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Showdown averted

The law indulges in a great many fictions -- the existence of the "reasonable man," that criminal defendants are accorded a presumption of innocence, and that jurors who are instructed to disregard some piece of evidence will do so.  And then, of course, there's the fiction that sex offender registration and notification laws are remedial, not punitive.

That's a critical distinction, because if the law is deemed punitive, it can't be applied retroactively.  That such laws are "remedial" was the unanimous holding of the Ohio Supreme Court when it first tackled the question in State v. Cook in 1998, but ten years later, in State v. Ferguson, only a bare majority could be cobbled together for that view.  Those cases involved versions of Megan's Law, and when the more Draconian provisions of the Adam Walsh Act went into effect in 2008, the stage was set for a showdown.

And so last year in 2010, the court decided in State v. Bodyke that the law was... well, it never reached that point, deciding instead that the AWA's provision for reclassification of sex offenders violated the doctrine of separation of powers, in allowing for the executive branch, through the attorney general, to change classifications that had been ordered by the judicial branch. 

That didn't end the controversy, because there were still a number of cases pending before the court on the retroactivity issue.  One of them was State v. Gingell.  Gingell had been convicted of rape back in 1981, and then classified as a sexually-oriented offender in a court hearing in 2003.  That would have required him, when released from prison (which hadn't happened yet), to register every year for ten years.  When the AWA took effect, though, Gingell was automatically reclassified as a Tier III offender, with the requirement that he register every ninety days for life.  He was charged with failure to verify his address in July of 2008.  One more thing:  back in 2003, when he'd originally been classified as a sex offender and required to registration, the penalty for failing to do so (or failing to verify the address) was a fifth degree felony.  The AWA made that offense a first degree felony.

It's obvious that the reclassification is canceled out by Bodyke, but that's not the end of Gingell's problems.  He still had a duty to register under Megan's Law, albeit only yearly instead of quarterly.  The big question was whether the stiffer penalties of the AWA could be imposed.  That's not as easy to resolve as you might think.  Yes, the penalty changed (rather dramatically, at that), but the violation -- the failure to verify -- took place after the change, and there generally isn't an ex post facto problem with that.  If you commit two felonies, the legislature then passes a law stating that anyone who commits three felonies goes to prison for life, and you commit a third felony, you can't complain of an ex post facto violation:  the legislature can validly increase the punishment for an offense you commit in the future, even if the reason for that increase has to do with something you did in the past. 

This means that the validity of Gingell's conviction depended on whether his failure to verify occurred on the one-year date under Megan's Law, or under one of the other 90-day periods under the AWA.  In other words, even though he was prosecuted under the AWA, he could still be convicted for failure to verify, and possibly subjected to the much more onerous penalties for doing so, if the failure coincided with the date of his obligation to verify under Megan's Law.

Unfortunately, as I explained when I discussed the oral argument in the case, nobody could figure out from the record exactly what those dates were.  And that gave the Supreme Court yet another opportunity to blink when it came time to decide the retroactivity issue, which is exactly what they did last week in State v. Gingell

If brevity is the soul of wit, Gingell's a laugh riot; the unanimous opinion contains no syllabus and is a bare eight paragraphs long, exactly the length of this post so far, and almost exactly the same number of words.  In fact, the "Law and Analysis" portion of the opinion is a scant three paragraphs, two of which explain the holding in Bodyke.  The court skips over the issue of whether Gingell's offense stemmed from a violation of his verification duties under Megan's Law or the AWA by concluding that "since Gingell was charged after his reclassification and before Bodyke, there is no doubt that he was indicted for a first-degree felony for a violation of the reporting requirements under the AWA."  The court notes that "Gingell remained accountable for the yearly reporting requirement under Megan's Law; whether he met that requirement is not a part of this case."  Interestingly, the court doesn't remand the case back to the First District for determination of that issue; it simply reverses the conviction.

So what's it mean?  Obviously, not much, beyond the fact that can't be prosecuted for violating a 90-day obligation under the AWA when the 90-day obligation results from a wrongful reclassification.  A large part of the problem here is that Gingell's case was a poor vehicle for testing the retroactivity issue, given the difference in classification and the lack of a record.  It's doubtful that the court would have been able to duck the issue had Gingell been classified under Megan's Law as a sexual predator, which also had a lifetime 90-day registration and verification period.  Could the enhanced penalties for violation be imposed on him?  Could he be subject to the the more onerous reporting and notification requirements of the AWA?

Gingell doesn't supply the answer to those questions, but an answer is forthcoming.  A month ago the court heard oral argument in State v. Williams (discussed here), and it's hard to see how the court can wriggle off the hook in that one.


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