State v Kimbrough

4-20-2012 Ohio:

State v Kimbrough
(2012 Ohio 1773)

The essence of this is, that AWA/SORNA changed the penalty for failure to register, and that new penalty cannot be applied to folks who were previously registered (before AWA/SORNA was enacted in Ohio)

The court said:

The state of Ohio appeals from the termination entry ordering defendant-appellee Robert Kimbrough to serve five years of community-control sanctions for failing to notify the sheriff of Montgomery County that he had changed his address as required by R.C. 2950.05(A).

In December 2005, Kimbrough was convicted of gross sexual imposition and two counts of rape. He, therefore, became subject to the notification requirements of Ohio’s version of Megan’s Law. See former R.C. Chapter 2950. At the time, former R.C. 2950.05(A) required those required to register under R.C. 2950.04 to notify the sheriff “at least twenty days prior to changing the offender’s . . . residence address * * * .” Former R.C. 2950.05(F)(1) provided: “No person who is required to notify a sheriff of a change of address pursuant to division (A) of this section shall fail to notify the appropriate sheriff in accordance with that division.” A violation of former R.C. 2950.05 was a third-degree felony. Former R.C. 2950.99(A)(1)(a)(i).

In 2007, the General Assembly enacted the Ohio version of the federal Adam Walsh Act, P.L. No. 109-248, 120 Stat. 587, codified at Section 16901 et seq., Title 42 U.S. Code.

The Ohio version included two parts: (1) 2007 Am.Sub.S.B. No. 10, which adopted a three-tiered system of sex offender classification that depended upon the identity of the sex offense of which the offender was convicted, with different, and generally more onerous, reporting, notification, and registration requirements; and (2) 2007 S.B. 97, which changed the penalties attached to conviction for failure to comply with requirements, and, in many situations, enhanced those penalties. Both parts of the Adam Walsh Act became effective on January 1, 2008. State v. Buelow, 2d Dist. Montgomery No. 24570, 2012-Ohio-832, ¶ 6.

R.C. 2950.05 continues to provide that those offenders required to register under R.C. 2950.04 shall notify the sheriff of any change in residence address “at least twenty days prior to changing the address * * * .” R.C. 2950.05(A). And as before, R.C. 2950.05(F)(1) states that “[n]o person who is required to notify a sheriff of a change of address pursuant to division (A) of this section * * * shall fail to notify the appropriate sheriff in accordance with that division.” But now, under R.C. 2950.99,

If the most serious sexually oriented offense * * * that was the basis of the * * * change of address notification * * * is a felony of the first, second, third, or fourth degree if committed by an adult * * * the offender is guilty of a felony of the same degree as the most serious sexually oriented offense * * * that was the basis of the notice of * * * change of address * * * requirement that was violated * * * .” R.C. 2950.99(A)(1)(a)(ii).

Nevertheless, this court has recognized that application of the Adam Walsh Act classification scheme and reporting, notification, and registration requirements to someone who committed his or her offense before the enactment of the Adam Walsh Act constitutes a retroactive application of a punitive statute, in violation of the Retroactive Laws prohibition in Article II, Section 28, of the Ohio Constitution. Buelow at ¶ 7, citing State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108.

Following this precedent, we overrule the state’s single assignment of error and affirm the judgment of the trial court.