Three on sex offenses
The transition from Megan's Law to the Adam Walsh Act was supposed to be a smooth one. Megan's Law imposed certain requirements upon sex offenders, and the AWA made those stiffer. Under Megan's Law, for example, if an offender failed to notify the sheriff that he'd changed his address, that was a fifth degree felony. Until 2003, when it became a third-degree felony. Until the AWA, when it became the same degree of felony as the underlying offense.
This simple scheme went all to hell with the Supreme Court decisions in State v. Bodyke, State v. Gingell, and State v. Williams. Bodyke held that the reclassification scheme of AWA, which allowed the Attorney General to reclassify offenders previously classified under Megan's Law, was unconstitutional as a violation of the separation of powers. Gingell held that since a Megan's Law offender couldn't be reclassified, he had only the registration duties under that law, not the AWA. And in Williams, the court found that while previous sex offender registration and notification laws had been "remedial," the AWA crossed the line into punitive territory, and thus an offender who committed the crime prior to the effective date of the AWA couldn't be classified under that law, even if he hadn't been previously classified.
That left some serious questions to be answered as to exactly what the duties of a sex offender were, and what punishment could be imposed for his failure to do them. The Supreme Court attempted to answer those questions two weeks ago in another trio of decisions. Let's take a look at what they came up with.
State v. Brunning was unquestionably the biggie. Way back in 1983, Brunning was convicted of raping a 9-year-old, and sentenced to 10 to 25 years in prison. He did the full quarter, got out in 2008, and was classified as a Tier III offender under AWA. In 2009, he filled out the required verification form regarding his address, and lied. As a result, he was charged with failing to verify his address, failure to notify of a change of address, and tampering with evidence (signing a form containing false information.) He pled guilty, but the 8th District reversed his conviction, finding that since the AWA couldn't be applied to him, he couldn't be penalized for violating the AWA's reporting requirements. But couldn't he still be penalized for violating the Megan's Law reporting requirements? No, argued Brunning: Megan's Law was repealed when AWA took effect, and the Megan's Law requirements weren't restored until Bodyke. He committed his offenses during that gap of time, when there weren't any requirements for Megan's Law offenders.
The Brunning court wasn't buying. There was no "gap": Bodyke did restore the law, but the orders classifying defendants as Megan's Law offenders (and thus imposing the duties) "related back to the time they were first imposed and continued in effect as if they had never been changed." Of course, there was still the problem that Brunning had been indicted under the AWA provisions. Not a problem, decides the court, since the same statute -- RC 2950.05 -- defines the duty to notify of a change of address under both laws, and that's good enough:
Although the state indicted Brunning for conduct that violated the AWA version of R.C. 2950.05, the conduct described in the indictment also constituted a violation under the Megan's Law version of R.C. 2950.05, which Brunning was bound to follow. The indictment set forth the elements of the charge under either version of the statute.
So here's what you need to know about the decision: A Megan's Law offender can be punished only for violating the registration and notification requirements of Megan's Law, not AWA. It's very important to understand what those requirements are. In Brunning's case, as a Tier III offender he would have been required to verify his address every 90 days; under Megan's Law, though, he was only a sexually oriented offender, with an annual reporting and verification requirement. The State agreed that this meant his conviction for failing to verify had to be vacated, since it was based on failure to verify every 90 days, and he didn't have that requirement. But the conviction for failure to notify of a change of address stays: he had that obligation under Megan's Law.
Which statute an offender gets charged under makes a big difference in penalties. As I mentioned, the penalties for failing to register, notify, or verify were upped substantially in the AWA. That's the issue the court tackles in State v. Howard. Howard was convicted of rape in 2000, and classified as an habitual sexual offender. At that time, failure to comply with the reporting requirements for a sex offender was a 5th degree felony, but in 2003 the legislature upped that to a 3rd degree felony for offenders whose underlying offense was a 1st, 2nd, or 3rd degree felony. Then came the AWA, which made violation of the reporting requirements a felony of the same degree as the underlying crime. So when Howard was convicted of failure to notify of a change of address, it was a first degree felony -- same as the rape -- and he got the mandatory minimum sentence of three years.
There's a pretty good argument that there's nothing wrong with that. Say, for example, there's a law that says if you get convicted of rape a second time, you get an additional five year sentence. You get convicted of rape, and then the legislature changes the law to impose an additional ten-year sentence for a second offense. If you then get convicted of a second rape, is there a problem of giving you the additional ten-year sentence? No; the increased penalty flows from the conviction of the new offense, not the old one. Same thing here: you're being penalized not because you committed a sex offense previously, but because you presently violated a registration or verification requirement.
That's the argument made by Cupp and O'Donnell in dissent, but the majority ignores it, finding that only the Megan's Law penalties could be applied to Howard. So that means he gets the fifth degree felony, because that was the degree of the offense when he committed the crime, right? No, he gets the third degree felony, the court concluding that the increased Megan's Law penalty could be imposed. Not the finest logic at work, admittedly.
The third case in the trilogy, In re Bruce S., is the least significant. It again makes a "gap" argument, this one involving the difference between the date legislation is enacted, and its effective date. Back in State v. Scott, the 8th District had held that a person can be classified under the AWA even if he committed the offense before that, which seems to conflict with Williams. The problem is that the AWA was enacted in July 2007, but didn't become effective until January 1, 2008, and Williams used sloppy language: it referred to the former as the cutoff date. Scott took this to mean that a defendant could be classified under the AWA for any offense committed after July of 2007. Williams actually meant to use the latter date; after all, Williams committed his offense in November of 2007. Bruce clarifies that.
So, to prepare for your quiz tomorrow, here's the down and dirty:
- The AWA can be applied only to offenders who committed their offense after January 1, 2008.
- An offender classified under Megan's Law still has the duties to register, report, and verify as he did before AWA, and can be prosecuted for failure to fulfill those duties.
- His prosecution, though, is under the Megan's Law provisions, and only the penalties under that law can be applied to him.
More good news. There won't be a quiz tomorrow; instead, we'll talk about what's left of EvidR 404(B) after the latest Supreme Court decision on the subject.