Court Vacates Conviction of Megan's Law Registrant for Failing to Comply with Adam Walsh Act Requirements

Pre-2008 Classification of Sex Offender Not Subject to Legislative Changes


State v. Gingell, Slip Opinion No. 2011-Ohio-1481.
Hamilton App. No. C-081167. Judgment of the court of appeals reversed.
O'Connor, C.J., and Pfeifer, Lundberg Stratton, O'Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2011/2011-Ohio-1481.pdf

(April 5, 2011) The Supreme Court of Ohio ruled today that, pursuant to its earlier decision in State v. Bodyke, a person who was judicially classified as a sexually oriented offender and ordered to register with law enforcement once a year under the pre-2008 version of Ohio’s sex offender law (Megan’s Law) is not subject to prosecution under a more restrictive registration requirement imposed by the Ohio Adam Walsh Act (AWA) effective Jan 1, 2008.

Applying that analysis to a Hamilton County case, the Court vacated the conviction and eight-year prison sentence of Ronald Gingell for failure to comply with an every-90-days registration requirement improperly applied to him under the AWA. The Court’s 7-0 decision was authored by Justice Paul E. Pfeifer.

In this case, Gingell was convicted on three counts of rape in 1981. While he was serving his prison term for those offenses, he was classified by a judge as a sexually oriented (low-level) offender under Megan’s Law. The judge advised Gingell that, pursuant to his Megan’s Law offender classification, he would be required to register with law enforcement in his county of residence once a year for ten years following his release from prison, and if he violated that requirement he would be subject to prosecution for a fifth-degree felony. After Gingell was released from prison, the General Assembly enacted the AWA, which repealed or amended many provisions of Megan’s Law effective Jan. 1, 2008.

In late 2007 Gingell received a letter from the state attorney general advising him that he had been reclassified under the AWA as a Tier III (most dangerous) sex offender and that, effective Jan. 1, 2008, he would be required to register and update his current address with law enforcement every 90 days for the rest of his life. He was also advised that, under the AWA, failure of a Tier III offender to comply with the quarterly registration requirement was punishable as a first-degree felony.

In July 2008, Gingell was indicted by a Hamilton County grand jury on two first-degree felony counts of failing to comply with his every-90-days registration requirement under the AWA. One count was later dismissed. He was found guilty on the remaining count and sentenced to a prison term of eight years plus five years of post-release control.

Gingell appealed, arguing that because failure to comply with his sex offender registration requirement was punishable as a fifth-degree felony at the time of his original classification, the trial court should have charged and sentenced him for a fifth-degree felony under the Megan’s Law version of the statute. The 1st District Court of Appeals affirmed the trial court’s judgment and sentence, holding that because Gingell’s registration violation took place after Jan. 1, 2008, charging him under the AWA version of the statute was not a retroactive application of that law. Gingell sought and was granted Supreme Court review of the 1st District’s ruling.

While Gingell’s appeal was pending, the Supreme Court of Ohio issued its decision in Bodyke. In that decision, announced June 3, 2010, the Court voided as unconstitutional the provisions of the AWA that: 1) authorized the state attorney general to reclassify sex offenders who had previously been classified by a judge under Megan’s Law; and 2) imposed on some prior offenders AWA registration requirements that were more restrictive than the Megan’s Law registration requirements that had been imposed on them by a judge. Bodyke did not address the retroactivity question upon which the 1st District decided Gingell’s appeal, but instead found the challenged provisions of the AWA were unconstitutional because they violated the separation of powers between the legislative and judicial branches of government.

Writing for a unanimous Court in today’s decision, Justice Pfeifer noted that “(i)n Bodyke this Court held that R.C. 2950.031 and 2950.032, the reclassification provisions in the AWA, were unconstitutional and severed them from the AWA. This court specifically addressed what that severance meant for offenders like Gingell, who had originally been classified under Megan’s Law and were then reclassified under the AWA: ‘R.C. 2950.031 and 2950.032 may not be applied to offenders previously adjudicated by judges under Megan’s Law, and the classifications and community-notification and registration orders imposed previously by judges are reinstated.’”

“Thus, pursuant to Bodyke, Gingell’s original classification under Megan’s Law and the associated community-notification and registration order were reinstated. Therefore, the current version of R.C. 2950.06, which requires Tier III sexual offenders to register every 90 days, does not apply to Gingell.”

Because it was clear from the record that Gingell’s failure-to-register conviction was based on an AWA registration requirement that was not applicable to him, Justice Pfeifer wrote: “(W)e reverse the judgment of the court of appeals and vacate Gingell’s conviction for a violation of the 90-day address-verification requirement of R.C. 2509.06. Gingell remained accountable for the yearly reporting requirement under Megan’s Law; whether he met that requirement is not a part of this case.”

Contacts
Paula Adams, 513.946.3228, for the state and Hamilton County prosecutor's office.

Marguerite Slagle, 513.421.1108, for Ronald Gingell.