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OH Supr Ct: Sexual Offender May Be Convicted Where Conduct Violates Both Adam Walsh Act and Megan’s Law.

The Ohio Supreme Court considered the legitimacy of convictions of sex offenders, originally classified under Megan’s Law, who were indicted for violating the address-notification requirements of the Adam Walsh Act .  The court held that a sexual offender may be convicted where the conduct at issue—a failure to provide notice of a change of residence address—was a violation of the law under both the Adam Walsh Act and Megan’s Law.

The court also held that an offender who files an address-verification form with a sheriff under the mistaken belief that the form is required may be convicted of tampering with records if the form contains false information that was submitted with a purpose to defraud.  In other words, regardless of whether a person has a duty to file an address verification form, filing a form containing false information with the intent to defraud can be a violation of Ohio law.

The case is State v. Brunning, Slip Opinion No. 2012-Ohio-5752.

The Defendant was a registered sex offender who has been convicted of failing to provide notice of a change of address and tampering with records.  After the passage of Megan’s Law, he was classified as a sexually oriented offender,  requiring advance notice of any address change and annual address verification  for ten years following his release.

In 2008, the Adam Walsh Act repealed Megan’s Law.  The Defendant was reclassified as a Tier III sex offender by the Ohio Attorney General.

In 2010, he was charged with failure to verify his address every 90 Days, failure to provide a notice of change of residence address, and providing false information on his periodic address-verification form.

The Supreme Court considered whether the defendant’s violation of the requirement under both Megan’s Law and the AWA that he notify the sheriff of a change of residence address was valid after a prior decision holding that the reclassification provisions in the Adam Walsh Act were unconstitutional.  That decision reinstated the classifications and community-notification and registration orders imposed previously by judges upon sex offenders originally classified under Megan’s Law.

The court noted that the requirements for giving  notice of a change of residence address are the same under both versions of the law.  The court said, “Once reinstated, those orders [under Megan’s Law] operated prospectively from the time they were first instituted.  They related back to the time they were first imposed and continued in effect as if they had never been changed. . . The General Assembly certainly did not intend for sex offenders to be relieved of obligations to notify authorities of a change of address when it repealed Megan’s Law and enacted the Adam Walsh Act.”

The conviction was upheld because the defendant “remained accountable for the address-change-notification requirement in Megan’s Law.”

The court also upheld the conviction for tampering with records.  The statute provides that no person shall “Falsify, destroy, remove,  conceal, alter, deface, or mutilate any writing, computer software, data, or record . . .”  The statute was violated because he “voluntarily misled the person to whom he submitted the form.

 

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OH Supr Ct: Megan’s Law Penalty Provisions for Failure to Comply with SORN Apply to Sex Offenders Classified Under That Law

The Ohio Supreme Court has held that the penalty provisions for failure to comply with the sex offender registry statute in place immediately prior to the repeal of Megan’s Law by the Adam Walsh Act applies to the penalty for sex offenders originally classified under Megan’s Law who violate the law by failing to give proper notice of an address change.

The case is State v. Howard, Slip Opinion No. 2012-Ohio-5738.

We wrote about this case earlier – read it here.

In 2000, the Defendant was convicted of rape, a first-degree felony, and sentenced to four years in prison.  He was designated a habitual sex offender pursuant to Ohio’s Megan’s Law.  Howard was required to verify his address on an annual basis and to notify the sheriff of any change of address.

Violation of Megan’s Law was a fifth-degree felony, punishable by up to 12 months in prison.

In 2003, Megan’s Law was changed.  One change in the law was an increase in the punishment for failure to comply with the registration requirements to a third-degree felony, punishable by up to five years in prison.

In 2007, Ohio passed its version of the Adam Walsh Act (“AWA”), which repealed Megan’s Law.  The Defendant was reclassified by the Ohio Attorney General as a Tier III sex offender.  The Adam Walsh Act made the defendant’s failure to comply a first-degree felony, punishable by up to ten years in prison.

In 2010, the Ohio Supreme Court declared unconstitutional the reclassification provisions of the Adam Walsh Act.  State v. Bodyke, 126 Ohio St.3d 266 (2010).  As a result of this decision, for offenders like the Defendant, the original classification and requirements under Megan’s Law were restored.

The Defendant admitted that he did not comply with the provisions of Megan’s Law.  Thus, the only issue for the court was which penalty provision, either Megan’s Law or the Adam Walsh Act, applies.

This decision has big implications, as it applies to numerous offenders originally classified under  Megan’s Law who commit violations of notice-of-address-change requirements after the effective date of the Adam Walsh Act.

The court explained the current state of the law:

Ohio has, in effect, separate statutory schemes governing sex offenders depending on when they committed their underlying offense.  Those who committed their offense before the effective date of the Adam Walsh Act are subject to the provisions of Megan’s Law; those who committed their offense after the effective date of the Adam Walsh Act are subject to the Adam Walsh Act.

The court emphasized that the penalty provision in the Adam Walsh Act “remains in full vigor for those to whom it applies . . .”  However, these penalty provisions do not “reach back” to cover offenders who were sentenced and classified as sex offenders under Megan’s Law.

One caveat:  the court held that the appropriate penalty is under the amended Megan’s Law, not the version of Megan’s Law in effect when the offender was originally classified.  The court rejected arguments that this would violate the Retroactivity Clause of the Ohio Constitution and the Ex Post Facto Clause of the United States Constitution.  The court explained that the “imposition of . . . . penalties does not create an increased penalty for [a defendant’s]original sex offense, but rather imposes a penalty related entirely to his later, separate violation of [Megan’s Law], a new crime.  That is, the penalty is not an increased penalty for his original sex offense, but rather a penalty for a new offense.”

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Plea is Valid Even When Sex Offender Should Be Classified under Megan’s Law, Not Adam Walsh Act

The Ohio Court of Appeals for Miami County has held that a defendant may not be classified as a sexual offender under the Adam Walsh Act if his crime occurred before the effective date of the Act.  Instead, the defendant should have been classified under Megan’s Law.

The case is State v. Cruea, 2012-Ohio-5209.

The defendant had been indicted on multiple felony sex crime charges.  He pled no contest to one count of rape and two counts of Gross Sexual Imposition and was sentenced to eight years in prison.

One of the arguments raised on appeal by the defendant was that the trial court failed to properly advise him with respect to how his no contest plea would affect his sexual offender reporting requirements.  Specifically, the defendant argued that the trial court failed to advise him of his specific reporting responsibilities once he was designated as a sexual offender.

The trial court incorrectly designated the defendant as a Tier II sexual offender under the Adam Walsh Act.  This was incorrect because the rape occurred before the Adam Walsh Act took effect.  In a previous decision, the Ohio Supreme Court had ruled that constitution prohibits the application of the Adam Walsh Act to any sex offender who committed the underlying sex offense before the Act’s effective date.

Instead, the defendant in this case should have been classified under Megan’s Law, which was in effect at the time of the offense.  Under Megan’s  Law, a sex offender classification hearing must be held to determine if a defendant convicted of a sexually oriented offense has a community reporting responsibility.   If a defendant is classified as a sexual predator, he would have community reporting responsibilities.  If a defendant is classified as a habitual sexual offender, the trial court has the discretion to make the defendant subject to community reporting responsibilities.  Finally, under Megan’s law, if the defendant is classified as a sexually oriented offender, the defendant would not have any community reporting duties.

In this case, the trial court correctly informed the defendant during his plea hearing that “based upon your classification status, the Sheriff may have to – may be required to notify victims, neighbors, schools, churches and other institutions of your name, address and the offense.”  Accordingly, the plea hearing did not violate any of the Defendant’s rights and the guilty finding was affirmed.  The case was remanded for a new a sex offender classification hearing under Megan’s law.

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Sex Offender Cannot be Convicted for Providing False Information on Initial SORN Form.

An Ohio Appeals Court has held that a sexually oriented offender cannot be convicted for failure to register when he provided false information on his initial sexual offender registration form.

The case is State v. Knox, 2012-Ohio-3821.

The defendant was convicted on two counts of gross sexual imposition in 1999.  He was sentenced to prison and classified under Megan’s Law as a sexually oriented offender.  Under Megan’s Law, he was required, among other things, to register his current address on an annual basis.

In 2008, as a result of the Adam Walsh Act, the defendant was reclassified by the Ohio Attorney General as a “Tier III” sexual offender.  Accordingly, the defendant was required to register his address every 90 days.

The defendant went to the Cuyahoga County Sheriff’s office to register.  On his form, he indicated that his address was that of the Lutheran Metropolitan Ministries Men’s Shelter.  However, according to the shelter’s records, Knox had not been present there for some time.  As a result, Knox was indicted for failure to register as a sexual offender and tampering with records.

The trial judge, after hearing the state’s evidence, correctly dismissed the charges.

The issue was whether a sexually oriented offender must put truthful information on the registration form.  The state argued that the statute “implicitly requires ‘honest’ information.”  In the view of the State, providing false information violated the registration statute.  The court disagreed.  The court wrote:

[The statute] is intended to ensure that the offender appears and completes a form for registration; if the offender does not, he or she is subject to prosecution for the failure.  The trial court thus correctly interpreted R.C. 2950.04(C) when it determined that “registration is complete” with only the physical action of handing a filled-out form to the sheriff.

The court also held that the tampering with records statute could not be used to convict the defendant for providing false information on his sexual offender registration form.

The court noted that the failure to provide truthful information can be prosecuted under a separate statute requiring sex offenders to periodically “verify” address and other information.

 

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Ohio Supreme Court to Consider Conflicting Penalty Provisions of Ohio’s Adam Walsh Act and Megan’s Law

The Ohio Supreme Court is set to consider whether a sex offender who violated the terms of the sexual offender registration obligations should be sentenced under the terms of Ohio’s Adam Walsh Act or the Megan’s Law penalty scheme that was in place on the date his duty to register arose.

Argument is scheduled for Wednesday, August 22, 2012.

The case is State v. Howard.  The opinion of the Court of Appeals is found at 195 Ohio App.3d 802, 2011-Ohio-5693.

In September 2000, The Defendant was convicted of rape and was sentenced to four years in prison.  Pursuant to Megan’s Law, the sex offender registration statute in place at the time, the Defendant was designated a habitual sex offender.  The trial court also ordered community notification for a period of 20 years.

In 2006, Ohio passed the Ohio Adam Walsh Act (the “AWA”).  Pursuant to the AWA, The Defendant was reclassified a Tier III sex offender.

In2010, the Defendant was convicted on failure to notify, a felony of the first degree, for failing to provide notice of his change of residence address to the sheriff.  He was sentenced to three years in prison.

The Ohio Supreme Court, in 2010, struck down as unconstitutional the reclassification provisions in the AWA.  As a result, the defendant’s original classification under Megan’s Law as a habitual sex offender and the community-notification and registration orders attending that classification were reinstated.

We looked at this case last month.   This case boils down to this:  under Megan’s Law, the Defendant’s crime would be a fifth degree felony, punishable by up to twelve months in prison.  Under the AWA, the crime is a first degree felony, punishable by up to ten years in prison.

The court of appeals held that while the Defendant’s original classification and registration requirements are applied, his conviction for failure to notify is not offended.  The court said, “There is no dispute that under former law, [The Defendant] was required to provide written notice of a change of address at least 20 days prior to changing his address of residence. . . . However, the [AWA] changed the penalty for failure to notify from a felony of the fifth degree to a felony of the first degree, based upon the penalty for the underlying offense of rape, and The Defendant was subject to a mandatory term of incarceration.  . . . the fact that The Defendant had committed his offense of failure to notify after the effective date of [the AWA] does not affect the outcome.”

The state argued in its brief that “the penalty for a registration offense, however, is not part of an offender’s classification and registration requirements . . .   It is a new criminal offense. Therefore, the new increased penalties in [the AWA] are not being [impermissibly] retroactively applied to offenders classified under Megan’s Law.”

In response, the defendant argued this interpretation of the statute “is not supported by well-established Ohio retroactivity jurisprudence, nor is it supported by this Court’s recent rulings scaling back the applicability of AWA to offender’s classified under Megan’s Law.”

A decision is expected in early 2013.

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Ohio Supreme Court to Consider Whether a Court May Impose Sex Offender Registration Requirements Months After Sentence is Imposed

The Ohio Supreme Court will consider whether, after a court makes a sentencing entry in a criminal case involving a sexually oriented offense, the court can later require the defendant register as a sex offender under the Adam Walsh Act.

The case is State v.RaberArgument is scheduled for Tuesday, August 21, 2012.

The defendant pleaded guilty to a single count of sexual imposition, a third-degree misdemeanor.  The court sentenced him to sixty days in jail, thirty of which were suspended, and placed him on probation for two years.

According to the Court of Appeals, “At the sentencing hearing, the [trial] court expressed uncertainty about whether [the defendant] would be required to register as a sex offender.  With the agreement of the parties, the court took the matter under advisement so that counsel could have the opportunity to brief issues related to sex offender classification.  The court later determined that . . . [the defendant] would be required to register as a sex offender only if the conduct underlying [the defendant’s] conviction was non-consensual.

The court held an evidentiary hearing at which it determined that the conduct was not consensual.  The trial court ordered the defendant to register as a sex offender.

The Defendant argued to the court of appeals that the trial court did not have jurisdiction to determine whether he was a sex offender because it no longer had jurisdiction over the case after entering a final judgment of conviction and sentence.  This argument is based, in part, upon the language of the Ohio Adam Walsh Act, which requires the “judge [to] provide the notice to the offender at the time of sentencing.”

The court of appeals rejected this argument.  The court reasoned that the determination that a defendant is a sex offender “constitutes a separate and distinct judgment from the judgment of conviction and sentence.”

The state argued in its brief, in part, that the process of having a later hearing on the sex offender registration issue was done with the consent of the defendant.  The brief states:

Putting off the registration question but imposing the jail sentence greatly benefited [the defendant] because it allowed him to serve his jail time in between his college semesters. Yet despite his agreement to and his benefit from this bifurcated process, [the defendant] now complains that he was treated unfairly. The Court should not condone such mischief.

The defendant responds that the state had an opportunity to appeal the decision of the trial court to not impose sex offender registration requirements at the time of sentencing.  The defendant also suggests that because sex offender registration is “punitive” the procedure in this case “violated the [defendant’s] constitutional rights ofDue Process and Double Jeopardy under the 5`h Amendment of the United States Constitution” by reopening “the case long after final judgment” and holding “further hearings.”  This is, the defendant, because the constitution forbids a court, “Once divested of jurisdiction,” from adding “further punishment [to] a defendant’s original sentence, even if the omission was accidental or otherwise.”

A decision is expect in early 2013.

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Court Holds that Adam Walsh Act is Unconstitutional; Awaits Decision from Ohio Supreme Court

An Ohio Appeals court has held, again, that Ohio’s Adam Walsh Act do not apply to individuals who were originally sentenced under Megan’s Law.  The court, however, is awaiting further guidance from the Ohio Supreme Court.

The case is State v. Davis, 2012-Ohio-3570.

In 2004, the Defendant pled guilty to sexual battery and gross sexual imposition.  He was sentenced to five years probation.

Pursuant to Ohio’s Megan’s Law, the sex offender registration system then in effect, the Defendant was classified as a sexually oriented offender, the least restrictive classification.  As a sexually oriented offender, he was required to comply with the registration framework provided in Megan’s Law, including annual registration for ten years.  Additionally, he was subject to the penalties under Megan’s Law for noncompliance.

In 2007, the Ohio enacted Ohio’s Adam Walsh Act, repealing Megan’s Law and providing increased obligations and registration requirements to be applied retroactively to previously-registered sex offenders.  The Attorney General reclassified the Defendant as a Tier III sex offender, increasing his registration duties and penalties for noncompliance.  (As a Tier III sex offender, the Defendant was required to verify his address every 90 days for life.)

In 2011, The Defendant was charged with failing to provide notice of change of address.  The Defendant filed a motion to dismiss the indictment based on an Ohio Supreme Court decision that the reclassification was unconstitutional.  He also argued that the new penalties should not apply to him.

The appeals court held that the enhanced penalties under Ohio’s Adam Walsh Act do not apply to individuals who were originally sentenced under Megan’s Law.  This is based upon prior authority in the district.  The court cautioned:  “Until the Ohio Supreme Court issues a definitive ruling on this issue or until it remedies the conflict among the districts, we are bound by the precedent of this court.”

The court also certified that its decision is in conflict with the decisions of the First and Fifth Appellate Districts and noted that the issue has been accepted for review by the Ohio Supreme Court in State v. Howard, Supreme Court Case No. 2011-2126. The Howard case is highlighted in a prior post previewing the case.  A decision in that case is expected early in 2013.

 

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Ohio Supreme Court to Review Penalties for Sex Offender Notification Statute

Appeal to Watch on the Sexual Offender Registration Issue:  State v. Howard.  The docket and all briefs are available on the Supreme Court web page.  The case was reported below at 195 Ohio App.3d 802, 2011-Ohio-5693.

This issue in this case involves the sex offender notification statute.  The defendant was convicted for failure to notify, in violation of R.C. 2950.05(A) and (F)(1).   In September 2000, the defendant had been convicted of rape and designated a habitual sex offender.   Pursuant to the Adam Wash act, the defendant was reclassified a Tier III sex offender.

In 2010, the defendant was charged with failure to notify, a felony of the first degree, for failing to provide notice of his change of residence address to the sheriff.

As a result of later Ohio Supreme Court decisions, the defendant’s reclassification as a Tier III sex offender was rescinded and his original classification as a habitual sex offender and the community-notification and registration orders attending that classification were reinstated.

The issue deals with the penalty.  When the original classification and registration requirements are applied, the conviction for failure to notify is a felony of the fifth degree.  The Adam Walsh Act changed the penalty to a Felony of the First Degree.  The court of appeals held that the trial court erred when it convicted the defendant of a first-degree felony instead of finding him guilty of a fifth degree felony.

In its brief, the state argues that “A violation of the registration requirements is a new, separate offense. And the newincreased penalties in R.C. 2950.99 are not being retroactively applied when the offender’s criminal conduct occurs after the effective date of the statute.”

In response, the defendant argues “Under the former R.C. 2950.99 that was in effect when [the defendant’s] duty to notify of a change in residence address first arose in September, 2000, a failure to comply with this dutywould result in a fifth degree felony. R.C. 2950.99, as amended in 2007, increased the penalty for a failure to notify from a fifth degree felony to a first degree felony, creating a new liability.”

 

If you have questions about this issue, or if you need an Ohio Criminal Defense Lawyer for your Ohio criminal appeal or other post-conviction matter, please visit the  Appeals Section of J. Adam Engel, LLC.

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Court Rules Defendant not subject to notification requirements under Megan’s Law

An Ohio Appeals Court has upheld the dismissal of charges based on failure to comply with sexual registration requirements where the defendant had completed his sentence before the new requirements went into effect.

The case is State v. York, 2012-Ohio-3159.

In 1995, the Defendant was sentenced to two years in prison for sexual battery.  He was never classified under Ohio’s first comprehensive sex-offender regulation, enacted as Megan’s Law in 1996.  In 2007, Ohio passed the Adam Walsh Act, which applied to sex offenders regardless of when their offenses occurred.  Based on York’s 1995 sexual battery conviction, the Adam Walsh Act automatically imposed on him a Tier III sex-offender classification.

In 2008, the Defendant York was charged with failure to provide notice of change of address, a felony of the third degree.  In 2009, he pleaded guilty to the charge.  He subsequently filed a motion to withdraw his previously entered guilty plea and dismiss the indictment against him.  The trial granted the motion to dismiss.  The state appealed.

This case arose because, in 2011, the Ohio Supreme Court held that the Adam Walsh Act was unconstitutional as applied to defendants who had committed sex offenses prior to its enactment.  State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374 (2011).  The state srgued that the Defendant had a duty to register under Megan’s Law regardless.

The record in this case showed that the Defendant had completed his sentence for sexual battery prior to the enactment of Megan’s Law; therefore, he was correctly never classified as a sexual offender pursuant to Megan’s Law. Under a separate Ohio Supreme Court decision, State v. Champion, 106 Ohio St.3d 120, 2005-Ohio-4098 (2005), if the Defendant had completed his prison sentence for sexual battery prior to the enactment of Megan’s Law, the former law’s registration requirements did not apply to him.

The court, thus concluded that the Defendant was not subject to notification requirements under Megan’s Law as he served his sentence prior to that law’s enactment.  Therefore, any conviction based on an unlawful classification under the Adam Walsh Act cannot be maintained even if his conduct would have constituted a violation of Megan’s Law.

 

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