Wednesday, January 19, 2011
OH - Is Imposing 'Adam Walsh Act' Penalty on Sex Offender Classified Under Prior Law Unconstitutional?
For Failure to Report Change of Address After 2008 Legislation Took Effect
State of Ohio v. Ronald Gingell, Case no. 2010-0047
1st District Court of Appeals (Hamilton County)
ISSUE: Pursuant to the Supreme Court of Ohio’s recent decision in State v. Bodyke, if failure of a sex offender to register his current address was punishable as a fifth-degree felony at the time a court imposed the duty to register, and the offender subsequently failed to report an address change after the Jan. 1, 2008 effective date of the Ohio Adam Walsh Act (AWA), is it a violation of the Ohio Constitution’s prohibition against retroactive laws for a court to punish that registration violation as a first-degree felony based on the increased penalty schedule established by the AWA?
BACKGROUND: Ronald Gingell was convicted of rape in 1981 and served 25 years in prison for that offense. In 2003, following enactment of Megan’s Law requiring the classification and post-release registration of sex offenders, a court hearing was conducted at which Gingell was classified as a “sexually-oriented offender” and ordered to register and maintain a current record of his residence with the local sheriff for 10 years after his release from prison. At that hearing, Gingell was advised that a violation of his post-release registration requirements would be punishable as a fifth-degree felony, which would expose him to a prison term of up to one year.
Gingell was released from prison in 2006, and registered with the Hamilton County sheriff’s office as required in 2006 and 2007. In 2007 the General Assembly enacted the AWA, which took effect Jan. 1, 2008. The act made significant changes in the Meagan’s Law sex offender classification and registration scheme under which Gingell was classified. Among those changes, the Act increased a violation of post-release registration requirements based on a rape conviction from a fifth-degree to a first-degree felony, an offense punishable by a prison term of up to 10 years.
In May 2008, Gingell moved and failed to notify the sheriff of his new address within the mandatory time period for doing so. In July 2008 he was charged and found guilty under the AWA version of the sex offender statute on a first-degree felony count of failure to comply with a registration requirement based on a rape conviction. Following the sentencing guidelines for first degree felonies, the trial court sentenced Gingell to an additional eight years in prison and five years of post-release control.
Despite the fact that he had entered a guilty plea to the registration violation charge, Gingell subsequently appealed his sentence. He argued that by sentencing him under the enhanced penalty provisions of the AWA that took effect in 2008, rather than the penalty provisions that were in place at the time of his 2003 classification hearing, the trial court had violated the prohibition in the Ohio Constitution against retroactive laws. The 1st District Court of Appeals affirmed the sentence imposed by the trial court. Gingell sought and was granted Supreme Court review of the 1st District’s decision.
Attorneys for Gingell point to the Supreme Court of Ohio’s June 2010 decision in State v. Bodyke, in which the Court held unconstitutional provisions of the Adam Walsh Act that authorized the attorney general to reclassify and impose more restrictive registration requirements against sex offenders who had been classified by court order under Ohio’s pre-2008 Meagan’s Law classification scheme. In this case, just as in Bodyke, they argue, the AWA was applied retroactively to impose a more severe penalty against Gingell despite the fact that a trial court had entered a final order under the pre-AWA sex offender statute placing him in a classification, imposing specific registration requirements, and stating that any future violation of those requirements would be punishable as a fifth-degree felony.
Gingell also argues that the provisions of the AWA increasing penalties for registration violations do not include language clearly indicating legislative intent that the enhanced penalties be applied retroactively to offenders whose registration requirements were imposed prior to Jan. 1, 2008, and cites prior Supreme Court decisions holding that legislative enactments not containing such language may be applied only prospectively.
Attorneys for the Hamilton County prosecutor’s office, representing the state, urge the Court to affirm the 1st District’s holding that the sentence imposed on Gingell did not apply the AWA retroactively, because Gingell’s registration violation took place in May 2008, several months after the effective date of the AWA and its increased penalty provisions, and therefore his sentence for a first degree felony was consistent with the law that was in effect on the date his registration offense was committed. They cite decisions in similar cases in which the 3rd, 5th, and 10th District courts of appeals have held that a sex offender who violates his duty to maintain current registration is subject to sentencing based not on the penalty provisions in effect at the time of his classification hearing, but rather on the penalty provisions that were in effect at the time the registration offense was committed.
Paula Adams, 513.946.3228, for the state and Hamilton County prosecutor's office.
Marguerite Slagle, 513.421.1108, for Ronald Gingell.
By JONATHAN SHUGARTS
Roughly 10 percent of convicted rapists and child molesters in Connecticut are failing to comply with state requirements ordering them to update authorities with their current locations, according to a review of the state's sex offender registry.
In some cases, that means the whereabouts of sex offenders are unknown to authorities who are responsible for keeping tabs on them. In other cases, sex offenders are homeless, living in tents or in public shelters.
Under state law, sex offenders are required to notify authorities of their current address, and must alert authorities when they intend to move out of state. When they don't meet those requirements, they're considered to be non-compliant.
In Waterbury 274 offenders reside in the city and 30 of those haven't updated their addresses with police, didn't pose for a current photo or, in one case, didn't register at all, according to the Department of Public Safety.
Once again, a life ruined for 15 years over accusations alone!
By JESSICA COOLEY
[name withheld] turned down probation in 1993; alleged victim and aunt now say incident didn’t happen
Editor’s note: This is the first of three stories on the case of [name withheld], a Hudson man who says he is innocent of the sexual assault of a child charge that caused him to spend 15 years in prison.
The conviction that sent [name withheld] to prison for 15 years could be overturned due to an Angelina County judge’s recommendation in the case.
State District Judge Barry Bryan on Monday recommended that the sexual assault of a child conviction against [name withheld], 43, be reviewed by the Texas Court of Criminal Appeals.
Two years after [name withheld]’s October 2008 prison release, his alleged victim, now 23, came forward and signed an affidavit indicating that [name withheld] is an innocent man.
“My memories of that time are vague, however, I do not have any memory of [name withheld] molesting me or touching me inappropriately,” the victim’s statement read. “I do remember my mother telling me to say Mr. [name withheld] touched me. I was very scared and told my mother what she wanted to hear so that I would not get a beating. I remember arguing with my mother about this and I remember my mother threatening me.”
On May 13, 1993, [name withheld] was found guilty by an Angelina County judge of molesting the boy, who was 7 at the time, in a non-jury trial that took less than three hours, according to a court document. [name withheld] could have spared himself prison time by pleading guilty and accepting a plea bargain for 10 years probation but, maintaining his innocence, he refused.
“My attorney kept trying to get me to take something called a plea bargain. It was for 10 years probation but I had to say I did it,” [name withheld] said. “I kept saying, ‘Why would I take this? I didn’t do this.’ So, I got up on the witness stand and told them I took a polygraph and I passed it. The judge didn’t want to hear none of that.”
Five months later the same judge sentenced [name withheld] to 15 years in prison. Angelina County Prosecutor Art Bauereiss, who handled the recent motions in [name withheld]’s case, said the judge must have felt the evidence proved [name withheld] was guilty of the crime beyond a reasonable doubt.
At the same time the alleged victim came forward with the new information, his aunt also came forward signing an affidavit stating she saw her sister beat the boy into making an accusation against [name withheld].
“(She) picked up (the boy) and placed him on the table with his legs hanging over the edge. He was wearing shorts,” the aunt’s statement read. “(She) repeatedly said to (the boy) ‘Tony messed with you, didn’t he?’ (The boy) kept answering no. Every time he would say no, she would slap him on his bare legs, making him cry harder. Eventually (he) answered yes and she stopped slapping him. She would not stop slapping him until he answered yes.”
The alleged victim’s mother in an affidavit last year maintained her belief in [name withheld]’s guilt, denying she beat her son into making the accusation.
“I vehemently deny that I ever did anything physically or emotionally to (my son) to cause him to make up allegations against [name withheld] or testify falsely against [name withheld],” the woman’s statement read. “I stand by my prior testimony at trial that my son outcried to me about [name withheld]’s sexual abuse against him. I was not responsible for sending an innocent man to prison.”
- So if you believe he did it, why are you saying he's "innocent?"
While in prison, [name withheld] went before the Texas Board of Pardon and Parole every other year, maintaining his innocence, according to his current attorney, Jeff Bates. He served every day of his 15-year sentence.
“Every time the parole board asked me if I felt remorse for what I did, all I could say was no,” [name withheld] recalled with a faraway look in his eyes. “How could I feel remorse for something I didn’t do?”
In the alleged victim’s statement, he went on to say he hopes the conviction against [name withheld] will be overturned.
“I know nothing can give Mr. [name withheld] back the years that he lost in prison,” the statement read, “but I want to do what I can to help him have a life now.”
A former police inspector from Ammanford is in jail after downloading almost 2,000 horrific child pornography images.
Richard Wayne Harris, aged 63, had been due to be sentenced at Swansea Crown Court on Thursday for 16 offences of making and possessing indecent images of children.
But the night before he was to be sentenced, Harris was re-arrested after police discovered more indecent images on a new computer not found during their initial search.
Appearing before Llanelli magistrates, Harris admitted five additional offences relating to 60 images.
Retired Gwent officer Harris appeared on Monday before Judge Peter Heywood at Swansea, where he was remanded in custody.
At a hearing in Ammanford last month, Harris admitted making and possessing 1,877 pornographic pictures of children as young as four.
Dennis Davies, prosecuting, told magistrates in Llanelli that officers visited Harris' home in December and found a new computer.
On the laptop were 60 indecent images, including pictures of eight-month old children.
Peter Jones, representing Harris, said the 60 images had been downloaded during the original offence but had not been found by police.
Harris, he said, obtained a new computer and viewed the contents of an old CD and hard drive.
He deleted the images, but experts were able to find the pictures on the computer.
"He intended only to check what was on them and dispose of them," added Mr Jones. "He has not committed these offences while on bail, they were discovered while he was on bail."
Harris will now be sentenced for all offences on January 28.
By Leanna MacLarty
A Sheriff has criticised a teenager who falsely accused a man of rape for undermining measures designed to protect victims of sexual abuse.
Louise Creighton was sentenced to community service at Aberdeen Sheriff Court yesterday after she admitted making a false allegation against a man with whom she had slept.
- Community service? That is all? The person she accused could have been sent to prison for many years.
The 18-year-old was at university “trying to find herself” and made the claim because she felt guilty for sleeping with the man because she had a girlfriend, the court heard.
Sheriff Annella Cowan said: “This kind of behaviour undermines the whole system which attempts to protect women who are genuine victims."
“The amount of time and energy that was spent investigating a completely false allegation was quite considerable.”
Fiscal depute Karen Dow said “numerous” police officers, including a forensic unit, were involved in the investigation, which “wasted” a total of 70 man-hours.
Creighton had met the man at a music festival and invited him to a party at her flat in the city’s Mealmarket Exchange student accommodation when he went to Aberdeen on October 1 last year, the court heard.
The pair slept together but she began to cry immediately afterwards, told him to leave and told friends she had been raped, Miss Dow said.
Police launched an investigation and it was two days later, while she was being interviewed, that Creighton confessed she had lied.
She told officers that she had a girlfriend and “did not feel comfortable” that she had slept with the man.
Defence agent Mike Allan said Creighton had been “staying in the country” at St Fergus before going to Aberdeen to study photography at university.
“She was really trying to find herself and find out exactly where she was and her identity as far as sex was concerned,” he said.
“She knew immediately she made the allegation that it was a very, very serious mistake.”
He said the incident had “ruined her life so far” and Creighton, listed in court papers as living at 505 Mealmarket Exchange, had left the university course without graduating.
The sheriff said: “The allegation you made was extremely serious.”
She sentenced Creighton to 180 hours of community service as a direct alternative to jail.
By Julie Bykowicz
Expanded registry does not go far enough for Adam Walsh Act
Despite a major push by Maryland lawmakers last year to get tough on sex offenders, the state still is not in compliance with the federal Adam Walsh Act, a public safety official said Tuesday.
Noncompliance could cost the state more than half a million dollars in federal grant money for law enforcement agencies.
- And compliance will cost several millions of dollars. So you do the math!
Lawmakers pledged reform last year in the wake of the December 2009 killing of Sarah Foxwell, an 11-year-old Eastern Shore girl who had been in contact with a registered sex offender. Gov. Martin O'Malley backed legislation to revamp the state's sex offender registry — a move that officials believed would bring them into compliance with the Adam Walsh Act.
Changes included adding the names of those who commit sexually motivated acts of indecent exposure or possess child pornography and requiring people who list themselves as "homeless" to provide more information about where they are living. The registry includes nearly 7,000 people now.
The problem, said David P. Wolinski, who administers the state registry, is that Maryland does not require lifetime registration of juveniles convicted of the most serious sex crimes — a necessity under the Adam Walsh Act.
- So instead of protecting kids, you are wanting to shame them and ruin their lives before they even begin?
"That's the one hang-up," Wolinski told the Senate Judicial Proceedings Committee. "Otherwise everything else is fine. We've made a lot of progress."
Only about four states are in compliance with the Adam Walsh Act, Wolinksi said. Still, Maryland's failure to meet its strict standards means the state is set to lose 10 percent of the federal funding it gets from the Edward J. Byrne Justice Assistance Grant Program. The state received about $6 million in Byrne money last fiscal year, according to the Governor's Office of Crime Control and Prevention.
Otherwise, Wolinski said, the registry expansion is "going well."
Within a month, he said, corrections officials will begin adding a "plain-language" description of the crime for which each offender was convicted, another requirement signed into law last year.
Fewer than 500 of the registrants — about 6.7 percent — are listed as "noncompliant" or "absconders," according to data distributed by Wolinski.
- Hell, from what John Walsh and others say all the time, you'd think that would be higher, but, when faced with the facts, their BS doesn't stand up.
Some lawmakers have suggested that the General Assembly might take another look at the registry this year, but this time with an eye toward removing some kinds of low-level offenders. No bills concerning the registry have been introduced yet this year.
By Peter Linton-Smith
SAN ANTONIO - People who live in the small Pasco County town of San Antonio are eager to tell outsiders about the friendly and safe environment.
"It's a wonderful little town, everybody knows every one," said Marline Sumner.
But San Antonio's mayor may not feel as confident about the safety of the children. He said he wants to protect them from sex offenders. As a result, Mayor Roy Pierce wants the City Commission to adopt a new ordinance to increase the distance a sex offender must live from a church, school, park or day care.
The existing distance is 1,000 feet; the proposed distance would be 1,500 feet.
"It would be fine with me, really I think they should be monitored more," said Don Pricester.
Thomas Knight, another San Antonio residents agrees.
"Without being too politically incorrect, they can put them all on leaky boats and I wouldn't care."
An extra 500 feet may not seem like much. But in such a small city, critics suggest it could make the entire city off limits to new sex offenders. Pierce concedes
"....we have had no major problems with sex offenders," Pierce said. He added, however, that "...the state standard of 1,000 feet is too lax. We want to protect our children."
Some residents complained the city may risk being sued to solve a problem that does not yet exist.
"We've lived here, and haven't had an issue with them. We've looked online to see where they are at," explained resident Bobby Heskett.
Even if the ordinance passes, the city's only known registered sex offender will not be forced to move away.
The U.S. Department of Justice (DOJ) has issued modifications to local sex-offender registries that guide public website posting of sex-offender information.
A notice—Supplemental Guidelines for Sex Offender Registration and Notification (SORNA)—was published on the Federal Register on Jan. 11, 2011, the same date the guidelines became effective. The notice is “to provide guidance and assistance to jurisdictions in implementing the SORNA standards in their sex offender registration and notification programs.”
The “supplemental guidelines augment or modify certain features of the SORNA guidelines and to address other issues arising in jurisdictions’ implementation of the SORNA requirements.” Those issues include aspects of public website posting of sex offender information; inter-jurisdictional tracking and information sharing regarding sex offenders; the review process concerning jurisdictions’ SORNA implementation; the classes of sex offenders to be registered by jurisdictions retroactively; and the treatment of Indian tribes newly recognized by the federal government subsequent to the enactment of SORNA.
The SORNA standards are administered by the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (“SMART Office”), which assists all jurisdictions in their SORNA implementation efforts and determines whether jurisdictions have successfully completed these efforts, the notice says.
Since the publication of the SORNA guidelines, issues have arisen concerning the implementation of the guidelines, consequently the DOJ solicited public comment on supplemental guidelines addressing those issues (the public comment period closed on July 13, 2010), and the areas covered by the modifications are:
- Allowing jurisdictions, at their discretion, to exempt information from public website posting because a sex offender is required to register on the basis of juvenile delinquency adjudications.
- Require jurisdictions to exempt sex offenders’ e-mail addresses and other Internet identifiers from public Web site posting.
- Require jurisdictions have sex offenders report international travel 21 days in advance of such travel and to submit information concerning such travel to the appropriate federal agencies and databases.
- Clarify the means to be utilized to ensure consistent inter-jurisdictional information sharing and tracking of sex offenders.
- Expand required registration information to include the forms signed by sex offenders acknowledging that they were advised of their registration obligations.
- Provide additional information concerning the review process for determining that jurisdictions have substantially implemented the SORNA requirements in their programs and continue to comply with these requirements.
- Afford jurisdictions greater latitude regarding the registration of sex offenders who have fully exited the justice system but later reenter through a new (non-sex-offense) criminal conviction by providing that jurisdictions may limit such registration to cases in which the new conviction is for a felony.
- Provide, for Indian tribes that are newly recognized by the federal government following the enactment of SORNA, authorization and time frames for such tribes to elect whether to become SORNA registration jurisdictions and to implement SORNA.
By Mike Johnson
Delafield - The Common Council adopted tough rules on where convicted sex offenders can live and prohibited them from loitering in places where children gather.
Aldermen on Monday night approved an ordinance that prohibits convicted sex offenders from living within 2,000 feet of places where children gather, including schools, day care centers. parks and recreational trails, and the library.
The ordinance also creates child safety zones for these places, and sex offenders are barred from them.
The sex offender ordinance residency rules do not apply to convicted sex offenders who already lived in the city prior to the measure's passage.
However, it bars other convicted sex offenders from moving into the city. The ordinance says no designated sex offender shall be permitted to reside in Delafield unless the person lived there at the time of the offense resulting in the person's most recent conviction.
- So they are barred from the city? That is surely unconstitutional, and will be fought with lawsuits, I'm sure.
The ordinance is similar to sex-offender residency restriction rules adopted by neighboring communities.
The Town of Delafield last week enacted residency limits for sex offenders.
By MATT BAUME
Attorney General Kamala Harris took steps to warn Californians about identity theft after it was revealed that an online predator invaded hundreds of women's accounts.
George Bronk, a 23-year-old resident of Citrus Heights, gathered intelligence on his victims and was able to correctly guess their password hints.
Many of those hints were easy to ascertain, such as "what was your high school mascot" and "what is your favorite color?"
Once he was in, Bronk locked out the victims and began sending porn to their contacts. One victim contacted the police, who began a sting operation. In September, law enforcement officers raided his home and confiscated his computer equipment.
Bronk had amassed a large collection of accounts, and officers sent out thousands of questionnaires to potential victims. A few dozen responded.
Because he had stolen illicit photographs from users under 18, he'll be tried on possession of child pornography, and will have to register as a sex offender.
Harris' office recommends that users protect themselves by adding special characters to password hints, or to choose something complex. For example, spell your favorite color as "0r4ng3" or "red-plus-yellow."
Sure glad I do not live in the UK! It seems like every time a false accusation of rape article is published, it's from the UK.
By Clare Semke
A woman who made a false rape claim that led to a man's arrest has been warned she faces jail.
Nicola Osborne told police she was attacked by a man who forced her into a car after pulling up alongside her as she walked in Fratton Road, Fratton, in the early hours.
The 32-year-old claimed he drove her to a nearby park and raped her before driving her back to Fratton Road at about 3am on July 5 last year.
Osborne's deceit started after she was found near the Co-operative Club in Kingston Road, Buckland, by a passer-by who called police.
Police arrested a 26-year-old man and quizzed him on suspicion of rape in connection with the claim three days later.
However he was later released without charge.
Osborne, from Winchester Road, Buckland, was then arrested and charged with perverting the course of justice.
Yesterday she pleaded guilty to the crime at Portsmouth Crown Court.
But Judge Richard Price has now ordered another hearing before she is sentenced after Osborne disputed the facts of the case.
He said: 'In this case there is in my judgment what amounts to a significant difference between the accounts given by the two people involved.'
'The defendant's account is that she wasn't consenting, although she did not give any indication of the lack of consent to the man involved.'
'His account is very different.'
'His account is not only was she very clearly consenting but she was making it very clear that she was very clear in consenting.'
'In my judgment that could make a significant difference in relation to sentence.'
Judge Price released Osborne on bail.
But he warned her that she faces jail.
A judge will make a decision on the facts of the case at a hearing to be held at Portsmouth Crown Court on Monday, January 31.
Addressing Osborne, Judge Price said: 'The offence to which you have pleaded guilty is a very serious offence indeed.'
'It is almost inevitable that you will be going to prison.'
'Do not assume that because I have allowed you to have bail that will be the outcome when you are sentenced - that you will retain your liberty.'
'Whatever the outcome on January 31, whatever is the decision of the judge, it is very likely that you will go to prison.'
Video Description: (Uploaded on 01/18/2011)
There are almost 80 convicted sex offenders living in the unincorporated areas of Cleveland County, and authorities are all checking it they are all properly registered according to law.