When Ohio repealed its version of Megan’s Law and enacted its Adam Walsh Act, many thorny questions arose about which registration requirements applied in a variety of circumstances. On August 22, 2012, the Supreme Court of Ohio will try and sort out some of these issues. To help understand these cases and put them in perspective, the blog offers this guest post by attorney Margie Slagle. Margie practices at the law offices of Steven R. Adams in Cincinnati. Before that she was a staff attorney at the Ohio Justice and Policy Center, where she successfully argued State v. Gingell before the Supreme Court of Ohio.
Guest Post by Margie Slagle
The Adam Walsh Act (“AWA”) has been wreaking havoc in Ohio courts since it became effective on January 1, 2008. The AWA was mandated by Congress and required that all sex offenders be reclassified based solely on their offense of conviction. All sex offenses were categorized based on their “seriousness” with the most serious offenses considered Tier III and less serious offenses considered Tier II and Tier I. Tier III offenders must register for life, Tier II for 25 years, and Tier I for 15 years.
Ohio had been classifying offenders based on their re-offense risk under Megan’s Law. Only offenders who were adjudicated by the court to have a high re-offense risk were required to register for life. Those who had previously committed a sex offense were classified as habitual offenders and ordered to register for 20 years. Most offenders were adjudicated low risk and ordered to register for 10 years. When Ohio repealed Megan’s Law and implemented AWA, thousands of low risk offenders were now required to register for life.
In a series of decisions, the Ohio Supreme Court held that AWA could not constitutionally be applied to offenders who were classified under Megan’s Law or committed their offense before AWA was passed. In June 2010 in State v. Bodyke, the Court held that the reclassification violated the separation of powers doctrine because it changed the duties imposed by courts.
In July 2011, in State v. Williams, the Court held that AWA violated Article II, Section 28, the retroactivity clause of the Ohio Constitution, as applied to offenders who committed their offense before its enactment. Specifically, the Court found that the AWA was punitive and could not be applied to those who committed their sex offense before its enactment. Williams had committed his sex offense before July 1, 2007, the date AWA was passed.
But AWA was not fully implemented until January 1, 2008. The new classifications and Tier levels did not become effective until January 1, 2008. And Megan’s Law was not repealed until January 1, 2008. Williams did not address whether Megan’s Law or AWA applies to individuals who committed their sex offense between July 1, 2007 and January 1, 2008. Consequently, the Eighth District Court of Appeals concluded that AWA would apply, and the First District Court of Appeal concluded Megan’s Law should apply. The Ohio Supreme Court will address this conflict issue in In Re: Bruce S., 2012-0059. The oral argument will be held on August 22, 2012.
The Ohio Supreme Court will also hear oral argument on August 22, 2012 in State v. Howard, 2011-2126. The issue is in Howard is which penalty should apply when a sex offender violates his or her registration duties. When Megan’s Law was initially passed, any failure to register was a first degree misdemeanor. Since then, the penalty statute has been amended several times making the penalty more severe. When Howard was required to register, the penalty for a failure to comply was a fifth degree felony. But the AWA ties the penalty directly to the underlying sex offense. If the underlying sex offense is a felony of the first, second, third, or fourth degree, the failure to register penalty is the same degree as the underlying offense. Thus Howard was convicted of a first degree felony.
On appeal, the Second District Court of Appeals reversed the first degree felony conviction and remanded the case to the trial court for resentencing as a fifth degree felony, concluding that the AWA penalty cannot be applied retroactively to Megan’s Law offenders. The State appealed, arguing that the sentencing statute is not a retroactive application because the failure to register occurred after the amended sentencing statute was enacted.
Howard’s argument is two-fold. First, the penalty statute does not apply to him because the legislature failed to include any language to apply the statute to individuals with a preexisting registration duty. Second, even if the legislature intended the enhanced penalty statute to apply, it is unconstitutionally retroactive because it creates new liabilities not existing when he committed his sex offense and was ordered to register. Howard also argues that a retroactive application would violate the separation of powers doctrine because it changes his court ordered duties.
Again, the appellate courts are split on this issue. The Second, Seventh, and Eighth Districts have concluded that the AWA penalty statute cannot apply to Megan’s Law offenders. The First, Fifth, and Twelfth Districts have concluded that the AWA penalty statute applies to Megan’s Law offenders.
The Ohio Supreme Court attempted to address this issue in State v. Gingell, 2011-Ohio-1481. Gingell was convicted of a first degree felony for failing to comply with AWA. But Gingell’s court ordered duties notified him that any failure to comply with Megan’s Law was a fifth degree felony. Gingell argued that once Bodyke reinstated his court order, it would be a violation of the separation of powers doctrine to apply the AWA penalty to him. He further argued that applying the AWA penalty to him was unconstitutionally retroactive.
While the appeal was pending, Bodyke was decided and the Ohio Supreme Court ultimately vacated Gingell’s conviction because it was based on a violation of AWA. The Court did not address which penalty should apply.
The Gingell decision has raised a slightly different question. Can a Megan’s Law offender be indicted under the AWA? Yet again, the appellate courts are divided on this issue. The Eighth District has held that Megan’s Law offenders must be prosecuted under Megan’s Law, not AWA, and has vacated convictions that were charged under AWA. But the First, Fifth, and Twelfth Districts have concluded that because the duties did not change, indictments charging AWA violations are valid. The Second and Seventh Districts have concluded the convictions are valid because the duties did not change, but the felony level cannot be based on AWA. Instead, whatever penalty statute was in effect when the offender was ordered to register applies.
The Court heard oral argument on this issue April 25, 2012, in State v. Brunning, 2011-1066. In Brunning, the Eighth District vacated the conviction because Brunning was prosecuted under the AWA, not Megan’s Law. The State argued that because the Megan’s Law duties are the same as the AWA duties, the conviction should not have been vacated. Brunning made two different arguments: (1) Megan’s Law offenders cannot be indicted under AWA, and (2) Megan’s Law offenders cannot be prosecuted for failing to register between January 1, 2008 when Megan’s Law was repealed and June 3, 2010 when Bodyke reinstated the Megan’s Law duties.
Although the Court has not yet released its decision in the Brunning case, the Court did not appear receptive to the argument that Megan’s Law did not exist between January 1, 2008 and June 3, 2010. And the Court may reach the question of which sentencing statute applies to Megan’s Law offenders.
In any event, the oral argument in Howard on August 22 should provide some insight on which penalty statute should apply to Megan’s Law offenders.