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Action Item: We Need Watchdogs in Ohio (and from outside Ohio)

June 8, 2010 Comments off

We have seen absolutely no action on the part of the Ohio Attorney General or Ohio County Sheriff Departments in complying with the Ohio Supreme Court ruling last week, which invalidated the reclassification of Senate Bill 10 (Ohio’s sex offender law /Adam Walsh Act law). Each day which passes, allows the illegal enforcement of a law which has been invalidated and ruled unconstitutional by the Ohio Supreme Court. Make no mistake: the state’s failure, or refusal, to comply with this ruling is indeed, an illegal act.

Months ago, we saw the Kentucky Attorney General refuse to comply by the Kentucky Supreme Court ruling which struck down the retroactive residency restrictions in that state. He dragged his feet as long as possible before being denied by the U.S. Supreme Court.

For this reason, we need all readers to be WatchDogs. Wherever you reside, if you are concerned about unconstitutional sex offender laws in this country we need you to call and write the following agencies daily until they agree to abide by the law. We have been doing this but they are showing anger against us now. So we need everyone’s help.

Ohio Attorney General Office:
Ohio Attorney General Richard Cordray, 30 E. Broad St., 17th Floor, Columbus, OH 43215
(800) 282-0515
Monday – Friday 8 a.m. – 7 p.m.
Email Ohio ESORN at OHLEGsupport@OhioAttorneyGeneral.gov

Justin Hykes, Assistant Attorney General of Ohio
justin.hykes@ohioattorneygeneral.gov
614-387-4257
FAX 614-466-5087

OHLEG Support
1-866-40-OHLEG (1-866-406-4534)
OHLEGsupport@OhioAttorneyGeneral.gov

Media Contacts:

Kim Kowalski: (614) 728-9692, cell: (614) 893-6018

Ted Hart: Deputy Director of Media Relations
Office of the Ohio Attorney General
PHONE 614-728-4127, cell: (614) 743-2286
EMAIL ted.hart@ohioattorneygeneral.gov (614) 728-4127

Contact list for Ohio County Sheriff Departments (Ask to speak with the SORN or Sex Offender Office):

Sheriff name Phone number Web site eSORN Site County
Kermit Howard (937) 544-2314 view view Adams
Samuel A. Crish (419) 993-1435 view view Allen
Estel Risner (419) 289-3911 view view Ashland
William Johnson (440) 576-3540 view view Ashtabula
Patrick Kelly (740) 593-6633 view view Athens
Allen F. Solomon (419) 739-6565 view view Auglaize
Fred Thompson (740) 695-7933 view view Belmont
Dwayne Wenninger (937) 378-4435 view view Brown
Richard K. Jones (513) 785-1246 view view Butler
Dale R. Williams (330) 627-2141 view view Carroll
Brent A. Emmons (937) 652-1311 view view Champaign
Gene Kelly (937) 328-2537 view view Clark
A.J. Tim Rodenberg (513) 732-7500 view view Clermont
Ralph D. Fizer Jr. (937) 382-1611 view view Clinton
Raymond L. Stone (330) 424-4065 view view Columbiana
Timothy Rogers (740) 622-2411 view view Coshocton
Ronny J. Shawber (419) 562-7906 view view Crawford
Gerald T. McFaul (216) 443-5567 view view Cuyahoga
Toby L. Spencer (937) 547-7337 view view Darke
David J. Westrick (419) 784-1155 view view Defiance
Walter L. Davis III (740) 833-2845 view view Delaware
Terry M. Lyons (419) 625-7951 view view Erie
David Phalen (740) 681-7239 view view Fairfield
Vernon Stanforth (740) 333-3504 view view Fayette
James Karnes (614) 462-3351 view view Franklin
Darell Merillat (419) 335-4010 view view Fulton
Joseph R Browning (740) 446-4614 view view Gallia
Daniel C McClelland (440) 279-2009 view view Geauga
Gene Fischer (937) 562-4820 view view Greene
Michael R. McCauley (740) 439-4455 view view Guernsey
Simon L. Leis, Jr. (513) 946-6230 view view Hamilton
Michael E. Heldman (419) 424-7235 view view Hancock
Keith Everhart (419) 673-1268 view view Hardin
Mark Miller (740) 942-2197 view view Harrison
John J. Nye (419) 592-8010 view view Henry
Ronald D Ward (937) 840-6240 view view Highland
Lanny E. North (740) 385-2131 view view Hocking
Timothy W. Zimmerly (330) 674-1936 view view Holmes
Dane Howard (419) 668-1996 view Huron
John Shasteen (740) 286-6464 view view Jackson
Fred J. Abdalla (740) 283-8600 view view Jefferson
David Barber (740) 393-6800 view view Knox
Daniel A. Dunlap (440) 350-5676 view view Lake
Timothy Sexton (740) 532-3525 view view Lawrence
Randy Thorp (740) 670-5525 view view Licking
Andrew J Smith (937) 599-3247 view view Logan
Phil Stammitti (440) 329-3709 view view Lorain
James A Telb (419) 213-4269 view view Lucas
James P. Sabin (740) 852-1332 view view Madison
Randall Wellington (330) 480-5055 view view Mahoning
Tim Bailey (740) 382-8244 view view Marion
Neil Hassinger (330) 725-9116 view view Medina
Robert E. Beegle (740) 992-3371 view Meigs
Jeff Grey (419) 586-5770 view view Mercer
Charles Cox (937) 440-6085 view view Miami
Charles R. Black (740) 472-1612 view view Monroe
Phil Plummer (937) 224-3995 view view Montgomery
Thomas Jenkins Sr. (740) 962-4044 view Morgan
Steven Brenneman (419) 947-1151 view view Morrow
Matthew J Lutz (740) 452-3637 view view Muskingum
Stephen S Hannum (740) 732-5631 view view Noble
Robert L. Bratton (419) 734-6826 view view Ottawa
David Harrow (419) 399-3791 view view Paulding
William Randall Barker (740) 342-4123 view view Perry
Dwight E. Radcliff (800) 472-5245 view view Pickaway
RICHARD N HENDERSON (740) 947-2111 view view Pike
David W. Doak (330) 297-3890 view view Portage
Michael Simpson (937) 456-6314 view view Preble
James Beutler (419) 523-3208 view view Putnam
J. Steve Sheldon (419) 774-3550 view view Richland
George W. Lavender (740) 773-1186 view view Ross
David Gangwer (419) 332-2613 view view Sandusky
Marty V. Donini (740) 355-8261 view view Scioto
Thomas Steyer (419) 447-3456 view view Seneca
Doug Schlagetter (937) 494-2119 view view Shelby
Timothy Swanson (330) 430-3800 view view Stark
Drew Alexander (330) 643-2164 view view Summit
Thomas L. Altiere (330) 675-2440 view view Trumbull
Walter R. Wilson (330) 308-6637 view view Tuscarawas
Rocky Nelson (937) 645-4131 view view Union
Stan D. Owens (419) 238-3866 view view Van Wert
David N. Hickey (740) 596-5242 view Vinton
Larry Sims (513) 695-1522 view view Warren
Larry R. Mincks SR. (740) 376-7070 view view Washington
Thomas G. Maurer (330) 287-5749 view view Wayne
Kevin A. Beck (419) 636-3151 view view Williams
Mark Wasylyshyn (419) 354-1412 view view Wood
Michael R. Hetzel (419) 294-2362 view Wyandot

Ohio: Next Step – What We Must Do

June 3, 2010 Comments off

Today the Ohio Supreme Court invalidated the Ohio Senate Bill 10 (Adam Walsh Act) reclassification of sex offenders for those who pre-dated the 2008 law.

What’s next for you if you are affected by this ruling?

Well… as of now, Constitutionalfights.org has confirmed that some of those who are to be removed from the Ohio Sex Offender Registry are still posted online. So anyone who falls into the category of those who shall now be removed from the Ohio Sex Offender Registry must call or contact the Ohio Attorney General to insist that they abide by the Ohio Supreme Court’s ruling. Today’s ruling now makes these registry postings an illegal act by the State of Ohio. If they refuse to remove these people from the registry immediately, lawsuits will follow.

Contact the Ohio Attorney General Office at:
Help Center
(800) 282-0515
Monday – Friday 8 a.m. – 7 p.m.

Ohio Attorney General Richard Cordray
30 E. Broad St., 17th Floor
Columbus, OH 43215

OHLEG Support
1-866-40-OHLEG (1-866-406-4534)
OHLEGsupport@OhioAttorneyGeneral.gov

You can search to find if you are still improperly listed here. If you are listed improperly, also click the “Correction” button and insist that your listing be removed immediately. But we ask that you also call the offices as well. Look folks, the Ohio AG does not want to remove your name from this registry so we must keep the pressure on them to make sure they follow the law. The moment the Ohio Supreme Court released its decision today, it immediately made the continued listing of those affected into an illegal activity by the Ohio AG office. All those Ohio citizens who were positively affected by today’s ruling must contact the Ohio AG Office on Friday June 4 !

UPDATE, Friday June 4: Constitutionalfights.org called the Ohio Attorney General’s office and waited on hold for over 15 minutes. After asking to speak to the person in charge of the updating of the registry database, we were eventually forwarded to an ATTORNEY, Justin Hykes ! This is humorous, as they must know they are on legal thin ice here. I asked when we can expect the database to be corrected. He said “we have no idea when it will get done”. I pressed him on this at least three times and he refused to give any estimate of a time table for when we can expect these people’s names and photos to be removed from their public registry. He said that they are “working on it”, but we all know updating a computer database is a simple job and does not take long to edit. I then asked if they are concerned about lawsuits if they fail to remove these people from the registry promptly now that these listings are in violation of the law. His response was “no, we are not concerned and we have an immunity disclaimer built into the esorn website” If you call, perhaps you can ask for Justin Hykes and not have to wait so long on hold.

Ohio : State v. Bodyke Slip Opinion No. 2010-Ohio-2424

June 3, 2010 Comments off


State v. Bodyke, Slip Opinion No. 2010-Ohio-2424
Ohio Supreme Court Rules Senate Bill 10 to be unconstitutional on Separation of Powers violation.

R.C. Chapter 2950 — Sex offenders — R.C. 2950.031 and 2950.032 violate separation of powers by requiring executive branch to reclassify sex offenders already classified by court order — Only appellate courts are constitutionally permitted to review or modify court judgments — Executive branch may not reopen final judgments — Stare decisis — Doctrine not controlling in cases presenting constitutional question —
R.C. 2950.031 and 2950.032 severed.

Case No. 2008-2502 — Submitted November 4, 2009 — Decided June 3, 2010.
APPEAL from the Court of Appeals for Huron County, Nos. H-07-040, H-07-041, and H-07-042, 2008-Ohio-6387.

1. The power to review and affirm, modify, or reverse other courts’ judgments is strictly limited to appellate courts. (Section 3(B)(2), Article IV, Ohio Constitution, applied.)

2. R.C. 2950.031 and 2950.032, which require the attorney general to reclassify sex offenders who have already been classified by court order under former law, impermissibly instruct the executive branch to review past decisions of the judicial branch and thereby violate the separation-ofpowers doctrine.

3. R.C. 2950.031 and 2950.032, which require the attorney general to reclassify sex offenders whose classifications have already been adjudicated by a court and made the subject of a final order, violate the separation-ofpowers doctrine by requiring the opening of final judgments.

Although we discharge our duty with great respect for the role of the legislature, Kennedy v. Mendoza-Martinez (1963), 372 U.S. 144, 159, 83 S.Ct. 554, 9 L.Ed.2d 644, for the reasons that follow we are compelled to find that R.C. 2950.031 and 2950.032, the reclassification provisions in the AWA, are unconstitutional because they violate the separation-of-powers doctrine. As a remedy, we strike R.C. 2950.031 and 2950.032, hold that the reclassifications of sex offenders by the attorney general are invalid, and reinstate the prior judicial classifications of sex offenders.

We will have more on this very important ruling later today.
See previous post: Ohio Supreme Court Says State May Not Reclassify Convicted Sex Offenders

Ohio Supreme Court SORNA Update: June 2010

June 2, 2010 Comments off

Update to Nov. 2009 post, and April 2010 update regarding Ohio Supreme Court four consolidated cases (Sex Offender Registration and Notification Act, Ohio Senate Bill 10):

Call to Action:

Constitutionalfights.org spoke to the Ohio Supreme Court Clerk of Courts again today to ask when decisions will be released for the four pending challenges which were heard by the Court on Nov. 4, 2009. Decisions are normally published within six months of the oral arguments, but we are now 7 months out and still waiting.

We were told that “no one knows” when these decisions will be released and that “there is no time limit” for releasing the decisions. Further, we were told that it is not known if the rulings have been made yet, or if arguments might be re-heard following the death of the Chief Justice in April 2010.

All readers who have an interest in the outcome of these crucial cases before the Ohio Supreme Court are asked to call the Ohio Supreme Court Clerk of Courts to inquire when these rulings will be made. The hope is that with increasing pressure on the Court to issue their decisions, we may see movement sooner than political elections might allow. It would be quite unfortunate and unethical if they are awaiting the November Elections before they release these rulings.

Call (or write) the Court from any state – not just Ohio – to demonstrate to them that there are tens of thousands of citizens across the nation whose lives and families are adversely affected by their delays. They will not ask where you are calling from. But if hundreds of calls come to the Clerk’s office, it is likely that the Justices will hear about it.

Office of the Clerk
Supreme Court of Ohio
65 South Front Street, 8th Floor
Columbus, Ohio 43215-3431

Phone: 614.387.9530
Fax:
614.387.9539
E-mail: Office of the Clerk

Refer to: Senate Bill 10 Sex Offender Law challenges
Or you can use case names and numbers:

08-0991/ 08-0992 – Roman Chojnacki v. Ohio Atty. General
08-1624 Darian J. Smith, Alleged Delinquent Child
08-2502 State of Ohio v. Christian N. Bodyke, David A. Schwab [and] Gerald E. Phillips
09-0189 In re: Adrian R., Delinquent Child – Licking County

Supreme Court: No Backdating Sex Offender Registry

June 1, 2010 Comments off

UPI.com: Court: No backdating sex offender registry.
CSmonitor.com: Registry law doesn’t apply to all sex offenders, Supreme Court rules.
sexcrimes.typepad.com: Carr v. United States – Initial Thoughts

Washington, DC, June 1 (UPI) — The U.S. Supreme Court ruled 6-3 Tuesday a sex offender moving to another state didn’t have to update his registration if he moved before a law took effect.

The 2006 Sex Offender Registration and Notification Act requires sex offenders to register, and makes it a crime for any person required to register to fail to update his registration when moving to another state.

Thomas Carr pleaded guilty in Alabama to first-degree sexual abuse and was sentenced to 15 years, with all but two years suspended. Receiving credit for time previously served, Carr was released on probation July 3, 2004, and registered as a sex offender as required by Alabama law.

In late 2004 or early 2005, prior to SORNA’s enactment, Carr relocated from Alabama to Indiana, court records say. He did not comply with Indiana’s sex-offender registration requirements. In July 2007, Carr became involved in a fight in Fort Wayne, Ind., drawing the attention of police, and federal prosecutors charged Carr in Indiana with failing to register after moving in violation of the federal law.

A federal appeals court in Chicago affirmed his conviction, but the Supreme Court reversed today.

Writing for the majority, Justice Sonia Sotomayor said charging Carr with a SORNA violation for activity occurring before the law came into effect violated the ex post facto clause of the Constitution, which bans after the fact prosecutions.

From our understanding of this ruling, the US Supreme Court did not invalidate this SORNA provision on Ex Post Facto grounds, but rather the majority justices found that the statute, as written by Congress, did not authorize retroactive enforcement in its construction. They therefore left the Ex Post Facto (retro-active) challenge to be decided at another time.

She said the key was that an offender had to become subject to SORNA in the first place before going to another state and failing to register.
——————————————————————————————–
Corey Rayburn Yung at sexcrimes.typepad.com writes:

In a bit of a surprise, Carr won on a 6-3 vote. Although, as I thought, the likely way Carr would be victorious would be on the statutory interpretation issue and not the Ex Post Facto Clause claim. The outcome will have an effect on very few prosecutions and Congress can “correct” the outcome whenever it wants. So, it isn’t much of a decision against SORNA or the AWA in any meaningful way. There is plenty of coverage around the legal blogosphere and I should have more later.”

While we greatly respect Yung’s credentials and are completely unqualified to challenge his professional opinions….. I would like to posit a slightly different stance on the value of this SCOTUS decision. We are not legal professionals in any way, but it seems that this decision could be more meaningful than Yung suggests. It does appear that the ruling will affect very few sex offenders, whose travel and registration brought federal charges. But it does further erode SORNA, as written.

To be clear, as far as we can decipher, this ruling affects only cases where ex offenders traveled to other states and were prosecuted for their failure to register in the new states. The legislative text to which the Justices refer is in relation to Interstate Travel, and not related to other parts of SORNA.

In many states – and in Ohio foremost – SORNA as applied through Ohio Senate Bill 10 has been barraged with lawsuits in every county of the state. Four consolidated cases have been argued before the Ohio Supreme Court with another couple cases being heard since then. In lower courts, the only means by which the Ohio law has been permitted to stand is by judges ruling that SORNA is a civil remedy and not punitive in nature. Therefore, its retroactive implementation has never been properly addressed by the courts.

In today’s ruling, SCOTUS ruled that the Interstate Travel portion (at least) of SORNA was not written to be retroactive. Is it too much of a stretch to imagine that other portions of SORNA may similarly be ruled to be written to be non- retroactive? Or that SORNA could be re-written to exclude its retroactivity requirements?

We know that the US Department of Justice recently came out with new revised guidelines for SORNA implementation directed to states which are reluctant to implement SORNA (Adam Walsh Act). One of the main points of contention is the retro-activity requirement. The Revised Guidelines erase the retroactive requirement for states, allowing them a way our of this constitutional obstacle. Having seen today’s ruling, along with the revised guidelines, it seems that Carr vs. US could be more meaningful that Yung suggests.

See previous two postings for more information on this ruling.

A Peak Inside Ohio vs. Bodyke Case?

May 21, 2010 Comments off

briefcase8.com: A peak inside Bodyke?
dailycourt.com: Harsher violation at center of arguments before state high court.

I mentioned a couple of weeks ago that the Ohio Supreme Court still hasn’t come down with its decision in State v. Bodyke, the case challenging the constitutionality of the Adam Walsh Act, despite having held oral argument on the case back in November. Oral argument in another case last week, State v. Richey, brought some of those issues back up again, and perhaps gave a glimpse of the various justices’ thinking.

Richey pled no contest to sexual imposition, a third degree misdemeanor, back in 2006. Two years later, Richey found himself reclassified as a Tier I sex offender under the AWA, and asked that his plea be vacated.

Most of the attacks on AWA has centered on the due process and ex post facto problems in changing the rules after the game’s been played: people who’d not been subject to any registration requirements, or had completed them, now found themselves subject to new requirements. There’s another argument, though, based on the provision in the US Constitution which prohibits a state from enacting legislation which “impairs the obligations of a contract”: A plea bargain is a contract between the parties, and additional terms can’t be imposed after the contract is entered into. Richey went a little further and argued that he could not have made a “knowing, intelligent, and voluntary” guilty plea if the legislature could subsequently amend the law to impose new and more dire consequences upon that plea.

There may be some basis for that argument; I know of one case where a pre-AWA plea was entered into with the express stipulation that the defendant would not be classified as a sex offender. Unfortunately, Richey’s case doesn’t present nearly as solid a basis for that claim: he was classified as a sex offender under the pre-AWA law. Justice O’Connor bailed out Richey’s lawyer in oral argument by suggesting that his best argument was not that AWA lengthened Richey’s reporting requirements, but that it dramatically increased the penalty for failing to registration: under the old law, such failure was the same degree as the underlying crime, which here was a third-degree misdemeanor. Under the AWA, failing to register is at least a fourth-degree felony.

O’Connor’s comment is interesting for another reason. Justice O’Donnell argued that the trial judge was under no obligation to advise Richey of anything regarding registration as a sex offender, since registration is regarded as “remedial,” not punitive. In fact, that argument has been the lynchpin for upholding past sex offender laws, in both the Ohio and US Supreme Courts: you don’t get into the due process and ex post facto arguments if you’re talking about a civil, not criminal, matter.

Of course, the argument that prohibiting somebody from living where they want, requiring them to show up at the sheriff’s office every now and then and putting them in prison if they don’t, and putting their pictures up on the Internet and declaring them pariahs isn’t “punitive” has become increasingly tenu0us. Everybody bought the first time the Ohio Supreme Court looked at sex offender laws in State v. Cook in 1998, but by the time the Court examined the immediate precursor to AWA a decade later in State v. Ferguson, three justices — Lanzinger, Lundberg Stratton, and Pfeifer — had jumped off the “it’s only remedial” boat. Put O’Connor in that camp, and you’ve got the four votes to limit AWA to prospective application.

There’s another card in play here: the US Supreme Court’s decision two months in Padilla v. Kentucky (discussed here), where the Court held that a lawyer may have rendered ineffective assistance by telling his client that there would be no immigration consequences to a guilty plea, when in fact it resulted in deportation proceedings against the client. It’s not a perfect fit — the voluntary nature of the plea is at issue in Richey, while Padilla concerns ineffective assistance of counsel — but there’s room for arguing some overlap, as Justice Lundberg Stratton brought up. Deportation is unquestionably a civil proceeding, and although Ohio has a law which specifically requires a non-citizen to be advised there might be immigration consequences following a plea, many states do not, and in the absence of such a law those consequences are deemed “collateral,” and do not have to be part of the plea colloquy. Yet the civil nature of the proceedings and their collateral status did not deter the Padilla court from concluding that the defendant had to be properly advised of them.

What’s more, the Padilla opinion noted that the immigration consequences could be far more severe than those of the underlying conviction, an argument which applies with equal force to Richey’s situation, as noted by Justice Lanzinger: the requirement registering as a sex offender for the next fifteen years, and facing imprisonment for 6 to 18 months if he doesn’t, is much more significant than the 60 days he served in jail for the sexual imposition.

As I said, Richey’s case isn’t the best set of facts for this argument, and ordinarily I wouldn’t want to predict the outcome. But I think there’s a decent chance of the whole case being mooted. As Justice O’Connor pointed out in the first minute of oral argument, if Bodyke holds that AWA can’t be applied retroactively, that takes care of Richey’s problem. Given some of the comments in Richey, that might just happen.
————————————————————————————————————-
It was unclear at the conclusion of Wednesday, May 12th’s arguments before the Ohio Supreme Court which attorney gained more ground on the issue of whether the state’s sex-offender registration statute unfairly burdens a class of previously convicted violators.

A staff attorney with the Franklin County public defender’s office characterized the rules that became effective after enactment of Senate Bill 10, commonly referred to as the Adam Walsh Act, as similar to an individual ordering a sandwich at a food counter for one price only to have the price changed when the cashier accepts his money. The cashier acknowledges having changed the price and the individual who placed the order is left thinking, “that’s not what I bargained for,” John Keeling told justices.

The attorney explained his client, Aaron Richey, neither knowingly nor intelligently entered a no-contest plea on a misdemeanor count of sexual imposition in 2006, as Richey had no way of knowing the Ohio General Assembly would enact Adam Walsh and stipulate that a registration violation on Richey’s part would amount to a fourth-degree felony offense.

Effective Jan. 1, 2008, SB 10 replaced the state’s existing sex-offender classification scheme with a new and more restrictive set of registration requirements, and applied the new requirements not only to people convicted of sex crimes after Jan. 1, 2008, but also to all prior sex offenders who were still serving prison terms or still subject to registration requirements under the former version of the law, a summary provided by the court detailed.

The Columbus man previously had entered a plea of no contest to the sexual imposition charge in September 2006, summary continued. He was advised by the court at the time that it could result in his being sentenced to 60 days in jail and a fine of up to $500, and that under Ohio’s then-current sex-offender law, he also could be required to register as a sexually oriented offender with the sheriff in his county of residence once a year for 10 years after completing his jail term.

Additionally, the court advised Richey that noncompliance with the registration requirements would subject him to the criminal penalties applicable to a third-degree misdemeanor.

He affirmed his plea of no contest, was convicted and sentenced to 60 days in jail and a $500 fine, and signed written forms that accurately informed him about his post-release registration obligations, summary continued.

Subsequent to enactment of Adam Walsh, Richey received notification that, under the provisions of the new law, he would be subject to annual registration for 15 years rather than 10 years, and that, rather than being punishable as a misdemeanor, any violation of the new registration requirements would be punishable as a fourth-degree felony.

The man filed a motion in the Franklin County Municipal Court seeking to reopen his case, withdraw his plea of no contest and undergo a new trial on the 2006 sexual imposition charge, summary provided. The municipal court denied his motion, prompting his appeal to the 10th District Court of Appeals, which affirmed the lower court’s decision on the basis Richey had not demonstrated that retroactive application of the increased registration requirements and more severe penalties for failure to register constituted a “manifest injustice” that would entitle him to withdraw his no contest plea.

Richey sought and was granted Supreme Court review of the 10th District’s ruling.
The case is State v. Richey, case No. 2009-1423.

Ohio vs. Richey: Ohio Supreme Court Challenge – Oral Arguments

May 21, 2010 Comments off

State of Ohio v. Aaron K. Richey, Case no. 2009-1423
Ohio Supreme Court Oral Arguments
from 10th District Court of Appeals (Franklin County)

This is yet another new challenge of Ohio’s Senate Bill 10 (Adam Walsh Act,Sex Offender Registration and Notification Act) law which violates constitutional rights of offenders who committed offenses before the implementation of this law.

In this case, Richey pled no contest to sexual imposition, a third degree misdemeanor, back in 2006. Two years later, Richey found himself reclassified as a Tier I sex offender under the AWA, and asked that his plea be vacated.

This is a separate argument to the other constitutional challenges brought before the Ohio Supreme Court. It is based on the provision in the US Constitution which prohibits a state from enacting legislation which “impairs the obligations of a contract”: A plea bargain is a contract between the parties, and additional terms can’t be imposed after the contract is entered into. The Richey argument went a little further and argued that he could not have made a “knowing, intelligent, and voluntary” guilty plea if the legislature could subsequently amend the law to impose new and more dire consequences upon that plea.


Listen to audio of oral arguments which were held on May 12, 2010. Or download MP3 here.

Summary: Two years after he entered into a plea agreement, Richey was reclassified under Senate Bill 10 from the lowest Tier 3 into the highest risk Tier 1, and his mandatory registration was extended from a ten-year period to a lifetime registration requirement.

The Justices seem unable to understand that the simple requirement of lifetime registration is punitive in and of itself. Try to imagine yourself in this position. You entered into a plea agreement with the explanation and understanding that you would be required to register with law enforcement for a period of ten years. Years later, legislation is passed which re-classifies you from lowest risk tier (1) to the highest risk tier (3) and you are then given a mandate to register four times each year for the rest of your life. If you fail to do so even once, you face years of imprisonment.

This case argues that Richey was not informed of the potential of this drastic change in punishment associated with his plea agreement. Even if he were informed of this potential, increasing his punishment after the plea agreement is unconstitutional as Ex Post Facto (retroactive) laws are a violation of the U.S. Constitution.

Ohio Supreme Court Tips Hand on Sex Offender Classification Ruling?

May 20, 2010 Comments off

fssp-law.com: Ohio Supreme Court Tips Hand on Sex Offender Classification Law?

While this posting comes from a commercial attorney web site, it provides very interesting information we had not previously seen.

Today’s ruling from the Ohio Supreme Court in State v. Clayborn, 2010-Ohio-2123 [PDF] may offer some insight into whether the Court will strike down the Adam Walsh Act, which reclassified sex offenders and in many cases extended indefinitely their reporting or registration requirements.

The issue in Clayborn was simply the amount of time in which an offender who is classified under the Adam Walsh Act has to appeal. Appellate Rule 4 states that in a criminal case, a party has 30 days after entry of judgment to appeal. But in a civil case, a party has up to 30 days after being served with notice of the entry of judgment. In other words, in a civil case if the clerk fails to serve notice of the judgment under Civ.R. 58(B), the appeal time is extended, but in a civil case it’s not. The Court held that sex offender classifications under the Adam Walsh Act can only be appealed under the more stringent criminal rule, not the more lenient civil rule.

What does this have to do with the validity of the Act itself? Good question. The Adam Walsh Act, also known as R.C. Chapter 2950, required the state to re-classify all existing sex offenders into one of three new tiers. The reporting requirements for each tier were significantly more stringent than the prior reporting requirements. For example, an offender who had been convicted of a sexual battery may have been previously classified as a sexual offender and ordered to register annually for ten years. Under the Adam Walsh Act, that person (so long as they were still within that ten-year notification period) would be classified as a Tier III offender and would have to register every 90 days for life.

Many offenders have challenged the law as unconstitutional. A variety of theories are usually trotted out, including the separation of powers doctrine, equal protection, double jeopardy, and plea-bargain-as-contract. Particularly relevant here, though, is that the petitioners usually argue that the Adam Walsh Act violates the prohibition on retroactive laws in the Ohio Constitution (Article II, Section 28) or the ex post facto clause in the U.S. Constitution (Article I, Sections 9-10).

To my knowledge, all Ohio appellate courts have rejected these arguments to date.

(actually, at least two appellate courts in Ohio have ruled Ohio Senate Bill 10 to be unconstitutional. See Ohio vs. Spangler and Ohio vs. Ettenger but most courts have indeed rejected challenges…)

They tend to rely on the 1998 Ohio Supreme Court case of State v. Cook (83 Ohio St.3d 404), in which the Court approved the sex offender classification law enacted in 1997, known as Megan’s Law. The Cook Court held, among other things, that the sex offender law was a “merely remedial” law, and not a “substantive” law. The Court explained that “the General Assembly’s purpose behind R.C. Chapter 2950 is to promote public safety and bolster the public’s confidence in Ohio’s criminal and mental health systems,” and further found that “[t]he statute is absolutely devoid of any language indicating an intent to punish.” As directly and bluntly as possible, the Court said that “R.C. Chapter 2950, on its face, clearly is not punitive.”

“Merely remedial” and “not punitive” are other ways of saying “civil, not criminal.” In other words, the Cook Court’s approval of the classification system is based on a finding that the sex offender registration was a civil statute, not a criminal statute.

The significance of the Clayborn holding should be evident: the Court has now said, at least for purposes of protecting appellate rights, that the Adam Walsh Act must be treated as a criminal statute, not a civil statute.

Challenges to the Adam Walsh Act are pending before the Court right now. In November, for example, the Court heard argument in In re: Darian J. Smith, in which the petitioner contested the validity of the Adam Walsh Act on ex post facto and retroactivity grounds (docket available here). The decision in Clayton may indicate a tendency to strike down the Adam Walsh Act, or at least its retroactive application.

The four consolidated cases pending before the Ohio Supreme Court (which includes Darian J. Smith vs. Ohio) can be found here.


Ohio Supreme Court Election Results 2010

May 5, 2010 Comments off

As the nation awaits the decision of the Ohio Supreme Court on four consolidated challenges to the Ohio Sex Offender Registration and Notification Act laws ( Adam Walsh Act/ Senate Bill 10), we were told that they were afraid to issue the ruling before the May 4, 2010 Primary Elections were held. This is sad, of course, that a State Supreme Court would be held hostage by a political election, however the results are in and we will hope to see a Constitutional ruling soon. The results really mean nothing, as the cases were already heard and we are just awaiting the release of the decision, which has probably already been made.

Supreme Court Chief Justice
1,068 of 1,068 precincts

Eric Brown (D) 83,812


Supreme Court Chief Justice
1,068 of 1,068 precincts

Maureen O’Connor (R) 41,013


Justice, Jan. 1 term

1,068 of 1,068 precincts

Mary Jane Trapp (D) 80,379
Judith Ann Lanzinger (R) 36,763


Justice, Jan. 2 term (unopposed)

1,068 of 1,068 precincts

Paul E. Pfeifer (R) 36,805


Notice: Ohio Supreme Court Chief Justice Died

April 3, 2010 Comments off

Notice: Ohio Supreme Court Chief Justice Died Suddenly Today.

Ohio Supreme Court Chief Justice Thomas J. Moyer passed away suddenly on April 2, 2010 at age 70. This comes during a time when the state and nation awake a critical decision on the constitutionality of Ohio Senate Bill 10 (Adam Walsh Act).

These four consolidated cases challenge several constitutional violations of the law, which we have written about extensively on these blogs. He was to retire and surrender his seat after this year and the May 4, 2010 election will replace his position on the Court. What this means to the fate of the ruling on these challenges remains to be seen. Ohio’s Governor Strickland (D) will appoint an interim replacement to hold the seat until Jan 2011 when a new Justice will take office. It is unknown whether the rulings on these cases have been made, and just not yet announced, or not.

See related posts:
When Will Ohio Supreme Court Rule on AWA?
Ohio Supreme Court Oral Arguments