{¶ 12} The majority incorrectly relies upon case law construing a version of R.C. 2950.04 that was no longer in effect at the time the trial court rendered its decision in December 2007. Concededly, State v. Champion,106 Ohio St.3d 120, 2005-Ohio-4098, 832 N.E.2d 718, does not explicitly state which version of R.C. 2950.04 it is construing. However, the majority improperly assumes that the decision must have been based on the April 29, 2005 version of R.C. 2950.04 simply because that version was in effect on August 24, 2005, when the Ohio Supreme Court entered its decision. Based on this improper assumption, the majority apparently then concludes that R.C. 2950.04(A)(4) is irrelevant because the Supreme Court did not refer to it in Champion.
{¶ 13} Appellate decisions must be based on the statutes applicable in the common pleas court when it rendered its decision. The version of R.C. 2950.04 at issue inChampion could not have been the version effective April 29, 2005, because all common pleas court proceedings had been completed before that date. Instead, the Supreme Court must have been construing the Senate Bill 5 version, effective July 31, 2003. This version did not include the language in R.C. 2950.04(A)(4) that I find critical to this case: an offender who "is adjudicated a sexual predator under division (C) of section 2950.09" but as to whom "neither division (A)(1), (2), nor (3) of this section applies," has a duty to register. The majority's incorrect assumption leads it to ignore this critical provision. Therefore, I dissent.
{¶ 14} A necessary precondition to the applicability of R.C. 2950.04(A)(4) is that "neither division (A)(1), (2), nor (3) applies." I would find that they do not apply. Just as in Champion, the appellant here "is not included within any of the three subsections of R.C. 2950.04(A)(1). R.C. 2950.04(A)(1)(a) includes only those who were convicted and sentenced to prison for a sexually oriented offense and who were released from prison on that sexually oriented offense on or after July 1, 1997." Champion, at ¶ 11. Like the offender in Champion, appellant here was released from prison on the sexually oriented offense long before July 1, 1997. Appellant "also evades application of R.C. 2950.04(A)(1)(b) because he was sentenced prior to July 1, 1997, and evades (A)(1)(c) because he was never adjudicated a habitual sexual offender and was not required to register under R.C. Chapter 2950." Id. at ¶ 12.
{¶ 15} Division (A)(2) also does not apply to appellant. It applies only to juvenile offender registrants, and appellant is not a juvenile offender. Division (A)(3) applies to offenders convicted or adjudicated in another state, a federal court, military court, Indian tribal court, or a court in another nation. This division also does not apply to appellant. *Page 58
{¶ 16} The first precondition of R.C. 2950.04(A)(4) has been met. Next, we must consider whether "the offender [was] adjudicated a sexual predator under division (C) of section 2950.09 of the Revised Code."4
{¶ 17} R.C. 2950.09(C) applies "[i]f a person was convicted of or pleaded guilty to a sexually oriented offense that is not a registration-exempt sexually oriented offense prior to January 1, 1997, if the person was not sentenced for the offense on or after January 1, 1997, and if, on or after January 1, 1997, the offender is serving a term of imprisonment in a state correctional institution." It is clear that appellant was convicted and sentenced for a sexually oriented offense before January 1, 1997, so the only issue is whether appellant "is serving a term of imprisonment." This language is markedly different from R.C. 2950.04(A)(1). The offender need not be serving "the" prison term imposed for the sexually oriented offense in order for the department to recommend to the court whether he should be found to be a sexual predator; he must only be serving "a" prison term.
{¶ 18} If appellant was properly found to be a sexual predator under R.C. 2950.09(C), then he had a duty to register by the terms of R.C. 2950.04(A)(4), as amended effective April 29, 2005, notwithstanding that his sentence for the sexually oriented offense had already been served.
{¶ 19} Under R.C. 2950.09(C)(2)(a), "[t]he court may hold the [sexual predator] hearing and make the determination prior to the offender's release from imprisonment or at any time within one year following the offender's release from that imprisonment." To hold that this refers to the imprisonment for the sexually oriented offense would create an anachronism, requiring a hearing to be held before the statute came into effect. We cannot assume the legislature intended an absurdity. The imprisonment to which this subdivision refers must be the same imprisonment referred to in subdivision (C)(1).
{¶ 20} While the record does not contain any official record indicating when appellant was released from imprisonment, both the state (in its brief) and appellant (in his disclosures during the sexual-predator evaluation) indicate that he was paroled in January 2007. The court's hearing and determination occurred within one year thereafter, in December 2007. Therefore, the hearing was timely. *Page 59
{¶ 21} I would find there was ample evidence in the record to support the trial court's determination that appellant is a sexual predator. The court's exhibits included appellant's institutional records from the Ohio Department of Rehabilitation and Correction, as well as the court psychiatric clinic's evaluation, of his risk of reoffending. This evidence showed that appellant was 61 years old and had spent 40 of the previous 42 years in prison on the charges discussed above. His institutional record reflected an extensive history of sexual acting-out, including five placements in segregation between 2000 and 2005 for indecent exposure and masturbation in front of female corrections officers. The court psychiatric clinic determined that persons with appellant's score of 8 on the statie-99 test have a recidivism rate of 39 percent over five years, 45 percent over ten years, and 52 percent over 15 years. Furthermore, appellant satisfied the diagnostic criteria for antisocial personality disorder and exhibitionism. The record provided ample evidence to support the court's determination that the state had proved by clear and convincing evidence that appellant was likely to engage in the future in a sexually oriented offense.
{¶ 22} Accordingly, I would affirm the common pleas court's decision.
4 The majority correctly but irrelevantly notes that R.C. 2950.09(C) governs the labeling of a defendant convicted of a sexually oriented offense, not the registration duties of a sexual predator. The sexual-predator label is essential to create a registration duty under R.C. 2950.04(A)(4). Thus, we must assess whether appellant is a sexual predator under R.C. 2950.09(C) in order to determine whether he has registration duties under R.C. 2950.04(A)(4).