State v. Ferguson

896 N.E.2d 110

120 Ohio St.3d 7

2008-Ohio-4824

The STATE OF OHIO, Appellee, v. FERGUSON, Appellant.

No. 2007-1427.

Supreme Court of Ohio.

Submitted May 6, 2008.

Decided October 1, 2008.

William D. Mason, Cuyahoga County Prosecuting Attorney, and Pamela Bolton, Assistant Prosecuting Attorney, for appellee.

Robert L. Tobik, Cuyahoga County Public Defender, and John T. Martin and Cullen Sweeney, Assistant Public Defenders, for appellant.

Ron O'Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor, Assistant Prosecuting Attorney, urging affirmance for amicus curiae, Franklin County Prosecuting Attorney.

O'CONNOR, J.

{¶ 1} Appellant, Andrew J. Ferguson, a convicted rapist classified as a sexual predator, challenges the constitutionality of the 2003 version of R.C. Chapter 2950, the Sexual Offender Registration and Notification Law ("SORN"). SORN was amended by Am.Sub.S.B. No. 5 ("S.B. 5"), effective July 31, 2003.¹ Appellant claims that S.B. 5 violates the Ex Post Facto Clause of the United States Constitution and Section 10, Article 1 and Section 28, Article II of the Ohio Constitution, which states that the General Assembly has no power to enact laws that apply retroactively. See Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 105, 522 N.E.2d 489.

{¶ 2} The court of appeals rejected his claims, holding that former R.C. Chapter 2950 as amended by S.B. 5, 150 Ohio Laws, Part IV, 6558, 6687-6702, remains constitutional. We affirm.

Relevant Background

{¶ 3} In August 1990, Ferguson was convicted of three counts of rape and one count of kidnapping. He was sentenced to prison for 15 to 25 years. On direct appeal, his conviction and sentence were affirmed. State v. Ferguson (June 4, 1992), Cuyahoga App. No. 60713, 1992 WL 126046.

{¶ 4} In June 2006, the trial court classified Ferguson as a sexual predator. That designation was based on Ferguson's criminal record, which includes convictions for multiple rapes and robberies over 30 years, and the results of psychological assessments indicating that Ferguson has a high risk of committing another sexual offense. The sexual-predator designation requires Ferguson to verify his residential, school, and work addresses every 90 days for life. Former R.C. 2950.04(A) and 2950.06(B)(1), 150 Ohio Laws, Part IV, 6558, 6657-6661, 6673-6674. It also requires information on Ferguson to be a public record available on a law-enforcement database. R.C. 2950.08(A). Finally, the law restricts where Ferguson may live. Former R.C. 2950.031(A), 150 Ohio Laws, Part IV, 6558, 6657. Under S.B. 5, his designation as a sexual predator can never be modified. Former R.C. 2950.07(B)(1), 150 Ohio Laws, Part IV, 6558, 6681-6682. Ferguson remains imprisoned.

{¶ 5} Ferguson appealed the classification. He argued that the statutory amendments set forth in S.B. 5, as applied to him, violate the Ex Post Facto Clause of the United States Constitution and the retroactivity clause of the Ohio Constitution because the amendments were enacted after he committed his crimes and after his adjudication. The court of appeals rejected his claim and affirmed the classification. State v. Ferguson, Cuyahoga App. No. 88450, 2007-Ohio-2777, 2007 WL 1644449.

{¶ 6} Although we previously have rejected similar constitutional challenges to former versions of R.C. Chapter 2950, we asserted discretionary jurisdiction over Ferguson's appeal, State v. Ferguson, 115 Ohio St.3d 1472, 2007-Ohio-5735, 875 N.E.2d 626, to address the important questions that arise from statutory changes wrought by S.B. 5.

{¶ 7} Those changes were driven by the General Assembly's finding that all sex offenders pose a risk of engaging in further sexually abusive behavior after being released from prison and that the protection of the public from those offenders is a paramount governmental interest.² Legislative Service Commission, Bill Analysis, Am.Sub.S.B. No. 5 (2003). The General Assembly altered an array of provisions in R.C. Chapter 2950. Accordingly, the legislature "[m]odifie[d] most of the determinations, declarations, recognitions, and findings of the General Assembly regarding the SORN Law that [formerly applied] only regarding sexual predators and habitual sex offenders so that they instead apply regarding all sex offenders, offenders who commit sexually oriented offenses, child-victim offenders, and offenders who commit a child-victim oriented offense, and by making a few other changes in the provisions." Id. Those "few other changes" include those raised by Ferguson's appeal, which centers on three amended provisions³ in the statute.

{¶ 8} First, Ferguson challenges former R.C. 2950.07(B)(1), 150 Ohio Laws, Part IV, 6558, 6657, which provides that the designation "predator" remains for life, as does the concomitant duty to register. An earlier version of this section allowed for review of the predator classification by a judge and the possible removal of that classification. See former R.C. 2950.09(D), Am.Sub.H.B. No. 180, 146 Ohio Laws, Part II, 2560, 2621-2623.

{¶ 9} Second, Ferguson challenges former R.C. 2950.04(A), 150 Ohio Laws, Part IV, 6558, 6657, which provides that sex offenders are required to personally register with the sheriff in their county of residence, the county in which they attend school, and the county in which they work, and that they must do so every 90 days. R.C. 2950.06(B)(1)(a). Previously, offenders had been required to register only in their county of residence. See former R.C. 2950.06(B)(1), 146 Ohio Laws, Part II, 2560, 2613.

{¶ 10} Third, Ferguson challenges amended R.C. 2950.081, 150 Ohio Laws, Part IV, at 6686-6687, which expands the community-notification requirements. After S.B. 5, any statements, information, photographs, and fingerprints required to be provided by the offender are public records and are included in the Internet database of sex offenders maintained by the Attorney General's office. Former R.C. 2950.081 and 2950.13, 150 Ohio Laws, Part IV, at 6726-6730.

{¶ 11} We turn now to the provisions at issue.

Analysis

{¶ 12} Our inquiry begins with a fundamental understanding: a statute enacted in Ohio is presumed to be constitutional. State ex rel. Jackman v. Cuyahoga Cty. Court of Common Pleas (1967), 9 Ohio St.2d 159, 161, 38 O.O.2d 404, 224 N.E.2d 906. That presumption applies to amended R.C. Chapter 2950, State v. Cook (1998), 83 Ohio St.3d 404, 409, 700 N.E.2d 570, and remains unless Ferguson establishes, beyond reasonable doubt, that the statute is unconstitutional. Roosevelt Properties Co. v. Kinney (1984), 12 Ohio St.3d 7, 13, 12 OBR 6, 465 N.E.2d 421.

I. Retroactivity

{¶ 13} The analysis of claims of unconstitutional retroactivity is guided by a binary test. We first determine whether the General Assembly expressly made the statute retrospective. State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, 871 N.E.2d 1167, ¶ 10. If we find that the legislature intended the statute to be applied retroactively, we proceed with the second inquiry: whether the statute restricts a substantive right or is remedial. Id. If a statute affects a substantive right, then it offends the constitution. Van Fossen, 36 Ohio St.3d at 106, 522 N.E.2d 489.

A

{¶ 14} Because "[w]e do not address the question of constitutional retroactivity unless and until we determine that the General Assembly expressly made the statute retroactive," Hyle v. Porter, 117 Ohio St.3d 165, 2008-Ohio-542, 882 N.E.2d 899, ¶ 9, citing Van Fossen, 36 Ohio St.3d at 106, 522 N.E.2d 489, our first inquiry focuses on whether the amendments to R.C. Chapter 2950 are expressly retroactive.

{¶ 15} Statutes are presumed to apply only prospectively unless the General Assembly specifically indicates that a statute applies retrospectively. R.C. 1.48; Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 40. In the typical case, "[i]n order to overcome the presumption that a statute applies prospectively, a statute must `clearly proclaim' its retroactive application." Hyle, ¶ 10, citing Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, 871 N.E.2d 1167, paragraph one of the syllabus.

{¶ 16} That test is satisfied easily in light of the express language of former R.C. 2950.041(A), 150 Ohio Laws, Part IV, 6558, 6665-6666, which governs the registration provisions requiring child-oriented sex offenders to register with the sheriff in each county in which the offender resides, is temporarily domiciled, works, or attends school. The wording of former R.C. 2950.041(A) specifically states that it applies to offenders who were sentenced to prison for offenses against children "[r]egardless of when the child-victim oriented offense was committed." Former R.C. 2950.041(A)(1)(a) and (b), 150 Ohio Laws, Part IV, at 6665. The section clearly states that it applies to offenders whose offense was committed prior to the effective date of the section and who were required to register as a result of a conviction or plea. Id. In such cases, that former provision states that the duty imposed is considered a continuation of the duty imposed on the offender "prior to the effective date of this section under section 2950.04 of the Revised Code." Former R.C. 2950.041(A)(1)(c), 150 Ohio Laws, Part IV, at 6666.

{¶ 17} As we did in Cook, 83 Ohio St.3d 404, 700 N.E.2d 570, paragraphs one and two of the syllabus, we have no difficulty concluding that the statutory language demonstrates that the General Assembly intended former R.C. 2950.041(A) to apply retrospectively.

{¶ 18} We turn next to the new registration requirements set forth in amended R.C. 2950.081, 150 Ohio Laws, Part IV, at 6686-6702 and amended R.C. 2950.09, id. at 6687.

{¶ 19} R.C. 2950.081 governs the disclosure of information provided by sex offenders to sheriffs as part of the registration required by other statutory provisions. As amended by S.B. 5, the statute provides that the statements, information, photographs, and...