Hitchcock

IN THE SUPREME COURT OF OHIO
STATE OF OHIO, ) Case No. 2009-1580

)
Respondent-Appellant, ) On Appeal from the
) Lake County Court of Appeals,
V. ) Eleventh Appellate District
)
PAUL RUSSELL HITCHCOCK,
) Court of Appeals Case No. 2008-L-032
Petitioner-Appellee. )
MOTION FOR RECONSIDERATION

PURSUANT TO S.CT.PRAC.R. 11.2
CHARLES E. COULSON (0008667)

PROSECUTING ATTORNEY
LAKE COUNTY, OHIO
Teri R. Daniel (0082157) (COUNSEL OF RECORD)

ASSISTANT PROSECUTING ATTORNEY
Administration Building
105 Main Street, P.O. Box 490
Painesville Ohio 44077
(440) 350-2683 Fax (440) 350-2585
tdaniel@lakecountyohio.gov
COUNSEL FOR APPELLANT, STATE OF OHIO
Paul Russell Hitchcock, Pro se

P. O. Box 897
Pain A <: ,^ :, ,.,, ^ a.
,^^ E, ^ ^ ^„ ; ^
CL,ERK OF COURT
SlJPREfUlE COURT OF OHIO
Now comes the State of Ohio, by and through Charles E. Coulson, Lake County
Prosecuting Attorney, and Teri R. Daniel, Assistant Prosecuting Attorney, and
respectfully requests that this Honorable Court reconsider its decision in the above-
captioned case.
In its decision in In re Sexual Offender Reclassification Cases, Slip Opinion No.
2010-Ohio-3753, this Court reversed and remanded the above-captioned case as it
"rejected constitutional challenges to the Adam Walsh Act on separation-of-powers
grounds." Id. at 9[9[15, 34. However, in State u. Hitchcock, 11'hDist. No. 2008-L-032,
2009-Ohio-4447, the Eleventh District Court of Appeals held that the Adam Walsh Act
was unconstitutional as it violated the Separation of Powers Doctrine:
To the extent the Adam Walsh Act attempts to modify existing final
sentencing judgments, such as Hitchcock's sentence, it violates the
doctrines of separation of powers and finality of judicial judgments,
despite the good intentions of the Legislature. As such, that portion of the
Act is invalid, unconstitutional, and unenforceable.
Id. at 9[54.
Therefore, the State respectfully requests this Honorable Court reconsider its
decision in the above-captioned case.

Respectfully submitted,
CHARLES E. COULSON (0008667)

PROSECUTING ATTORNEY
Teri R. Pani6t-CO082157)
Painesville, Ohio 44077
(440) 350-2683 Fax (440) 350-2585
PROOF OF SERVICE
A copy of the foregoing Motion for Reconsideration was sent by regular U. S.
Mail, postage prepaid, to appellant, Paul Russell Hitchcock, Pro se, P. O. Box 897,
Painesville, OH 44077, this A day of August, 2010.
Teri R. Paniel (0082157)

Painesville, Ohio 44077
(440) 350-2683 Fax (440) 350-2585
TRD/klb
[Until this opinion appearsin the Ohio Official Reports advance sheets, it may be cited as In
re Sexual Offender Reclassification Cases, Slip Opiniart No. 2010-0hio-3753.1
NOTICE
This slip opinion is subject to formal revision before it is published in
an advance sheet of the Ohio Official Reports. Readers are requested
to promptly notify the Reporter of Decisions, Supreme Court of Ohio,

65 South Front Street, Colulnbus, Ohio 43215, of any typographical or
other formal errors in the opinion, in order that corrections may be
made before the opinion is published.
SLIP OFirnorr No. 2010-Ol-no-3753

IN RE SEXUAL OFFENDER RE CLASSIEICATION CASES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as In re Sexual Offender Reclassification Cases,

Slip Opinion No. 2010-Ohio-3753.1
Sexual offender reclassifications pursuant to R.C. 2950.031 and 2950.032 -

"Adam Walsh Act" - Disposition of cases accepted and held for the
decisions in State v. Bodyke and Chojnacki v. Cordray.

(Submitted August 10, 2010 - Decided August 17, 2010.)
{¶ 1} The following dispositions of currently pending appeals and
certified conflicts are hereby entered based on our decision in State v. Bodyke,
_ Ohio St.3d ^ 2010-Ohio-2424, _ N.E.2d _
BROWN, C.J., and PFEIFER, LUNDBERG STRATTON, O'CONNOR,
O'DONNELL, LANZINGER, and CUPP, JJ., concur.

SUPREME COURT OF OHIO
1.
{¶ 2} The judgments of the courts of appeals in the following cases are
affirmed, because the courts of appeals held the Adam Walsh Act to be
unconstitutional expressly on separation-of-powers grounds.
{¶ 3} 2009-1213. Spangler v. State, Lake App. No. 2008-L-062, 2009-

Ohio-3178. Lanzinger, J., not participating.
{¶ 41 2009-1498. McCostlin v. State, Lake App. No. 2008-L-117, 2009-
{¶ 5} 2009-1582. State v. Garner, Lake App. No. 2008-L-087, 2009-

Ohio-4448.
II.
{¶ 6} The certified questions in the following cases are answered in the
affirmative, and the judgments of the courts of appeals are affirmed, because the
courts of appeals held the Adam Walsh Act to be unconstitutional expressly on
separation-of-powers grounds.
{¶ 7} 2009-1682 and 2009-2026. Naples v. State, Trumbull App. No.
2008-T-0092, 2009-Ohio-3938.
{¶ 8} 2009-1827 and 2009-2027. State v. Grate, Trumbull App. No.
2008-T-0058, 2009-Ohio-4452.
III.
affirmed in judgment only, because the courts of appeals held the Adam Walsh
Act to be unconstitutional on rationales other than the separation-of-powers
doctrine.
{¶ 10} 2009-1290. State v. Ettenger, Lake App. No. 2008-L-054, 2009-
2
January Term, 2010
{¶ 11} 2009-1798. Thomas v. State, Lake App. No. 2008-L-026, 2009-

{¶ 12) 2009-1799. State v. Bache, Lake App. No. 2008-L-061, 2009-
Ohio-5211.
IV.
{T 13} The first certified question in the following case is answered in the
affirmative and the judgment of the court of appeals is affirmed in judgment only.
The court declines to answer the remaining certified questions.
{¶ 14) 2009-2030 and 2009-2325. Pollis v. State, Trumbull App. No.

2008-T-0055, 2009-Ohio-5058.
V.
{¶ 151 The judgments of the courts of appeals in the following cases are
reversed as to those portions of the judgments that rejected constitutional
challenges to the Adam Walsh Act on separation-of-powers grounds, and the
causes are remanded to the trial courts for further proceedings, if any, necessitated
by State v. Bodyke.
{¶ 16) 2009-0236. State v. Netherland, Ross App. No. 08CA3043, 2008-
Ohio-7007.
{¶ 17} 2009-0355. State v. Randleit, Ross App. No. 08CA3046, 2009-
Ohio-112.
{¶ 18} 2009-0427. State v. Ellis, Cuyahoga App. No. 90844, 2008-Ohio-
6283.
{¶ 191 2009-0451. State v. Brown, Cuyahoga App. No. 90798, 2009-
Ohio-127.
{¶ 20} 2009-0488. State v. Sewell, Ross App. No. 08CA3042, 2009-
Ohio-594.
{¶ 21} 2009-0806. Engels v. State, Hamilton App. No. C-080725.
3
{¶ 22} 2009-1002. Brooks v. State, Lorain App. No. 08CA009452, 2009-

Ohio-1825.
{¶ 23} 2009-1010. Moran v. State, Clermont App. No. CA2008-05-057,
2009-Ohio-1840.
{¶ 24} 2009-1014. West v. State, Haanilton App. No. C-080612.
{¶ 25} 2009-1032. Foster v. State, Hamilton App. No. C.080651:
{+^ 26} 2009-1058. Sigler v. State, Richland App. No. 08-CA-79, 2009-
Ohio-2010.
{¶ 27} 2009-1086. Gildersleeve v. State, Cuyahoga App. Nos. 91515,
91516, 91517, 91518, 91519, 91521, 91522, 91523,91524, 91525, 91526, 91527,
91528, 91529, 91530, 91531, and 91532, 2009-Ohio-2031.
{¶ 28} 2009-1433. Culgan v. State, Richland App. No. 08-CA-217, 2009-
Ohio-3570.
{¶ 291 2009-1467. State v. Maggy, Trumbull App. No. 2008-T-0078,
2009-Ohio-3180. Lanzinger, J., not participating.
{¶ 30} 2009-1483. Biggs v. State, Richland App. No. 08-CA-224, 2009-
Ohio-3404.
{¶ 31} 2009-1545. Webster v. State, Richland App. No. 2008 CA 0163,
2009-Ohio-3568.
{¶ 321 2009-1550. Welker v. State, Richland App. No. 08-CA-262, 2009-
Ohio-3632.
{¶ 33} 2009-1554. Harrison v. State, Cuyahoga App. No. 92095, 2009-
Ohio-3467.
{¶ 34} 2009-1580. State v. Hitchcock, Lake App. No. 2008-L-032, 2009-
Ohio-4447.
{¶ 35} 2009-1581. Sears v. State, Clermont App. No. CA2008-07-068,
2009-Ohio-3541.
4
January Term, 2010
{¶ 36} 2009-1585. Dunbar v. State, Richland App. No. 2008CA0173,

2009-Ohio-3838.
{¶ 37} 2009-1622. State v. Aleshire, Ross App. No. 09CA3093, 2009-
Ohio-3921.
{¶ 38} 2009-1628. In re J.M, Cuyahoga App. No. 91800, 2009-Ohio-
2880.
{¶ 39} 2009-1657. State v. Curd, Lake App. No. 2008-L-048, 2009-Ohio-
3814. Lanzinger, J., not participating.
{¶ 401 2009-1668. Elko v. State, Richland App. No. 2008CA0220, 2009-
Ohio-4557.
{¶ 41} 2009-1691. State v. Pernon, Lake App. No. 2008-L-066, 2009-

{¶ 421 2009-1699. Ahmed v. State, Richland App. No. 2008 CA 0165,
2009-Ohio-3989.
{¶ 431 2009-1700. Douse v. State, Richland App. No. 2008 CA 324,
2009-Ohio-3997.
{¶ 44} 2009-1725. Mundt v. State, Richland App. No. 2008CA0263,
2009-Ohio-4056.
{¶ 451 2009-1737. Taylor v. State, Richland App. No. 2008CA0161,
2009-Ohio-4141.
{¶ 461 2009-1738. Ball v. State, Lake App. No. 2008-L-053, 2009-Ohio-
{¶ 471 2009-1797. Bertram v. State, Lake App. No. 2008-L-037, 2009-
Ohio-5210.
{^ 48) 2009-1845. State v. Kasunick, Lake App. No. 2008-L-056, 2009-
{¶ 49} 2009-1856. State v. Petralia, Lake App. No. 2008-L-095, 2009-

5
{¶ 50) 2009-1864. McKinney v. State, Warren App. No. CA2009-04-041,

2009-Ohio-4685.
{¶ 51} 2009-1887. Searles v. State, Warren App. No. CA2009-05-055,
2009-Ohio-4666.
{¶ 52} 2009-2108. Burbrink v. State, Hamilton App. No. C-081075,
2009-Ohio-5346.
{¶ 53) 2009-2113. Lohman v. State, Hamilton App. No. C-080957.
{¶ 541 2009-2114. Johnson v. State, Hamilton App. No. C-080997.
{¶ 551 2009-2135. State v. Bundy, Montgomery App. Nos. 23063 and
23064, 2009-Ohio-5395.
{¶ 56) 2009-2163. Roy v. State, Butler App. No. CA2009-02-067, 2009-
Ohio-5808.
{¶ 571 2009-2221. Cramer v. State, Warren App. No. CA2009-06-080.
{¶ 58) 2010-0027. In re D.P., Lake App. No. 2008-L-186, 2009-Ohio-
{¶ 59} 2010-0029. In re R,J.G., Lalce App. No. 2008-L-187, 2009-Ohio-
{¶ 60} 2010-0096. Gentry v. State, Hamilton App. No. C-081311.
{$ 61) 2010-0097. Dunn v. State, Hamilton App. No. C-081310.
{¶ 62} 2010-0098. Hill v. State, Hamilton App. No. C-081289.
{¶ 63} 2010-0100. Robinson v. State, Hamilton App. No. C-090002.
{¶ 64} 2010-0101. Moore v. State, Hainilton App. No. C-081290.
{¶ 65} 2010-0102. Scheuerman v. State, Hamilton App. No. C-081291.
{t 661 2010-0103. Springer v. State, Hamilton App. No. C-081305.
{¶ 67} 2010-0104. Stafford v. State, Hamilton App. No. C-081270.
{¶ 68) 2010-0105. Gibson v. State, Hamilton App. No. C-081269.
{¶ 691 2010-0106. Ajamu v. State, Hamilton App. No. C-081271.
{¶ 70) 2010-0195. Janson v. State, Hamilton App. No. C-090039.
6
January Term, 2010
{¶ 71) 2010-0196. Hall v. State, Hamilton App. No. C-090021.

{¶ 72} 2010-0197. Ellison v. State, Hamilton App. No. C-090017.
{¶ 731 2010-0199. Santoro v. State, Hamilton App. No. C-090022.
{¶ 74) 2010-0200. Cody v. State, Hamilton App. No. C-090010.
{¶ 75) 2010-0201. Short v. State, Hamilton App. No. C-090016.
{¶ 761 2010-0202. Zeiger v. State, Hamilton App. No. C-090023.
{¶ 771 2010-0203. Nero v. State, Hamilton App. No. C-090024.
{¶ 781 2010-0204. Jones v. State, Hamilton App. No. C-090045.
{¶ 791 2010-0205. Fairbanks v. State, Hamilton App. No. C-090005.
{¶ 80} 2010-0206. Claxton v. State, Hamilton App. No. C-090004.
{¶ 811 2010-0207. Jackson v. State, Hamilton App. No. C-081306.
{t 821 2010-0256. In re McClurg, Hamilton App. No. C-081233.
{jf 83} 2010-0262. James v. State, Hamilton App. No. C-090129.
{¶S4} 2001-0263. Tillman v. State, Hamilton App. No. C-081276.
{¶ 851 2010-0264. Faulk'ner v. State, Hamilton App. No. C-090130.
{¶ 86) 2010-0265. Turner v. State, Hamilton App. No. C-090105.
{¶ 87} 2010-0274. State v. Rice, Lake App. No. 2008-L-105, 2009-Ohio-
(¶ 881 2010-0285. Adamson v. State, Lake App. No. 2008-L-045, 2009-
{¶ 891 2010-0291. Hungerford v. State, Lake App. No. 2008-L-073,
2009-Ohio-6997. O'Connor and Lanzinger, JJ., not participating.
VI.
{¶ 90) The certified question in the following case is answered in the
affirmative, the judgment of the court of appeals is reversed as to that portion of
the judgment that rejected the constitutional challenge to the Adam Walsh Act on
separation-of-powers grounds, and the cause is remanded to the trial court for
further proceedings, if any, necessitated by State v. Bodyke.
7
{¶ 91) 2009-1525 and 2009-1832. Smallwood v. State, Butler App. No.

CA2009-02-057, 2009-Ohio-3682.
VII.
{¶ 92) The first certified question in the following case is answered in the
affirmative, the judgment of the court of appeals is reversed as to that portion of
the judgment that rejected the constitutional challenge to the Adam Walsh Act on
separation-of-powers grounds, and the cause is remanded to the trial court for
further proceedings, if any, necessitated by State v. Bodyke. The court declines to

answer the remaining certified questions.
{¶ 931 2009-2078 and 2010-0023. State v. Russell, Trumbull App. No.
2008-T-0074, 2009-Ohio-5213.
VIII.
{T 941 The discretionary appeals are accepted in the following cases on
the proposition of law noted, the judgments of the courts of appeals are reversed
as to those portions of the judgments that rejected constitutional challenges to the
Adam Walsh Act on separation-of-powers grounds, and the causes are remanded
to the trial courts for further proceedings, if any, necessitated by State v. Bodyke.
{¶ 951 2010-0404. Miller v. State, Hamilton App. No. C-090131.

Proposition of Law No. III. Motion for stay of jurisdictional consideration denied
as moot.
{¶ 961 2010-0405. Masterson v. State, Hamilton App. No. C-090175.
as moot.
{¶ 971 2010-0406. Brannon v. State, Hamilton App. No. C-090141.
as moot.
8
January Term, 2010
{¶ 98} 2010-0407. James v. State, Hamilton App. No. C-090176.

as moot.
{¶ 99} 2010-0410. Bender v. State, Hamilton App. No. C-090188.
as moot.
{^ 100} 2010-0411. Pickett v. State, Hamilton App. No. C-090212.
as moot.
{T 101} 2010-0412. Thompson v. State, Hamilton App. No. C-090106.
Proposition of Law No. 111. Motion for stay of jurisdictional consideration denied
as moot.
{¶ 102} 2010-0413. Fleming v. State, Hamilton App. No. C-090107.
Proposition of Law No. IIL Motion for stay of jurisdictional consideration denied
as moot.
{¶ 103} 2010-0417. Averill v. State, Hamilton App. No. C-090058.
as moot.
{¶ 104} 2010-0418. Bodon v. State, Hamilton App. No. C-090266.
as moot.
{¶ 105} 2010-0419. Weatherspoon v. State, Hamilton App. No. C-
090142. Proposition of Law No. ITI. Motion for stay of jurisdictional

consideration denied as moot.
{¶ 106} 2010-0420. Harris v. State, Hamilton App. No. C-090052.
Proposition of Law No. III. Motion for stay of jurisdietional consideration denied
as moot.
9
{¶ 107} 2010-0424. Brozell v. State, Hamilton App. No. C-090187.

as moot.
{¶ 108} 2010-0477. Howell v. State, Hamilton App. No. C-090003.
as moot.
{¶ 109} 2010-0478. White v. State; Hamilton App. No. C-090177.
as moot.
{T 110} 2010-0549. Stzate v. Hutchinson, Stark App. No. 2009CA001.74,
2010-Ohio-537. Proposition of Law No. II.
{¶ 1111 2010-0565. In re Rodney C., Licking App. No. 09 CA 71, 2010-
Ohio-646. Proposition of Law No. IV.
{¶ 112} 2010-0589. Thomas v. State, Hamilton App. No. C-090267.
as moot.
{¶ 113} 2010-0613. State v. Zerla, Jefferson App. No. 08 JE 8, 2010-

Ohio-749: Proposition of Law No. IIT.
{¶ 1141 2010•0629. Beek v. State, Hamilton App. No. C-090213, 2010-
Ohio-669. Proposition of Law No. III. Motion for stay of jurisdictional
consideration denied as moot.
{¶ 115} 2010-0715. Russ v. State, Hamilton App. No. C-090046.
Proposition of Law No. lII. Motion for stay of jixrisdictional consideration denied
as moot.
{¶ 116} 2010-0716. Robinson v. State, Hamilton App. No. C-090301.
as moot.
10
January Term, 2010
{¶ 117} 2010-0758. Paster v. State, Hamilton App. No. C-090322.

Proposition of Law No. 111. Motion for stay of jurisdictional consideration denied
as moot.
{¶ 118} 2010-0759. Collier v. State, Hamilton App. No. C-090394.
as moot.
{¶ 119} 2010-0760. Pelcha v. State, Hamilton App. No. C-090474.
as moot.
{¶ 120} 2010-0761. Valle v. State, Hamilton App. No. C-090244.
Proposition of Law No. III. Motion for stay of jurisdictional co'nsideration denied
as moot.
{¶ 121} 2010-0762. Deaton v. State, Hamilton App. No. C-090028.
as moot.
{¶ 122} 2010-0763. Hatton v. State, Hamilton App. No. C-090395.
Proposition of Law No. IIl. Motion for stay of jurisdictional consideration denied
as moot.
{¶ 123} 2010-0767. Pfaehler v. State, Hamilton App. No. C-090417.
as moot.
{$ 124} 2010-0820. Barnes v. State, Hamilton App. No. C-090030.
as moot.
{¶ 125} 2010-0821. Griffin v. State, Hamilton App. No. C-090031.
as moot.
11
{¶ 126} 2010-0822. Divo v. State, Hamilton App. No. C-090396.

as moot.
{¶ 127} 2010-0834. Smith v. State, Hamilton App. No. C-090264.
Proposition of Law No. III.

{Q 128} 2010-0842. Powell v. State, Hamilton App. No. C-090469.
asmoot.
{¶ 129} 2010-0843. Martin v. State, Hamilton App. No. C-090437.
as moot.
{¶ 130} 2010-0844. Frost v. State, Hamilton App. No. C-090486.
as moot.
IX.
vacated, and the causes are remanded to the trial courts for further proceedings
consistent with State v. Bodyke.
{¶ 132} 2009-1423. State v. 12itchey, Franklin App. No. 08AP-923,
2009-Ohio-2988.
{¶ 133} 2009-1623. State v. Gruszka, Lorain App. No. 08CA009515,
2009-Ohio-3926.
{¶ 134} 2010-0148. State v. Downing, Franklin App. No. 09AP-420,
2009-Ohio-6482.
X.
reversed as to those portions of the judgments that rejected constitutional
challenges to the Adam Walsh Act on separation-of-powers grounds, and the
12
January Term,2010
causes are remanded to the trial courts to reinstate appellants' original sex
offender classifications and concomitant registration and reporting requirements.

Appellants' first Propositions of Law are rendered moot by State v. Bodyke.
{¶ 136} 2009-0446. State v. Messer, Ross App. No. 08CA3050, 2009-

Ohio-312.
{¶ 137} 2009-0448. State v. Linville, Ross App. No. 08CA3051, 2009-
Ohio-313.
{If 138} 2009-1342. State v. Case, Huron App. No. H-08-009, 2009-
Ohio-2923.
XI.
{¶ 139} The judgment of the court of appeals in the following case is
reversed as to that portion of the judgment that upheld appellant's reclassification
under the Adam Walsh Act, and the cause is remanded to the trial court to
reinstate appellant's original sex offender classification and concomitant
registration and reporting requirements. Appellant's Proposition of Law raising a
right to counsel in a reclassification hearing is rendered moot by State v. Bodyke.
{¶ 140} 2010-0004. State v. Sprauer, Ross App. No. 09CA3121, 2009-

Ohio-6698.
XII.
{¶ 141} The judgment of the court of appeals in the following case is
affirmed in judgment only, because the court of appeals held the Adam Walsh Act
to be unconstitutional on a rationale other than the separation-of-powers doctrine.
The court does not reach appellant's other claims because appellee will not be
subject to reclassification.
{¶ 142} 2009-1860. State v. Strickland, Lake App. No. 2008-L-034,
2009-Ohio-5424.
XI{I.
13
{$ 143) The following case is remanded to the trial court consistent with
the opinion of the court of appeals.

{¶144} 2010-0162. State v.Ftat•ks, Trumbull App. No. 2008-T-0119,
2009-Ohio-7001.
14
THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, OPINION
Respondent-i ppellee, FELEVJ^

COURT OF APPEALS C SE NO. 2008-L-032
- vs -
PAUL RUSSELL HITCHCO^CK ,,.,,:;_} n o r:i.!-y

i.i:fiK OF CU, ^RT
. ^ L?u(c CQiJNI"Y, .
Petitioner-App'eliant.--
^ ^
Civil Appeal from the Lake County Court of Common Pleas, Case No. 07 MS 000017.
Judgment: Reversed.
Charfes E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
105 Main Street, P.O. Box 490, Painesville, OH 44077 ( For Respondent-Appellee).
Paul R. Hitchcock, pro se, 1025 Ivanhoe Road, Apt. 2, Cleveland, OH 44110
( Petitioner-Appellant).
DIANE V. GRENDELL, J.
{¶i} Appellant, Paul R. Hitchcock, appeals the judgment of the Lake County
Court of Common Pleas, denying his Petition to Contest Reclassification and classifying
him a Tier II sex offender. The fundamental principles of the "separation of powers"
doctrine as written by our forefathers in our United States Constitution is inviolate, and,
therefore, mandates reversal of the decision of the court below. However, Hitchcock
must still comply with the notification and registration requirements under his original
sentence.
{¶2} On July 24, 2000, Hitchcock pleaded guilty to one count of Attempted
Gross Sexual Imposition, a felony of the fourth degree, in violation of R.C. 2923.02 and
R.C. 2907.05. He was found to be a sexually oriented offender.
{¶3} Hitchcock was reclassified as a Tier II offender pursuant to the new
version of R.C. Chapter 2950, with reporting requirements for 25 years. He contested
his reclassification, filing a Petition to Contest Reclassification on December 27, 2007.
{¶4} A hearing was held February 14, 2008. The court held that Hitchcock was
unable to prove, by clear and convincing evidence, that his new registration
requirements did not apply in the manner specified by the Attorney General. Hence, the
court determined that Hitchcock was properly reclassified as a Tier ll Offender.
{¶5} Hitchcock timely appeals and raises the following assignment of error:
{16} "[1.] The retroactive application of Senate Bill 10 violates the Ex Post
Facto, Due Process, and Double Jeopardy Clauses of the United States Constitution
and the Retroactivity Clause of Section 28, Article II of the Ohio Constitution; Fifth,
Eighth, and Fourteenth Amendments to the United States Constitution; Section 10,
Article I, of the United States Constitution; and Sections 10 and 28, Articles I and II,
respectively, of the Ohio Constitution."
{¶7} Senate Bill 10, also known as the Adam Walsh Child Protection and
Safety Act (AWA), passed in June 2007, with an effective date of January 1, 2008,
amended the sexual offender classification system found in R.C. 2950.01. In re Gant,
3d Dist. No. 1-08-11, 2008-Ohio-5198, at ¶11. Under the prior classification system, the
2
trial court determined whether the offender fell into one of three categories: (1) sexually
oriented offender, (2) habitual sex offender, or (3) sexual predator. Former R.C.
2950.09; State v. Cook, 83 Ohio St.3d 404, 407, 1998-Ohio-291. In determining
whether to classify an offender as a sexual predator, former R.C. 2950.09(B)(3)
provided the trial court with numerous factors to consider in its determination. In re
Smith, 3d Dist. No. 1-07-58, 2008-Ohio-3234, at¶28.
{18} Under the new classification system, adopted by the AWA, the trial court
must designate the offender as either a Tier I, II, or1ll sex offender. R.C. 2950.01(E)(F)
and (G); Gant, 2008-Ohio-5198, at 115. The new classification system places a much
greater limit on the discretion of the trial court to categorize the offender, as the AWA
requires the trial court to simply place the offender into one of the three tiers based on
the offender's offense.
(119) Enactments of the Ohio General Assembly are presumed constitutional.
State ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142, at paragraph one of the
syllabus. The "presumption applies to amended R.C. Chapter 2950 *"`, and remains
unless [the challenger] establishes, beyond reasonable doubt, that the statute is
unconstitutional." State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, at ¶12 (citation
omitted).
{¶10} Hitchcock first claims that applying the AWA to crimes that occurred
before January 1, 2008, violates the ex post facto clause of the United States
Constitution. Section 10, Article I of the United States Constitution prohibits ex post
facto laws. "Any statute which punishes as a crime an act previously committed, which
was innocent when done, which makes more burdensome the punishmenf for a crime,
3
after its commission, is prohibited as ex post facto." Beazell v. Ohio (1925), 269
U.S. 167, 169-170. The ex post facto clause, however, only applies to criminal statutes.
State v. Cook, 83 Ohio St.3d 404, 415, 1998-Ohio-291. Thus, if a statute is civil, then
there can be no violation of the ex post facto clause.
{111} To determine the nature of a particular statute, it is necessary to consider
both the [L]egislature's intent in enacting the statute and the effect of the statute in
practice. This analysis is known as the "'intent-effects' test." Id. Since the ex post facto
clause only prohibits criminal statutes and punitive schemes, the court must first ask
"whether the Legislature intended for the statute to be civil and non-punitive or criminal
and punitive." In re G.E.S., 9th Dist. No. 24079, 2008-Ohio-4076, at ¶18 (citations
omitted). If "the [L]egislature intended for the statute to be civil and non-punitive, then
the court must ask whether the statutory scheme is so punitive in nature that its purpose
or effect negates the [L]egislature's intent." Id., quoting United States v. Ward (1980),
448 U.S. 242, 248-249. To survive an ex post facto challenge, a statute must be civil
and non-punitive with regard to both the Legislature's intent in enacting it and its actual
effect upon enactment. See Smith v. Doe (2003), 538 U.S. 84, 92.
{112} When applying the intent-effects test to the former R.C. Chapter 2950, the
Ohio Supreme Court held that the General Assembly did not intend for the statute to be
punitive because the purpose of the scheme had been to promote public safety and
increase public confidence in the state's criminal and mental health systems. Cook, 83
Ohio St.3d. at 417. The Cook court found that the General Assembly's declaration of
purpose was controlling in deciding legislative intent.
4
{113} Hitchcock argues two points that he believes indicate that, despite the
similarities between the prior version of R.C. Chapter 2950 and the new version, the
intent of the AWA is punitive. He first argues that the old classification and registration
requirements were tied directly to the ongoing threat to the community. However,
according to Hitchcock, under the new statutory scheme, an individual's registration and
classification obligations depend on the convicted offense.
{114} Although Hitchcock is correct that under the new system the offense type
determines what tier an offender is placed in, the old version of R.C. Chapter 2950's
classification was also partially tied to the offense. See State v. Byers, 7th Dist. No. 07
CO 39, 2008-Ohio-5051, at ¶25. Further, "it cannot necessarily be concluded that
Senate Bill 10's tiers are not directly tied to the ongoing threat to the community that sex
offenders pose. The types of offenses that are placed in Tier I are less severe sex
offenses, Tier II are more severe, and Tier III are the most severe offenses. Also within
these tiers are some factual determinations, such as if the offense was sexually
motivated, age of victim and offender,. and consent. Likewise, every time an offender
commits another sexually oriented offense the tier level rises. R.C. 2950.01(F)(1)(i) and
(G)(1)(i). This formula detailed by the legislature illustrates that it is considering
protecting the public. Consequently, this new formula does not appear to change the
spelled out intent of the .General Assembly in R.C. 2950.02." Id. at ¶26; Ferguson,
2008-Ohio-4824, at ¶35 (amendments to the Act were made "in an effort to better
protect the public from the risk of recidivist offenders by maintaining the predator
classification so that the public had notice of the offender's past conduct -- conduct that
arguably is indicative of future risk").
5
{¶15} Hitchcock next argues that the General Assembly placed the AWA within
Title 29, Ohio's Criminal Code, and this shows intent for it to be criminal. This argument
is not persuasive. The prior version of R.C. Chapter 2950 was within the criminal code,
yet the Ohio Supreme Court determined that it was civil in nature. The fact that the Act
is contained in the Criminal Code and prescribes criminal penalties for failure to comply
does not render it punitive. Moreover, the United States Supreme Court has held that
neither of these characteristics necessarily renders a civil regulatory statute punitive.
Smith, 538 U.S. at 94 ("[t]he location and labels of a statutory provision do not by
themselves transform a civil remedy into a criminal one"), and 96 ("[i]nvoking the
criminal process in aid of a statutory regime does not render the statutory scheme itself
punitive").
{¶16} Based on the above discussion, the General Assembly did not intend for
the statute to be punitive. We must now decide whether the AWA has such a punitive
effect as to negate the Legislature's intent. While there is no test to determine whether
a statute is so punitive as to violate the constitutional prohibition against ex post facto
laws, the United States Supreme Court has provided certain guideposts to be applied in
resolving this issue. The guideposts include, "[w]hether the sanction involves an
affirmative disability or restraint, whether it has historically been regarded as a
punishment, whether it comes into play only on a finding of scienter, whether its
operation will promote the traditional aims of punishment -- retribution and deterrence,
whether the behavior to which it applies is already a crime, whether an alternative
purpose to which it may rationally be connected is assignable for it, and whether it
6
appears excessive in relation to the alternative purpose assigned "'*." Kennedy v.
Mendoza-Martinez (1963), 372 U.S. 144, 168-169 (footnotes omitted).
{117} When addressing the guideposts, this court has held that "analysis
supports the conclusion that any punitive effect of the provisions is insufficient to negate
the remedial purpose." Naples v. State, 11th Dist. No. 2008-T-0092, 2009-Ohio-3938,
at ¶38.
{118} Finally, we note that the other appellate districts that have considered this
issue have concluded that the registration and notification requirements of the AWA
remain civil and nonpunitive in nature after the amendments enacted by Senate Bill 10.
See State v. Omiecinski, 8th Dist. No. 90510, 2009-Ohio-1066, at ¶¶34-42, and the
cases cited therein. Thus, this argument is without merit.
{119} Next, Hitchcock argues that the retroactive application of the AWA violates
Article 11, Section 28 of the Ohio Constitution, which provides that "[t]he general
assembly shall have no power to pass retroactive laws." The Ohio Supreme Court has
construed the prohibition to apply to "[e]very statute which takes away or impairs vested
rights acquired under existing laws, or creates a new obligation, imposes a new duty, or
attaches a new disability, in respect to transactions or considerations already past."
Gincinnati v. Seasongood (1889), 46 Ohio St. 296, 303 (citation omitted).
{120} Hitchcock specifically argues that the AWA eliminates his preexisting right
to reside where he wishes and the law imposes "new obligations and burdens which did
not exist at the time that [he] committed the alleged offense."
{¶21} The Supreme Court in Cook explained that R.C. 1.48 dictates that statutes
are presumed to apply only prospectively unless specifically made retroactive. Cook,
7
83 Ohio St.3d at 410. Thus, before we can determine whether R.C. Chapter 2950 can
be constitutionally applied retrospectively, we must first determine whether the General
Assembly specified that the statute would apply retroactively. Id., citing Van Fossen v.
Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, at paragraph one of the syllabus.
{122} With respect to the residency restrictions, codified at R.C. 2950.034
[former R.C. 2950.031], the Ohio Supreme Court has held that these do not apply
retroactively. Hyle v. Porter, 117 Ohio St.3d 165, 2008-Ohio-542, at syllabus.
{123} A statutory provision can be employed retroactively under limited
circumstances. In State v. Consilio; 114 Ohio St.3d 295, 2007-Ohio-4163, the Ohio
Supreme Court fashioned a two part test to determine whether statutes may be applied
retroactively. "First, the reviewing court must determine as a threshold matter whether
the statute is expressly made retroactive." Id. at ¶10 (citations omitted). Next "[ilf a
statute is clearly retroactive "** the reviewing court must then determine whether it is
substantive or remedial in nature." Id. (citation omitted). A purely remedial statute does
not violate Section 28, Article II of the Ohio Constitution, even if applied retroactively.
(124) Pursuant to the AWA version of R.C. 2950.01, sex offender classifications
under the new law are applicable to a sex offender who is convicted of, pleads guilty to,
has been convicted of, or has pleaded guilty to certain sexually oriented offenses.
There are other examples of the Legislature's retroactive intent delineated in R.C.
Chapter 2950. See R.C. 2950.03(A); R.C. 2950.031; and R.C. 2950.033. Therefore,
the Legislature has specifically made the new version of Chapter 2950 retroactive as it
applies to offenders who have been found guilty of or pleaded guilty to certain offenses
pr'ior to the enactment of the new law.
8
{¶25} We must now determine whether the provisions should be characterized
as substantive or remedial. A statute is substantive if it impairs or takes away vested
rights, affects an accrued substantive right, imposes new or additional burdens, duties,
obligation, or liabilities to a past transaction, or creates a new right. Van Fossen, 36
Ohio St.3d at 106-107. Whereas, remedial laws are those affecting only the remedy
provided, and include laws that merely substitute a new or more appropriate remedy for
the enforcement of an existing right. Id. at 107.
{¶26} There are differences between the 1997 version of R.C. Chapter 2950 and
AWA version. Now, there are possibly more counties an offender must register in and
more information that the offender must provide when registering. Additionally, there is
the internet sex offender database which anyone can access.
{127} However, with respect to the increased registration and notification
requirements, the Ohio Supreme Court has rejected these arguments on the grounds
that the more burdensome registration requirements and more extensive community
notification provisions did not alter the essentially regulatory purpose of the act.
Ferguson, 2008-Ohio-4824, at ¶39 ("Ohio retroactivity analysis does not prohibit all
increased burdens; it prohibits only increased punishment").
{128} The Cook Court concluded that the registration anj verification provisions
of the 1997 version of R.C. Chapter 2950 were remedial in nature. The court stated that
the registration and address verification provisions of R.C. Chapter 2950 were de
minimis procedural requirements that were necessary to achieve the goals of R.C.
Chapter 2950, to protect the public. Cook, 83 Ohio St.3d at 412-413. Cook is still
controlling law; the Ohio Supreme Court has continued to indicate that sex offender
9
classification is civil, not criminal in nature. Further, "[w]hile we recognize that AWA has
a significant impact upon the lives of sex offenders, that impact does not offend Ohio's
prohibition on retroactive laws. Public safety is the driving force behind AWA." G.E.S.,
2008-Ohio-4076, at ¶17. Consequently, the Retroactivity Clause has not been violated.
{129} Next, Hitchcock argues that the registration period is excessive and
violates the prohibition against cruel and unusual punishment. The State contends that
Hitchcock waives this argument because he failed to raise this constitutional challenge
in the trial court. See State v. Awan (1986), 22 Ohio St.3d. 120, at syllabus.
{q30} However, even if this argument was not waived, the AWA does not violate
the prohibition against cruel and unusual punishment. See Naples, 2009-Ohio-3938, at
¶33, ("the fact that this is a longer period of time than was under the [pre-AWA] version
does not impact the analysis. As long as R.C. Chapter 2950 is viewed as civil, and not
criminal - remedial and not punitive - then the pe(od of registration cannot be viewed as
punishment. Accordingly, it logically follows that it does not constitute cruel and unusual
punishment since the punishment element is lacking.") (citat[on omitted).
{131} Hitchcock next argues that he could not be sentenced under the AWA
because it was not effective at the time of his sentencing. He claims that portions of the
AWA became effective July 1, 2007, while other portions did not become effective until
January 1, 2008. He contends that R.C. 2950.09, the prior version, which is the statute
for the adjudication of an offender as a sexual predator, was repealed on July 1, 2007.
That section established the sexual classification hearing to determine if an offender
was a sexually oriented offender, habitual sex offender, or sexual predator. He asserts
that R.C. 2950.01, the AWA version, which dictates what tier an offender who commits
10
a sexually oriented offense should be placed in, was not effective until January 1, 2008.
Therefore, according to Hitchcock, anyone who was sentenced between July 1, 2007
and December 31, 2007 cannot be subject to former R.C. Chapter 2950's requirements
or to AWA's reporting requirements.
{132} However, as the State maintains, "[t]his is a very specific argument that
applies to a narrow group of sexual offenders. This argument does not apply to Mr.
Hitchcock because he was sentenced in 2000, well before [the AWA] was even
contemplated." We agree; this argument is not applicable to Hitchcock. Accordingly,
this argument is without merit.
{¶33} Hitchcock next maintains that the AWA categorically bars him from
residing within 1000 feet of a school, preschool or child day-care center, violating his
substantive due process rights.
{134} The State counters that Hitchcock lacks standing to challenge these
restrictions, in the absence.of any evidence of an injury in fact or an actual deprivation
.of his property rights or his right to privacy.
{¶35} "A person has no standing to attack the constitutionality of an ordinance
unless he has a direct interest in the ordinance of such a nature that his rights will be
adversely affected by its enforcement." Anderson v. Brown (1968), 13 Ohio St.2d 53, at
paragraph three of the syllabus. "The constitutionality of a state statute may not be
brought into question by one who is not within the class against whom the operation of
the statute is alleged to have been unconstitutionally applied and who has not been
injured by its alleged unconstitutional provision." Palazzi v. Estate of Gardner (1987),
32 Ohio St.3d 169, at syllabus.
11
{136} In the present case, Hitchcock has not alleged or otherwise argued that
the residency restrictions of R.C. 2950.034 have had any impact on him, i.e. that he has
been forced to move from his current residence or intends to move within 1000 feet of a
school, preschool, or child day-care. Cf. Babbit v. United Farm Workers Natl. Union
(1979), 442 U.S. 289, 298 ("When the plaintiff has alleged an intention to engage in a
course of conduqt arguably affected with a constitutional interest, but proscribed by a
statute, and there exists a credible threat of prosecution thereunder, he 'should not be
required to await and undergo a criminal prosecution as the sole means of seeking
relief.' *** But 'persons having no fears of state prosecution except those that are
irimaginary or speculative, are not to be accepted as appropriate plaintiffs."') (citation
omitted).
{¶37} Accordingly, Hitchcock is without standing to challenge the AWA's
residency restrictions. State v. Swank, 11th Dist. No. 2008-L-019, 2008-Ohio-6059, at
¶111; State v. GilfrAan, 10th Dist. No. 08AP-317, 2009-Ohio-1104, at ¶117 (citations
omitted).
{¶38} Hitchcock argues that the AWA violates the Double Jeopardy Clause of
the United States Constitution and Section 10, Article I of the Ohio Constitution, which
provides that an individual cannot be placed "in jeopardy of life or limb" for the same
offense twice.
{¶39} "[T]he United States Supreme Court has also applied the clause to
prevent a state from punishing twice, or from attempting a second time to criminally
punish for the same offense." Byers, 2008-Ohio-5051, at ¶100 (citations omitted).
"Thus, the threshold question in a double jeopardy analysis is whether the government's
12
conduct involves criminal punishment." Id., citing State v. iMrlliams, 88 Ohio St.3d 513,
528, 2000-Ohio-428, citing Hudson v. United States (1997), 522 U.S. 93, 101.
{¶40} In Williams, the Ohio Supreme Court found no merit with the argument
that former R.C. Chapter 2950 violated the Double Jeopardy Clause. 88 Ohio, St.3d at
528. The Court explained that since that chapter was deemed in Cook to be remedial
and not punitive, it could not violate the Double Jeopardy Clause. Id.
{141} Since we find that the AWA, R.C. Chapter 2950, sexual offender
classification system to be remedial like its predecessor, the above analysis from
Williams is applicable and this argument fails. Thus, the AWA does not violate the
Double Jeopardy Clause.
{¶42} Hitchcock further maintains that "Senate Bill 10 violates the separation-of-
powers principle that is inherent in Ohio's constitutional framework by unconstitutionally
limiting the power of the judicial branch of government." He contends that Senate Bill
10 divests the judiciary branch of its power to sentence a defendant.
{¶43} "Although the Ohio Constitution does not contain explicit language
establishing the doctrine of separation of powers, it is inherent in the constitutional
framework of government defining the scope of authority conferred upon the three
separate branches of government." State v. Sterling, 113 Ohio St.3d 255, 2007-Ohio-
1790, at ¶22. "The essential principle underlying the policy of the division of powers of
government into three departments is that powers properly belonging to one of the
departments ought not to be directly and completely administered by either of the other
departments, and further that none of them ought to possess directly or indirectly an
13
overruling influence over the others." State ex rel. Bryant v. Akron Metro. Park Dist.
(1929), 120 Ohio St. 464, 473.
{q44} The reclassification of offenders pursuant to R.C. 2950.031(E) and R.C.
2950.032(E) does not grant appellate review to the Attorney General; the amendments
to the Sex Offender Registration and Notification Act constitute a new.law, with a new
system of classification and attendant registration and notification requirements.
{¶45} Unlike the review vested in courts of appeal, "the classification of sex
offenders into categories has always been a legislative mandate, not an inherent power
of the courts." State v. Smith, 2008-Ohio-3234, at ¶39 (citation omitted). Similarly, this
court has observed "[t]he enactment of laws establishing registration requirements for,
e.g., motorists, corporations, or sex offenders, is traditionally the province of the
legislature and such laws do not require judicial involvement." Swank, 2008-Ohio-6059,
at ¶99:
{¶46} However, "[t]he administration of justice by the judicial branch of the
government cannot be impeded by the other branches of the government in the
exercise of their respective powers." State ex rel. Johnston v. Taulbee (1981), 66 Ohio
St.2d 417, at paragraph one of the syllabus. "[I]t is well settled that the legislature
cannot annul, reverse or modify a judgment of a court already rendered." Bartlett v.
Ohio (1905), 73 Ohio St. 54, 58; Plaut v. Spendthrift Farm, Inc. (1995), 514 U.S. 211,
219 (Congress may not interfere with the power of the federal judiciary "to render
dispositive judgments" by "command[ing] the federal courts to reopen final judgments")
(citation omitted). "A judgment which is final by the laws existing when it is rendered
cannot constitutionally be made subject to review by a statute subsequently enacted."
14
Gompf v. Wolfinger (1902), 67 Ohio St. 144, at paragraph three of the syllabus. "That
the conclusions are uniform upon the proposition that a judgment which is final by the
statutes existing when it is rendered is an end to the controversy, will occasion no
surprise to those who have reflected upon the distribution of powers in such
governments as ours, and have observed the uniform requirement that legislation to
affect remedies by which rights are enforced must precede their final adjudication." Id.
at 152-153.
{147} A determination of an offender's classification under former R.C. Chapter
2950 constitutes a final order. State v. Washington, 11th Dist. No. 99-L-015, 2001-
Ohio-8905, 2001 Ohio App. LEXIS 4980; at *9 ("a defendant's status *** arises from a
finding rendered by the trial court, which in turn adversely affects a defendant's rights by
the imposition of registration requirements"); State v. Dobrski, 9th Dist. No.
06CA008925, 2007-Ohio-3121, at 16 {"[i]nasmuch as a sexual predator classification is
an order that affects a substantial right in a special proceeding, it is final and
appealable"), Accordingly, if either party failed to appeal such a determination within
thirty days, as provided for in App.R. 4(A), the judgment became settled. Subsequent
attempts to overturn such judgments have been barred under the principles of res
judicata. See State v. Lucemo, 8th Dist. No. 89039, 2007-Ohio-5537, at ¶9 (applying
res judicata where the State failed to appeal the lower court's determination that House
Bill 180/Megan's Law was unconstitutional: "the courts have barred sexual predator
classifications when an initial classification request had been dismissed on the grounds
that the court believed R.C. Chapter 2950 to be unconstitutional") (citation omitted).
15
{¶48} Hitchcock's classification as a sexually oriented offender, with definite
registration requirements, constituted a final order of the lower court. Therefore, no
court can now be statutorily directed or required to modify the prior judgment provisions
concerning Hitchcock's notification and registration requirements without violating
separation of powers and res judicata principles.
{¶49} Other appellate districts have held that the amendments to the Act do not
vacate "final judicial decisions without amending the underlying applicable law" or "order
the courts to reopen a final judgment." State v. Linville, 4th Dist. No, 08CA3051, 2009-
Ohio-313, at ¶23, citing Slagle, 2008-Ohio-593, at ¶21. According to these cases and
the arguments of the State, "the Assembly has enacted a new law, which changes the
different sexual offender classifications and time spans for registration: (sic)
requirements, among other things, and is requiring that the new procedures be applied
to offenders currently registering under the old law or offenders currently incarcerated
for committing a sexually oriented offense." State v. Slagle, 145 Ohio Misc.2d 98, 2008-
Ohio-593, at ¶21. We disagree. The imposition of the new enhanced notification and
registration requirements of the Act to previously adjudicated offenders changes the
terms of prior final sentencing judgments.
{q50} It does not matter that the current Sex Offender Act formally amends the
underlying law and does not order the courts to reopen final judgments. The fact
remains that the General Assembly "cannot annul, reverse or modify a judgment of a
court already rendered." Bartlett, 73 Ohio St. at 58. Hitchcock's reclassification, as a
practical matter, nullifies that part of the court's August 30, 2000 Judgment determining
Hitchcock to be a sexually oriented offender and ordering him to register for a period of
16
ten years. To assert that the General Assembly has created a new system of
classification does not solve the problem that Hitchcock's original classification
constituted a final judgment. There is no exception to the rule that final judgments may
not be legislatively annulled or modified in situations where the Legislature has enacted
new legislation.
{¶51} It is also argued that the Ohio Supreme Court has characterized the
registration and notification requirements of the Sex Offender Act as "a collateral
consequence of the offender's criminal acts," in which the offender does not possess a
reasonable expectation of finality. Ferguson, 2008-Ohio-4824, at ¶34 (citations
omitted); Linville, 2009-Ohio-313, at ¶24 (citation omitted).
{¶52} This argument also is unavailing. In Ferguson, as in Cook, the Supreme
Court did not consider the argument that the enactment of House Bill 180/Megan's Law
overturned a valid, final judgment. Rather, the Court was asked to determine whether
the retroactive application of the Sex Offender Act violated the ex post facto clause or
the prohibition against retroactive legislation. The court did not consider the arguments
based on separation of powers and res judicata raised herein. In Cook, the Sex
Offender Act was applied retroactively to persons who had not been previously
classified as sexual offenders. There were no prior final judicial determinations
regarding the offenders' status as sexual offenders. Thus, the Supreme Court could
properly state that the new burdens imposed by the law did not "impinge on any
reasonable expectation of finality" the offenders had with respect to their convictions.
83 Ohio St.3d at 414. In the present case, Hitchcock had every reasonable expectation
of finality in the trial court's prior Judgment Entry.
17
{¶53} Reliance upon the Supreme Court's reasoning in Cook and Ferguson is
further misplaced since the separation of powers and res judicata doctrines apply
equally in civil (remedial) contexts as they do in criminal (punitive) contexts. Akron v.
Smith, 9th Dist. Nos. 16436 and 16438, 1994 Ohio App. LEXIS 1859, at *4 ("[t]he
doctrine of res judicata *** applies equally to criminal and to civil litigation") (citation
omitted).
{¶54} The General Assembly's purpose in enacting the Adam Walsh Act, "to
provide increased protection and security for the state's residents from persons who
have been convicted of, or found to be delinquent children for committing, a sexually
oriented offense or a child-victim oriented offense," is properly realized in its application
to cases pending when enacted and those subsequently filed. Am.Sub.S.B. No. 10,
Section 5. Hitchcock's sentence, however, had become final several years prior to the
Adam Walsh Act. As such, it is beyond the power of the Legislature to vacate or
modify.' The United States Supreme Court has stated that the principle of separation of
powers is violated by legislation which "depriv[es] judicial judgments of the conclusive
effect that they had when they were announced" and "when an individual final judgment
is legislatively rescinded for even the very best of reasons." Plaut, 514 U.S. at 228
(emphasis sic). To the extent the Adam Walsh Act attempts to modify existing final
sentencing judgments, such as Hitchcock's sentence, it violates the doctrines of
separation of powers and finality of judicial judgments, despite the good intentions of the
Legislature. As such, that portion of the Act is invalid, unconstitutional, and
unenforceable.
1...Moreov.er, as a fjnal.judgment,.Hitchcock's sentence also is beyond the authority of the courts to

vacate,or modify:--State v:-Smith°(1'989);'ri2 Oh'io-St:3d 60, at paragraph one of the syllabus; Jurasek v.
Gould Elecs., lnc., 11th Dist. No. 2001-L-007, 2002-Ohio-6260, at ¶15 (citations omitted).
18
{¶55} Under this holding, Hitchcock will still have to complete his original
sentence and continue registering as a sexually oriented offender until his ten year
requirement is completed, pursuant to the trial court's August 30, 2000 Judgment Entry.
{156} Hitchcock's sole assignment of error is with merit to the extent indicated
above.
{1[57} For the foregoing reasons, the Judgment Entry of the Lake County Court
of Common Pleas, denying his Petition to Contest Reclassification and classifying him a
Tier II sex offender, is reversed; however, Hitchcock shall continue registering as a
sexually oriented offender pursuant to the trial court's August 30, 2000 Judgment Entry.
Costs to be taxed against appellee.
TIMOTHY P. CANNON, J., concurs in judgment only with a Concurring Opinion.
COLLEEN MARY O'TOOLE, J., concurs in part, dissents in part, with a

Concurring/Dissenting Opinion.
TIMOTHY P. CANNON, J., concurring in judgment only.
{158} I concur with the majority's disposition of Hitchcock's claim regarding cruel
and unusual punishment, as well as his challenge to the residency restriction.
{¶59} I would follow this court's opinion in State v. Ettenger, 11th Dist. No. 2008-
L-054, 2009-Ohio-3525. I do not believe that the application of the Adam Walsh Act to
Hitchcock violates the doctrine of separation of powers. See State v. Ettenger, 2009-
Ohio-3525, at ¶75-79.
19
{160} Instead, I would hold that the application of the Adam Walsh Act to
Hitchcock violates the Ex Post Facto Clause of the United States Constitution, the
Retroactivity Clause of the Ohio Constitution, and the DoubleJeopardy Clauses of the
Ohio and United States Constitutions. Id. at¶10-59, 68-74.
{161} Hitchcock had an expectation of finality that his prior adjudication as a
sexually oriented offender would result in a finite, ten-year reporting period. However,
Hitchcock has been reclassified as a. Tier tl offiender subject to enhanced reporting
requirements for 25 years.
{162} The judgment of the trial court should be reversed.

{¶63} I concur with the majority's disposition of Mr. Hitchcock's third issue - that
application of AWA to him violates the doctrine of separation of powers, thus requiring
us to reverse and remand. I further concur with the majority's disposition of his fifth
issue, relating to the effective dates of AWA. I agree with the majority that there is no
merit in his argument that application of AWA to him constitutes cruel and unusual
punishment, though on a different analysis. And I would hold that, on the facts of this
case, Mr. Hitchcock's challenge to the residency restrictions of AWA is not ripe for
review. However, I do find that application of AWA to Mr. Hitchcock violates the federal
ban against ex post facto laws, as well as the Ohio ban on retroactive laws. I also
believe its application to him constitutes double jeopardy. Consequently, I would
--^ reverse and remand on-these-issues; as well. -
20
{¶64} 'The ex post facto clause extends to four types of laws:
{165} ""'1st. Every law that makes an action done before the passing of the law,
and which was innocent when done, criminal; and punishes such action. 2d: Every law
that aggravates a crime, or makes it greater than it was, when committed. 3d. Every
law that changes the punishment, and inflicts a greater punishment, than the law
annexed to the crime, when committed. 4th. Every law that alters the legal rules of
evidence, and receives less, or different, testimony than the law required at the time of
the commission of the offense, in order to convict the offender."' (Emphasis added.)
Rogers v. Tennessee (2001), 532 U.S. 451, 456, '""*, quoting Calder v. Bull (1798), 3
U.S. 386, 390, **" (seriatum opinion of Chase, J.)" State v. Elswick, 11th Dist. No.
2006-L-075, 2006-Ohio-7011, at 117-18. (Parallel citations omitted.)
{¶66} As. the majority notes, Ohio courts apply the "intent-effects" test in
analyzing whether a statute violates the ban on ex post facto laws. My own application
of the test indicates both the intent, and the effect, of AWA are punitive, rendering it
unconstitutional when applied to crimes committed prior to the statute's enactment, as
in this case.
{167} In this case, the Ohio General Assembly specifically denominated the
remedial purposes of AWA. See, e.g., Swank, supra, at ¶73-80.. In Smith v. Doe,
supra, the United States Supreme Court found similar declarations by the Alaskan
legislature highly persuasive. Id. at 93. However, a closer reading of AWA's provisions
casts doubt upon the legislature's declaration.
{168} First, there is the simple fact that AWA is part of Title 29 of the Revised
Code. The United States Supreme Court rejected the notion that a statute's placement
21
within a criminal code is solely determinative of whether the statute is civil or criminal in
Smith. Id. at 94-95. However, it is clearly indicative of the statute's purpose. See, e.g.,
Mikaloff v. Walsh (N.D. Ohio Sept. 4, 2007), Case No. 5:06-CV-96, 2007 U.S. D'ist.
LEXIS 65076, at 15-16.
{169} Second, those portions of AWA controlling the sentencing of sex offenders
indicate that the classification is part of the sentence imposed - and thus, part of the
offender's punishment. See, e.g., R.C. 2929.01(D)(D) and (E)(E). Thus, R.C.
2929.19(B)(4)(a) provides: "[t]he court shall include in the offender's sentence a
statement that the offender is a tier III sex offender/child-victim offender ""*[.]" Similarly,
R.C. 2929.23(A) provides: "the judge shall include in the offendet's sentence a
statement that the offender is a tier III sex offender/child-victim offender [and] shall
comply with the requirements of section 2950.03 of the Revised Code ***[:]" R.C.
2929.23(B) provides: "[i]f an offender is being sentenced for a sexually oriented offense
or a child-victim oriented offense that is a misdemeanor '**, the judge shall include in
the sentence a summary of the offender's duties imposed under sections 2950.04,
2950.041"*', 2950.05, and 2950.06 of the Revised Code and the duration of the duties."
{170} Both the placement of AWA within the Revised Code, and the language of
the statute, indicates a punitive, rather than remedial, purpose? Further, as Judge
James J. Sweeney of the Eighth Appellate District recently noted regarding the intent of
AWA:
{171} ""' the General Assembly expressed a remedial intent in the legislation.
However, the stated purpose of protecting the public from those likely to reoffend is
substantially undermined by the total removal of any discretion or consideration in
2. I am indebted to my colleague, Judge Timothy P. Cannon, for these insights into the intent of AWA.
22
applying the tier labels to a particular offender. The fact of conviction alone controls the
labeling process, but simply is not in and of itself indicative of a realistic likelihood of a
person to recidivate. In addition, the severity of the potential penalty for violating [the
registration and notification] provisions of [AWA] depends upon the underlying offense
that serves as the basis for the offender's registration or notification conditions."
Omiecinski, supra, at ¶g1. (Sweeney, J., dissenting in part.)
{¶72} For all these reasons, I would find that the intent of AWA is punitive, rather
than remedial.
{¶73} Moreover, an exploration of the effects of AWA, under the seven factors of
the Kennedy test, reveals that it is a punitive, criminal statute, rather than remedial and
civil. Regarding the first factor, AWA clearly imposes significant affirmative disabilities
upon offenders. They must register personally with the sheriffs of any county in which
they live, work, or attend school, as often as quarterly. Failure to do so may result in
felony prosecution - even if the offender is, for instance, hospitalized, and unable to go
to the sheriff's office.
{174} Vast amounts of personal information must be turned over by offenders to
the sheriffs' departments with which they register. Some of this information bears no
relationship to any conceivable matter of public safety, such as where the offender
parks his or her automobile. Some of the information is so vaguely described as to
render compliance impossible. What, for instance, is included amongst automobiles
"regularly available" to an offender, or telephones "used" by an offender? Is an offender
required to report to the sheriff when he or she has a loaner from the auto body shop?
Is an offender required to report if he.or she stopped in a mall and used a public phone?
23
Must an offender register the cell phone number of a spouse or child, which the offender
only uses on rare occasions?
{¶75} AWA significantly limits where an offender may live. The right to live
where one wishes is a fundamental attribute of personal liberty, protected by the United
States Constitution. Omiecinski, supra, at ¶82. (Sweeney, J., dissenting in part,)
{176} AWA requires offenders to surrender any information required by the
bureau of criminal identification and investigation - or face criminal prosecution.
Consequently, it grossly invades offenders' rights to be free of illegal searches and to
counsel, at the very least.
{¶77} Thus, AWA imposes significant disabilities and restraints upon offenders,
which indicates it is an unconstitutional ex post facto law under the first Kennedy factor.
{¶78} The second Kennedy factor requires us to consider whether AWA
imposes conditions upon offenders traditionally regarded as punishment. Clearly it
does. The affirmative duties to register constantly with law enforcement, and turn over
to them vast amounts of private information, the limitations upon where an offender may
live, and the duty to answer any question posed by the BCI renders the registration
requirements of AWA the functional equivalent of community control sanctions.
{179} Under the third Kennedy factor, we must consider whether the registration
and notification requirements of AWA only come into play upon a finding of scienter.
Clearly they do not. There are strict liability sex offenses, such as statutory rape.
Nevertheless, as the Supreme Court of Alaska remarked in considering this factor in a
challenge to Alaska's version of Megan's Law, the vast majority of sex offenses do
require a finding of scienter. Doe v. Alaska (2008), 189 P.3d 999, 1012-1013. I
24
conclude, as did the Alaska court, that this factor provides some support for the punitive
effect of AWA. Cf. id. at 1013.
{180} The fourth Kennedy factor requires us to determine whether the
registration and notification requirements of AWA fulfill two of the traditional aims of
punishment: retribution and deterrence. "Retribution is vengeance for its own sake. It
does not seek to affect future conduct or solve any problem except realizing justice.'
Deterrent measures serve as a threat of negative repercussions to discourage people
from engaging in certain behavior. Remedial measures, on the other hand, seek to
solve a problem [.]" Doe v. Alaska, supra, at 1013; fn. 107, citing Artway v. Attomey
Gen. of N.J. (C.A.3, 1996), 81F.3d 1235, 1255,
{181} There are certain retributive factors in the registration requirements, i.e.,
the necessity of registering personally and the mandate that all personal information of
any type be turned over, upon request, to the BCI. These do not affect future conduct
or solve any problem. They simply impose burdens upon offenders. Similarly, the
prohibition upon offenders living within a certain proximity of schools, pre-schools, and
day care facilities is a form of retribution, since it applies across the board, and not
simply to violent offenders or child-victim offenders.
{182} Further, offenders' personal information is available online, from the
Attorney General, to the •entire world. This creates a deterrent effect, both in the
embarrassment and shame, which encourages people so tempted not to commit sex
offenses, and by allowing members of the public to identify potential dangers to
themselves and their families.
{¶83} Thus, AWA's requirements fulfill the traditionally punitive roles of
25
retribution and deterrence.
f¶841 The fifth Kennedy factor questions whether the conduct to which a law
applies is already a crime. I again find the reasoning of the court in Doe v. Alaska,
supra, at 1014-1015, persuasive. That court noted the law in question applied only to
those convicted of, or pleading guilty to, a sex offense: not to those, for instance, who
managed to plead out to simple assault, or found not guilty due to an illegal search and
seizure. Ultimately, the court held:
{185} "In other words, [the law] fundamentally and invariably requires a
judgment of guilt based on either a plea or proof under the criminal standard. It is
therefore the determination of guilt of a sex offense beyond a reasonable doubt (or per
a knowing plea), not merely the fact of the conduct and potential for recidivism, that
triggers the registration requirement. Because it is the criminal conviction, and only the
criminal conviction, that triggers obligations under [the law], we conclude that this factor
supports the conclusion that [the law] is punitive in effect." Id. at 1015. (Footnote
omitted.)
{¶86} Similarly, only conviction for, or a guilty plea to, a sex offense (and
kidnapping of a minor) triggers the provisions of AWA. Consequently, the fifth Kennedy
factor supports the conclusion that AWA is punitive in effect.
{187} Under the sixth Kennedy factor, we are required to consider whether the
law has some rational purpose other than punishment. Clearly AWA has an important
remedial purpose, by keeping law enforcement and the public aware of potential
recidivists amongst sex offenders. But the seventh Kennedy factor requires analysis of
whether the law in question is excessive in relation to that alternate purpose. AWA is
26
excessive. It punishes offenders by requiring personal registration, in a day of instant
communications. It punishes by requiring offenders to turn over personal information
bearing no rational relationship to the remedial purpose of the law. It punishes
offenders by restricting them from living near schools and day care facilities, even ff
their crime had no relationship to children. It punishes offenders by requiring them to
submit to any questioning, on any subject, by the BCI.
{¶88} Consequently, I would find that both AWA's intent, and effect are punitive,
and that it is an unconstitutional ex post facto law regarding Mr. Hitchcock.
{¶89} I further believe that AWA violates the Ohio Constitution's ban on
retroactive laws.
{¶90} "'The analysis of claims of unconstitutional retroactivity is, guided by a
binary test. We first determine whether the General Assembly expressly made the
statute retrospective. State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, ¶10 ***.
If we find that the legislature intended the statute to be applied retroactively, we proceed
with the second inquiry: whether the statute restricts a substantive right or is remedial.
Id. If a statute affects a substantive right, then it offends the constitution. Van Fossen
(v. Babcock & Wilcox Co. (1988)), 36 Ohio St.3d (100,) at 106 ***.' Ferguson, supra, at
¶13.°' Swank, supra, at ¶91. (Parallel citations omitted.)

{¶91} A statute is "substantive" if it: (1) impairs or takes away vested rights; (2)
affects an accrued substantive right; (3) imposes new burdens, duties, obligations or
liabilities regarding a past transaction; (4) creates a new right from an act formerly
giving no right and imposing no obligation; (5) creates a new right; or (6) gives rise to or
takes away a right to sue or defend a legal action. Van Fossen, supra, at 107. A later
27
enactment does not attach a new disability to a past transaction in the constitutional
sense unless the past transaction "created at least a reasonable expectation of finality."
State ex rel. Matz v. Brown (1988), 37 Ohio St.3d 279, 281. "Except with regard to
constitutional protections against ex post facto laws, `**, felons have no reasonable right
to expect that their conduct will never thereafter be made the subject of legislation."
(Emphasis added.) Id. at 281-282.
{192} The foregoing establishes that AWA is an unconstitutional retroactive law,
as applied to Mr. Hitchcock. By its terms, it applies retroactively. Second, it attaches
new burdens and disabilities to a past transaction, since it violates the constitutional
protections against ex post facto laws.
{¶93} However, an analysis under Section 28, Article 11, is incomplete, without
enquiring whether S.B. 10, as applied to Mr. Hitchcock, violates the ban against laws
impairing the obligation of contract. I think it does.
t¶94} When analyzing whether a law violates the ban against the impairment of
contracts, this court applies a tripartite test. Trumbull Cty. Bd. of Commrs. v. Warren
(2001), 142 Ohio App.3d 599, 602-603. First, there must be a determination if a
contractual relation exists. Id. at 602. If it does, we must ascertain whether a change in
the law impairs that relationship. Id. at 602-603. Finally, we must determine if that
impairment is substantial. Id. at 603.
.{¶95} "It is well established that a plea agreement is viewed as a contract
between the State and a criminal defendant. Santo6ello v. New York (1971), 404 U.S.
257, ***. Accordingly, if one side breaches the agreement, the other side is entitled to
either rescission or specific performance of the plea agreement. Id., at 262." State v.
28
Walker, 6th Dist. No. L-05-1207, 2006-Ohio-2929, at ¶13. (Parallel citations omitted.)
Ohio courts have noted that, in the main, the contract is completely executed once the
defendant has pleaded guilty, and the trial court has sentenced him or her. See, e.g.,
State v. McMinn (June 16, 1999), 9th Dist. No. 2927-M, 1999 Ohio App. LEXIS 2745, at
11; accord, State v. Pointer, 8th Dist. No..85195, 2005-Ohio-3587, at ¶9. However, to
the extent the plea agreement contains further promises, the contract remains
executory, and may be enforced by either party. See, e.g., Parsons v. Wilkinson (S.D.
Ohio 2006), Case No. C2-05-527, 2006 U.S. Dist. LEXIS 54979 (allegation by inmate
that plea agreement superseded parole board's authority regarding timing of parole
hearing sufficient to withstand state attorney general's motion to dismiss in Section
1983 action), citing Layne v. Ohio Adult Parole Auth., 97 Ohio St.3d 456, 2002-Ohio-
6719, af 128; see, also, McMinn, supra, at 11, fn. 6.
{¶96} Clearly, Mr. Hitchcock's plea agreement contained further terms, beyond
his agreement to plead guilty to certain charges, followed by sentencing by the trial
court. The state implied those terms into the agreement as a matter of law, pursuant to
former R.C. Chapter 2950. As a consequence of the particular charges to which he
pleaded guilty, he was eventually found to be a sexually oriented offender. Thus, his
plea, as a matter of law, contained the terms that he comply with the registration
requirements attendant upon that classification.
{¶97} Thus, I believe that Mr. Hitchcock's plea agreement with the state
remained an executory contract at the time of his reclassification under S.B. 10, meeting
the first requirement for determining if a law breaches the ban on impairment of
contracts. Trumbull Cty. Bd, of Commrs., supra, at 602.
29
{198} It appears that the second part of the test - whether a change in the law
has impaired the contract established between Mr. Hitchcock and the state, Trumbull
Cty. Bd. of Commrs. at 602-603 - is also met by S.B. 10. By changing his classification
from "sexually oriented offender" to "Tier II" offender, the state has unilaterally imposed
new affirmative duties upon Mr. Hitchcock in relation to the contract. Further, the third
part of the test for determining if a law unconstitutionally impairs a contract - i.e.,
whether the impairment is substantial, Trumbull Cty. Bd. of Cornmrs. at 603 - is
obviously fulfilled, since the duties imposed upon Tier II offenders are greater in number
and duration than those which were imposed upon sexually oriented offenders.
{199} Consequently, I would find that the application of S.B. 10 to Mr. Hitchcock
violates the prohibition in Section 28, Article II of the Ohio Constitution against laws
impairing the obligation of contracts.3
{¶100} I also believe that application of AWA to Mr. Hitchcock constitutes double
jeopardy. The Supreme Court of Ohio has held:
{¶101} "The Fifth Amendment to the United States Constitution provides that 'no
person shall (***) be subject for the same offence to be twice put in jeopardy of life or
limb.' Similarly, Section 10, Article 1, Ohio Constitution provides, 'No person shall be
3. I recognize that other appellate courts have reached contrary conclusions. Thus, in Sigler v. State, 5th
Dist. No. 08-CA-79, 2009-Ohio-2010, the Fifth District rejected a breach of contract argument in an AWA
case on the basis that members of one branch of government (i.e., prosecutors, representing the
executive) cannot bind future actions by the legislature. This seems beside the point: of course the
legislature can change the law. I merely maintain it cannot change substantially the terms of a civil
contract previously entered by the state without consideration. The Sigler court further relied upon the
doctrine of "unmistakability" in reaching its conclusion. That doctrine holds that a statute will not be held
to create contractual rights binding on future legislatures, absent a clearly stated intention to do so.
Again, this argument seems not to deal with the question presented. I would not hold that former R.C.
Chapter 2950 created any.contractual. rights.at all on.the part of persons classified thereunder. Rather, I
believe thata valid plea agreement entered by the state with a defendant is a contract incorporating'the
terms of the classification made.
30
twice put in jeopardy for the same offense."' State v. Zima, 102 Ohio St.3d 61, 2004-
Ohio-1807, at ¶16.
{1102} Here, in 2000, Mr. Hitchcock pleaded guilty to one count of attempted
gross sexual imposition. He was sentenced for this offense and adjudicated a sexually
oriented offender. Additional punitive measures have now been placed on him, as he is
required to comply with the new, more stringent registration requirements. Essentially,
he is being punished a second time for the same offense. The application of the current
version of R.C. Chapter 2950 to appellant violates the double jeopardy clauses of the
Ohio and United States Constitutions.
{1103}As I would find that AWA is a criminal, punitive statutory scheme, I feel
obliged to analyze Mr. Hitchcock's contention that application of it to him is cruel and
unusual punishment, banned under the Eighth Amendment to the United States
Constitution, and Section 9, Article I, Ohio Constitution. The Supreme Court of Ohio set
forth the standards to be applied in deciding whether punishment is "cruel and unusual"
in State v. Weitbrecht (1999), 86 Ohio St.3d 368, 370-372:
{¶104} "Historically, the Eighth Amendment has been invoked in extremely rare
cases, where it has been necessary to protect individuals from inhumane punishment
such as torture or other barbarous acts. Robinson v. California (1962), 370 U.S. 660,
676, ***. Over the years, it has also been used to prohibit punishments that were found
to be disproportionate to the crimes committed. In McDougfe v. Maxwell (1964), 1 Ohio
St.2d 68, **', this court stressed that Eighth Amendment violations are rare. We stated
that 'cases in which cruel and unusual punishments have been found are limited to
those involving sanctions which under the circumstances would be considered shocking
31
to any reasonable person.' Id. at 70, ***. Furthermore, 'the penalty must be so greatly
disproportionate to the offenseas to shock the sense of justice of the community.' Id.
See, also, State v. Chaffin (1972), 30 Ohio St.2d 13, ***, paragraph three of the
syllabus.
{¶105}"The United States Supreme Court has also discussed the concept of
whether the Eighth Amendment requires that sentences be proportionate to the
offenses committed. An Eighth Amendment challenge on these grounds was initially
applied only in cases involving the death penalty or unusual forms of imprisonment.
Enmund v. Florida (1982), 458 U.S. 782, *** ; Weems v. United States (1910), 217 U.S.
349, ***. Then, in Solem v. Heim (1983), 463 U.S. 277, 290, ***, the court applied the
Eighth Amendment to reverse a felony sentence on proportionality grounds, finding that
'a criminal sentence must be proportionate to the crime for which the defendant has
been convicted.' In so holding, the Solem court set forth the following tripartite test to
review sentences under the Eighth Amendment:
{¶}06} "'First, we look to the gravity of the offense and the harshness of the
penalty. (***) Second, it may be helpful to compare the sentences imposed on other
criminals in the same jurisdiction. If more serious crimes are subject to the same
penalty, or to less serious penalties, that is some indication that the punishment at issue
may be excessive. (***) Third, courts may find it useful to compare the sentences
imposed for commission of the same crime in other jurisdictions.' Id. at 290-291, ***.
{q107}"More recently, in Harmelin v. Michigan (1991), 501 U.S. 957, ***, the
United States Supreme Court revisited the issue of proportionality as it relates to the
Eighth Amendment. In Harmelin, the court was asked to decide whether a mandatory
32
term of life imprisonment without possibility of parole for possession of six hundred
seventy-two grams of cocaine violated the prohibition against cruel and unusual
punishments. In finding no constitutional violation, the lead opinion rejected earlier
statements made in So/em v. Helm and stated that the Eighth Amendment contains no
proportionality guarantee. However, this statement failed to garner a majority. The
three Justices who concurred in part would refine the Solem decision to an analysis of
'gross disproportionality' between sentence and crime. As stated by Justice Kennedy in
his opinion concurring in part, 'The Eighth Amendment does not require strict
proportionality between crime and sentence. Rather, it forbids only extreme sentences
that are "grossly disproportionate" to the crime.' Id. at 1001, "`." (Parallel citations
omitted.)
{¶108) Application of the Solem test to Mr. Hitchcock's predicament makes clear
that AWA does not constitute "cruel and unusual" punishment in violation of the Eighth
Amendment. Upon a Tier II offender, AWA places time-consuming and difficult
reporting burdens, for an extraordinarily long time. It is like spending twenty-five years
on probation. But if the penalty in Harmelin, supra - life imprisonment, without parole,
for cocaine possession - passes Eighth Amendment scrutiny, the penalties inflicted by
AWA upon a Tier It offender must, as well. Consequently, pursuant to Solem and
Harmelin, I cannot find that there is a gross disproportion between the crime and the
penalty. And, since Mr. Hitchcock cannot pass the first prong of the So/em test,
analysis of the second and third prongs is not required. Weitbrecht, supra, at 373, fn. 4.
{1109} For all the reasons foregoing, I respectfully concur in part and dissent in
part.
33
STATE OF OHIO ) IN?HE COURT OF APPEALS
)SS.
COUNTY OF LAKE ) _____-ELEVENTH DISTRICT
^.,... ÎI..t."
.
. . .
G rJt P.A L4,
J
Ei.
eî
STATE OF OHIO, AUG 312009

rh1CG.hRLY
Respondent-Apêllee, w àovay p ^r ;OMENT ENTRY
4. •-. - ---
- vs - CASE NO. 2008-L-032
PAUL RUSSELL HITCHCOCK,
Petitioner-Appellant.
For the reasons stated in the Opinion of this court, the judgment of the
Lake County Court of Common Pleas, reclassifying Hitchcock as a Tier II Sexual
Offender, is reversed. Hitchcock shall continue registering as a Sexually
Oriented Offender pursuant to the trial court's August 30, 2000 Judgment Entry.
Costs to be taxed against appellee.
JUDGE DIANE V. GRENDELL
TIMOTHY P. CANNON, J., concurs in judgment only with a Concurring Opinion.


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IN THE SUPREME COURT OF OHIO

STATE OF OHIO, ) Case No. 2009-1580

MOTION FOR RECONSIDERATION

CHARLES E. COULSON (0008667)

Teri R. Daniel (0082157) (COUNSEL OF RECORD)

COUNSEL FOR APPELLANT, STATE OF OHIO

Paul Russell Hitchcock, Pro se

Prosecuting Attorney, and Teri R. Daniel, Assistant Prosecuting Attorney, and

In its decision in In re Sexual Offender Reclassification Cases, Slip Opinion No.

2010-Ohio-3753, this Court reversed and remanded the above-captioned case as it

"rejected constitutional challenges to the Adam Walsh Act on separation-of-powers

was unconstitutional as it violated the Separation of Powers Doctrine:

decision in the above-captioned case.

CHARLES E. COULSON (0008667)

A copy of the foregoing Motion for Reconsideration was sent by regular U. S.

Painesville, OH 44077, this A day of August, 2010.

Teri R. Paniel (0082157)

to promptly notify the Reporter of Decisions, Supreme Court of Ohio,

made before the opinion is published.

SLIP OFirnorr No. 2010-Ol-no-3753

may be cited as In re Sexual Offender Reclassification Cases,

Sexual offender reclassifications pursuant to R.C. 2950.031 and 2950.032 -

decisions in State v. Bodyke and Chojnacki v. Cordray.

{¶ 1} The following dispositions of currently pending appeals and

O'DONNELL, LANZINGER, and CUPP, JJ., concur.

{¶ 3} 2009-1213. Spangler v. State, Lake App. No. 2008-L-062, 2009-

{¶ 5} 2009-1582. State v. Garner, Lake App. No. 2008-L-087, 2009-

{¶ 11} 2009-1798. Thomas v. State, Lake App. No. 2008-L-026, 2009-

Ohio-5209. Lanzinger, J., not participating.

{¶ 14) 2009-2030 and 2009-2325. Pollis v. State, Trumbull App. No.

{¶ 22} 2009-1002. Brooks v. State, Lorain App. No. 08CA009452, 2009-

{¶ 36} 2009-1585. Dunbar v. State, Richland App. No. 2008CA0173,

Ohio-3937. Lanzinger, J., not participating.

{¶ 49} 2009-1856. State v. Petralia, Lake App. No. 2008-L-095, 2009-

{¶ 50) 2009-1864. McKinney v. State, Warren App. No. CA2009-04-041,

{¶ 71) 2010-0196. Hall v. State, Hamilton App. No. C-090021.

further proceedings, if any, necessitated by State v. Bodyke.

{¶ 91) 2009-1525 and 2009-1832. Smallwood v. State, Butler App. No.

further proceedings, if any, necessitated by State v. Bodyke. The court declines to

{¶ 951 2010-0404. Miller v. State, Hamilton App. No. C-090131.

{¶ 98} 2010-0407. James v. State, Hamilton App. No. C-090176.

090142. Proposition of Law No. ITI. Motion for stay of jurisdictional

{¶ 107} 2010-0424. Brozell v. State, Hamilton App. No. C-090187.

{¶ 113} 2010-0613. State v. Zerla, Jefferson App. No. 08 JE 8, 2010-

{¶ 117} 2010-0758. Paster v. State, Hamilton App. No. C-090322.

{¶ 126} 2010-0822. Divo v. State, Hamilton App. No. C-090396.

Proposition of Law No. III.

offender classifications and concomitant registration and reporting requirements.

{¶ 136} 2009-0446. State v. Messer, Ross App. No. 08CA3050, 2009-

{¶ 140} 2010-0004. State v. Sprauer, Ross App. No. 09CA3121, 2009-

the opinion of the court of appeals.

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

STATE OF OHIO, OPINION

Respondent-i ppellee, FELEVJ^

PAUL RUSSELL HITCHCO^CK ,,.,,:;_} n o r:i.!-y

R.C. 2907.05. He was found to be a sexually oriented offender.

{¶3} Hitchcock was reclassified as a Tier II offender pursuant to the new

his reclassification, filing a Petition to Contest Reclassification on December 27, 2007.

court determined that Hitchcock was properly reclassified as a Tier ll Offender.

respectively, of the Ohio Constitution."

2950.09; State v. Cook, 83 Ohio St.3d 404, 407, 1998-Ohio-291. In determining

whether to classify an offender as a sexual predator, former R.C. 2950.09(B)(3)