Update to: OH Court of Appeals Rules AWA Unconstitutional, July 23, 2009-

THE COURT OF APPEALS- ELEVENTH APPELLATE DISTRICT – LAKE COUNTY, OHIO
STATE OF OHIO- vs – JASON ETTENGER —- CASE NO. 2008-L-054 (Opinion in PDF format)
Appeal from the Court of Common Pleas, Case No. 08 MS 000039.
Judgment: Reversed and Remanded on July 13, 2009


For the following reasons, we reverse judgment of the Lake County Court of Common Pleas and remand the matter for proceedings consistent with this opinion.

Ex Post Facto Clause
The placement of Senate Bill 10, along with the text, demonstrates the General Assembly’s intent to transform classification and registration into a punitive scheme. Senate Bill 10 is placed within Title 29, Ohio’s Criminal Code. The specific classification and registration duties are directly related to the offense committed. Further, failure to comply with registration, verification, or notification requirements subjects an individual to criminal prosecution and criminal penalties. R.C. 2950.99. Specifically, pursuant to R.C. 2950.99, failure to comply with provisions of R.C. Chapter 2950 is a felony.The following mandates by the legislature are also indicative of its intent for the new classification to be a portion of the offender’s sentence. First, R.C. 2929.19(B)(4)(a), which is codified within the Penalties and Sentencing Chapter, states: “[t]he court shall include in the offender’s sentence a statement that the offender is a tier III sex offender ***.” In addition, R.C. 2929.23(A), titled “Sentencing for sexually oriented offense or child-victim misdemeanor offense ***,” codified under the miscellaneous provision, states: “the judge shall include in the offender’s sentence a statement that the offender is a tier III sex offender/child victim offender [and] shall comply with the requirements of section 2950.03 of the Revised Code ***.” R.C. 2929.23(B) states: “[i]f an offender is being sentenced for a sexually oriented offense or a child-victim oriented offense that is a misdemeanor ***, the judge shall include in the sentence a summary of the offender’s duties imposed under R.C. 2950.04, 2950.041, 2950.05, and 2950.06 of the Revised Code and the duration of the duties.”

As defined by the Ohio Revised Code, “sentence” is “the sanction or combination of sanctions imposed by the sentencing court on an offender who is convicted of or pleads guilty to an offense.” R.C. 2929.01(E)(E). “Sanction” is defined in R.C. 2929.01(D)(D) as “any penalty imposed upon an offender who is convicted of or pleads guilty to an offense, as punishment for the offense.”

Therefore, the placement of Senate Bill 10 in the criminal code, along with the plain language of the bill, evidences the intent of the General Assembly to transform classification and registration into a punitive scheme.

Not only does the public have unfettered access to an offender’s personal information but, under Senate Bill 10, an offender has a legal duty to provide more information than was required under former R.C. Chapter 2950.

“[I]f we were to adjudicate all sexual offenders as sexual predators, we run the risk of ‘being flooded with a number of persons who may or may not deserve to be classified as high-risk individuals, with the consequence of diluting both the purpose behind and the credibility of the law. This result could be tragic for many.’ State v. Thompson (Apr. 1, 1999), Cuyahoga App. No. 73492, unreported, 1998 WL 1032183. Moreover, the legislature would never have provided for a hearing if it intended for one conviction to be sufficient for an offender to be labeled a ‘sexual predator.’”

Also of significance, the Eppinger Court noted that “[o]ne sexually oriented offense is not a clear predictor of whether that person is likely to engage in the future in one or more sexually oriented offenses, particularly if the offender is not a pedophile. Thus, we recognize that one sexually oriented conviction, without more, may not predict future behavior.” Id. at 162.

In addition, former R.C. Chapter 2950 permitted trial courts to first conduct a hearing and consider numerous factors before classifying an individual as a sexual predator, a habitual sexual offender, or a sexually oriented offender. In the judicial review of prior legislation, such as Megan’s Law and the original SORN Law, courts have noted with protective favor the ability of the trial courts to assess and classify offenders.

{¶27} Unlike the statute at issue in Cook and Eppinger, an individual’s registration and classification obligations under Senate Bill 10 depend solely on his or her crime, not upon his or her ongoing threat to the community. The result is a ministerial rubber stamp on all offenders, regardless of any mitigating facts in the individual case. The legislative basis for this seems to be expert analysis that puts all offenders in one of two categories: those who have offended more than once, and those who have offended only once, but are likely to offend again at some point in the future. This process, as delineated in Senate Bill 10, has stripped the trial court from engaging in an independent classification hearing to determine an offender’s likelihood of recidivism: expert testimony is no longer presented; written reports, victim impact statements, and presentence reports are no longer taken into consideration, nor is the offender’s criminal and social history. See, State v. Eppinger, 91 Ohio St.3d at 166-167. Gone are the notice, hearing, and judicial review tenants of due process. Thus, there is no longer an independent determination as to the likelihood that a given offender would commit another crime.

While the legislature may be entitled to adopt this questionable approach to apply to offenders from the date of passing the legislation, neither the Ohio Constitution nor the United States Constitution permit the retroactive application of Senate Bill 10 in its current form to individuals such as Ettenger. {¶29} Moreover, to date, the majority of the current justices on the Supreme Court of Ohio have objected to the characterization of Ohio’s sex offender classification system as a “civil” proceeding.

Furthermore, even if it were construed that the General Assembly’s intent was civil in nature, Senate Bill 10 is unconstitutional due to its punitive effect as applied to Ettenger. In assessing the effect of a statute, the United States Supreme Court has “provid[ed] some guidance” by indicating certain factors to be applied in resolving this point. The factors include:

{¶31} “Whether the sanction involves an affirmative disability or restraint, *** whether it has historically been regarded as a punishment, *** whether it comes into play only on a finding of scienter, *** whether its operation will promote the traditional aims of punishment – retribution and deterrence, *** whether the behavior to which it applies is already a crime, *** whether an alternative purpose to which it may rationally
be connected is assignable for it, *** and whether it appears excessive in relation to the alternative purpose assigned ***[.]” Kennedy v. Mendoza-Martinez (1963), 372 U.S. 144, 168-169. (Internal citations omitted.)

Since Cook, the sexual offender laws have been significantly modified. For example, 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 State v. Cook, 83 Ohio St.3d at 408. Under the latest version of the scheme, however, the places where registration is required have been expanded to now include: (1) the county where the offender lives; (2) the county where he attends any type of school; (3) the county where he is employed if he works there for a certain number of days during the year; (4) if the offender does not reside in Ohio, any county of this state where he is employed for a certain number of days; and (5) if he is a resident of Ohio, any county of another state where he is employed for a certain number of days. R.C. 2950.04. Not only is the offender now obligated to register in more counties, but he also has a legal duty to provide more information, as previously stated. Besides the change in the classification system, the increase in the duration and frequency of the requirements for registration, and the increase in the information provided, the access of the public to the information has been greatly increased through the use of an internet database that was previously established by the Ohio Attorney General.

The Supreme Court of Alaska, in Doe v. Alaska (2008), 189 P.3d 999, recognized the effects of requiring an offender to place personal information on a public registry. The Doe Court stated: {¶35} “*** [W]e agree with the conclusion of Justice Ginsburg, also dissenting in Smith, that ASORA [Alaska’s Sex Offender Registration Act] ‘exposes registrants, through aggressive public notification of their crimes, to profound humiliation and community-wide ostracism.’ *** In the decision reversed in Smith, the Ninth Circuit observed that ‘(b)y posting (registrants’) names, addresses, and employer addresses on the internet, the Act subjects (registrants) to community obloquy and scorn that damage them personally and professionally.’ *** The Ninth Circuit observed that the practical effect of this dissemination is that it leaves open the possibility that the registrant will be denied employment and housing opportunities as a result of community hostility. *** As Justice Souter noted in concurring in Smith, ‘there is significant evidence of onerous practical effects of being listed on a sex offender registry.’ *** Outside Alaska, there have been reports of incidents of suicide by and vigilantism against offenders on state registries. ***

ASORA requires release of information that is in part not otherwise public or readily available. Moreover, the regulations authorize dissemination of most ASORA registration information ‘for any purpose, to any person.’ *** Taken in conjunction with the Alaska Public Records Act, *** ASORA’s treatment of this information, confirmed by the regulations, seems to require that the information be publicly available. By federal law, it is disseminated statewide, indeed worldwide, on the state’s website. *** There is a significant distinction between retaining public paper records of a conviction in state file drawers and posting the same information on a state-sponsored website; this posting has not merely improved public access but has broadly disseminated the registrant’s information, some of which is not in the written public record of the conviction. As the Alaska Court of Appeals noted, ‘ASORA does provide for dissemination of substantial personal and biographical information about a sex offender that is not otherwise readily available from a single governmental source.’We also recognized in Doe A that several sex offenders had stated that they had lost their jobs, been forced to move from their residences, and received threats of violence following establishment of the registry, even though the facts of their convictions had always been a matter of public record. *** We therefore conclude that the harmful effects of ASORA stem not just from the conviction but from the registration, disclosure,
and dissemination provisions.” Id. at *1009-1011.

After careful examination of this opinion, we agree with the reasoning and conclusion of the Doe Court.

“ASORA does not expressly impose sanctions that have been historically considered punishment. *** Because registration acts such as ASORA are ‘of fairly recent origin,’ courts addressing this issue have determined that there is no historical equivalent to these registration acts. *** Some courts have instead considered whether
the acts are analogous to the historical punishment of shaming; these courts have concluded that they are not. *** But the dissemination provision at least resembles the punishment of shaming *** and the registration and disclosure provisions ‘are comparable to conditions of supervised release or parole.’ *** And these provisions
have effects like those resulting from punishment. The fact that ASORA’s registration reporting provisions are comparable to supervised release or parole supports a conclusion that ASORA is punitive.”

Furthermore, Senate Bill 10 cannot promote the goals of retribution and deterrence when the classification of an offender is based solely upon the nature of the crime committed, not on an individual’s recidivism potential.

Under Senate Bill 10, every offender must provide identical information, and the information is published in the same manner for every offender. The only factor that differentiates the offenders is the frequency and duration of the registry. Furthermore, the offenders are not given the opportunity to petition the trial
court to restrict the public dissemination of his or her personal information, since the public is allowed unrestricted access to the offender’s personal information. If this were the case under Senate Bill 10, it is conceivable that the notification policy would promote the purpose of protecting the public from the offender’s “harmful behavior.” {¶44} The new law as applied to this case resulted in an offender, with a clear expectation that his reporting was going to end in ten years, to be legislatively resentenced to an irrefutable lifetime of reporting. Based on the foregoing, Senate Bill 10 violates the ex post facto laws, as applied to Ettenger.

Retroactivity
“While protection of the public is the avowed goal of R.C. Chapter 2950, we cannot deny that severe obligations are imposed upon those classified as sex offenders. All sexual predators and most habitual sex offenders are expected, for the remainder of their lives, to register their residences and their employment with local sheriffs. Moreover, this information will be accessible to all. The stigma attached to sex offenders is significant, and the potential exists for ostracism and harassment, as the Cook court recognized. *** Therefore, 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.” Id. at ¶46.

In the instant case, Ettenger certainly had a reasonable expectation that his classification and attendant requirements were to last a finite period of ten years. Further, this reasonable expectation of finality was based on the agreement with the state of Ohio. Yet, through the enactment of Senate Bill 10, Ettenger is subject to mandatory lifetime reporting. The prospect of this result could have easily changed his decision to enter a guilty plea in his case and instead proceed to trial.

Based on the foregoing and when applied retroactively to offenders such as Ettenger, Senate Bill 10 violates the Ex Post Facto Clause of the United States Constitution and Section 28, Article II of the Ohio Constitution when an offender had a reasonable expectation of finality. The same result would not necessarily be true where an offender had been adjudicated a sexual predator, or if the offender, at the time of his conviction, had not yet been classified but could have been classified as a sexual predator. This is primarily due to the fact, as observed by Justice O’Connor, that these individuals never had any expectation that their registration requirements would end prior to the passage of Senate Bill 10. However, those individuals who had been classified with resulting specific, terminable reporting requirements should be given the protections afforded by the United States and Ohio Constitutions.

Impairment of Contracts
We recognize a plea agreement is considered a contract between the state and a criminal defendant; as a result, such an agreement is subject to the general laws of contracts. State v. Butts (1996), 112 Ohio App.3d 683, 685-686. Therefore, if one side violates a term of a plea agreement, the other party has a right to pursue certain remedies, including the rescission of the agreement. State v. Walker, 6th Dist. No. L-05-1207, 2006-Ohio-2929, at ¶13.

As part of Ettenger’s plea bargain, the state and defense counsel stipulated that he was to be classified a “sexually oriented offender pursuant to O.R.C. 2950.01.” At the March 20, 2008 hearing, defense counsel stated: {¶64} “[T]his case was negotiated so that the offenses that he was originally charged with were reduced, and as part of that plea bargain, [the state and Ettenger] stipulated that [Ettenger] was only a sexually oriented offender, and [Ettenger] relied on that. *** That’s what he understood that the result was going to be, and that’s why [Ettenger] entered the plea.”

This agreement was further evidenced in a journal entry dated May 7, 2002, indicating Ettenger plead guilty, was classified a sexually oriented offender, and address registration and verification was ordered annually for 10 years. The entry further states: “[t]his finding based on agreement of defense and prosecution.”

The classification category has always been an important part of the plea considerations in these cases. Indeed, those common pleas judges who deal with plea bargains in sex cases on a regular basis know that classification issues play an important role in the process. Common Pleas Judge James DeWeese, Richland
County, in a thorough and practical opinion noted: “[a]n observer who visits a courtroom when sex offenders are sentenced will see that sex offenders usually view the sex offender labeling, registration and community notification requirements as the most punitive and most odious part of their sentence.” Sigler v. Ohio (Aug. 11, 2008), Richland C.P. No. 07 CV 1863, unreported. Reversed by Sigler v. State, 5th Dist. No. 08-CA-79, 2009-Ohio-2010. In this case, Ettenger, the prosecutor, and the court agreed on his registration status. That should be the end of it. Reclassification by the state legislature clearly may have impacted Ettenger’s decision to enter a plea and forego his right to trial.

Therefore, in the instant matter, the enactment of the new sexual offender scheme under Senate Bill 10 constitutes a breach of Ettenger’s prior plea agreement. Ettenger’s contention that his reclassification constitutes an impairment of a contract is with merit.

Double Jeopardy
Through the enactment of Senate Bill 10, Ohio’s sex offender classification system has been revamped, increasing the frequency, duration, and extent of the reporting requirements. Of specific concern is the “automatic” nature of the new classification system. An offender’s classification status is solely based on the crime he or she has committed. If an offender commits an offense set forth in R.C. 2950.01(G), or attempts to commit one of those offenses, he or she is classified as a Tier III offender and is forced to comply with the onerous registration requirements for the rest of his or her life. Moreover, unlike the former version of the statute, the offender is not entitled to a hearing where a judge could make an independent evaluation of the offender’s specific likelihood of recidivism based on the offender’s criminal history, psychiatric evaluations, age, and facts of the underlying offense. In light of this significant change, our analysis of Ettenger’s retroactivity and ex post facto arguments, and the reasons set forth in Justice Lanzinger’s above-noted dissenting opinions, Ohio’s sex offender classification system is clearly punitive in nature. {¶74}

In this matter, Ettenger pled guilty to one count of attempted sexual battery. In 2002, he was sentenced for this offense and adjudicated a sexually oriented offender. He had an expectation of finality in that his reporting requirements would end in ten years. Now, additional punitive measures have been placed on Ettenger, as he is required to comply with the new registration requirements every 90 days for the rest of his life. Essentially, Ettenger is being punished a second time for the same offense. Accordingly, the application of the current version of R.C. 2950 to Ettenger violates the Double Jeopardy Clauses of the Ohio and United States Constitutions.

If you are unable to view above Opinion link, go to http://www.sconet.state.oh.us/Rod/NEWPDF/ and search under 11th Court of Appeals , using search term “Ettenger”