Sex offenders and out-of-state convictions
When Jonathan Collier was 29, he had sex with a 16-year-old girl. That earned him a conviction of aggravated criminal sexual abuse in Illinois. When he moved to Ohio 10 months later, that came with him, and landed him in hot water almost immediately; at the end of the year, he was indicted in Cuyahoga County for failing to register as a sex offender. He pled to that and was given community control sanctions, but five years later, he picked up another case for failing to notify of a change of address. He did two years in prison for that one. But two years after he got out, he was again indicted for failure to notify of change of address, and failure to verify the address.
That could have led to a lengthy prison sentence. Instead, the trial court decided that he never had a duty to register as a sex offender in Ohio, and last week, the 8th District not only affirmed the dismissal of the indictment, but ordered his two previous convictions vacated as well.
So how did we get there? Let's start with the Supreme Court's decision three years ago in State v. Lloyd. In order for a person moving to Ohio to be required to register here as a sexual offender, the State must show two things: first, that the person has an out-of-state sex offense that is "substantially equivalent" to a registration-required sex offense in Ohio, and that the person was under a duty to register as a sex offender in the state he's leaving.
The opinion in Lloyd is not for the faint of heart. In determining whether another state's offense is "substantially equivalent," the court takes an extensive look at how SCOTUS has dealt with the Armed Career Criminal Act, which, as I mentioned on Monday, adds 15 years to a Federal gun offender's sentence if he's been convicted of three prior violent felonies.
But that gets back to this blog's motto: we read the cases so you don't have to. Here's the bottom line: In determining whether the out-of-state conviction is "substantially equivalent" to an Ohio offense, the court first looks to the elements of the two offenses, without considering the facts. If it still can't figure it out, it then looks to "a limited range of material contained in the record, including charging documents, plea agreements, transcripts of plea colloquies, presentence reports, findings of fact and conclusions of law from a bench trial, jury instructions and verdict forms, or some comparable part of the record."
Lloyd argued that his conviction for aggravated sexual assault wasn't equivalent to Ohio's rape statute, because the former required the crime to be committed either "intentionally or knowingly" while rape requires a purposeful intent. The court looked at the record, and decided that Lloyd had indeed committed the crime "intentionally," which even Lloyd acknowledged was equivalent to a purposeful intent. Lloyd nonetheless got off the hook because the State failed to introduce any evidence that, at the time he moved to Ohio, he was under a duty to register as a sex offender in Texas.
That's not a problem in Collier; his conviction landed him on the Illinois sex offender registry list. So how does he get out from under his convictions?
Because of the substantial equivalency test. The State argues that the Illinois conviction for "aggravated criminal sexual abuse" is substantially equivalent to Ohio's statute on unlawful sexual conduct with a minor, but the court finds two important distinctions. The Illinois statute criminalizes "an act of sexual conduct with a victim at least 13 years of age but under 17, and the accused was at least five years older than the victim," while unlawful sexual conduct with a minor provides that "no person who is eighteen years of age or older shall engage in sexual conduct with another when the offender knows the person is thirteen years of age or older but less than sixteen years of age, or the offender is reckless in that regard."
The first distinction is that the Ohio statute is capped at 15 years, while the Illinois statute prohibits sex with a 16-year-old: what Collier did in Illinois wouldn't have been a crime in Ohio. The other problem is, once again, mens rea. While that wasn't a factor in Lloyd, it is here: the Illinois statute is strict liability, while the Ohio statute requires the defendant to either know the victim's age, or be reckless in that regard. So, looking at the elements, the two aren't "substantially equivalent," and Collier never had a duty to register as a sex offender.
One other thing. I've often heard defendants say they want a "real lawyer," rather than a public defender, and that attitude even carries over to some members of the bar. In this case, the attorneys Collier had in his earlier cases were private attorneys. A public defender got his third case, and not only spotted the issue to get that indictment dismissed, but went the extra mile, dug up the earlier cases, and got the convictions in those vacated, as well as the requirement that he register as a sex offender. And the PD's office successfully handled the appeal.