Another foray into the thicket
You have a client who was convicted of rape in 2002. The court conducted a hearing and concluded your client wasn't a sexual predator, and sentenced him to four years in prison. By operation of law at the time, he became a "sexually oriented offender," with the requirement that, once he gets out of prison, he has to register as an offender, and verify his address annually every ten years. He gets out, registers, but fails to verify his address a year later, and gets charged and convicted, and given probation.
A year or so after that, he gets a letter from the attorney general telling him that that, under the new Adam Walsh Act, he's been reclassified as a Tier III offender, with the duty to report every ninety days, instead of annually. He doesn't report, and so he's charged with failing to do so. Except this time, under the New, Improved AWA, it's a first degree felony, and your client's looking at a minimum mandatory three-year prison sentence.
Or maybe not.
The 8th District said "not" last week in State v. Patterson. Patterson was facing a first, not subsequent, charge of failure to provide notice of change of address (which is penalized the same way as failure to register and failure to verify), and after pleading no contest and getting a year in prison, raised nine assignments of error. Two of them were dispositive: at both the plea and the sentencing, the court and the parties were under the impression that the offense was a third degree felony, when it was actually a fourth. Major oops.
The court skips over that, and six other assignments of error, to hone in on a single claim: that the retroactive application of the AWA violates the separation of powers doctrine. That's exactly what the Ohio Supreme Court had held in State v. Bodyke earlier this year. As I mentioned in my discussion of the oral argument in the case (here), the biggest problem for the justices was the idea of the Attorney General coming along and changing entries that had been made by a judge. They tossed out the reclassification scheme on that basis, and that serves as the predicate for the ruling in Patterson:
In this case, Patterson was reclassified based upon sections of the law that the Ohio Supreme Court has declared unconstitutional. Thus, Patterson's reclassification was unlawful, and cannot serve as the predicate for the crime for which he was indicted and convicted.
But here's where it gets tricky. The court in Bodyke didn't toss out the whole Adam Walsh Act, it simply severed those portions which allowed reclassification. The remaining portions -- including RC 2950.06, the statute under which Patterson was prosecuted -- is still there.
There's no question that severance of the reclassification portion affects the registration and notification duties to some extent. For example, someone designated as a sexual offender under the old law, with an annual reporting obligation, could not be subjected to a quarterly reporting obligation by virtue of reclassification as a Tier III offender. Bodyke says you can't be reclassified, which means that you can't be subject to the requirements which would be imposed upon reclassification.
But that doesn't mean you're no longer subject to any requirements; in fact, Bodyke concludes by stating that "the classifications and community-notification and registration orders imposed previously by judges are reinstated." And that raises a host of questions about Patterson's case:
First, did he have a duty to register at all? He was classified as a sexual offender back in 1997, under Megan's law, which imposed a 10-year registration requirement. Reclassification when AWA went into effect in 2007 put him in Tier II, with a 25-year requirement. That goes out the window, putting him back to the 10-year requirement, which would have expired by the time he was charged in 2008.
Second, assuming he had a continuing to duty to register (let's move his conviction up to 2001), what penalties were there for failure to register? As I mentioned, the AWA made those substantially more severe. There's a tendency to think that the greater penalties couldn't be imposed upon him, because that would be an ex post facto violation, but that's not the case. The ex post facto clause simply prohibits the government from increasing a penalty after you commit the crime. If you're charged with a 2nd degree felony, and two weeks before your trial the legislature makes it a 1st degree felony, it's still a 2nd degree felony for you. But here, although the duty to register is imposed before the law changes, the date on which you fail to do that governs what penalties can be imposed. If you're required to register in 2006, the penalties for failing to do that are increased in 2007, and you fail to register in 2008, there's no ex post facto problem in imposing the greater penalty.
Maybe. Most of the assignments of error in Patterson dealt with the contention that the AWA couldn't be imposed retroactively, on both statutory and constitutional grounds. The same arguments were raised in Bodyke, and were ignored, just as they were in Patterson. But that doesn't mean they've gone away. Not only did the AWA impose a reclassification scheme, it also substantially increased the registration requirements for sex offenders; for example, offenders now have to register not only in the county in which they reside, but the county in which they work and go to school as well. As I detailed in my post about the oral argument in Bodyke, the contention that such requirements are "remedial" has become a real stretch, and the last time around, in State v. Ferguson, which addressed the more onerous reporting requirements imposed by amendments to Meagan's law, three justices dissented on the basis that the changes had become punitive, and thus could not be applied retroactively.
There are at least three cases still pending in the Ohio Supreme Court on the question left unanswered in Bodyke: is the application of the entire AWA to offenders convicted prior to its effective date unconstitutional? Until the Supreme Court gets around to answering that, the upshot of Patterson (and another case decided earlier this year, State v. Smith) indicates that, at least in the 8th, attempts to prosecute Megan's Law offenders under the provisions of the AWA are going to be in for rough going.
One more thing while we're on the subject. The State had filed for reconsideration of Bodyke. Yesterday, the Ohio Supreme Court denied that motion.