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OH Supreme Court Invalidates Sex Offender Notification

March 18, 2010

Ohio Supreme Court – Ohio vs. McConville – Case No. 2009-08933/18/2010
Case Summary

The reporting on this case has been horrendous and inaccurate. This is not one of the challenges we have been following since November 2009 regarding retro-activity ex post fact, separation of powers, which should be decided soon. This is an important decision nonetheless. Although this a “slip” opinion (an initial notice which is subject to revision), it appears that this ruling relates only to community notification of those who were informed of their sex offender status after January 1, 2008.

The Supreme Court of Ohio ruled today that an exception to the community notification requirement for Tier III sex offenders set forth in current R.C. 2950.11(B)(2) applies to offenders who were first notified of their classification after Am Sub. S.B. 10 took effect on Jan. 1, 2008. In other words, even if you were reclassified after January 1, 2008, you are still permitted the exception to community notification. Community notification is the process of informing schools, neighbors, and daycare centers about the presence of a sex offender living in the area.

daytondailynews.com: Court: New sex offenders may avoid registry rules (misleading headline)
chillicothegazette.com:Court: New sex offenders may avert notification
WBNS: Ohio Supreme Court Rules New Sex Offenders May Avoid Registry (false headline)

The Ohio Supreme Court has delivered a major setback to efforts by state lawmakers to apply the tough new sex offender notification requirements laid out in the federal Adam Walsh Act.

In a unanimous decision Thursday, the high court ruled sex offenders notified of their status in the most severe category after Jan. 1, 2008, may avoid the new community reporting requirements under exceptions found in Ohio’s old law. That means word of newly registered sex offenders in the most egregious category may not be disseminated to all the volunteer groups, schools and businesses Ohio’s rewrite of the law intended.

In the majority opinion, Justice Robert Cupp agreed with lower courts that the wording of the law was clear in allowing the exceptions to continue to apply.

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The case involved Stephen McConville, who pleaded guilty in Lorain County in July 2008 to rape and gross sexual imposition. After a hearing, a trial court decided he was unlikely to commit future sexually oriented offenses and could therefore be exempted from ongoing community notification requirements.

The 9th District Court of Appeals affirmed the trial court’s decision that McConville was eligible for the exemption even though he’d been classified as a Tier III sex offender after Jan. 1, 2008.

In the Ohio high court’s majority opinion, Justice Robert Cupp agreed with lower courts that the wording of the law was clear in allowing the exceptions to community reporting to continue to apply.

A legislative analysis of the Senate bill that contained the change advised lawmakers at the time that it “automatically replaces the period of time for which the offender or delinquent child had a duty “to register” (this is an inaccurate term – it should read “to be subject to notification”) prior to January 1, 2008.”

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Excerpts from Slip Opinion:
“We are asked to decide whether the community-notification
provisions of R.C. 2950.11(F)(2) apply to defendants who are notified of their
sexual-offender status after the effective date of the amendment of that section by
2007 Senate Bill 10, or whether R.C. 2950.11(F)(2) applies only to sexual
offenders whose status was determined under the legislation in effect prior to that
effective date. Because we conclude that R.C. 2950.11(F)(2) applies to
defendants who are notified of their sexual-offender status after the January 1,
2008, effective date of the amendment of that section by Senate Bill 10, we affirm
the judgment of the court of appeals.

Based on the foregoing, we hold that the community-notification
provisions of R.C. 2950.11(F)(2) apply to defendants who are notified of their
sexual-offender status after January 1, 2008, the effective date of the amendment
of that section by Senate Bill 10.”

Case Summary:

“Effective Jan. 1, 2008, the General Assembly amended Ohio’s former sex offender classification scheme by adopting a new set of classifications based solely on the crime for which an offender was convicted. In the legislation adopting the new classification scheme, Am Sub. S.B. 10, the General Assembly included general provisions requiring that adults convicted of Tier III sex offenses and certain child sex offenders must register every 90 days for life with the sheriff in any county where the offender lives, works or attends school. The statute also requires sheriffs to provide notification including the residence and work addresses and a photo of the offender to specified parties in the surrounding community, including neighbors and nearby schools, day care centers, and victims of past sex crimes.

The legislation also included a provision, R.C. 2950.11(F)(2), stating that the community notification requirement for Tier III offenders “does not apply” to an offender if a court finds at a hearing, after considering 11 specific criteria set forth in that section, “that the person would not be subject to the notification provisions of this section that were in the version of this section that existed immediately prior to the effective date of this amendment.”

In this case, Stephen McConville pleaded guilty in July 2008 to rape and gross sexual imposition. At sentencing, McConville was notified that he would be classified as a Tier III sexual offender under the classification system established by S.B. 10. The trial court advised McConville of his registration and reporting duties pertaining to the Tier III classification. The court then conducted a second hearing for further review of the community-notification requirement. After considering the statutory factors set forth in R.C. 2950.11(F)(2), the trial court determined that McConville was “unlikely to commit a sexually oriented offense in the future, and that suspending the community notification requirements of R.C. 2950.11(F)(1) [was] in the interest of justice.”

The state appealed, arguing that the exception to community notification set forth in R.C. 2950.11(F)(2) was intended to apply only to persons who had been classified under the pre-2008 sex offender statute in a category that did not require community notification, but who were subsequently reclassified as Tier III offenders under the provisions of S.B. 10. The 9th District Court of Appeals affirmed the trial court’s holding that R.C. 2950.11(F)(2) was applicable to offenders like McConville who were notified of their classification after Jan. 1, 2008. The state sought and was granted Supreme Court review of the 9th District’s decision.

In today’s unanimous decision, Justice Cupp wrote: “R.C. 2950.11(F)(2) provides: ‘The notification provisions of this section do not apply to a person described in division (F)(1)(a), (b), or (c) of this section if a court finds at a hearing after considering the factors described in this division that the person would not be subject to the notification provisions of this section that were in the version of this section that existed immediately prior to the effective date of this amendment.’ The remainder of the statute details the 11 factors the trial court must consider to determine whether the sexual offender would have been subject to community notification under prior law. … This appeal presents a matter of statutory interpretation. As a general rule, the words and phrases of a statute will be read in context and construed according to the rules of grammar and common usage. … Moreover, there is no need for this court to apply the rules of statutory interpretation when the language of a statute is plain and unambiguous and conveys a clear and definite meaning.”

“The state’s argument is that R.C. 2950.11(F)(2) gives the trial court the discretion to suspend the community-notification requirement in consideration of the statute’s limiting factors only when the sexual offender’s status was previously determined under the law in effect prior to Senate Bill 10. … We find that the language of R.C. 2950.11(F) is unambiguous. Accordingly, we do not find the state’s argument persuasive. The language used in the statue pertains to those sexual offenders whose status is determined after the effective date of R.C. 2950.11 as amended by Senate Bill 10. The provision is written in the present tense, referring to a ‘hearing’ at which a judge ‘finds’ certain facts. The 11 factors of R.C. 2950.11(F)(2) are similarly written in the present tense, indicating an evaluation presently taking place, and not one that has already occurred. In contrast to the state’s position, the language of the statue does not indicate that it applies only to those sexual offenders whose status had been previously determined under the provisions of former R.C. Chapter 2950. As a result, we decline to interpret the statute when no interpretation is required.”

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