concurring in part and dissenting in part. I concur in the judgment of the majority to remand this case to the trial court for resentencing. The trial judge should be given an opportunity to further explain his sentence on record.
However, I respectfully dissent from the majority’s decision to affirm the court of appeals’ holding that defendant cannot be classified as a sexual predator as defined by R.C. 2950.01(E). I believe that the majority gives R.C. 2950.09(A) a hypertechnical reading that distorts the intent of the legislature and defies logic and common sense.
R.C. 2950.09(A) states that a sexually violent predator specification conviction results in a defendant being automatically classified as a sexual predator. However, the majority reads the phrase “In all other cases” as exclusive rather than inclusive. I would read “In all other cases” to include situations where a defendant was found not guilty of a sexually violent predator specification but guilty of a sexually violent offense. On that interpretation, a defendant convicted of a sexually violent offense but acquitted of the specification would stand on the same footing as one convicted of the same offense but never charged with a sexually violent predator specification. Both would face a sexual predator hearing, which is a civil action, not a criminal action. I do not believe the legislature intended one group of convicted sexually violent offenders to escape from all classification, as the majority allows. Rather, I believe the legislature intended only to have a conviction of a sexually violent predator specification lead to an automatic classification as a sexual predator.
I also believe that the phrase “A hearing shall not be conducted” in R.C. 2950.09(B)(4) simply serves to make clear that a conviction on a sexually violent predator specification substitutes for a sexual predator hearing, thereby avoiding duplication. The different natures and requirements of the two findings also underscore my belief that the legislature did not intend a not guilty finding on the specification to preclude a civil classification as a sexual predator.
A sexually violent predator specification is a criminal charge, making the penalty for the underlying offense an indefinite prison term of two years to life. It requires proof beyond a reasonable doubt. Its elements are different from the elements of classification as a sexual predator (as laid out by the majority in footnotes 3 and 4).
Classification as a sexual predator is a civil action, carrying no criminal penalties, and requires clear and convincing evidence. It imposes only registration requirements.
A sexually violent predator specification conviction in and of itself carries no registration requirements. The conviction automatically classifies the sexually violent predator as a sexual predator for civil registration purposes.
William D. Mason, Cuyahoga County Prosecuting Attorney, Lisa Reitz Williamson and Kristen L. Lusnia, Assistant Prosecuting Attorneys, for appellant. John P. Parker, for appellee.Under the majority’s interpretation, if a defendant is convicted of a sexually violent offense but acquitted of a sexually violent predator specification, there is no civil hearing and the defendant never has to register. However, this defendant was convicted of several counts of gross sexual imposition of young girls, his nieces, and accused of fondling another niece. In my opinion, under R.C. 2950.09(A), he now fits the “all other cases” category because he was convicted of a sexually oriented offense. He is no different in status from a defendant convicted of the same charges but never charged with a sexually violent predator specification. Both should now be subject to a civil hearing to see if they meet the test for registering as a sexual predator. But defendant now cannot even be subject to the two lower classifications, a sexually oriented offender or habitual sex offender, with their lesser registration requirements. He will, instead, once he serves his term, be free to live anywhere without notification to the community even though he has been found in the past to prey on young girls.
Under the majority’s interpretation, a prosecutor now has little incentive to seek a sexually violent predator specification lest the prosecutor risk losing the ability to classify the defendant as a sexual predator who must register pursuant to statute. If the prosecutor refuses to indict on a sexually violent predator specification, at least the state can be assured the defendant will have a sexual predator hearing. I do not believe the legislature intended this result.
For these reasons, I respectfully dissent from the majority’s conclusion on the meaning of R.C. 2950.09.
Resnick, J., concurs in the foregoing opinion.