Top Massachusetts court decides due process now demands heightened proof standard for sex offender classification

12-13-2015 Massachusetts:

A helpful reader alerted me to a notable new procedural ruling by the Massachusetts Supreme Judicial Court this past week. In Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Board, SJC-11823 (Mass. Dec. 11, 2015) (available here), the top Massachusetts court decided that the preponderance standard of proof is inadequate for sex offender classification. Here is how the opinion starts:

We are asked in this case to consider anew the standard of proof that the Sex Offender Registry Board (SORB) must satisfy in order to classify a convicted sex offender under the provisions of the sex offender registry law, G. L. c. 6, §§ 178C-178Q.

The plaintiff, John Doe No. 380316 (Doe), is a convicted sex offender who was classified by a preponderance of the evidence as having a moderate risk of reoffense. In Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 91 (1998) (Doe No. 972), we held that SORB need only prove the appropriateness of a sex offender's risk classification by a preponderance of the evidence.

In light of amendments to the sex offender registry law and other developments since our decision in that case, however, Doe contends that the preponderance standard no longer adequately protects his due process rights. We agree.

For the reasons stated below, we hold that SORB is constitutionally required to prove the appropriateness of an offender's risk classification by clear and convincing evidence.

..Source..

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Troubling Interpretation of Sex Offender Registration Statute

11-7-2014 New York:

by Lorca Morello, New York Law Journal

In Eugene Ionesco's absurdist play "The Bald Soprano" a character talks about a husband and wife named Bobby and Bobby Watson whom no one could tell apart because they had the same name. In People v. Gillotti, the Court of Appeals has applied similar logic to hold that "victim" under the Sex Offender Registration Act (SORA) is identical to "victim" in tort cases where persons depicted in child pornography can seek damages from mere viewers.1 Gillotti accordingly holds that anyone convicted of possessing multiple images of child pornography has multiple "victims" and therefore presents the same future risk to public safety as someone who has sexually assaulted multiple children.

The majority sees no absurdity in this. Rather, it asserts that any other result would violate the "plain language" of SORA. But plain language interpretation does not mean that just because two things have the same name they cannot be told apart.

Gillotti also conflates two meanings of the word "presumptive." In everyday speech, presumptive means less than definitive, as in "Dr. Livingston, I presume." As a legal term, a presumption allocates the burden of proof, as in "the presumption of innocence." In SORA hearings, the Board of Examiners of Sex Offenders (BESO) offers what its guidelines call a "presumptively correct" recommendation about the defendant's risk level. The guidelines use the word "presumptively" in the everyday sense of "not definitive."

Gillotti, however, interprets "presumptively correct" as a legal presumption that shifts the burden of proof to the defendant. This is inconsistent with the statute and the court's own precedents. Under SORA it is the state's burden to prove by clear and convincing evidence that the defendant deserves the deprivation of liberty interests entailed in being classified as a high or moderate risk.2 However strong the state's evidence, the burden of proof never shifts.

The effect of Gillotti will be to inflate the number of persons permanently stigmatized as dangerous "sex offenders" who probably present no more risk to public safety than any other ex-offender.

Ohio Supreme Court says juvenile sex offender status can be set before release from detention

7-22-2014 Ohio:

COLUMBUS, Ohio — The Ohio Supreme Court says judges can hold hearings to determine the offender status of juveniles convicted of sex crimes at the time they are found guilty or when they're released from detention.

The court's unanimous decision Tuesday came in a 2011 Clark County case involving a juvenile found delinquent for a rape committed when he was 14 years old.

Lawyers for the boy, who was sentenced to at least one year in detention, challenged the fact he was also classified as a sex offender, saying that determination should be made when he is released.

The appeals court for Clark County ruled against the boy, but the Supreme Court took the case because the appeals court for Canton came to a different conclusion in another case. ..Source.. by TribTown.com

State supreme court rules for woman fighting sex offender status

12-11-2013 Massachusetts:

John DOE, Sex Offender Registry Board No. 205614 v Sex Offender Registry Board. (Must read actual court decision, well worth your time)

The state supreme court has ordered the Sex Offender Registry Board to reconsider whether a woman convicted on federal charges of sex trafficking of a child should be classified as a sex offender.

The woman, a former prostitute whose name was not released, ran an escort service from 2000 to 2002. Three years after she closed down the service, she was arrested on sex charges.

The woman testified that she started the business after serious physical assaults by pimps. She employed four minors, one of them a 14-year-old with an ID showing that she was 19. After she saw the girl's photo on a National Center for Missing and Exploited Children poster and learned her actual age, she had another employee inform the center where to find the girl.

She pleaded guilty to charges in connection with the 14-year-old and served 17 months in jail.

After her release, she was classified as a level 1 offender, the lowest of three categories. The hearing examiner who made that decision acknowledged the low danger posed by the woman and the low probability that she would commit further offenses.

Facebook Rant Against ‘Arial’ Font Helps Reverse Sex Offender Determination

11-29-2013 Massachusetts:

Another day, another workplace problem due to an off-hours Facebook rant. Doe is a convicted sex offender. He fought the Massachusetts Sex Offender Registry Board’s determination that he needed to register as a level 3 sex offender. As part of the normal administrative process, Doe’s case went to hearing examiner Tyson Lynch, who ruled against Doe.

During a 6 month time period around the hearing, Lynch posted remarks to Facebook that included the following (as stated by the opinion):

a. “it’s always awkward when I see one of my pervs in the parking lot after a hearing”;
b. he (the hearing examiner) “likes taking motions under advisement, but gets greater satisfaction denying them”;
c. On November 20, 2008, the day of the plaintiff’s hearing, the following comment was posted during working hours: “it’s always a mistake when people testify, because they get destroyed in cross examination”;
d. On that same day, the day of the plaintiff’s hearing, the hearing examiner also posted the following (apparently with reference to a different sex offender): he (the examiner) “hopes this guy doesn’t show up!!” which was followed up with “Tyson Lynch says yay!! He didn’t show up!”;
e. he “thinks his agency has been the subject of too many news exposes should seek alt career plans?”;
f. he “can’t trust someone who drafts a letter in arial font!”;
g. he “thinks attorneys should know that arial font is not appropriate for motions” followed up with “I might be biased. I think arial is inappropriate for most things”;
h. he “hates silly motions”;
i. he “had to lay some smack down on some crazy attorney!!”;
j. he “is at the longest hearing ever!!!”;
k. The entry above was followed by: he “just sat through a 2.5 hour direct examination! Hearings generally last an hour”;
l. he “is off to jail for the day! Let’s hope he doesn’t get shanked”;
m. The above comment was followed up with “[he] wasn’t stabbed while he was in jail, but with the lax security, I’m surprised it didn’t happen”;
n. “well, they have the convicts cutting down trees, so it might be safer in my car”;
o. “I have a police report written entirely in Spanish!!!”; and
p. he “hates the word ‘lascivious.’

These remarks are damning. The court harshly characterizes them as “unquestionably inappropriate, unprofessional, troubling, and suggestive of a prejudicial predisposition.” The remarks imply Lynch made unwarranted negative presumptions against the people he evaluated (the “pervs” reference), was biased against Spanish speakers, and ruled on the basis of the fonts used in written submissions rather than their legal arguments. (I’m not an Arial fan myself but it’s a respectable font. It would have been more understandable if he had ranted against Comic Sans).

Due to Lynch’s apparent bias, the court vacated the registry board’s ruling against Doe and granted Doe another hearing. That resolution should be just the tip of the iceberg because every other case Lynch heard could be susceptible to similar claims of bias. Not only would any biased rulings by Lynch have potentially ruined people’s lives, but it will take years and enormous amounts of tax dollars to resolve the many likely bias claims from Lynch’s prior cases.

This ruling is quite similar to the Shepherd v. McGee, where a children’s social worker ranted on Facebook in a way that suggested bias in her child placement decisions. No doubt both Lynch and the social worker made ill-advised choices when they ranted about their jobs on Facebook, but I’m not sure Facebook is the “problem.” If, in fact, Lynch really felt the way he did, his beliefs are the real problem and Facebook merely provided a way for other people to discover his beliefs. If instead Lynch was truly joking–edgy humor at best, but perhaps amusing to his intended audience–then he learned the hard way that jokes don’t easily translate online. We probably need to do more education of government workers that it’s best to blow off steam around the water cooler or over beers, not on social media.

Fortunately, it appears Lynch took his own advice in paragraph “e.” This report indicates he took a layoff 2 years ago, and this LinkedIn profile suggests he’s now a real estate agent.

Case citation: Doe v. Sex Offender Registry Bd., 11–P–1700 (Mass. App. Ct. Nov. 21, 2013) ..Source.. by Eric Goldman

Court rules in favor of child rapist in dispute over Facebook posts

11-21-2013 Massachusetts:

Doe v Registry Board

A child rapist has won a new shot to reverse his Level 3 classification after a state appellate court ruled his hearing officer was biased thanks to a string of “troubling” Facebook posts in which he referred to offenders as “pervs,” wrote about taking “satisfaction” in denying motions, and aired his concerns that the Sex Offender Registry Board was featured in “too many news exposes.”

The Sex Offender Registry Board said it has sent “many, if not all” of examiner Tyson Lynch’s classifications decisions during a six-month period back for new hearings, according to a court decision released today that blasted his social media exploits as “unquestionably inappropriate, unprofessional, troubling, and suggestive of a prejudicial predisposition.”



The court sided with the sex offender, who is referred to as John Doe in the case, after he appealed his classification as a Level III sex offender, which is considered the most likely to reoffend. He was convicted in 1997 of two counts each of rape of a child, indecent assault and battery of a child under 14 and incest after raping his then preteen daughter over the course of several months, according to the court decision.

In appealing his classification, he said that Lynch showed “bias” against him, an argument the court upheld after browsing Lynch’s busy Facebook account.

Among Lynch’s posts:

• “It’s always awkward when I see one of my pervs in the parking lot after a hearing”

• “had to lay some smack down on some crazy attorney!!”

• “off to jail for the day! Let’s hope he doesn’t get shanked”

• “can’t trust someone who drafts a letter in arial (sic) font!”

Lynch also said he “likes taking motions under advisement, but gets greater satisfaction denying them” and said he “thinks his agency has been the subject of too many news exposes.”

He mused: “should seek alt career plans?”

“We have significant doubt whether the plaintiff received a hearing conducted by a fair, unbiased, and impartial hearing examiner,” the justices wrote in their decision.

The decision did not detail how many cases were returned for a new hearing, either by a court order or agreement of the board.

Lynch was no longer employed at the board when the three-justice panel heard the case, according to the decision, though it did not specify the circumstances under which he left the job.

A message left with a spokesman for the Sex Offender Registry Board was not immediately returned this morning. ..Source.. by Matt Stout

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John DOE, Sex Offender Registry Board No. 29481 vs. SEX OFFENDER REGISTRY BOARD. No. 11-P-1700.
Suffolk. September 12, 2013. - November 21, 2013.
Sex Offender. Sex Offender Registration and Community Notification Act. Administrative Law, Hearing. Evidence, Bias. Due Process of Law, Administrative hearing. Constitutional Law, Impartial tribunal.

CIVIL ACTION commenced in the Superior Court Department on January 22, 2009.

The case was heard by Frank M. Gaziano, J., on a motion for judgment on the pleadings, and a motion to vacate the denial of the motion for judgment on the pleadings was heard by Peter M. Lauriat, J.

Xiomara M. Hernandez for the plaintiff.
Thomas M. Doyle for the defendant.

Burk v DOC -and- Cerniglia v DOC

10-1-2013 Oklahoma:

Based on the Starkey decision 6-25-13 (OK Sup Ct) which held:

¶ 81 We agree with the result of the trial court's Order which found the level assignments were not to be retroactively applied and Starkey is only required to register for 10 years.

Two more cases on 10-1-2013 will be granted similar relief, reach having slightly different dates, they are:

Burk v State

Cerniglia v State

Effectively these holding prevent retroactive reclassification of certain offenders. It might be time for OK registrants to have lawyers check, their cases, to see if there is any relief for them.

Nevada Supreme Court upholds classification and registration of juvenile sex offenders

7-26-2013 Nevada:

State v the Eighth Judicial District Court of the State of Nevada

The Nevada Supreme Court, in a split decision, has upheld the constitutionality of a law that requires certain juvenile sex offenders to register with law enforcement and for the registration information to be shared with community groups.

The majority 48-page opinion written by Justice Michael Douglas overturned the ruling of Clark County Juvenile District Judge William Voy, who said the 2007 law was invalid because it did not bear any relationship to public safety or rehabilitation of the juveniles.

Both the four justices in the majority and the three in the minority said Thursday the law probably is not effective in preventing crime and was passed only to get federal money.

Douglas wrote that he, like the juvenile judge, is concerned about the wisdom of the law but that the court is bound to follow it and that, in this case, it “easily passes rational basic review.”

The law defines a sex offender as one who, after July 2006, was judged a delinquent for sexual assault, battery with intent to commit sexual assault, lewdness with a child, or an attempt or conspiracy to commit any of these offenses as long as the offender was 14 years or older at the time of the act.

Prior to the passage of the law, juvenile judges had the authority to decide whether the delinquent should be required to register and if there should be limited community notification.

The majority rejected the argument that the law was punitive and said it was passed to protect the public. The justices denied the claims that children declared delinquent prior to the law could also be forced to register.

While declaring the law constitutional, Douglas wrote, “Of upmost concern, it does not appear from the legislative history that the Nevada Legislature ever considered the impact of the bill on juveniles.”

He said the motivation of the Legislature appeared to be loss of federal money.

The Clark County Public Defender’s Office and the ACLU — which backed the decision of the juvenile judge to invalidate the law — said juveniles are subject to registration for 25 years to life.

Douglas said Nevada has a long tradition of public protection and this law does not conflict with the juvenile justice system.

Justice Michael Cherry, who wrote the seven-page dissenting opinion, said this 2007 law was unconstitutional because it applied to juveniles declared sex offenders before the law was passed. He called the law “akin to the historical punishments of branding and shaming.”

Cherry objected to the wider disclosure of the information to community groups. He wrote that even juveniles who have successfully completed treatment and have been certified as low risks are subject to the registration and community notification.

Cherry, joined by Justices James Hardesty and Nancy Saitta in the dissent, said the Legislature should reconsider this law. Joining Douglas in the majority were Chief Justice Kristina Pickering and Justices Mark Gibbons and Ron Parraguirre. ..Source.. by Cy Ryan

Starkey v Oklahoma DOC

This case can be presented in any court of any state as persuasive authority. Underlying facts would have to be spot on or similar enough to persuade a court to a favorable ruling.

6-25-2013 Oklahoma:

Starkey v Oklahoma DOC

¶ 1 This matter was assigned to this office on February 6, 2013. According to the Record, Plaintiff/Appellee James M. Starkey, Sr., (hereinafter, "Starkey") pled nolo contendere and received a deferred adjudication on October 12, 1998, to a charge of sexual assault upon a minor child in the District Court of Calhoun County, Texas. The act occurred on January 15, 1997, and the age of the victim(s) was 15 years old.1 Under Texas law the act amounted to a second degree felony.2

The Oklahoma Department of Corrections and Justin Jones as Director (hereinafter, "Department") point out in Defendants Oklahoma Department of Corrections And Justin Jones Combined Response To Plaintiff's Motion For Summary Judgment And Motion For Summary Judgment (hereinafter, "response and motion for summary judgment") the equivalent crime of sexual assault under Oklahoma law is found in § 1123 of Title 21 of the Oklahoma Statutes; Lewd or Indecent Proposals or Acts to child Under 16. The deferred adjudication provided as follows:

ADJUDICATION DEFERRED PLACED ON COMMUNITY SUPERVISION FOR TEN (10) YEARS, $4,000.00 FINE, COURT COSTS, 320 CSR HOURS, 60 DAYS IN THE CALHOUN CO JAIL, RESTITUTION, DEFENDANT WAIVES HIS RIGHT TO APPEAL, SEX OFFENDER RULES.

In paragraph (27) of the document entitled "Additional Conditions of Community Supervision" he was required to register under Article 6252-13c.1 of the Texas Sex Offender Registration Program.3

... ... ...

¶ 51 Some additional legal obligations are predicated on SORA registration. One in particular pertains to a sex offender's driver's license or identification card. A person registered under SORA must renew their driver's license or issued identification card every year as opposed to non-registrants who renew every four years.67 Therefore registrants are required to pay four times the amount of a non-registrant.

¶ 57 Currently, SORA provides dissemination of substantial personal information about a sex offender not otherwise readily available from a single governmental source. We do not make any determination of the constitutionality of any of the individual registration requirements but have reviewed the requirements in their totality to address the cumulative effect on the issue of the first Mendoza-Martinez factor and the punitive effect of the act in its totality. We find SORA's registration and notification provisions impose substantial disabilities on registrants. Therefore, we find the first Mendoza-Martinez factor clearly favors a punitive effect.

CONCLUSION

¶ 80 The trial court's Order found the provisions of SORA were not to be retroactively applied. The trial court held the Oklahoma Department of Corrections was to apply the version of SORA in existence at the time Starkey pled nolo contendere to the charge of sexual assault on October 12, 1998, in Texas. Under the trial court's Order, Starkey would only be required to register for the original ten-year period which he had already completed.

¶ 81 We agree with the result of the trial court's Order which found the level assignments were not to be retroactively applied and Starkey is only required to register for 10 years. We find the legislature necessarily implied the provisions of 57 O.S., § 583 as amended in 2004 were to be applied retroactively. Further, we find this retroactive extension of Starkey's registration period from 10 years to 10 years from the date of completion of the sentence violates the ex post facto clause of the Oklahoma Constitution.104 We also find the Department's retroactive application of the level assignment provisions of 57 O.S. Supp. 2007, §§ 582.1-582.5, as amended, violates the ex post facto clause. These level assignments are only to be applied prospectively. We need not address Starkey's due process violation claims because our holding that the level assignments do not apply retroactively is dispositive.

¶ 82 We disagree, however, with the trial court's finding that the date when Starkey pled nolo contendere in Calhoun County Texas, October 12, 1998, is the correct date to determine what Oklahoma law is applicable to him. The Order only indicates he has resided in Oklahoma since 1998. The correct date to apply is when Starkey became subject to SORA registration by entering and intending to be in Oklahoma after his conviction.105 Starkey voluntarily came to Oklahoma and therefore voluntarily subjected himself to SORA after his conviction. Following his conviction, the exact date he entered Oklahoma with the intent to "be in the state" for the requisite period is relevant in determining what version of SORA is applicable. The requirements of the registry to which he must comply would be established upon his entry and intent "to be in" Oklahoma. However in Starkey's case, the applicable provisions of both versions of 57 O.S., § 582 effective during 1998 were the same and the applicable provisions of 57 O.S. Supp. 1997, § 583 were not amended in 1998. Therefore, the exact date when Starkey entered Oklahoma in 1998 does not matter for our analysis. We find the trial court's order is affirmed as modified to apply the date of Starkey's entry with the intent to be in this State following his conviction rather than the actual date of conviction in Texas as the critical point to determine which provisions of SORA would apply to him.

¶ 83 We point out that this decision does not address the requirements of the federal Sex Offender Registration and Notification Act, 42 U.S.C. § 16901 et seq. (SORNA).

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Oklahoma Supreme Court finds state's new sex offender registration requirements punitive and thus limited by ex post facto doctrine

6-28-2013 Oklahoma:

From Sentencing Law and Policy:

As reported in this local article, headlined "Attorney says up to 3,000 registered Oklahoma sex offenders could benefit from ruling," the top court in Oklahoma handed down a major ruling this week limiting the reach of the state's sex offender registration law. Here are the basics:

[T]he court ruling said Corrections Department officials have been violating the Oklahoma Constitution by retroactively applying state sex offender laws, thereby dramatically increasing the time many convicted sex offenders must remain listed on the registry.

Rejoicing in Tuesday's ruling was convicted sex offender Brad Crawford, 58, of Oklahoma City. “It means a lot to me. It gives me freedom. It takes a monkey off my back,” said Crawford, who was convicted in 1998 in Canadian County on a charge of lewd or indecent proposals/acts to a child. “I'm tired of dealing with them and their harassment.”

Crawford lamented that being listed on the registry limits offenders from living where they want and watching their grandkids' baseball games. Registered sex offenders are not allowed to live close to schools, playgrounds or licensed child care centers....

Crawford's crime was peeking over the top of a tanning booth. He said Crawford thought he was sneaking a peek at a woman, which might have brought misdemeanor peeping Tom charges. The “woman” turned out to be a 15-year-old girl who was a day shy of her 16th birthday, so Crawford was convicted of the more severe felony charge of lewd acts with a child....

Crawford originally received a five-year suspended sentence, except for 30 days in the Canadian County jail. He also was placed on the sex offender registry for 10 years....

However, before the 10 years was over, the Oklahoma Legislature passed new laws in 2007 that created a three-tiered risk level assessment system. The law required convicted sex offenders to be placed on the sex offender registry for 15 years, 25 years, or life, depending on their assessment levels....

Jerry Massie, spokesman for the Corrections Department, said department officials are discussing the Court's ruling and expect to post something on the agency's website within the next day or two, explaining how the department will comply with the decision. Preliminary discussions have centered on department officials reviewing the registry and removing the names of sex offenders who appear to qualify under the court's ruling.

Massie said no time frame has been established for such a review, but it “might take a month or so.” At the end of the process, sex offenders who believe they were wrongfully kept on the registry could ask to have their cases reviewed, he said.

The full Oklahoma Supreme Court ruling is available at this link, and here are a few paragraphs from its closing sections:

Here we are not balancing the rights of sex offenders against the rights of their victims. We are making a determination as to whether the means chosen to protect the public have exceeded the state's valid interest in public safety and infringed on the Oklahoma constitutional prohibition against ex post facto laws.

Out of the seven Mendoza-Martinez factors we have reviewed herein, five favor a punitive effect. It is not the number that is important but the weight of these factors that leads us to our conclusion. SORA's obligations have become increasingly broad and onerous. We find there is clear proof that the effect of the retroactive application of SORA's registration is punitive and outweighs its non-punitive purpose. The retroactive extension of SORA's registration is inconsistent with the ex post facto clause in the Oklahoma Constitution.

This is not to say that Oklahoma's Sex Offender Registration Act (SORA) is unconstitutional on its face. A sex offender registry is a valid tool for the state to use for public safety. The State may impose registration duties and may publish registration information as part of its punishment of this category of defendants. The Oklahoma Constitution prohibits the addition of sanctions imposed on those who were already convicted before the legislation increasing sanctions and requirements of registration were enacted.

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State v Brandon

4-29-2013 Ohio:

State v Brandon
2013-Ohio-1740

This appeal emanates from the judgment on sentence entered by the Portage County Court of Common Pleas. Appellant, Dale Brandon, challenges the trial court's failure to award him jail time credit for time spent in jail awaiting extradition as well as the trial court's decision to classify him pursuant to Senate Bill 10's sexual offender classification scheme. For the reasons that follow, we reverse the trial court and remand the matter for further proceedings.

{¶2} On August 2, 2007, appellant was indicted on one count of gross sexual imposition, a felony of the third degree, in violation of R.C. 2907.05(A)(4) and (B); and one count of attempted rape, a felony of the second degree, in violation of R.C. 2907.02(A)(1)(b) and R.C. 2923.02, with a subsequent attempted child rape specification. Appellant entered an oral and written plea of guilty to the charge of gross sexual imposition, which the trial court accepted. The court nolled the remaining count, including the specification.

{¶3} Appellant, through defense counsel, filed a motion to vacate his guilty plea, and a hearing was scheduled for January 7, 2009. On that date, counsel for the state and counsel for appellant appeared; appellant, however, was absent. It does not appear the hearing went forward, but a warrant was issued for appellant's arrest. He was later apprehended in Las Vegas, Nevada, where he was held pending extradition.

{¶4} Prior to being extradited, appellant filed a pro se motion to withdraw his guilty plea. A hearing was scheduled for August 24, 2009. The court's docket indicates a failure of service on appellant for this hearing, and moreover, it does not appear he was even present in Ohio on August 24, 2009. Nevertheless, the trial court overruled appellant's pro se motion on August 26, 2009. Despite this ruling, the trial court issued another notice that a "motion to vacate" hearing would take place on August 31, 2009. After being extradited, appellant appeared with counsel on that date. Rather than conduct a hearing on appellant's motion, however, the trial court indicated it had previously overruled appellant's pro se motion and proceeded to sentencing. Appellant appealed the judgment, and in State v. Brandon, 11th Dist. No. 2009-P-0071, 2010-Ohio-6251, this court reversed the judgment and remanded the matter for the trial court to conduct a proper hearing on appellant's motion to vacate. Id. at ¶19-22.

{¶5} On remand, the trial court conducted a hearing on appellant's motion to vacate and, on February 17, 2011, granted the motion. Appellant subsequently entered an Alford Plea to one count of felony-three gross sexual imposition. Appellant also pled guilty to one count of felony-four failure to appear. The trial court sentenced appellant to four years for gross sexual imposition and 18 months for failing to appear and ordered the terms to be served concurrently. The trial court further ordered appellant be classified as a Tier II sexual offender, pursuant to Senate Bill 10. This appeal followed.

... ... ...

{¶18} In the case sub judice, the sexual offense to which appellant pled guilty occurred on July 29, 2007. Because appellant committed his offense before Senate Bill 10's effective date of January 1, 2009, the trial court erred in applying Senate Bill 10 to him.

{¶19} Appellant's second assignment of error is therefore sustained.

{¶20} For the reasons discussed in this opinion, appellant's assignments of error are well taken. We therefore reverse the judgment of the Portage County Court of Common Pleas and remand this matter to the trial court for proceedings consistent with this opinion.

State v Clair

4-24-2009 Ohio:

State v Clair
2013-Ohio-1630

{¶ 1} Appellant Zachary Clair ("Clair"), appeals a decision of the Alliance Municipal Court, Stark County, Ohio classifying him as a Tier I sex offender after a no contest plea.

Facts and Procedural History

{¶ 2} In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528(2001), the Supreme Court noted, "a reviewing court cannot add matter to the record before it that was not a part of the trial court's proceedings, and then decide the appeal on the basis of the new matter. See, State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500(1978)." It is also a longstanding rule "that the record cannot be enlarged by factual assertions in the brief." Dissolution of Doty v. Doty, 4th Dist.No. 411, 1980 WL 350992 (Feb. 28, 1980), citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d 227(1963). New material and factual assertions contained in any brief in this court may not be considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858 N.E.2d 386, ¶7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d 1202, ¶16. Therefore, we have disregarded facts in both parties' brief that are outside of the record.

... ... ...

{¶ 28} For the foregoing reasons, the portion of the trial court's decision classifying Clair as a Tier I sex offender is reversed, and this matter is remanded for proceedings in accordance with our opinion and the law.

JUDGEMENT ENTRY

For the reasons stated in our accompanying Memorandum-Opinion, the portion of the trial court's decision classifying Clair as a Tier I sex offender is reversed, and this matter is remanded for proceedings in accordance with our opinion and the law. Costs to appellee.

Gautier v Jones

Personally I feel the better way to attack is to show how the state's scheme places the registrant, in a false light before the public eye (certain info -for certain registrants- on registries is protected by federal privacy laws), an actionable tort, and seek millions of dollars damages. Can you imagine if over 700,000 registrants clogged courts with such claims?

2-2-2010 Oklahoma:

Gautier v Jones
No. 09-6123.

Justin Jones, the Director of the Oklahoma Department of Corrections, appeals from the district court's summary-judgment ruling that Oklahoma's Sex Offenders Registration Act (OSORA) violates Leland J. Gautier's procedural-due-process rights and may not be enforced unless there is a hearing regarding his current dangerousness. We have jurisdiction under 28 U.S.C. §1291, and we reverse.

... ... ...

In other words, a convicted sex offender who challenges a registration requirement on the ground that he was not given a hearing to determine whether he is currently dangerous, must at least show that current dangerousness is relevant to the registration requirement. See id. (holding that Connecticut's Megan's Law did not violate procedural due process because "the law's [registration] requirements turn on an offender's conviction alone—a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest").

Here, the OSORA directed the development and use of a three-level screening tool that assigned a "minimum numeric risk level" based on the offense of conviction. 2 Okla. Sess. Laws 2007, ch. 261, § 26 (codified at 57 Okla. Stat. Ann. § 582.5(C) (Supp. 2009)) (emphasis added) (amended 2009).

The tool that was ultimately developed and used in Gautier's case identified his crime as an offense warranting the highest risk level, three. Thus, Gautier's conviction alone was sufficient to place him in the highest level, without regard to any extraneous circumstances bearing on his proclivity to re-offend.

Consequently, even if Gautier could prove he is not currently dangerous, it would not change his risk level, which, at a minimum, is level three. "[D]ue process does not require the opportunity to prove a fact that is not material to the State's statutory scheme." Conn. Dep't of Public Safety, 538 U.S. at 4.3

Note: Here I feel the court has erred, "dangerousness" is material to the state's scheme, as that is exactly what the state wants the public to know, how dangerous is this registrant. But as folks can see the court dances around that issue.

CONCLUSION
The judgment of the district court, to the extent of its procedural-due-process ruling, is REVERSED.4

State v Dunlap

8-23-2011 Ohio:

State v. Dunlap [ Dunlap ](Odd case w/other issues)

Sex-Offender Classification (issue only)
{¶ 4} Dunlap had been indicted on July 26, 2007, on the charges upon which he eventually was convicted. He was sentenced under S.B. 10 on March 4, 2008. Dunlap argues that the application of S.B. 10 to offenders whose crimes occurred before its effective date of January 1, 2008, violates the Ex Post Facto Clause of the United States Constitution and the Retroactivity Clause of the Ohio Constitution.

{¶ 5} In regard to Dunlap's sex-offender classification, this case was originally held for a decision in State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753. However, having determined that this court's decision in Bodyke did not resolve the classification issue in Dunlap's case, we subsequently held this case for a decision in State v. Williams, ___ Ohio St.3d ___, 2011-Ohio-3374, ___ N.E.2d ___. In our recent decision in Williams, we held that S.B. 10, "as applied to defendants who committed sex offenses prior to its enactment, violates Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly from passing retroactive laws." Id. at syllabus.

{¶ 6} We therefore reverse that portion of the court of appeals' judgment that upheld the application of S.B. 10 to Dunlap and remand this case to the trial court for an application of Williams.

State v Bodyke

6-3-2010 Ohio:

State v. Bodyke

State v Bodyke: 1. The power to review and affirm, modify, or reverse other courts’ judgments is strictly limited to appellate courts. (Section 3(B)(2), Article IV, Ohio Constitution, applied.) ***

2. R.C. 2950.031 and 2950.032, which require the attorney general to reclassify sex offenders who have already been classified by court order under former law, impermissibly instruct the executive branch to review past decisions of the judicial branch and thereby violate the separation-of-powers doctrine. ***

3. R.C. 2950.031 and 2950.032, which require the attorney general to reclassify sex offenders whose classifications have already been adjudicated by a court and made the subject of a final order, violate the separation-of-powers doctrine by requiring the opening of final judgments. Article: Ohio Supreme Court: ‘Adam Walsh’ Provision Requiring Attorney General to Reclassify Sex Offenders Violates Separation of Powers

State v Williams

7-13-2011 Ohio:

State v. Williams
129 Ohio St.3d 344 (2011)

S.B. No. 10, as applied to defendants who committed sex offenses prior to its enactment, violates Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly from passing retroactive laws.

Article: Court: Law applied to convicted sex offenders violates constitution

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PDF Here
Attorney Information: Senate Bill 10

Ohio -v- Santiago

8-11-2011 Ohio:

Ohio -v- Santiago [ Williams ]

Defendant-appellant Wilson Santiago (“defendant”) appeals the trial court’sclassifying him as a Tier III sex offender under Ohio’s Adam Walsh Child Protection and Safety Act of 2006 (“ the AWA”), arguing that the retroactive application of this law is unconstitutional. After reviewing the facts of the case and pertinent law, we reverse. (Most unusual, even someone in prison for life, is entitled to reversal on classification level)