The Ohio Supreme Court will consider whether, after a court makes a sentencing entry in a criminal case involving a sexually oriented offense, the court can later require the defendant register as a sex offender under the Adam Walsh Act.
The case is State v.Raber. Argument is scheduled for Tuesday, August 21, 2012.
The defendant pleaded guilty to a single count of sexual imposition, a third-degree misdemeanor. The court sentenced him to sixty days in jail, thirty of which were suspended, and placed him on probation for two years.
According to the Court of Appeals (PDF), “At the sentencing hearing, the [trial] court expressed uncertainty about whether [the defendant] would be required to register as a sex offender. With the agreement of the parties, the court took the matter under advisement so that counsel could have the opportunity to brief issues related to sex offender classification. The court later determined that . . . [the defendant] would be required to register as a sex offender only if the conduct underlying [the defendant’s] conviction was non-consensual."
The court held an evidentiary hearing at which it determined that the conduct was not consensual. The trial court ordered the defendant to register as a sex offender.
The Defendant argued to the court of appeals that the trial court did not have jurisdiction to determine whether he was a sex offender because it no longer had jurisdiction over the case after entering a final judgment of conviction and sentence. This argument is based, in part, upon the language of the Ohio Adam Walsh Act, which requires the “judge [to] provide the notice to the offender at the time of sentencing.”
The court of appeals rejected this argument. The court reasoned that the determination that a defendant is a sex offender “constitutes a separate and distinct judgment from the judgment of conviction and sentence.”
The state argued in its brief, in part, that the process of having a later hearing on the sex offender registration issue was done with the consent of the defendant. The brief states:
Putting off the registration question but imposing the jail sentence greatly benefited [the defendant] because it allowed him to serve his jail time in between his college semesters. Yet despite his agreement to and his benefit from this bifurcated process, [the defendant] now complains that he was treated unfairly. The Court should not condone such mischief.
The defendant responds that the state had an opportunity to appeal the decision of the trial court to not impose sex offender registration requirements at the time of sentencing. The defendant also suggests that because sex offender registration is “punitive” the procedure in this case “violated the [defendant’s] constitutional rights of Due Process and Double Jeopardy under the 5`h Amendment of the United States Constitution” by reopening “the case long after final judgment” and holding “further hearings.” This is, the defendant, because the constitution forbids a court, “Once divested of jurisdiction,” from adding “further punishment [to] a defendant’s original sentence, even if the omission was accidental or otherwise.”
A decision is expect in early 2013.