Narrowing Bodyke
Back in June, in State v. Smith, the 8th District considered a case where a defendant, a sex offender, was charged with failure to verify his current address. He'd been convicted of rape in 1988, and when he got out of prison in 2001, as the court notes, "Smith 'automatically' was classified as a sexually oriented offender." He was reclassified as a Tier III offender when the Adam Walsh Act went into effect in 2007, which meant that he had to register every 90 days for life, instead of every year for 10 years. Just a few weeks earlier, though, in State v. Bodyke, the Supreme Court had held that such reclassification violated the separation of powers doctrine; essentially, it involved a member of the executive changing a journal entry made by a judge. So, pursuant to Bodyke, the court reversed Smith's conviction of failure to verify.
The interesting thing is that if you check the docket, you'll find there never was a journal entry declaring Smith to be a sexually oriented offender.
Go back to the phrase above, "Smith 'automatically' was classified as a sexually oriented offender." Under the law in effect at the time Smith was released from prison, there were three sex offender classifications. You were classified as a "sexually oriented offender" if you committed one of the designated sex offenses. If you'd been convicted of one before, and were convicted of a second such offense, you were classified as an habitual sexual offender. Only with the last, and most serious, classification -- sexual predator -- was there a hearing before a judge to determine whether you actually met the criteria.
The Supreme Court dealt with this back in 2002 in State v. Hayden, where a defendant complained he'd been denied due process because he hadn't had a hearing before being declared a sexually oriented offender. The lower court had bought into it, but the Supreme Court reversed, seizing on what the dissenting judge had noted in the appellate court decision:
The dissent noted that appellee's conviction for a sexually oriented offense automatically conferred on him the status of a sexually oriented offender. Thus, the dissent explained, "what follows -- the registration requirement -- is mandated by law. The trial court cannot 'determine' anything. It merely engages in the ministerial act of rubber-stamping the registration requirement on the offender." We agree with the dissent.
Again, in Bodyke, the court found that the executive branch couldn't change a court order. But how much deference is due a "court order" which represents a purely "ministerial act"? And what happens when there's no court order to begin with?
That last issue came to the fore last week with the 1st District's decision in Green v. Ohio. Green had been convicted of sexual battery in June of 1997 and sentenced to prison. When he got out of prison (the opinion doesn't say when), he was instructed to register annually for ten years as a sexually oriented offender. When the AWA went into effect, Green was notified that he was now a Tier III offender, required to register every 90 days for life. Green sued, raising the customary arguments about the AWA, and the lower court made the customary rejection. Green appealed, and then Bodyke came down, and it looked like he was a winner.
Not so, said the 1st: Bodyke doesn't apply when "there is no prior court order classifying the offender under a sex-offender category."
If there is no prior judicial order classifying the sex offender, then reclassification by the attorney general under Senate Bill 10 does not violate the separation-of-powers doctrine because it does not require the opening of a final court order or a review by the executive branch of a past decision of the judicial branch.
The 1st District isn't alone in this; the 12th District read Bodyke the same way in Boswell v. State.
Bodyke resolves, at least for now, the first question I raised above; regardless of how meaningless the process was for a court order declaring a defendant a sexually oriented offender or habitual sex offender, it's still a court order, and can't be modified by the AG. But what about those cases in which there never was a court order?
That's not an inappreciable number, because how someone was classified as a sex offender depended upon when they convicted, when they were incarcerated, and when they were released. The key dates here are July 1, 1997, when Megan's law went into effect, and July 1, 2007, when the AWA went into effect. Here's how it works:
- If the offender was sentenced after July 1, 2007, there's no problem: he received his classification under the AWA (in other words, he was never "reclassified")
- If the offender was sentenced between July 1, 1997, and July 1, 2007, again there's no problem: such offenders were classifed by court order, and that order can't be changed
- If the offender was incarcerated before July 1, 1997, and released before July 1, 2007, there may be a problem: without going into detail, such offenders may have received a classification by default, without any court order
- If the offender was incarcerated before July 1, 1997, and released after July 1, 2007, there may be a problem: those offenders didn't receive a Megan's law classification at the time they were sentenced, and so arguably were never classified by "court order"
Determination of those questions hinges on exactly what the Supreme Court meant in Bodyke when it severed RC 2950.031 and .032, the reclassification provisions of the AWA. There are two ways of reading it: that reclassification is impermissible, or that reclassification is forbidden only "to offenders previously adjudicated by judges under Megan's Law." The corollary of the latter, of course, is that if there is no prior adjudication by judges, reclassification is permissible. There's language in Bodyke which could support either interpretation. In fact, the Attorney General's office moved the court for "clarification" of Bodyke on exactly that point, in a motion to reconsider. The court denied that without further opinion.
So what's the correct interpretation, Smith or Green? Until the Supreme Court rules further on it, or (more likely) rules on the remaining challenges raised to the AWA, prosecutors are going to argue that Green's right and Bodyke is limited to those offenders who can show a prior court order classifying them, and defendants will argue that Bodyke means nobody who was convicted of a sex offense prior to AWA can be reclassifed under its provisions.
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