What’s on Their Minds: Does a Trial Court Retain Jurisdiction to Hold a Sex Offender Registration Hearing After the Sentencing Entry has been Journalized? State v. Raber.

Update: On December 6, 2012, the Supreme Court handed down a merit decision in this case. Read the analysis here.

On August 21, 2012, the Supreme Court of Ohio heard oral argument in the case of State of Ohio v. Kyle D. Raber, 2011-1383. The issue in this case is whether the trial court lacked subject matter jurisdiction to reopen the case after the final judgment entry was journalized in order to hold an evidentiary hearing on whether Raber had to register as a sex offender.

Kyle Raber pled guilty to sexual imposition – a third-degree misdemeanor – against his ex-girlfriend in 2008. Pursuant to a plea agreement, Raber’s sentence included jail time, probation, a fine, and community service. At the sentencing hearing, the trial court expressed uncertainty about whether Raber would be required to register as a sex offender and took the matter under advisement with the agreement of the parties. The court requested briefs on this issue, but none were filed. The court determined that Raber would be required to register as a sex offender only if the conduct underlying his conviction was non-consensual, but deferred a hearing on this issue. This sentence was journalized in December 2008, and no appeal was taken from it.  The sentencing entry is silent on the registration issue.  Eleven months later, after Raber had completed all aspects of his sentence, the case was re-opened, and after an evidentiary hearing many months after that by a different judge, the court concluded that the conduct was not consensual and required Raber to register as a Tier 1 sex offender.

Raber appealed this decision, and the Ninth District Court of Appeals affirmed, finding that the trial court had jurisdiction to proceed as it did.  Read the oral argument preview of this case here.

The Oral Argument

Raber’s attorney argued that once the sentencing entry in this case, which was silent on the issue of registration, was journalized in December of 2008, and the state failed to appeal it, the matter was closed.  The new judge who reopened the case eleven months later and subsequently held the deferred hearing on consent had no subject matter jurisdiction to do so.

The prosecutor argued that this is not a matter of subject matter jurisdiction, but rather a simple clerical error in an entry that the trial court had the power to correct.  The clerical error was the failure to include in the entry the on-the-record agreement by both parties that the registration issue would be deferred to a later time. The defendant never objected to the deferred evidentiary hearing, either before it or after it.

What a Sloppy Mess!

Pretty much everyone agreed.  Even the prosecutor.

Is There any Precedent Here?

Both Justice Pfeifer and Chief Justice O’Connor asked if this wasn’t just a fact specific case, and an anomaly—just a unique set of procedures that doesn’t fit any of the Court’s existing jurisprudence?

What was Supposed to Happen here? And What Did Happen?

Chief Justice O’Connor asked if there was a hearing on the issue of consent?  Wasn’t that required, asked Justice O’Donnell? Wasn’t the matter never re-opened because it was never closed? Just continued? Was a motion to re-open the case ever filed? Wasn’t the defendant on notice that he could have a registration requirement after the issue of consent was resolved? And how on earth did the case get transferred to a different judge?

So What Was in the Entry?  And What Wasn’t?

Justice O’Donnell confirmed that there was no sex offender registration contained in the original judgment entry in the case. Didn’t the Court take that issue under advisement?

Justice Pfeifer asked who prepared the entry (Answer—it was a form of the court)

Chief Justice O’Connor asked why the Supreme Court shouldn’t assume from a silent entry that registration was not required.

That’s a Long Time Between Drinks

Justice Stratton asked how much time can pass between these hearings and still be acceptable? Justice McGee Brown picked up on this and asked whether the state was going to put this off indefinitely, noting the state never did anything to “move this ‘recess’ forward.” Perhaps the prosecution thought the case was over?

Justice Lanzinger weighed in here, too, commenting that if the Court were to affirm, “that would give the state absolutely no motivation to look at entries or file motions” and just to put things off forever. If something is missing from an entry, file an appeal.

Just a Simple Clerical Error—You’re Kidding!

The prosecutor took this position and stuck to it. When he said that the agreement to defer the consent hearing was to accommodate the defendant so he could serve his sentence over winter break, the Chief Justice retorted “his vacation schedule doesn’t trump the law on this.” Looking quite disgusted (which is why watching these arguments is so much richer than just listening to them or reading them) with the prosecutor’s position, she said, “Oh come on, it sounds like the lawyers were sitting on their hands and didn’t have the ability to keep the ball in motion here.” And later she said quite directly that she didn’t know that she’d agree that this is just a mere clerical error—it involved a substantive part of a sentencing entry.

Justice Stratton also retorted that the failure to include an agreement that registration would be deferred didn’t sound like a clerical error to her.

OK, What’s the Back Story?

In an interesting exchange, Justice McGee Brown commented that when she read the briefs she felt as if something was missing, since the state never appealed the original entry, and eleven months later the case was reopened.  Although this isn’t in the record, the answer was that the victim’s family kept after the prosecutor’s office about why Raber was not on the web as a sex offender, and the case subsequently was re-opened.

Is Sex Offender Registration Different from Post Release Control?

Asked Justice Lanzinger, adding bluntly to defense counsel that if he were arguing PRC under existing precedent he would lose. They are different, he answered, and this is not a PRC issue.  He also commented that what once began as a civil matter, the Court (although not unanimously) has now determined registration requirements are punitive.

Justice Cupp asked why this wasn’t exactly like post release control—with a void sentence that doesn’t include everything it needed, and was just a matter of re-sentencing. But then Justice Stratton commented that PRC is set by law, but here there was a required factual finding.

And What About Res Judicata?

Justice Lanzinger asked if part of the defendant’s concern was res judicata (always such a fun topic)—Two years later, a judge attempts to add on to an already completed sentence? Justice Stratton chimed in right behind her—if there was no appeal after round one, after the judge had invited the submission of briefs, but none were filed, it isn’t fair to wait forever and suddenly re-open a case, was it? (what was that question, your honor?)

Justice Stratton also expressed her concern with a trial court filing an entry with no reservation of anything in it, and the state doesn’t file the invited briefs or appeal.

Or is it Gotcha, Played by the Defense?

Asked Justice Cupp.  Wasn’t this invited error, since there was clearly an agreement to postpone the consent hearing to accommodate the defendant?

How it Looks from the Bleachers

This case got messed up, no question about it.  This looks like a reversal, but not a unanimous one.  Once that December 2008 entry was journalized, which was silent on registration, and the state failed to appeal, the case was over. And of course subject matter jurisdiction can never be waived and can be raised at any time. Most of the justices, led by Justices Lanzinger, Stratton and the Chief, weren’t buying the prosecutor’s clerical error theory.  To his credit, he was very professional, taking no cheap shots at anyway, while trying to defend a very difficult position. Justice Cupp, on the other hand, clearly sees this as invited error, with a “gotcha” by the defense.  Justice O’Donnell may be with him, but that is less certain. Justices Pfeifer and McGee Brown will probably join the majority.

Here’s student contributor Elizabeth Chesnut’s take after watching:

Based on questions presented at oral argument, it seems that the Court is inclined, though not as a whole, to favor the Defendant Raber’s theory of the case. The State’s contention that the lower court was merely fixing a clerical error met with resistance from the panel, which impressed upon both sides the importance of finality in judicial proceedings. Because of the unique position of the facts of this case, I believe the Court will find for the Defendant in order to discourage attorneys from protracting the briefing of issues indefinitely and to emphasize the importance of res judicata.

 

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