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Is Imposing 'Adam Walsh Act' Penalty on Sex Offender Classified Under Prior Law Unconstitutional?

Given there is no ex post facto clause in Ohio's Constitution, how will they rule? Well, they always have the U.S. Constitution to fall back on...
1-20-2011 Ohio:

For Failure to Report Change of Address After 2008 Legislation Took Effect

State of Ohio v. Ronald Gingell, Case no. 2010-0047
1st District Court of Appeals (Hamilton County)

ISSUE: Pursuant to the Supreme Court of Ohio’s recent decision in State v. Bodyke, if failure of a sex offender to register his current address was punishable as a fifth-degree felony at the time a court imposed the duty to register, and the offender subsequently failed to report an address change after the Jan. 1, 2008 effective date of the Ohio Adam Walsh Act (AWA), is it a violation of the Ohio Constitution’s prohibition against retroactive laws for a court to punish that registration violation as a first-degree felony based on the increased penalty schedule established by the AWA?

BACKGROUND: Ronald Gingell was convicted of rape in 1981 and served 25 years in prison for that offense. In 2003, following enactment of Megan’s Law requiring the classification and post-release registration of sex offenders, a court hearing was conducted at which Gingell was classified as a “sexually-oriented offender” and ordered to register and maintain a current record of his residence with the local sheriff for 10 years after his release from prison. At that hearing, Gingell was advised that a violation of his post-release registration requirements would be punishable as a fifth-degree felony, which would expose him to a prison term of up to one year.

Gingell was released from prison in 2006, and registered with the Hamilton County sheriff’s office as required in 2006 and 2007. In 2007 the General Assembly enacted the AWA, which took effect Jan. 1, 2008. The act made significant changes in the Meagan’s Law sex offender classification and registration scheme under which Gingell was classified. Among those changes, the Act increased a violation of post-release registration requirements based on a rape conviction from a fifth-degree to a first-degree felony, an offense punishable by a prison term of up to 10 years.

In May 2008, Gingell moved and failed to notify the sheriff of his new address within the mandatory time period for doing so. In July 2008 he was charged and found guilty under the AWA version of the sex offender statute on a first-degree felony count of failure to comply with a registration requirement based on a rape conviction. Following the sentencing guidelines for first degree felonies, the trial court sentenced Gingell to an additional eight years in prison and five years of post-release control.

Despite the fact that he had entered a guilty plea to the registration violation charge, Gingell subsequently appealed his sentence. He argued that by sentencing him under the enhanced penalty provisions of the AWA that took effect in 2008, rather than the penalty provisions that were in place at the time of his 2003 classification hearing, the trial court had violated the prohibition in the Ohio Constitution against retroactive laws. The 1st District Court of Appeals affirmed the sentence imposed by the trial court. Gingell sought and was granted Supreme Court review of the 1st District’s decision.

Attorneys for Gingell point to the Supreme Court of Ohio’s June 2010 decision in State v. Bodyke, in which the Court held unconstitutional provisions of the Adam Walsh Act that authorized the attorney general to reclassify and impose more restrictive registration requirements against sex offenders who had been classified by court order under Ohio’s pre-2008 Meagan’s Law classification scheme. In this case, just as in Bodyke, they argue, the AWA was applied retroactively to impose a more severe penalty against Gingell despite the fact that a trial court had entered a final order under the pre-AWA sex offender statute placing him in a classification, imposing specific registration requirements, and stating that any future violation of those requirements would be punishable as a fifth-degree felony.

Gingell also argues that the provisions of the AWA increasing penalties for registration violations do not include language clearly indicating legislative intent that the enhanced penalties be applied retroactively to offenders whose registration requirements were imposed prior to Jan. 1, 2008, and cites prior Supreme Court decisions holding that legislative enactments not containing such language may be applied only prospectively.

Attorneys for the Hamilton County prosecutor’s office, representing the state, urge the Court to affirm the 1st District’s holding that the sentence imposed on Gingell did not apply the AWA retroactively, because Gingell’s registration violation took place in May 2008, several months after the effective date of the AWA and its increased penalty provisions, and therefore his sentence for a first degree felony was consistent with the law that was in effect on the date his registration offense was committed. They cite decisions in similar cases in which the 3rd, 5th, and 10th District courts of appeals have held that a sex offender who violates his duty to maintain current registration is subject to sentencing based not on the penalty provisions in effect at the time of his classification hearing, but rather on the penalty provisions that were in effect at the time the registration offense was committed.

Paula Adams, 513.946.3228, for the state and Hamilton County prosecutor's office.

Marguerite Slagle, 513.421.1108, for Ronald Gingell. ..Source.. From Ohio Supreme Court ORAL ARGUMENTS 1-19-2011

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