State v. Consilio

Lanzinger, J.,

dissenting.

{¶ 28} I respectfully dissent. In rejecting the state’s arguments, the majority holds that unless the General Assembly “proclaim[s]” that a statute is retroactive “in plain terms,” a statute is conclusively prospective. Such a holding suggests that a formalistic recitation will now be the only evidence of the General Assembly’s intent on retroactivity, and an examination of the legislation as a whole to determine intent is no longer possible. This is contrary to the long*302standing principle that statutes should be interpreted as a whole. State ex rel. Myers v. Bd. of Edn. of Rural School Dist. of Spencer Twp., Lucas Cty. (1917), 95 Ohio St. 367, 372-373, 116 N.E. 516.

{¶ 29} In my view, former R.C. 2901.07(B)(3)(a), 2004 Sub.H.B. No. 525 (“HB 525”), is intended to reach all offenders under the control of the court to assure that before their release dates, they will submit to DNA analysis. Although the statute uses the present tense, this is not the only reason I believe it was intended to be applied retroactively. Notably, the statute includes the word “probation” when listing specific types of supervised release: “(3)(a) If a person is convicted of or pleads guilty to a felony offense or a misdemeanor offense listed in division (D) of this section and the person is on probation, released on parole, under transitional control, on community control, on post-release control, or under any other type of supervised release under the supervision of a probation department or the adult parole authority, the person shall submit to a DNA specimen collection * * (Emphasis added.)

{¶ 30} The General Assembly particularly listed all individuals required to submit DNA specimens if there has been a conviction or plea to a felony or specified misdemeanor. The listed individuals are those “on probation,” those under community control, parole, transitional control, and post-release control, and those under “any other type of supervised release.”

{¶ 31} The majority’s interpretation is wrong for two reasons. First, a prospective application nullifies the General Assembly’s use of the word “probation.” The General Assembly had abolished the felony sentence of probation and replaced it with community control5 on July 1, 1996, well before the enactment of the HB 525 version of R.C. 2901.07(B)(3)(a). See Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136, 7470; State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, ¶ 16. Compare R.C. 2929.15 with former R.C. 2951.02. 146 Ohio Laws, Part IV, 7136, 7546. Unless we read the General Assembly’s inclusion of the word “probation” as expressing the intent that all who are under the control of the court are subject to the DNA test, the word is superfluous. It is our duty to respect every word of the legislation and not add or delete words. Cleveland Elec. Illum. Co. v. Cleveland (1988), 37 Ohio St.3d 50, 524 N.E.2d 441, paragraph three of the syllabus.

{¶ 32} Second, R.C. 2901.07, as amended by 2006 Sub.S.B. 262 (“SB 262”), in uncodified Section 3(A) explained that the General Assembly wished to reaffirm the retroactivity of this statute: “The General Assembly hereby declares that its purpose in amending section 2901.07 of the Revised Code in Sections 1 and 2 of *303this act is to reaffirm that it is the General Assembly’s intent that, under that section as it existed prior to the effective date of this act, a person who is in any of the categories of offenders described in division (B)(1), (2), (3), or (4) of that section in relation to a conviction of or plea of guilty to a felony offense or a misdemeanor offense listed in division (D) of that section is subject to the DNA specimen collection provisions of divisions (B) and (C) of that section regardless of when the conviction of or plea of guilty to the felony offense or the misdemean- or offense occurs or is entered.”

{¶ 33} The majority rejects this statement by concluding that the new language did not clarify, but instead added, the missing retroactive intent. As noted, HB 525, which enacted the former statutory version, was already expressly retroactive. By inserting “[rjegardless of when the conviction occurred or the guilty plea was entered,” the amendment to R.C. 2901.07(B)(3)(a) simply clarified that the date of conviction or plea was not dispositive of the requirement to submit a DNA specimen. In other words, it reaffirmed its intent that the statute be retroactive and apply to all who were under control of the court as a result of a conviction.

I

{¶ 34} My reading that former R.C. 2901.07(B)(3)(a) is expressly intended to be retroactive requires a consideration of whether the statute is substantive, rendering it unconstitutionally retroactive, as opposed to merely remedial. State v. Cook (1998), 83 Ohio St.3d 404, 410-411, 700 N.E.2d 570, citing Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489, paragraph three of the syllabus.

{¶ 35} A retroactive statute is substantive — and therefore unconstitutionally retroactive — if it impairs vested rights, affects an accrued substantive right, or imposes new or additional burdens, duties, obligations, or liabilities as to a past transaction. Id. at 411, 700 N.E.2d 570. Remedial laws have been defined as those that simply provide “a rule of practice, a course of procedure or a method of review.” Miami Cty. v. Dayton (1915), 92 Ohio St. 215, 219, 110 N.E. 726.

{¶ 36} The state properly relies on State ex rel. Matz v. Brown (1988), 37 Ohio St.3d 279, 281, 525 N.E.2d 805, to demonstrate that former R.C. 2901.07(B)(3)(a) was a remedial law. In Matz, a statute that barred certain convicted felons from applying for compensation as victims of crime was challenged on grounds that a new disability was attached to previous conduct. Id. In denying the requested writ of mandamus, we held that the statute was constitutional because “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.” Id. at 282, 525 N.E.2d 805.

Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Richard S. Kasay, Assistant Prosecuting Attorney, for appellant. Tony Dalayanis Co., L.P.A., and Tony Dalayanis, for appellee.

{¶ 37} The HB 525 version of R.C. 2901.07(B)(3)(a) constitutes a remedial, curative statute that merely provides that an offender on any type of supervised release must submit to a DNA test. The requirement to submit to a DNA sample is much less onerous than the periodic registration requirement imposed upon classified sex offenders pursuant to R.C. Chapter 2950 and held to be “remedial” rather than substantive. Cook, 83 Ohio St.3d at 413, 700 N.E.2d 570. The requirement to submit a DNA sample is merely a procedural requirement necessary to implement a statutory goal. See id. at 412, 700 N.E.2d 570. In this case, the specific statutory goal as announced by the General Assembly when it amended R.C. 2901.07 is creation of a thorough DNA database to assist in the resolution of unsolved crimes. Uncodified Section 4 of SB 262.

{¶ 38} Consilio has alleged no impairment of rights or imposition of new obligations that would satisfy the tests for substantive legislation. He had no expectation of finality, as “felons have no reasonable right to expect that their conduct will never thereafter be made the subject of legislation.” Matz, 37 Ohio St.3d at 282, 525 N.E.2d 805. Furthermore, former R.C. 2901.07(B)(3)(a) does nothing more than impose a one-time obligation to undergo the DNA test.

{¶ 39} I conclude that the HB 525 version of R.C. 2901.07(B)(3)(a) does not constitute a substantive law, because it does not retrospectively impair vested rights, impose new duties, or create new obligations.

II

{¶ 40} In summary, I would reverse the judgment of the Court of Appeals for Cuyahoga County. I would hold that the earlier version of R.C. 2901.07(B)(3)(a) enacted by HB 525 expressly authorized its applicability to all offenders under the control of the courts, that it was remedial rather than substantive, and that it may be applied constitutionally to all who were on supervised release before May 18, 2005.

Lundberg Stratton and O’Connor, JJ., concur in the foregoing opinion.

. “Community control” has replaced “probation” for misdemeanor offenses also. See R.C. 2951.02, for example. 2002 Am.Sub.H.B. No. 490.