By J. Adam Engel
Appeal to Watch on the Sexual Offender Registration Issue: State v. Howard. The docket and all briefs are available on the Supreme Court web page. The case was reported below at 195 Ohio App.3d 802, 2011-Ohio-5693 (PDF).
This issue in this case involves the sex offender notification statute. The defendant was convicted for failure to notify, in violation of R.C. 2950.05(A) and (F)(1). In September 2000, the defendant had been convicted of rape and designated a habitual sex offender. Pursuant to the Adam Walsh act, the defendant was reclassified a Tier III sex offender.
In 2010, the defendant was charged with failure to notify, a felony of the first degree, for failing to provide notice of his change of residence address to the sheriff.
As a result of later Ohio Supreme Court decisions, the defendant’s reclassification as a Tier III sex offender was rescinded and his original classification as a habitual sex offender and the community-notification and registration orders attending that classification were reinstated.
The issue deals with the penalty. When the original classification and registration requirements are applied, the conviction for failure to notify is a felony of the fifth degree. The Adam Walsh Act changed the penalty to a Felony of the First Degree. The court of appeals held that the trial court erred when it convicted the defendant of a first-degree felony instead of finding him guilty of a fifth degree felony.
In its brief, the state argues that “A violation of the registration requirements is a new, separate offense. And the newincreased penalties in R.C. 2950.99 are not being retroactively applied when the offender’s criminal conduct occurs after the effective date of the statute.”
In response, the defendant argues “Under the former R.C. 2950.99 that was in effect when [the defendant’s] duty to notify of a change in residence address first arose in September, 2000, a failure to comply with this dutywould result in a fifth degree felony. R.C. 2950.99, as amended in 2007, increased the penalty for a failure to notify from a fifth degree felony to a first degree felony, creating a new liability.”