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Sex offender registration and Hernandez

Interesting decision last week by the 8th District on sex offender registration in State v. Fitzgerald.  In a nutshell, the defendant had been convicted of rape.  As a sexually oriented offender, he was required to register within seven days in the county where he was residing.  He refused to tell the institution where he was going to live, so they put down Cuyahoga County, where he'd resided at the time of his conviction.  When he didn't register within a week of his release, a warrant was issued for his arrest.  He'd actually moved to Massachusetts, and wound up being arrested there, then extradited to Ohio.

And that's when things got a little weird.  Despite the fact that the trial judge had failed to notify him of post-release controls, the APA determined he was a parole violator, and locked him up for six months.  At the conclusion of that, he was brought to trial in Cuyahoga County for failing to register as a sex offender.  He was convicted, and the appellate court upheld his conviction by a 2-1 vote.  All this despite the fact that although he was convicted of failing to register in Cuyahoga County, he never resided in Cuyahoga County after getting out of prison. 

It's easy to understand the majority's conclusion that Fitzgerald was trying to "slip under the radar" of the registration requirement.  Still, it's hard to dispute Judge Karpinski's point in dissent that "the state failed to prove that defendant, charged with failure to register in Cuyahoga County, ever resided in Cuyahoga County, an essential element of the crime."

More worrisome was the court's handling of the PRC issue.  In a trilogy of decisions culminating with Hernandez v. Kelly, the Ohio Supreme Court has held that a failure of a trial court to advise the defendant of PRC at sentencing leaves the APA powerless to impose them.  Fitzgerald argued that this gave him a speedy trial argument:  since the PRC violation was illegal, this meant the six months he'd spent doing time for the violation should've counted as 3 for 1 under the speedy trial statute, taking his trial well beyond the limit.

The court's rationale for rejecting that is troubling.  According to the court, first, the only way for Fitzgerald to raise this issue was through a habeas corpus petition, and second, Hernandez has been superceded by statute.

While Hernandez was decided on a habeas petition, the Court never suggested that was the sole remedy; in fact, the Court held that PRC was void ab initio if it wasn't specified by the trial court.  Void doesn't mean voidable; if there was no PRC, then the APA didn't have any authority to violate the defendant, and the six months he spent in prison for that should have counted toward the indictment for speedy trial purposes.

As the dissent also shows, the claim that Hernandez has been superceded by statute is highly questionable, too.  I talked about the statutes in question shortly after they were enacted in July, and you can read about that here; basically, the statutes state that PRC is automatically imposed for sex offenses, regardless of whether the trial court says anything about it.  The dissent argues in Fitzgerald, though, as I did back in August, that the statutory amendments are unconstitutional.  Hernandez was based on a separation-of-powers argument:  since only the judiciary branch can impose punishment, the APA can't put someone on PRC unless the trial court gives them the power to do that.  Amending the law doesn't solve that; it's a constitutional, not statutory, problem.

Most puzzling of all was the Fitzgerald majority's handling of the amendments as applied to the defendant's case.  After all, they took effect long after he had been originally sentenced, and in fact after he'd been released.  No problem:  the court held that the amendments were intended to be "remedial," and thus could be applied retroactively to Fitzgerald.  This is in direct contradiction to the statute:  it specifies that the amendment applies only to sentences imposed on or after the effective date of the amendment.

As I said, the majority was obviously troubled by the defendant's attempt to game the registration requirements, and there certainly is some societal interest in keeping tabs on sex offenders, especially someone with a prior conviction for rape.  But in validating that interest, the Fitzgerald decision treats the offender registration statute badly and the PRC issue even worse.

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