Archive for November 10, 2009

Radio Broadcast on Adam Walsh Act

November 10, 2009 Comments off

TalkShoe Radio Broadcast from Americans Reality Check – Nov 11, 2009
Guest: Margie Slagle from Ohio Justice Policy Center (click here to listen to archived audio)
Download audio MP3 file

Episode Notes: Staff Attorney Margie Slagle of Ohio Justice and Policy center discusses the Sex Offender Laws and the Current Ohio Supreme Court hearing on the AWA. We will be discussing the recent Supreme Court of Ohio’s hearings on the Adam Walsh Act. Couple thoughts if you seen the footage of the Supreme Court: Did you feel that the Justices asked some very good questions so they can uphold the Ohio constitution? Was the Ast AG lost for words? or was he “punked”? Who do you think was the winning side with the most “factual information” during these hearings? Some of these questions and more will be raised during this episode. So please do join us on this night.

IN Supreme Court Overturns Sex Offender Law, Partly

November 10, 2009 Comments off : Sex offender registry reduced by 1/3 -Sex offender registry reduced by 1/3
Supreme court decision opens potential.

Allen County, Ind. – A landmark case at the Indiana Supreme Court may decrease the number of people in Allen County that have to register as a sex offender by more than a third. The Indiana Supreme Court overturned a ruling by a Marion County judge in the case of Richard P. Wallace vs. the State of Indiana . It’s a decision that could echo across the state.

In 1988, Wallace pleaded guilty to a Class C felony Child Molesting charge. He completed his sentence in 1992, two years before state legislators passed the Sex Offender Registration Act into law. It required probationers and parolees convicted of child molesting on or after June 30, 1994 to register as sex offenders, among other things. The law was later amended to include all offenders, regardless of conviction date. The Indiana Supreme court ruled making Wallace register as a sex offender is unconstitutional because it violates the state’s ban on ex post facto laws.

Deputy Prosecutor Michael McAlexander, the Allen County Prosecutor’s office , explained what that means. “[The Indiana] constitution does not allow you to look at an event first and then decide that [it] should be against the law and then retroactively enforce it against people.”

On the Allen County Sex Offender Registry alone, the case potentially affects about 245 of the 650 people registered. That’s about 37% of Allen County registered sex offenders that potentially won’t have to check in with local authorities and have their addresses and other personal information available to their neighbors on the registry website.

“I don’t get to interpret the law, my job is to enforce the law,” said Allen County Sex Offender Registry Administrator, Detective Jeff Shimkus. “I don’t have to like it, but we have to apply the law the way the courts tell us to. That’s the bottom line.”

Shimkus warns parents that the registry is only a tool, and that thorough parenting is the best preventative measure to protect kids. “You can have someone who’s not registered, never been convicted of anything, who may be a very sick individual and he just hasn’t gotten caught yet. Parents have to have common sense,” said Detective Jeff Shimkus, Allen County Sex Offender Registry Administrator.

The Allen County Sheriff’s Department makes contact with about 200 registrants per month, knocking on their doors to confirm their address is correct. Shimkus admits, reducing the number of registrants by a third would reduce the work for police, who are dramatically taxed by the requirement of the Sex Offender Registration Act. Since it’s conception in 1994, the law has been amended time and time again, to include more offenses, and more monitoring of offenders.

The Indiana Department of Corrections , the state registry administrative body, has a message to offenders on its website , regarding the Wallace case. It advises offenders to seek legal counsel if the Wallace case applies to them. Shimkus says locally, offenders have to file a motion to have themselves removed from the registry. A handful of people have already done that in Allen County.
Indiana Supreme Court
Richard P. Wallace v. State of Indiana – No. 49S02-0803-CR-138 – April 30, 2009
Appeal from the Marion Superior Court, Criminal Division, No. 49F15-0401-FD-1458
The Honorable Lisa Borges, Judge, On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-0706-CR-498

The statutes collectively referred to as the Indiana Sex Offender Registration Act (“Act”) require defendants convicted of sex and certain other offenses to register with local law enforcement agencies and to disclose detailed personal information, some of which is not otherwise public. In this case we consider a claim that the Act constitutes retroactive punishment forbidden by the Ex Post Facto Clause contained in the Indiana Constitution because it applies to a defendant who committed his offense before the statutes were enacted. We conclude that as applied in this case the Act violates the constitutional provision.

Richard Wallace was charged, convicted, and served the sentence for his crime before the statutes collectively referred to as the Indiana Sex Offender Registration Act were enacted. We conclude that as applied to Wallace, the Act violates the prohibition on ex post facto laws contained in the Indiana Constitution because it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when his crime was committed. We therefore reverse the judgment of the trial court.

Indiana Supreme Court
Todd Jensen v. State of Indiana – No. 02S04-0803-CR-137 – April 30,2009

..the Act does not violate the Indiana constitutional ban on ex post facto laws as applied here.

“But the effects of the Act apply to Jensen much differently than they applied to appellant Wallace. The ―broad and sweeping disclosure requirements were in place and applied to Jensen at the time of his guilty plea in January 2000. Nothing in that regard was changed by the 2006 amendments. And with regard to lifetime registration, we note that sexually violent predators may, after ten years, ―petition the court to consider whether the person should no longer be considered a sexually violent predator.”

There is an important distinction between these two cases. Registrants in Indiana should contact the authorities to confirm under which ruling their cases fall. It appears that the Wallace case pre-dated any SORNA law in Indiana, whereas the Jensen case occurred at a later date which gets caught up into the SORNA laws. We at are not attorneys, however, and those involved should consult an attorney or raise the matter in a court of appropriate jurisdiction. We advise that no registrant take the word of a law enforcement office, as they are often not a trustworthy source of information on issues such as these.

KS Video : Judge Explains Registration Laws

November 10, 2009 Comments off

From “Common Law” video series: Sedgwick County Courthouse – Judge David Kaufman explains how the expanded sex offender registration laws cause registrants to be charged for otherwise minor infractions or on errors made in communication with their parole officers.

“As the years have progressed, the legislature has expanded these registration requirements” says Judge Kaufman; “It has grown considerably since it’s inception from what it was originally intended for…and now we have quite a class of people that are required to register”

Sex Offender Registry Couldn’t Stop Ohio Deaths

November 10, 2009 Comments off : Sex Offender Checks Quick; Deputies Can’t Enter Homes. : PERSPECTIVE: Registry couldn’t stop Ohio deaths.

Columbus, Ohio (AP) — One of Ohio’s foremost champions of tougher sexual predator laws conceded a certain futility to such efforts as body after body was removed last week from the Cleveland home of Anthony Sowell.
Republican U.S. Rep. Steve Austria, a former state Senator from the Dayton suburb of Beavercreek, repeatedly championed state laws that he and other supporters believed would make the state safer.

Yet Sowell, a compliant registered sex offender after doing prison time for attempted rape, is accused of murdering several unsuspecting women and stowing their bodies in a house and yard that reeked of rotting flesh. Remains of 11 people have been found.

Bills that Austria introduced and ushered through the state Legislature cracked down on Internet predators, created a tracking system for sex offenders within and outside the state’s borders, and established the country’s first substantially complete sex offender registration and notification systems under the federal Adam Walsh Act.

Austria acknowledged, though, that no law probably could have been written that would have avoided the “horrific and disturbing tragedy” that’s unfolding in Cleveland.

“While these bills play an important role in allowing us to keep track of sex offenders and requiring them to register, those who are going to commit these terrible acts unfortunately will find ways around any safeguards we create in the law,” he said.

According to a 2008 report by the Office of Sex Offender Management, a project of the U.S. Justice Department, “these laws have significant resource implications, yet to date very little research has been conducted to examine the extent to which these investments have yielded significant public safety returns.”

Much of the controversy centers on a Cuyahoga County sheriff’s deputy who checked on Anthony, a registered sex offender and suspect in the 11 slayings, in late September. NewsChannel5’s Duane Pohlman went along with another deputy checking other sex offenders to reveal a program that is limited by the law and overwhelming in numbers. Deputy Rodney Blanton knocks on a lot of doors. He is one of just two deputies in Cuyahoga County who check to see if sex offenders are where they’re supposed to be. With 3,600 sex offenders in the county, the routine home visits are quick, some lasting just 15 to 30 seconds. A little more than a month before the grisly discoveries on Imperial Avenue, another deputy conducted the same quick check on Sept. 22 at the home of Sowell. “He was there. ‘I live here.’ Good enough. So, it would have probably been a 30-second verification, just like you witnessed this morning,” said Detective Susan DeChant, of the Cuyahoga County Sheriff’s Department.

Since sex offender laws don’t allow the deputy to enter the home (That would, of course be an illegal and unconstitutional search) , the deputy didn’t report anything unusual. If he did, detective said they would have investigated.”Absolutely, there would have been a report done and there would have been more investigation on it,” said DeChant. But, with thousands of sex offenders, there’s no time to check anything other than an address, and the notion that the quick visit to Sowell’s home should have caught him in the act is simply not realistic, detectives say.“It’s not going to stop an offender from reoffending, if that’s what they’re going to do,” said DeChant.

Sex Offender Registry: Too Broad a List

November 10, 2009 Comments off (Michigan): Editorial: Sex Offender Registry: Too broad a list.

The Michigan Court of Appeals’ precedent-setting decision to remove a Muskegon man’s name from the state’s Public Sex Offender Registry was the right one. And we urge the state Legislature to follow up with a careful review of the sex registry and who should be on it.

Robert Lee Dipiazza was convicted in 2004 under the Holmes Youthful Trainee Act, which allows the dismissal of cases against young first offenders if they successfully complete probation. Youthful offenders’ court files also are suppressed to establish a clean record and give them a second chance. Dipiazza, who was convicted of having consensual sex with his underage girlfriend who is now his wife, followed all the rules. So, his court files were suppressed, but his name remained on the sex offender list.

The sex registry is on the Internet and any employer can check that list. Unfortunately for Dipiazza, because his court files had been suppressed, employers couldn’t check them out to confirm his story that he was not a pedophile or a rapist.

Dipiazza claimed in his court case that because his name is on the registry he has been unable to find work and actually lost two jobs because his employers discovered his name on the list.

“I think it’s a very important ruling,” Miriam Aukerman, who argued the case, told The Chronicle. “It’s kind of a wake-up call, because the registry has become so overbroad. … I think it’s a signal to the Legislature to really think about who needs to be on the registry and who doesn’t.”

Having his name and others like him on the list just makes it more difficult to keep track of the most dangerous offenders. To show how difficult following up on sex offenders can be, neighboring Ohio is dealing with the aftermath of the alleged murders of at least 11 women by a registered sex offender who regularly checked in with the sheriff’s department.

More than 44,700 names are on the Michigan Sex Offender Registry. About 16 percent were not in compliance with the registry law. That’s a lot of checking by parole officers and police.

Ohio V Ettenger – 11th Circuit Court of Appeals

November 10, 2009 Comments off

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

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.

“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 and search under 11th Court of Appeals , using search term “Ettenger”