Supreme Court case summary:
Does ‘Adam Walsh Act’ Require New Hearing to Exempt Pre-2008 Sex Offender from Community Notification?
When Sentencing Court Found Notification not Required Under Pre-2008 Law
Robert Gildersleeve et al. v. State of Ohio, Case no. 2009-1086
8th District Court of Appeals (Cuyahoga County)
ISSUE: In cases where a defendant was sentenced prior to Jan. 1, 2008, for a sexually related crime, and where the sentencing court determined at a hearing that under the pre-2008 version of Ohio’s sex-offender statute the defendant was not subject to community notification, do amendments to the law that took effect in 2008 require that pre-2008 offenders who have been reclassified as Tier III offenders must undergo a new hearing to reestablish their exemption from community notification?
BACKGROUND: Effective Jan. 1, 2008, the General Assembly amended Ohio’s former sex offender registration and community notification statutes to conform them with the federal Adam Walsh Act (AWA). Under the amended Ohio statutes, thousands of persons who had been classified as lower-level sex offenders under the pre-2008 version of the law were reclassified as Tier III (highest level) sex offenders. The new provisions require that, after Jan. 1, 2008, 1) all Tier III offenders must register with local law enforcement agencies every 90 days for life, and 2) sheriffs must provide regular notices regarding the identity, residence, place of employment and other information about Tier III offenders to neighbors, schools and specified others in the communities where the offender lives and works.
However, a separate provision in the 2008 rewrite of the law, R.C. 2950.11(F)(2), specifically exempts a Tier III offender from the requirement of community notification (but not the duty to register): “if a court finds at a hearing ... that the person would not be subject to notification” under the previous version of the sex offender statute (i.e. the version that was in effect from 2002 through 2007).
This case involves a group of nine people, including Robert Gildersleeve, who were convicted and sentenced prior to Jan. 1, 2008 as sex offenders. In each of their cases, the sentencing court held a required hearing and determined that the defendant was not a sexual predator or a high-risk habitual sex offender, and therefore, under the pre-2008 version of the sex offender statute, was subject to registration but was not subject to community notification. Following enactment of the Ohio AWA, each of the plaintiffs received a notice from the attorney general’s office informing him that he had been reclassified as a Tier III sex offender and would from that date forward be subject to both the more stringent registration requirement and the community notification requirement imposed on Tier III offenders by the AWA.
The plaintiffs filed suit in the Cuyahoga County Court of Common Pleas seeking a judgment that 1) retroactive application of the AWA to offenders who had already been classified under the pre-2008 sex offender statute was unconstitutional; and 2) even if retroactive application of the AWA to them was constitutional, they were entitled to relief from community notification under R.C. 2950.11(F)(2) because each of them had already undergone a hearing and been found not to be subject to community notification under the pre-2008 version of the statute. The trial court ruled that retroactive application of the AWA to previously classified sex offenders was constitutional, and also held that the plaintiffs were not entitled to relief from community notification.
Gildersleeve and his co-plaintiffs appealed. On review, the 8th District Court of Appeals affirmed that the AWA was constitutional as applied to the plaintiffs, but held that they were entitled to relief from community notification under R.C. 2950.11(F)(2), because the courts that sentenced them had judicially determined that they were not subject to community notification under the pre-2008 version of the law.
Both parties sought Supreme Court review of the portion of the 8th District’s ruling unfavorable to them. The Court accepted Gildersleeve’s appeal regarding retroactive application of the AWA and held that appeal pending the Court’s ruling in a similar case that has already been argued but not announced (State v. Bodyke). The Court agreed to hear arguments on the state’s claim that R.C. 2950.11(F)(2) does not provide “automatic” relief from community notification for any past offender who was found not subject to community notification under the prior version of the statute at the time of his original classification.
Attorneys for the state argue that R.C. 2950.11(F)(2) exempts an offender from the requirement of community notification under the AWA only if a court has conducted a de novo (new) hearing at which it considers 11 criteria set forth in the 2008 statute, and has made a new and independent finding that the offender would not have been subject to community notification under the pre-2008 version of the sex offender law. They point out that the hearing requirement in R.C. 2950.11(F)(2) is written in the present rather than the past tense, which they say indicates legislative intent that courts considering appeals by pre-2008 offenders should not rely on the court proceedings conducted at the time of that person’s original classification, but rather should conduct a new and independent review of the statutory criteria and make a new determination regarding the offender’s likelihood of reoffending.
Attorneys for Gildersleeve and the other plaintiffs point out that the hearing criteria set forth in R.C. 2950.11(B)(2) are virtually identical to the criteria that were considered in determining at the time of their original classification that they were not subject to community notification under the pre-2008 version of the statute. They argue that in cases involving offenders who were classified under the former statute, “a court” has already conducted a hearing at which the statutory criteria have been considered, and has ruled that the offender was not subject to community control under the pre-2008 law. They assert that interpreting the law to require an entire new hearing at which the same criteria are applied to make exactly the same legal determination would be redundant and wasteful of judicial resources, and also contrary to the doctrine of res judicata (that issues decided by a court and not appealed should not later be relitigated).