sexual offender classification hearing in Ohio

2018Upon review, we reverse the trial court’s determination and remand the matter for a sexual offender classification hearing to be conducted in accordance with former R.C. 2950.09 and State v. Eppinger, 91 Ohio St.3d 158 , 2001-Ohio-247 , 743 N.E.2d 881 . {¶2} The initial proceedings in this matter were summarized in Boyce I as follows: Defendant was indicted on August 20, 1991 in CR-270594 for two counts of rape of a child under the age of 13 years old (R.C. 2907.02) and one count of kidnaping (R.C. 2905.01).

2008To meet the clear-and-convincing standard requires a higher degree of proof than `a preponderance of the evidence,' but less than `evidence beyond a reasonable doubt.' State v. Ingram (1992), 82 Ohio App.3d 341 , 346 , 612 N.E.2d 454 ." Wilson at T|20. {¶ 20} In order to satisfy this standard, "there must be something of substance from which one could draw a logical conclusion concerning the likelihood of recidivism to reach a firm belief or conviction that the defendant is likely to commit a sexually oriented offense in the future." State v. Arthur (Aug. 16, 2001), Cuyahoga App. No. 77770. {¶

2006Pursuant to R.C. 2950.09 (B) (2), a judge may also consider any other evidence that he or she deems relevant to determining the likelihood of recidivism. " (Emphasis added.) State v. Thompson (2001), 92 Ohio St.3d 584 , 752 N.E.2d 276 , paragraph one of the syllabus; State v. Purser (2003), 153 Ohio App.3d 144 , 151 , 2003-Ohio-3345 at ¶ 34 , 791 N.E.2d 1053 , 1058 . {¶ 46} "To determine whether the trial court's finding of the offender's likelihood of re-offending is supported by clear and convincing evidence, an appellate court must conduct its own review of `the evidence in the transcripts,

2006Pursuant to R.C. 2950.09 (B) (2), a judge may also consider any other evidence that he or she deems relevant to determining the likelihood of recidivism. " (Emphasis added.) State v. Thompson (2001), 92 Ohio St.3d 584 , 752 N.E.2d 276 , paragraph one of the syllabus; State v. Purser (2003), 153 Ohio App.3d 144 , 151 , 2003-Ohio-3345 at ¶ 34 , 791 N.E.2d 1053 , 1058 . {¶ 46} "To determine whether the trial court's finding of the offender's likelihood of re-offending is supported by clear and convincing evidence, an appellate court must conduct its own review of `the evidence in the transcripts,

2007No. 12-04-13, 2005-Ohio-3237 citing State v. Schiebel (1990), 55 Ohio St.3d 71 , 74 , 564 N.E.2d 54 . {¶ 13} At the sexual offender classification hearing in the instant case, the parties stipulated to the admission of Street's psycho-sexual evaluation which contained an analysis of the factors contained in R.C. 2950.09 .

2007No. 12-04-13, 2005-Ohio-3237 citing State v. Schiebel (1990), 55 Ohio St.3d 71 , 74 , 564 N.E.2d 54 . {¶ 13} At the sexual offender classification hearing in the instant case, the parties stipulated to the admission of Street's psycho-sexual evaluation which contained an analysis of the factors contained in R.C. 2950.09 .

2006State v. Cook, 83 Ohio St.3d 404 , 425 , 1998-Ohio-291 .

2003The trial court notified him in open court and in its judgment entry of the requirement that he register with the sheriff and of the penalties if he did not. {¶ 4} We overrule Schilling's constitutional challenges to R.C. 2950.09 upon the authority of State v. Cook, 83 Ohio St.3d 404 , 1998-Ohio-291 , 700 N.E.2d 570 , certiorari denied (1999), 525 U.S. 1182 , 119 S.Ct. 112 , and State v. Williams, 88 Ohio St.3d 513 , 2000-Ohio-428 , 728 N.E.2d 342 .

2003Chapter 2950 defines three classifications of sex offenders: sexual predators, habitual sexual offenders, and sexually oriented offenders." State v. Eppinger (2001), 91 Ohio St.3d 158 , 161 , citing former R.C. 2950.09 ; State v. Cook (1998), 83 Ohio St.3d 404 , 407 , certiorari denied (1999), 525 U.S. 1182 , 119 S.Ct. 1122 . "`At a sexual offender classification hearing, decisions are made regarding classification, registration, and notification that will have a profound impact on a defendant's life.'" Eppinger at 162, quoting State v. Gowdy (2000), 88 Ohio St.3d 387 , 398 . {¶ 17} Although n

2003The trial court notified him in open court and in its judgment entry of the requirement that he register with the sheriff and of the penalties if he did not. {¶ 4} We overrule Schilling's constitutional challenges to R.C. 2950.09 upon the authority of State v. Cook, 83 Ohio St.3d 404 , 1998-Ohio-291 , 700 N.E.2d 570 , certiorari denied (1999), 525 U.S. 1182 , 119 S.Ct. 112 , and State v. Williams, 88 Ohio St.3d 513 , 2000-Ohio-428 , 728 N.E.2d 342 .

2003The trial court notified him in open court and in its judgment entry of the requirement that he register with the sheriff and of the penalties if he did not. {¶ 4} We overrule Schilling's constitutional challenges to R.C. 2950.09 upon the authority of State v. Cook, 83 Ohio St.3d 404 , 1998-Ohio-291 , 700 N.E.2d 570 , certiorari denied (1999), 525 U.S. 1182 , 119 S.Ct. 112 , and State v. Williams, 88 Ohio St.3d 513 , 2000-Ohio-428 , 728 N.E.2d 342 .

2003At the conclusion of the hearing, the trial court adjudicated him a sexual predator. {¶ 4} We overrule Morales’s constitutional challenges to R.C. 2950.09 upon the authority of State v. Cook (1998), 83 Ohio St.3d 404 , 700 N.E.2d 570 , certiorari denied (1999), 525 U.S. 1182 , 119 S.Ct. 1122 , 143 L.Ed.2d 116 , and State v. Williams (2000), 88 Ohio St.3d 513 , 728 N.E.2d 342 .

2017More specifically, "[d]efendants must have notice of the hearing in order to 'have an opportunity to testify, present evidence, call and examine witnesses and expert witnesses, and cross-examine witnesses and expert witnesses regarding the determination as to whether the offender is a sexual predator.' " Id. at 398 , citing former R.C. 2950.09(B)(1).2 {¶ 21} However, a failure to give proper notice of the sexual offender classification hearing does not constitute reversible error in every circumstance.

2004However, because sexual offender classification hearings are civil in nature, State v. Cook (1998), 83 Ohio St.3d 404 , our review of unobjected error is conducted under a civil plain error standard and reversal will only be resorted to in those rare cases involving exceptional circumstances where error seriously affects "`the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself.'" Gowdy , at 398, quoting Goldfuss v. Davidson (1997), 79 Ohio St.3d 116 , syllabus. {¶ 12} This court has taken note of

2004After sentencing, appellant through counsel waived statutory notice of a sexual offender classification hearing and stipulated to his classification as a sexual predator under R.C. 2950.09 . {¶ 2} Appointed appellate counsel for appellant has filed a brief setting forth the following assignment of error: The defendant's guilty pleas were not knowingly and voluntarily entered into and the trial court erroneously found the defendant to be a sexual predator. {¶ 3} Counsel's brief concedes that counsel has found no facts supporting a finding of reversible error in the trial court's proceedings, bu

2004After sentencing, appellant through counsel waived statutory notice of a sexual offender classification hearing and stipulated to his classification as a sexual predator under R.C. 2950.09 . {¶ 2} Appointed appellate counsel for appellant has filed a brief setting forth the following assignment of error: The defendant's guilty pleas were not knowingly and voluntarily entered into and the trial court erroneously found the defendant to be a sexual predator. {¶ 3} Counsel's brief concedes that counsel has found no facts supporting a finding of reversible error in the trial court's proceedings, bu

2008State v. Wheeler , Franklin App. No. 03AP-832, 2004-Ohio-4891 , at ¶ 12 , citing State v. McFadden , Franklin App. No. 01AP-1476, 2003-Ohio-5027 .

2007Nos. 03AP-832, 03AP-833, 2004-Ohio-4891 , at ¶ 12 (noting that "the Supreme Court in Gowdy declined to state that failure to give notice of the sexual offender classification hearing would constitute reversible error under all circumstances."). *Page 4 {¶ 6} Consequently, Appellant's challenge in the trial court was barred by res judicata.

2007State v. Eppinger , 91 Ohio St.3d 158 , 166 , 1998-Ohio-247 . {¶ 15} We review the trial court's sexual predator determination under the following standard of review: {¶ 16} "To determine whether the trial court's finding of the offender's likelihood of re-offending is supported by clear and convincing evidence, an appellate court must conduct its own review of 'the evidence in the transcripts, victim impact statements, pre-sentence investigation reports, prior history of arrests and convictions, age, etc., presented at the sexual offender classification hearing with respect to R.C. 2950.09 (B

2006Pursuant to R.C. 2950.09 (B) (2), a judge may also consider any other evidence that he or she deems relevant to determining the likelihood of recidivism. " (Emphasis added.) State v. Thompson (2001), 92 Ohio St.3d 584 , 752 N.E.2d 276 , paragraph one of the syllabus; State v. Purser (2003), 153 Ohio App.3d 144 , 151 , 2003-Ohio-3345 at ¶ 34 , 791 N.E.2d 1053 , 1058 . {¶ 46} "To determine whether the trial court's finding of the offender's likelihood of re-offending is supported by clear and convincing evidence, an appellate court must conduct its own review of `the evidence in the transcripts,

2007"The object of an ineffectiveness claim is not to grade counsel's performance." Id. at 142 . {¶ 12} As stated, it is within counsel's discretion whether to retain an expert for a sexual offender classification hearing.

2006More specifically, appellant argues that his counsel was ineffective in: (1) failing to object to the admission of his statements to Detective Huntzinger; (2) failing to object to the admission of the letter he allegedly wrote to K.M.; (3) failing to object to the state's impeachment of K.M.; and (4) stipulating to the facts presented by the state during the sexual offender classification hearing. {¶ 44} In State v. Bradley (1989), 42 Ohio St.3d 136 , paragraphs two and three of the syllabus, the Ohio Supreme Court discussed the applicable standard in considering a claim of ineffective assista

2006Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. ( State v. Lytle [1976], 48 Ohio St.2d 391 * * *; Strickland v. Washington [1984], 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 , followed.) 3.

2006Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. ( State v. Lytle [1976], 48 Ohio St.2d 391 * * *; Strickland v. Washington [1984], 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 , followed.) 3.

2003Co. (1978), 54 Ohio St.2d 279 , 376 N.E.2d 578 , syllabus. {¶ 7} At the sexual-offender-classification hearing, the state offered Schilling's prior record, the indictment, the grand-jury transcript, and a 1994 "advisability of treatment" form.

2003Co. (1978), 54 Ohio St.2d 279 , 376 N.E.2d 578 , syllabus. {¶ 7} At the sexual-offender-classification hearing, the state offered Schilling's prior record, the indictment, the grand-jury transcript, and a 1994 "advisability of treatment" form.

2003No. 3, effective January 1, 2002, which has moved the notice provision for the sexual-offender-classification hearing to R.C. 2950.09 (B)(2). 14 See R.C. 2950.09 (B)(3). 15 State v. Robertson , 147 Ohio App.3d 94 , 98 , 2002-Ohio-494 , 768 N.E.2d 1207 , ¶ 20 (citations omitted). 16 Id. at ¶ 44, 768 N.E.2d 1207 , citing State v. Cook (1998), 83 Ohio St.3d 404 , 426 , 700 N.E.2d 570 . 17 See State v. Thompson , 92 Ohio St.3d 584 , 2001-Ohio-1288 , 752 N.E.2d 276 . 18 See R.C. 2950.09 (B)(3)(i). 19 See R.C. 2950.09 (B)(3)(h). 20 Robertson , supra, at ¶ 25 . 21 91 Ohio St.3d 158 , 2001-Ohio-247 ,

2003No. 3, effective January 1, 2002, which has moved the notice provision for the sexual-offender-classification hearing to R.C. 2950.09 (B)(2). 14 See R.C. 2950.09 (B)(3). 15 State v. Robertson , 147 Ohio App.3d 94 , 98 , 2002-Ohio-494 , 768 N.E.2d 1207 , ¶ 20 (citations omitted). 16 Id. at ¶ 44, 768 N.E.2d 1207 , citing State v. Cook (1998), 83 Ohio St.3d 404 , 426 , 700 N.E.2d 570 . 17 See State v. Thompson , 92 Ohio St.3d 584 , 2001-Ohio-1288 , 752 N.E.2d 276 . 18 See R.C. 2950.09 (B)(3)(i). 19 See R.C. 2950.09 (B)(3)(h). 20 Robertson , supra, at ¶ 25 . 21 91 Ohio St.3d 158 , 2001-Ohio-247 ,

2004"Once it is established that the offender has committed a sexually oriented offense, the key to any sexual-offender-classification hearing is determining whether the offender is likely to reoffend in the future." State v. Hunter (2001), 144 Ohio App.3d 116 , 122 .

2002"Once it is established that the offender has committed a sexually oriented offense, the key to any sexual-offender-classification hearing is determining whether the offender is likely to reoffend in the future." State v. Hunter (2001), 144 Ohio App.3d 116 , 122 , 759 N.E.2d 809 .

2003Chapter 2950 defines three classifications of sex offenders: sexual predators, habitual sexual offenders, and sexually oriented offenders." State v. Eppinger (2001), 91 Ohio St.3d 158 , 161 , citing former R.C. 2950.09 ; State v. Cook (1998), 83 Ohio St.3d 404 , 407 , certiorari denied (1999), 525 U.S. 1182 , 119 S.Ct. 1122 . "`At a sexual offender classification hearing, decisions are made regarding classification, registration, and notification that will have a profound impact on a defendant's life.'" Eppinger at 162, quoting State v. Gowdy (2000), 88 Ohio St.3d 387 , 398 . {¶ 17} Although n

2003At the conclusion of the hearing, the trial court adjudicated him a sexual predator. {¶ 4} We overrule Morales’s constitutional challenges to R.C. 2950.09 upon the authority of State v. Cook (1998), 83 Ohio St.3d 404 , 700 N.E.2d 570 , certiorari denied (1999), 525 U.S. 1182 , 119 S.Ct. 1122 , 143 L.Ed.2d 116 , and State v. Williams (2000), 88 Ohio St.3d 513 , 728 N.E.2d 342 .

2003Vaughn has appealed from the judgment of the trial court adjudicating him a sexual predator. {¶ 3} Vaughn's first, second and third assignments of error, which allege that R.C. 2950.09 violates certain provisions of the state and federal constitutions, including the Ex Post Facto Clause of the United States Constitution, the prohibition against retroactive laws in Section 28 , Article II , of the Ohio Constitution, the Double Jeopardy Clause of the United States Constitution, and the Fourteenth Amendment's proscription against unconstitutionally vague laws, are overruled on the authority of St

2003The trial court notified him in open court and in its judgment entry of the requirement that he register with the sheriff and of the penalties if he did not. {¶ 4} We overrule Schilling's constitutional challenges to R.C. 2950.09 upon the authority of State v. Cook, 83 Ohio St.3d 404 , 1998-Ohio-291 , 700 N.E.2d 570 , certiorari denied (1999), 525 U.S. 1182 , 119 S.Ct. 112 , and State v. Williams, 88 Ohio St.3d 513 , 2000-Ohio-428 , 728 N.E.2d 342 .

2003No. 3, effective January 1, 2002, which has moved the notice provision for the sexual-offender-classification hearing to R.C. 2950.09 (B)(2). 14 See R.C. 2950.09 (B)(3). 15 State v. Robertson , 147 Ohio App.3d 94 , 98 , 2002-Ohio-494 , 768 N.E.2d 1207 , ¶ 20 (citations omitted). 16 Id. at ¶ 44, 768 N.E.2d 1207 , citing State v. Cook (1998), 83 Ohio St.3d 404 , 426 , 700 N.E.2d 570 . 17 See State v. Thompson , 92 Ohio St.3d 584 , 2001-Ohio-1288 , 752 N.E.2d 276 . 18 See R.C. 2950.09 (B)(3)(i). 19 See R.C. 2950.09 (B)(3)(h). 20 Robertson , supra, at ¶ 25 . 21 91 Ohio St.3d 158 , 2001-Ohio-247 ,

2003As the Supreme Court of Ohio stated in State v. Eppinger (2001), 91 Ohio St.3d 158 , 166 : {¶ 30} "[T]he trial court should consider the statutory factors listed in R.C. 2950.09 (B)[3] and should discuss on the record the particular evidence and factors upon which it relies in making its determination regarding the likelihood of recidivism." (Emphasis added.) See, also, State v. Thompson , 92 Ohio St.3d 584 , 588 , 2001-Ohio-1288 .

2017On July 23, 1997, Walker was brought back before the trial court for a sexual-offender-classification hearing and was adjudicated a sexual predator. {¶3} In 2005, the Ohio Supreme Court held in State v. Champion, 106 Ohio St.3d 120 , 2005-Ohio-4098 , 832 N.E.2d 718 , that former R.C. 2950.04(A)(1)(a) required only those who were serving a prison term on or after July 1, 1997, for a sexually oriented offense to register as sex offenders.

2017On July 23, 1997, Walker was brought back before the trial court for a sexual-offender-classification hearing and was adjudicated a sexual predator. {¶3} In 2005, the Ohio Supreme Court held in State v. Champion, 106 Ohio St.3d 120 , 2005-Ohio-4098 , 832 N.E.2d 718 , that former R.C. 2950.04(A)(1)(a) required only those who were serving a prison term on or after July 1, 1997, for a sexually oriented offense to register as sex offenders.

2016We decline to reopen Jackson’s appeal. {¶2} Jackson has failed to comply with App.R. 26(B)(2)(d), which mandates that the applicant must attach to the application for reopening “a sworn statement of the basis for the claim that appellate counsel’s representation was deficient.” State v. Doles, 75 Ohio St.3d 604 , 665 N.E.2d 197 (1996); State v. Lechner, 72 Ohio St.3d 374 , 650 N.E.2d 449 (1995); State v. Bates, 8th Dist.

2016We decline to reopen Jackson’s appeal. {¶2} Jackson has failed to comply with App.R. 26(B)(2)(d), which mandates that the applicant must attach to the application for reopening “a sworn statement of the basis for the claim that appellate counsel’s representation was deficient.” State v. Doles, 75 Ohio St.3d 604 , 665 N.E.2d 197 (1996); State v. Lechner, 72 Ohio St.3d 374 , 650 N.E.2d 449 (1995); State v. Bates, 8th Dist.

2016Cuyahoga No. 100877, 2014-Ohio-5137 , that affirmed his conviction for the offenses of rape (R.C. 2907.02(A)(2)) and kidnapping (R.C. 2905.01(A)(4)), but vacated the order of classification as a sexual predator and the imposition of an indefinite sentence of incarceration, and remanded to the trial court to conduct a sexual offender classification hearing and resentencing.