State v. Jarvis

[Cite as State v. Jarvis, 2020-Ohio-1127.]

COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. CT 2019-0029
ALBERT JARVIS :
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum
County Court of Common Pleas, Case No.
CR2018-0711

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: March 23, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

D. MICHAEL HADDOX STEPHEN HARDWICK
Prosecuting Attorney Assistant Public Defender
BY: TAYLOR BENNINGTON 250 East Broad Street, Suite 1400
Assistant Prosecuting Attorney Columbus, OH 43215
27 North Fifth St., Box 189
Zanesville, OH 43701
[Cite as State v. Jarvis, 2020-Ohio-1127.]

Gwin, P.J.

{¶1} Defendant-appellant, Albert B. Jarvis, IV [“Jarvis”] appeals from the

Muskingum County Court of Common Pleas finding that the violent offender registration

statue that became effective March 20, 2019, could be retroactively applied to his offense

which occurred November 4, 2018.

Facts and Procedural History

{¶2} On March 4, 2019, Jarvis entered negotiated guilty pleas to Kidnapping,

with a firearm specification, Disrupting Public Service, and Improper Handling of a Loaded

Firearm in a motor vehicle. The events that formed the basis for the charges occurred on

November 4 and 5, 2018. Plea Transcript, March 4, 2019 at 12-13. Sentencing was

deferred pending the preparation of a Pre-Sentencing Investigation Report. Id. 15.

{¶3} On March 20, 2019, R.C. 2903 41, et seq., “Sierah’s Law” became effective.

Sierah’s Law creates a Violent Offender Database [“VOD”], establishes a presumption

that violent offenders will be required to enroll in it, and provides that a violent offender

enroll in the database for a minimum of ten years. Re-enrollment is required on an annual

basis.

{¶4} On March 28, 2019, counsel for Jarvis filed a “Notice of Objection & Motion

for a Hearing on the Violent Offender Database.” (Docket Entry No. 23). Counsel

requested a hearing “pursuant to ORC 2903.41 et al on the issue of whether the

defendant shall be required to register with the Violent Offender Database.”

{¶5} The sentencing hearing in the Jarvis’ case occurred April 1, 2019. At the

start of the hearing, Jarvis, through counsel, objected to the violent offender database

enrollment requirements. Counsel argued that since Jarvis’ crimes were committed in
Muskingum County, Case No. CT 2019-0029 3

November 2018, application of the registration requirements would violate the prohibition

against retroactive laws contained in Section 28, Article II of the Ohio Constitution and

“ex post facto laws.” Sentencing Transcript, Apr 1, 2019 at 5. Counsel noted that Jarvis

signed the Notice; however, he objected to the stipulation to the violent offender

database. Id. at 6-7; 17.

{¶6} The trial court overruled Jarvis’ motion and objection. See, Judgment Entry,

filed Apr 2, 2019 at 1. (Docket No. 25). The trial court sentenced Jarvis to four years on

the Kidnapping offense, mandatory three years on the firearm specification, 18 months

on the Disrupting Public Services offense, and 18 months on the Improper Handling

Offense. The court ordered the sentences be served concurrent to each other but

consecutive to the mandatory firearm specification, for an aggregate sentence of seven

years. The trial court also provided Jarvis with “A Notice of Duties to Register as a Violent

Offender (ORC 2903.41, et seq.)”. (Docket No. 24). The trial court advised Jarvis of his

duties to register on the violent offender registry. Sentencing Transcript, Apr 1, 2019 at

8.

Assignment of Error

{¶7} Jarvis raises one Assignment of Error,

{¶8} “I. OHIO’S VIOLENT OFFENDER REGISTRY IS PUNITIVE AND NOT

REMEDIAL. AS A RESULT, THE TRIAL COURT ERRED BY RETROACTIVELY

APPLYING THE STATUTE TO MR. JARVIS.”

{¶9} Jarvis argues that the provisions of R.C. 2903.41, et seq cannot be

constitutionally applied to a defendant whose offense occurred before March 20, 2019.
Muskingum County, Case No. CT 2019-0029 4

STANDARD OF APPELLATE REVIEW.

{¶10} “When a court’s judgment is based on an erroneous interpretation of the

law, an abuse-of-discretion standard is not appropriate.” Medical Mutual of Ohio v.

Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13 (citing,

Swartzentruber v. Orrville Grace Brethren Church, 163 Ohio App.3d 96, 2005-Ohio-4264,

836 N.E.2d 619 (9th Dist.), ¶ 6; Huntsman v. Aultman Hosp., 5th Dist. Stark No. 2006 CA

00331, 2008-Ohio-2554, 2008 WL 2572598, ¶ 50). Application of statutory language, to

determine whether it can apply to an offender whose offense occurred before the effective

date of the enactment is a question of law that we must review de novo.

Ohio’s Violent Offender Registration Requirement, R.C 2903.41, et seq

{¶11} Effective March 20, 2019, Ohio’s sub. S.B. 231, “Sierah’s Law,” created a

violent offender database. The database defines a “violent offender” as (1) on or after

the act’s effective date is convicted or pleads guilty to aggravated murder [R.C.

2903.01], murder [R.C. 2903.02], voluntary manslaughter [R.C. 2903.03], kidnapping

[R.C. 2905.01], abduction [F2] [R.C. 2905.02], or any attempt or conspiracy to commit or

complicity in committing any of those offenses, or (2) on the date has been convicted

of any of those offenses and is serving a term of confinement for the offense. R.C.

2903.41(A) (emphasis added).The act creates a rebuttable presumption that the violent

offender is required to enroll in the violent offender database (VOD) with respect to the

offense that so classifies the person. R.C. 2903.42(A)(1).

{¶12} Each violent offender is also presumed to have a duty to enroll, duty to re-

enroll, and duty to provide notice of a change of address (VOD duties) with respect to the

qualifying offense for ten years after the offender initially enrolls. Each violent offender

must be informed of the following:
Muskingum County, Case No. CT 2019-0029 5

(1) The presumption of VOD duties;

(2) The offender's right to file a motion to rebut the presumption;

(3) The procedure and criteria for rebutting the presumption; and

(4) The effect of a rebuttal and the post-rebuttal hearing procedures

and possible outcome.

{¶13} The entity responsible for making the notification varies, depending on the

date of conviction. If the person is classified a violent offender based on a conviction that

occurs on or after the act's effective date (March 20, 2019), the sentencing court must

inform the offender before sentencing. R.C. 2903.42(A)(1)(a). If the person is classified a

violent offender on the basis of a conviction preceding that date, the official in charge of

the institution in which the offender is confined, or the official's designee, must provide

that information in writing a reasonable period of time before the offender is released.

R.C. 2903.42(A)(1)(b). (Emphasis added).

{¶14} If the offender files a motion to rebut the presumption that he or she is

required to register, the offender has the burden of proof, by a preponderance of the

evidence, that the offender was not the principal offender in the commission of the offense

that classifies the person as a violent offense. R.C. 2903.42 (A)(4). However, even if the

offender successfully rebuts the presumption, the trial court can still issue an order that

the offender be required to enroll. The trial court must consider (1) whether the offender

has any convictions for any offense of violence prior to the one at issue, and whether

those prior convictions indicate that the offender has a propensity for violence; (2) the

results of a risk assessment conducted through use of a single validation risk assessment
Muskingum County, Case No. CT 2019-0029 6

tool, (3) the offender’s degree of culpability or involvement in the offense at issue and (4)

the public interest and safety. R.C. 2903.42(A)(4)(a)(i)-(iv).

Manner of Enrollment.

{¶15} An offender who has VOD duties must obtain from the sheriff or sheriff’s

designee a copy of the enrollment form prescribed by the Attorney General, complete and

sign the form, and return it together with fingerprints, palm prints, and a photograph. R.

C. 2903.43 (C)(1) and (C) (3). The VOD enrollment form must include all of the following

information:

(1) The offender's full name, any alias used, and residence address;

(2) The offender's Social Security number;

(3) Any driver's license number, commercial driver's license number,

or state identification card number issued to the offender by Ohio or another

state;

(4) The offense of which the offender was convicted;

(5) The name and address of any place where the offender is

employed and of any school or institution of higher education that the

offender is attending;

(6) The identification license plate number of each vehicle owned or

operated by the offender or registered in the offender's name, the vehicle

identification number of each vehicle, and a description of each vehicle;

(7) A description of any scars, tattoos, or other distinguishing marks

on the offender.

{¶16} R.C. 2903.43(C)(2). The offender must re-enroll annually, in person, with

the sheriff of the county in which the offender resides, or with the sheriff’s designee, within
Muskingum County, Case No. CT 2019-0029 7

ten days prior to the anniversary of the calendar date on which the offender initially

enrolled. The duty to re-enroll remains in effect for the entire ten-year enrollment period

of the offender. The enrollee must re-enroll by completing, signing, and returning to the

sheriff or designee a copy of the enrollment form prescribed by the Attorney General

amending any information that has changed since the last enrollment, and providing any

additional enrollment information required by the Attorney General. The sheriff or

designee with whom the offender re-enrolls must obtain a new photograph of the offender

annually at re-enrollment. Additionally, if the offender's most recent enrollment or re-

enrollment was in a different county, the offender must provide written notice of the

change of address to the sheriff or designee where the offender previously resided. R.C.

2903.43(D)(1).

{¶17} With the exception of the offender’s Social Security number, driver’s license

number, or state identification number, any statements, information, photographs,

fingerprints, or materials provided by an offender who has VOD duties that are in the

sheriff's possession are public records open to public inspection under Ohio's Public

Records Law. R.C. 2903.43(F)(3).

Penalty for Failure to Enroll or Re-enroll.

{¶18} The act prohibits an offender who has VOD duties from recklessly failing to

enroll, re-enroll, or notify the sheriff or sheriff's designee of a change of address during

the ten-year enrollment period or extended enrollment period. A violation of the

prohibition is a fifth degree felony. If an offender who violates the prohibition is on parole

or subject to a community control sanction, one or more post-release control sanctions,

or any other type of supervised release at the time of the violation, the violation constitutes
Muskingum County, Case No. CT 2019-0029 8

a violation of the terms and conditions of the community control sanction, parole, post-

release control sanction, or other type of supervised release R.C. 2903.43(I).

ISSUE FOR APPEAL.

A. Can the VOD be applied retroactively to an individual whose offense occurred

before the effective date of March 20, 2019?

1. Prohibition against retroactive laws.

{¶19} Section 28, Article II of the Ohio Constitution states that “[t]he general

assembly shall have no power to pass retroactive laws.” Section 1.48 of the Ohio Revised

Code requires the legislature, or rule making body to expressly state its intent in the body

of the statute or rule that it is to apply to pending or past cases. The Ohio Supreme Court

developed a two-part test for determining whether a statute can be applied retroactively.

Hyle v. Porter, 117 Ohio St.3d 165, 2008-Ohio-542, 882 N.E.2d 899, ¶ 7–9. In the first

part of the test, we “ask whether the General Assembly expressly made the statute

retroactive.” Id. at ¶8; Van Fossen v. Babcock & Wilcox Co., 36 Ohio St.3d 100,

107(1988), superseded on other grounds by R.C. 2745.01. In the case at bar, R.C.

2903.41 imposes registration requirements for offenders sentenced on or after March 20,

2019 and to offenders who have previously been convicted or pleaded guilty to

enumerated offenses and are serving a prison term, term of imprisonment, or other term

of confinement on March 20, 2019. R.C. 2903.41 (A)(1) and (A)(2). Every individual who

is serving a sentence of confinement for one of the enumerated offenses on March 20,

2019 must enroll in the VOD prior to his or her release regardless of when the offense

was committed. Both sections apply regardless of when the offense was committed.

{¶20} Because the VOD was intended to apply retroactively, we must now turn to

the second part of the test, which requires us to determine whether the statutory
Muskingum County, Case No. CT 2019-0029 9

provisions are substantive or remedial. Hyle at ¶ 8. See also State v. Consilio, 114 Ohio

St.3d 295, 2007-Ohio-4163, 871 N.E.2d 1167, ¶ 10; State v. Williams, 129 Ohio St.3d

344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶8.

{¶21} In State v. Williams, the Ohio Supreme Court noted the distension between

substantive and remedial laws,

In Pratte v. Stewart, 125 Ohio St.3d 473, 2010-Ohio-1860, 929

N.E.2d 415, ¶ 37, we stated that “[i]t is well established that a statute is

substantive if it impairs or takes away vested rights, affects an accrued

substantive right, imposes new or additional burdens, duties, obligations, or

liabilities as to a past transaction, or creates a new right. Van Fossen, 36

Ohio St.3d at 107, 522 N.E.2d 489. Remedial laws, however, 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.”

See Bielat v. Bielat (2000), 87 Ohio St.3d 350, 352–353, 721 N.E.2d 28,

quoting Miller v. Hixson (1901), 64 Ohio St. 39, 51, 59 N.E. 749 (“The

retroactivity clause nullifies those new laws that ‘reach back and create new

burdens, new duties, new obligations, or new liabilities not existing at the

time [the statute becomes effective]’ ” [bracketed material sic] ).

129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶9.

2. The VOD and remedial v. punitive.

{¶22} “There is no absolute test to determine whether a retroactive statute is so

punitive as to violate the constitutional prohibition against ex post facto laws; such a

determination is a ‘matter of degree.’” State v. Cook, 83 Ohio St.3d 404, 418, 700 N.E.2d
Muskingum County, Case No. CT 2019-0029 10

570(1998) (quoting California Dept. of Corrections v. Morales, 514 U.S. 499, 509, 115

S.Ct. 1597, 131 L.Ed.2d 588 (1995)). In Williams, the Ohio Supreme Court considered

whether the reporting requirements for sexual offenders created under the Adam Walsh

Act could constitutionally be retroactively applied to an offender who committed a sex

offense prior to its enactment. The Court held that the Adam Walsh Act, part of which

was expressly made retroactive, is punitive, and “as applied to defendants who committed

sex offenses prior to its enactment, violates Section 28, Article II of the Ohio Constitution,

which prohibits the General Assembly from passing retroactive laws.” Williams, 129 Ohio

St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, at ¶ 16 and at the syllabus. Subsequently,

the Court clarified that only persons who commit their underlying offense on or after the

effective date of the Adam Walsh Act can be constitutionally subjected to its requirements.

In re Bruce S., 134 Ohio St.3d 477, 2012-Ohio-5696, 983 N.E.2d 350; In re Von, 146 Ohio

St.3d 448, 2016-Ohio-3020, 57 N.E. 3d 1158, ¶17.

{¶23} In analyzing whether the Adam Walsh Act was substantive or remedial, the

Williams court first noted that under the prior version of the statute the offender “might not

have been subject to registration requirements.” Williams, 129 Ohio St.3d 344, 2011-

Ohio-3374, 952 N.E.2d 1108, at ¶18. However, under the new statute the offender is

“automatically subject to registration requirements that obligate him to register in person

in the county where he resides in the county where he works, and in the county where he

attends school.” Id. The Court in Williams cited the dissenting opinion of Justice

Lanzinger in State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E. 2d 110, for

further evidence of the punitive nature of the Adam Walsh Act’s registration requirements,
Muskingum County, Case No. CT 2019-0029 11

“‘The following comparisons show that the current laws are more

complicated and restrictive than those at issue in [State v.] Williams [88

Ohio St.3d 513, 728 N.E.2d 342(2000)] and [State v.] Cook [83 Ohio St.3d

404, 700 N.E.2d 570 (1998)]. First, the label “sexual predator” is now

permanent for adult offenders, R.C. 2950.07(B)(1), whereas previously,

offenders had the possibility of having it removed. Former R.C.

2950.09(D), Am.Sub.H.B. No. 180, 146 Ohio Laws, Part II, 2560, 2621–

2623. Second, registration duties are now more demanding and therefore

are no longer comparable to the inconvenience of renewing a driver’s

license, as Cook had analogized. Cook, 83 Ohio St.3d at 418, 700 N.E.2d

570. Persons classified as sex offenders must now personally register with

the sheriff of the county in which they reside, work, and go to school. R.C.

2950.04(A). Sexual predators must personally register with potentially

three different sheriffs every 90 days, R.C. 2950.06(B)(1)(a), which is hardly

comparable to the slight inconvenience of having one’s driver’s license

renewed every four years. Third, community notification has expanded to

the extent that any statements, information, photographs, or fingerprints

that an offender is required to provide are public record and much of that

material is now included in the sex-offender database maintained on the

Internet by the attorney general. R.C. 2950.081. In Cook, we considered it

significant that the information provided to sheriffs by sex offenders could

be disseminated to only a restricted group of people. Cook, 83 Ohio St.3d

at 422, 700 N.E.2d 570. Fourth, new restrictions have been added to R.C.
Muskingum County, Case No. CT 2019-0029 12

Chapter 2950. Enacted initially as part of Sub.S.B. No. 5, 125th General

Assembly, approved July 31, 2003, R.C. 2950.031 prohibits all classified

sex offenders, not just those convicted of sex offenses against children,

from residing within 1,000 feet of any school premises. Fifth, a sheriff is

now permitted to request that the sex offender’s landlord or the manager of

the sex offender’s residence verify that the sex offender currently resides at

the registered address. R.C. 2950.111(A)(1). According to R.C.

2950.111(C), “[a] sheriff or designee of a sheriff is not limited in the number

of requests that may be made under this section regarding any registration,

provision of notice, or verification, or in the number of times that the sheriff

or designee may attempt to confirm, in manners other than the manner

provided in this section, that an offender * * * currently resides at the address

in question.”

“‘While protection of the public is the avowed goal of R.C. Chapter

2950, we cannot deny that severe obligations are imposed upon those

classified as sex offenders. All sexual predators and most habitual sex

offenders are expected, for the remainder of their lives, to register their

residences and their employment with local sheriffs. Moreover, this

information will be accessible to all. The stigma attached to sex offenders

is significant, and the potential exists for ostracism and harassment, as the

Cook court recognized. Id., 83 Ohio St.3d at 418, 700 N.E.2d 570.

Therefore, I do not believe that we can continue to label these proceedings

as civil in nature. These restraints on liberty are the consequences of
Muskingum County, Case No. CT 2019-0029 13

specific criminal convictions and should be recognized as part of the

punishment that is imposed as a result of the offender’s actions.’ State v.

Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 45–46

(Lanzinger, J., concurring in part and dissenting in part).” Ferguson, 120

Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, ¶ 45–47 (Lanzinger, J.,

dissenting).

Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶14-¶15.

3. The VOD provisions are punitive.

{¶24} On March 9, 2020, the Twelfth District Court of Appeals ruled,

Given the many differences between the sex-offender registration

statutes and the violent-offender enrollment statutes, we find that the

violent-offender enrollment requirements are not so punitive that they

impose a new burden in the constitutional sense, as contemplated in

Williams. Rather, we find that the violent-offender enrollment requirements

are more akin to the arson-offender registration requirements set forth in

R.C. 2909.13, 2909.14, and 2909.15, which the First District found were

remedial in nature. See Caldwell, 2014-Ohio-3566 at ¶ 33-35. Accordingly,

as appellant had no expectation of finality with regard to any duties that may

or may not have attached following his conviction for murder, he does not

have a substantive right in this regard. See id. at ¶ 35; Cook, 83 Ohio St.3d

at 414. The violent-offender enrollment statutes are remedial in nature, and

the General Assembly could retroactively impose Sierah’s Law without

running afoul of Article II, Section 28 of the Ohio Constitution.
Muskingum County, Case No. CT 2019-0029 14

State v. Hubbard, 12th Dist. Butler No. CA2019-05-086, 2020-Ohio-856, ¶37. In reaching

this conclusion, the Court in Hubbard contended that,

The Supreme Court’s decision in Williams “is hard to reconcile with

the court’s previous pronouncements that the commission of a felony does

not create a reasonable expectation of finality.” Caldwell at ¶ 24. “Perhaps

it is best understood by saying that, in Williams, the court simply found the

scheme so punitive that it amounted to a violation of the Ohio Constitution,

notwithstanding the court’s prior jurisprudence on criminal acts and the

expectation of finality.” Id.

Following Williams, the Supreme Court “returned to analyzing

retroactive legislation under the familiar framework of whether the

retroactive application of a new law burdened a vested right or a reasonable

expectation of finality.” Id. at ¶ 25

Hubbard, 12th Dist. Butler No. CA2019-05-086, 2020-Ohio-856, ¶28-¶29.

{¶25} The Court in Hubbard relied in part on the Supreme Court’s decision’s in

State, ex. Rel. Matz v. Brown, 37 Ohio St.3d 279, 525 N.E. 2d 805 (1988) and State v.

White, 132 Ohio St.3d 344, 2012-Ohio-2583, 972 N.E.2d 534.

{¶26} In Matz, the relator was convicted of a felony on August 25, 1978. On March

18, 1983, the General Assembly amended R.C. 2743.60(E) to prohibit anyone convicted

of a felony within the previous ten years from recovering under the Ohio Victims of Crime

statute. The relator was the victim of criminally injurious conduct on February 1, 1984.

The Court of Claims of Ohio denied recovery to the relator based upon the 1983
Muskingum County, Case No. CT 2019-0029 15

amendment. The relator asserted that the amendment could not be applied to him without

violating the Retroactivity Clause.

{¶27} In its analysis, the Supreme Court of Ohio reiterated the test that a statute

is unconstitutional under the Retroactivity Clause if it is applied retroactively, and the

statute “involves either impairing of a vested right or creating a new disability with respect

to past transactions or considerations,” i.e., is substantive. Id. at 281, 525 N.E.2d 805.

The court then expanded the Van Fossen test for determining whether a statute is

“substantive.” It held that, with respect to the latter portion of the test, the “past

transaction” must have created a “reasonable expectation of finality.” Accordingly, the

court concluded:

“From the foregoing it is clear that a later enactment will not burden

or attach a new disability to a past transaction or consideration in the

constitutional sense, unless the past transaction or consideration, if it did

not create a vested right, created at least a reasonable expectation of

finality. The completion of a tax year is such a transaction; the commission

of a felony is not.

***

Therefore, for purposes of analysis under Section 28, Article II, Ohio

Constitution, we hold that a law that attaches a new disability to a past

transaction or consideration is not a prohibited retroactive law unless the

past transaction or consideration created at least a reasonable expectation

of finality. Past felonious conduct is not such a transaction or consideration.
Muskingum County, Case No. CT 2019-0029 16

Matz, at 281, 282, 525 N.E.2d 805. The quoted portion of Matz has led to the conclusion

that convicted felons never, under any circumstance, have a reasonable expectation of

finality for their past deeds. However, Matz can be better understood as finding “one

does not have a vested right or a reasonable expectation of finality with respect to

“collateral consequences” of a prior felony conviction, that is to say, when one attempts

to affirmatively seek a benefit to which he may otherwise be entitled but for his conviction.”

State v. Crawford, 11th Dist. Lake No. 97-L-245, 1998 WL 684185(Sept. 25, 1998), at *8.

This distinction can be readily illustrated. Take for example a situation in which an

offender committed a fifth degree felony offense and pled guilty to that offense. Now

suppose that, prior to sentencing, a statute was enacted elevating the offense to a felony

of the second degree. No one would seriously contend that because the offender had

“no reasonable expectation of finality in his felony conviction” he could be given the

increased punishment set forth in the newly enacted statute. Clearly, sentencing the

offender under the new statue for a felony of the second degree would violate the Ex Post

Facto Clauses of the United States and Ohio Constitutions because it increases the

punishment for a past crime. See, Dorsey v. United States, 567 U.S. 260, 275–87, 132

S.Ct. 2321, 2332–38, 183 L.Ed.2d 250 (2012) (citing Calder v. Bull, 3 Dall. 386, 390–391,

1 L.Ed. 648 (1798); Collins v. Youngblood, 497 U.S. 37, 41–44, 110 S.Ct. 2715, 111

L.Ed.2d 30 (1990))(Ex Post Facto Clause prohibits applying a new Act’s higher penalties

to pre-Act conduct, it does not prohibit applying lower penalties). In this example, the

new statute could not be applied retroactively because it is clearly punitive, and would

impose new or additional burdens, duties, obligations, or liabilities to a past transaction.
Muskingum County, Case No. CT 2019-0029 17

{¶28} In State v. White, 132 Ohio St.3d 344, 2012–Ohio–2583, 972 N.E.2d 534,

the Ohio Supreme Court examined the General Assembly’s purpose in using the words

“because of error that occurred in the sentencing phase of the trial.” The court had, in its

1987 decision in State v. Penix, 32 Ohio St.3d 369, 513 N.E.2d 744 (1987), held that

because a death sentence could be imposed only upon the recommendation of the same

jury that had found a capital offender guilty, a trial court could not impanel a new jury to

resentence, nor could the trial court again sentence to death, an offender whose death

sentence had been vacated for error during the penalty-phase of his trial. Id. at 372–373,

513 N.E.2d 744. The Court ruled that it was compelled to reach this conclusion because,

“While the United States Supreme Court suggested in Skipper v. South Carolina (1986),

476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1, that the imposition of a death sentence at a

resentencing hearing may be permitted when it is specifically authorized by a state’s

death penalty statute, the Ohio Revised Code provides no such authorization.” 32 Ohio

St.3d 369,372, 513 N.E.2d 744.

{¶29} In response to Penix, the General Assembly in 1996 enacted R.C.

2929.06(B), authorizing the trial court to impanel a new jury, conduct a new sentencing

hearing, and reconsider all possible sentences, including death, when a death sentence

has been vacated “because of error that occurred in the sentencing phase of the trial.”

{¶30} White urged a narrow reading of the statute, asserting that the trial court

had no authority to resentence him to death under R.C. 2929.06(B), when his death

sentence had been vacated not “because of error that occurred in the sentencing phase

of the trial,” but for error during jury selection.
Muskingum County, Case No. CT 2019-0029 18

{¶31} In White, the Ohio Supreme Court disagreed finding, “R.C. 2929.06(B) does

not increase the punishment for aggravated murder. The death penalty for aggravated

murder existed on January 19, 1996, the date of Trooper Gross’s murder. White plainly

faces no greater punishment as a result of R.C. 2929.06(B) than he faced on January 19,

1996.” 132 Ohio St.3d 344, 2012–Ohio–2583, 972 N.E.2d 534, ¶33. The Court in White

noted that White could not have a vested right to be resentenced until his original

sentence had been vacated. Id. at ¶36. However, the state had enacted the new statute

and made it retroactive before White’s sentence had been vacated. Id. at 37. Thus,

“upon the enactment of R.C. 2929.06(B), the Penix right was extinguished. When the

Sixth Circuit vacated White’s death penalty, there was no Penix right to vest. For the

same reason, White could not plausibly contend that he relied on Penix when he

committed the murder. We conclude that retroactive application of R.C. 2929.06(B) does

not impair any vested or accrued right belonging to White.” Id.

{¶32} Prior to the Supreme Court’s decision in Williams, almost every appellate

court that had upheld the new sexual offender classification, registration, and notification

provisions of the Adam Walsh Act against constitutional challenge on retroactivity

grounds relied strongly on Matz and concluded convicted sex offenders have no

reasonable expectation of finality in either their past conduct or felony conviction. State

v. Crawford, 11th Dist. Lake No. 97-L-245, 1998 WL 684185(Sept. 25, 1998). However,

that all changed when the Ohio Supreme Court decided Williams.

{¶33} In Williams, the Ohio Supreme Court acknowledged,

This court has consistently held that “R.C. Chapter 2950 is a

remedial statute.” State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824,
Muskingum County, Case No. CT 2019-0029 19

896 N.E.2d 110, ¶ 29. We have also stated, “There is no absolute test to

determine whether a retroactive statute is so punitive as to violate the

constitutional prohibition against ex post facto laws; such a determination is

a ‘matter of degree.’ ” State v. Cook (1998), 83 Ohio St.3d 404, 418, 700

N.E.2d 570. In Cook, we examined the guideposts listed in Kennedy v.

Mendoza–Martinez (1963), 372 U.S. 144, 168–169, 83 S.Ct. 554, 9 L.Ed.2d

644, for determining whether a statute is punitive and concluded that “R.C.

Chapter 2950 serves the solely remedial purpose of protecting the public.”

Cook at 423, 700 N.E.2d 570.

After Cook was issued, R.C. Chapter 2950 was amended by S.B. 5.

This court again concluded that despite the changes effected by S.B. 5,

R.C. Chapter 2950 was a remedial statute. Ferguson, 120 Ohio St.3d 7,

2008-Ohio-4824, 896 N.E.2d 110, at ¶ 43. Some factors pertaining to the

statutory scheme governing sex offenders, however, suggested that the

statutory scheme was punitive. First, the procedures for registration and

classification of sex offenders were placed within Ohio’s criminal code, R.C.

Title 29. Second, failure to comply with certain registration requirements

subjected a sex offender to criminal prosecution. R.C. 2950.99.

Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶10 -¶11 (emphasis

added).

{¶34} What distinguishes Williams from Matz and White is the Courts

pronouncement in Williams that,
Muskingum County, Case No. CT 2019-0029 20

When we consider all the changes enacted by S.B. 10 in aggregate,

we conclude that imposing the current registration requirements on a sex

offender whose crime was committed prior to the enactment of S.B. 10 is

punitive.

Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶21 (emphasis added).

The key distinction in Williams is, “If the registration requirements of S.B. 10 are imposed

on Williams, the General Assembly has imposed new or additional burdens, duties,

obligations, or liabilities as to a past transaction.” Id. at ¶22 (emphasis added). Thus, the

Supreme Court’s decision in Williams is not hard to reconcile with the court’s previous

pronouncements that the commission of a felony does not create a reasonable

expectation of finality. See, State v. Hubbard, 12th Dist. Butler No CA2019-05-086, 2020-

Ohio-856, ¶28. In Williams, the Court found that the new registration statute was punitive

and imposed new or additional burdens, duties, obligations, or liabilities as to a past

transaction. In both Matz and White, the Court found that the statutes under consideration

were not punitive and/or did not impose new or additional burdens, duties, obligations, or

liabilities as to a past transaction.

{¶35} In the case at bar, at the time he committed his offenses and at the time

that he pled guilty, Jarvis had no duty to register with the VOD. Now he is required to

register with the VOD in person each year for a minimum of ten years. See, e.g. Williams,

129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶18. An offender must also

submit to a new photograph taken by the sheriff. R.C. 2903.43(D)(1). Under the VOD,

every person serving a sentence of confinement on March 20, 2019 for one of the eligible

offenses must register, even if the crime was committed years before the current
Muskingum County, Case No. CT 2019-0029 21

enactment. In spite of the fact that an offender may rebut the presumption that he be

required to enroll in the database, the trial court can still require the offender to register.

R.C. 2903.42(A)(4)(a). The name and address of any place where the offender is

employed and of any school or institution of higher education that the offender is

attending; and the identification license plate number of each vehicle owned or operated

by the offender or registered in the offender's name, the vehicle identification number of

each vehicle, and a description of each vehicle must be provide. See, e.g. Williams, 129

Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶20. With the exception of the

offender’s Social Security number, driver’s license number, or state identification number,

any statements, information, photographs, fingerprints, or materials provided by an

offender who has VOD duties that are in the sheriff's possession are public records open

to public inspection under Ohio's Public Records Law. R.C. 2903.43(F)(3). See, e.g.

Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶14; ¶15 (quoting State

v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110. Lanzinger, J.,

dissenting). Additionally, if the offender's most recent enrollment or re-enrollment was in

a different county, the offender must provide written notice of the change of address to

the sheriff or designee where the offender previously resided. R.C. 2903.43(D)(1). An

individual must notify the sheriff within three business days of any change of home, work

or school address. R.C. 2903.43(E). Under certain circumstances, the 10-year

enrollment period may be extended indefinitely by the trial court. R.C. 2903.43(D)(2).1

The registration requirements apply without regard to the future dangerousness of the

offender. See, e.g. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108,

1 The trial court must extend the registration period if the offender commits any violation of a
supervised release condition, is convicted of a violent misdemeanor, or is convicted of any felony.
Muskingum County, Case No. CT 2019-0029 22

¶20. The act prohibits an offender who has VOD duties from recklessly failing to enroll,

re-enroll, or notify the sheriff or sheriff's designee of a change of address during the ten-

year enrollment period or extended enrollment period. A violation of the prohibition is a

fifth degree felony.

{¶36} When considered in the aggregate, we conclude that imposing the VOD,

R.C. 2903.41, et seq. requirements upon defendants who committed offenses prior to its

enactment, violates Section 28, Article II of the Ohio Constitution, which prohibits the

General Assembly from passing retroactive laws.

CONCLUSION.

{¶37} If the registration requirements of the VOD are imposed on Jarvis, the

General Assembly has imposed new or additional burdens, duties, obligations, or

liabilities as to a past transaction. We conclude that the VOD, R.C. 2903.41, et seq. as

applied to Jarvis and any other offender who committed an offense prior to March 20,

2019, violates Section 28, Article II of the Ohio Constitution, which prohibits the General

Assembly from enacting retroactive laws. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374,

952 N.E.2d 1108, ¶14.
Muskingum County, Case No. CT 2019-0029 23

{¶38} The judgment of the Muskingum County Court of Common Pleas is

reversed and the cause is remanded for resentencing under the law in effect at the time

Jarvis committed the offense.

By Gwin, P.J.,

Wise, John, J., and

Baldwin, J., concur