________
    O’DONNELL, J.
    {¶ 1} The state of Ohio appeals from a judgment of the Eleventh District
    Court of Appeals reversing a trial court order that denied Aaron K. Von’s motion
    to terminate his sex offender registration duties. The issue presented in this court
    is whether the procedure to terminate reporting requirements which the General
    SUPREME COURT OF OHIO
    Assembly enacted effective January 1, 2008, applies to sex offenders who
    committed offenses prior to that date.
    Facts and Procedural History
    {¶ 2} Von moved to terminate his duty to comply with sex offender
    registration laws pursuant to R.C. 2950.15, claiming that on January 29, 1997, he
    was convicted in the state of Colorado of sexual assault of a child, a fourth degree
    felony, and sexual assault in the third degree, a first degree misdemeanor. Von
    maintained that he moved to Ohio in August 2011 and registered as a sex offender
    but did not specify his classification.
    {¶ 3} The state opposed the motion to terminate, arguing that R.C. 2950.15
    applies only to sex offenders convicted on or after January 1, 2008, the effective
    date of the Adam Walsh Act (2007 Am.Sub.S.B. No. 10). The state cited State v.
    Williams, 
    129 Ohio St. 3d 344
    , 2011-Ohio-3374, 
    952 N.E.2d 1108
    , for the
    proposition that the statute could not be applied retroactively to Von, who was
    convicted prior to that date. The date of Von’s convictions placed him within the
    purview of Megan’s Law (1996 Am.Sub.H.B. No. 180), which was repealed by the
    Adam Walsh Act and which had no provision for terminating the duty to comply
    with sex offender registration laws.
    {¶ 4} While the trial court was considering Von’s motion to terminate, Von
    sought a preliminary injunction to stay the enforcement of a change in his
    classification from a “Tier One Sexually Oriented Offender” to a “Tier Three”
    offender. Von attached notices indicating that he had been adjudicated a “(Pre
    AWA) Sexually Oriented Offender” but was later adjudicated a “(Pre AWA)
    SEXUAL PREDATOR.” (Capitalization sic.)
    {¶ 5} The trial court issued the following order: “Petitioner is entitled to a
    preliminary injunction until this Court issues a determination of the merits of
    Petitioner’s challenge under R.C. 2950.031(E) or until further order of the Court.”
    The order included a handwritten statement that Von was to “remain tier 1” and
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    January Term, 2016
    that the state did not oppose him “REMAINING TIER I UNTIL
    DETERMINATION OF MERITS.” (Capitalization sic.)
    {¶ 6} The trial court then denied the motion to terminate Von’s duty to
    comply with sex offender registration laws because at the time of his convictions,
    Megan’s Law was in effect in Ohio as codified in R.C. Chapter 2950, and it
    contained “no provision to terminate one’s status as a registered sex offender post-
    conviction.” The court concluded that subsequent amendments to R.C. Chapter
    2950 were not retroactive.
    {¶ 7} In a split decision, the appellate court reversed. In the lead opinion,
    Judge Wright concluded that R.C. 2950.15 may be applied retroactively because
    the statute expressly states that it applies to an offender regardless of when the
    offense was committed. Moreover, the statute creates a new right for offenders
    without imposing a new burden or obligation on the state. That opinion further
    asserted that to be eligible for relief, Von had to be a Tier I sex offender—an Adam
    Walsh Act classification—but the trial court had not made a final determination
    regarding his status. The lead opinion explained that “even though many provisions
    of the Adam Walsh Act were declared unconstitutional as applied to offenders
    convicted of sex crimes that occurred prior to January 1, 2008, R.C. 2950.15 can
    be severed from those other provisions.” 2015-Ohio-943, at ¶ 26. Thus, the lead
    opinion ordered the matter remanded to the trial court to determine Von’s status
    and to consider the merits of the motion to terminate if it found that Von is a Tier I
    sex offender for purposes of deciding his eligibility for relief pursuant to R.C.
    2950.15.
    {¶ 8} Judge Cannon authored a separate opinion concurring in judgment
    only. He explained that Von is subject to Megan’s Law, not the Adam Walsh Act,
    and therefore R.C. 2950.15 does not retroactively apply to him. He noted that
    “[t]his would effectively defeat [Von’s] application because * * * [he] should not
    be classified as a Tier I offender.” 
    Id. at ¶
    40 (Cannon, P.J., concurring in judgment
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    SUPREME COURT OF OHIO
    only). Judge Cannon further opined that Von’s classification under Megan’s Law
    was subject to debate and concurred in the decision to remand that issue to the trial
    court.
    {¶ 9} Judge Grendell dissented and expressed a third view that the record
    contained no evidence that Von had ever been classified as a Tier I sex offender;
    based on Williams, she explained, it would be unconstitutional to classify him as a
    Tier I sex offender, and she therefore concluded that R.C. 2950.15 was
    “inapplicable to Von on its face.” 
    Id. at ¶
    44 (Grendell, J., dissenting). She also
    expressed the view that the propriety of Von’s previous Megan’s Law
    classifications was not properly before the appellate court.
    {¶ 10} We accepted the state’s discretionary appeal from the appellate court
    on two propositions of law:
    The registration termination procedure delineated in R.C.
    2950.15 may not be retroactively applied to sex offenders who
    commit their crimes before January 1, 2008 and who are convicted
    and sentenced before that date.
    A statute which has not been found unconstitutional is not
    subject to the judicial remedy of severance.
    Positions of the Parties
    {¶ 11} The state maintains that the appellate court erred in holding that sex
    offenders classified under Megan’s Law may avail themselves of the privilege
    legislatively granted to Adam Walsh Act offenders to terminate their registration
    obligations. The state urges that only Tier I sex offenders are eligible offenders for
    purposes of R.C. 2950.15, and pursuant to this court’s holding in Williams, the
    Adam Walsh Act and its tier classifications do not retroactively apply to offenders
    like Von who committed their crimes before the Adam Walsh Act took effect.
    4
    January Term, 2016
    Thus, those offenders cannot be classified as Tier I sex offenders and cannot take
    advantage of the termination procedure in R.C. 2950.15. The state does not oppose
    a remand to the trial court for a determination of Von’s proper Megan’s Law
    classification, recognizing the confusion that exists on this point.
    {¶ 12} Von did not file a merit brief.
    Issue
    {¶ 13} The issue here is whether the statutory procedure to terminate the
    obligation for sex offenders to comply with registration requirements applies to
    offenders who committed their offenses before the statute’s effective date. More
    simply stated, do the statutory procedures to relieve an Adam Walsh Act offender
    from the obligation to report apply to a Megan’s Law offender? Plainly, they do
    not.
    Law and Analysis
    Background
    {¶ 14} In 1996, the General Assembly enacted Megan’s Law, which revised
    R.C. Chapter 2950 and established a comprehensive system of classifying sex
    offenders into three categories: sexually oriented offenders, habitual sex offenders,
    and sexual predators. Former R.C. 2950.09, 146 Ohio Laws, Part II, 2618.
    {¶ 15} Then, in 2007, the General Assembly enacted the Adam Walsh Act,
    which “repealed Megan's Law, effective January 1, 2008, and replaced it with new
    standards for sex-offender classification and registration pursuant to the federal
    Adam Walsh Child Protection and Safety Act, Section 16901 et seq., Title 42,
    U.S.Code.” Bundy v. State, 
    143 Ohio St. 3d 237
    , 2015-Ohio-2138, 
    36 N.E.3d 158
    ,
    ¶ 5. This scheme, which the General Assembly codified in R.C. Chapter 2950,
    divides sex offenders into Tier I, Tier II, and Tier III sex or child-victim offenders.
    R.C. 2950.01(E) through (G).
    {¶ 16} In Williams, this court considered whether the Adam Walsh Act
    could constitutionally be retroactively applied to an offender who committed a sex
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    SUPREME COURT OF OHIO
    offense prior to its enactment. We concluded that the Adam Walsh Act, part of
    which was expressly made retroactive, is punitive, and “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.” Williams at ¶ 16 and at the syllabus.
    {¶ 17} Subsequently, we clarified that only persons who commit their
    underlying offense on or after the effective date of the Adam Walsh Act can be
    constitutionally subjected to its requirements. In re Bruce S., 
    134 Ohio St. 3d 477
    ,
    2012-Ohio-5696, 
    983 N.E.2d 350
    .
    R.C. 2950.15
    {¶ 18} R.C. 2950.15 provides:
    (A) As used in this section * * *, “eligible offender” means
    a person who is convicted of, pleads guilty to, was convicted of, or
    pleaded guilty to a sexually oriented offense or child-victim oriented
    offense, regardless of when the offense was committed, and is a tier
    I sex offender/child-victim offender * * *.
    (B) Pursuant to this section, an eligible offender may make a
    motion to the court of common pleas * * * requesting that the court
    terminate the eligible offender’s duty to comply with sections
    2950.04, 2950.041, 2950.05, and 2950.06 of the Revised Code.
    (Emphasis added.)
    {¶ 19} While R.C. 2950.15(A) explicitly states that a person qualifies as an
    eligible offender “regardless of when the offense was committed,” that statement is
    ineffective by itself to qualify an individual as an eligible offender unless that
    offender is also a Tier I sex offender, because the statute uses the conjunction “and,”
    which imposes a dual requirement to effect its application.
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    January Term, 2016
    {¶ 20} The record contains no evidence that Von has been classified as a
    Tier I sex offender or child-victim offender. To the contrary, the documentation
    attached to his motion for a preliminary injunction demonstrates that he has been
    previously classified as a Megan’s Law offender, not an Adam Walsh Act offender.
    And therefore, he is not a Tier I sex offender.
    {¶ 21} As established by this court in Williams and In re Bruce S., the tier
    classification system of the Adam Walsh Act cannot be constitutionally applied to
    Von or other sex offenders who committed offenses prior to its effective date,
    regardless of when they are convicted or sentenced.
    {¶ 22} The claim that the remedy of severance would permit Megan’s Law
    offenders to be reclassified as Adam Walsh Act Tier I offenders for the purpose of
    having their Megan’s Law duties terminated is inconsistent with Williams, In re
    Bruce S., and the plain language of R.C. 2950.15(B), which permits eligible
    offenders to request termination of their “duty to comply with sections R.C.
    2950.04, 2950.041, 2950.05, and 2950.06 of the Revised Code.” Notably, the
    legislature made no reference to Megan’s Law, which is indicative of its intent that
    those offenders are not eligible for termination of those registration duties.
    {¶ 23} Accordingly, Von and other sex offenders who committed their
    offenses prior to January 1, 2008, the effective date of the Adam Walsh Act, cannot
    be constitutionally classified pursuant to it and therefore cannot be “eligible
    offenders” as defined by R.C. 2950.15(A).
    Conclusion
    {¶ 24} The registration termination procedure delineated in R.C. 2950.15
    does not apply to sex offenders who committed their offenses prior to January 1,
    2008. Accordingly, the judgment of the appellate court is reversed to the extent that
    it reversed the denial of Von’s motion to terminate his duty to comply with sex
    offender registration laws.
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    SUPREME COURT OF OHIO
    {¶ 25} However, given the confusion regarding Von’s current status, we
    affirm the judgment of the appellate court to the extent that it remanded this matter
    for a determination of his sex offender classification pursuant to Megan’s Law. We
    remand the cause to the trial court with instructions to determine the appropriate
    classification for Von in accordance with Megan’s Law.
    Judgment affirmed in part
    and reversed in part,
    and cause remanded.
    O’CONNOR, C.J., and PFEIFER, KENNEDY, and FRENCH, JJ., concur.
    LANZINGER, J., concurs in judgment only.
    O’NEILL, J., dissents.
    _________________
    Dennis Watkins, Trumbull County Prosecuting Attorney, and LuWayne
    Annos and Deena L. DeVico, Assistant Prosecuting Attorneys, for appellant.
    _________________
    8
    

Document Info

Docket Number: 2015-0619

Judges: O'Donnell, O'Connor, Pfeifer, Kennedy, French, Lanzinger, O'Neill

Filed Date: 5/18/2016

Precedential Status: Precedential

Modified Date: 3/2/2024