[Cite as State v. Blankenship,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Appellate Case No. 2012-CA-74 Plaintiff-Appellee : : Trial Court Case No. 12-CR-318 v. : : TRAVIS BLANKENSHIP : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : : ...........

OPINION

Rendered on the 24th day of January, 2014.

...........

LISA M. FANNIN, Atty. Reg. #0082337, Clark County Prosecutor’s Office, 50 East Columbia Street, 4th Floor, Post Office Box 1608, Springfield, Ohio 45501 Attorney for Plaintiff-Appellee

RICHARD E. MAYHALL, Atty. Reg. #0030017, 20 South Limestone Street, Suite 120, Springfield, Ohio 45502 Attorney for Defendant-Appellant

.............

HALL, J.,

{¶ 1} Travis Blankenship appeals from his conviction and sentence on one count of unlawful sexual conduct with a minor, a fourth-degree felony.

{¶ 2} The record reflects that Blankenship pled guilty to the foregoing charge, which

involved sexual conduct with a fifteen-year-old girl. He was twenty-one years old at the time. As

part of the pre-sentence investigation, a psychologist evaluated him and opined that he was not “a

sexual offender” despite having committed a sex offense. The psychologist found that

Blankenship’s risk of re-offending was not high. The trial court sentenced Blankenship to

community control and designated him a Tier II sex offender as required by law.

{¶ 3} In his sole assignment of error, Blankenship contends requiring him to register as

a Tier II sex offender constitutes cruel and unusual punishment in violation of the Eighth

Amendment to the United States Constitution. In support, he stresses the psychologist’s belief

that he is not a sex offender and that he does not need sex-offender treatment. He also notes the

existence of evidence that he has a “caring relationship” with the victim and that no aggravating

facts, such as the use of drugs or alcohol, exist. Blankenship additionally stresses his relative

youth and the twenty-five-year length of his registration requirement. He argues that this

registration period serves no legitimate penological purpose in his case.

{¶ 4} In advancing the foregoing arguments, Blankenship urges us to extend the

holding of In re C.P.,

,

,

. In that case, the

Ohio Supreme Court recently held that imposing automatic, lifetime sex-offender registration and

notification requirements on juvenile sex offenders tried in the juvenile system violates the

constitutional prohibition against cruel and unusual punishment. Id. at ¶58. Having examined In

re C.P., we conclude that its rationale does not extend to Blankenship.

{¶ 5} “Central to the Constitution’s prohibition against cruel and unusual punishment

is the ‘precept of justice that punishment for crime should be graduated and proportioned to [the] 3

offense.’” Id. at ¶25, quoting Weems v. United States,

,

,

(1910). “Proportionality review falls within two general classifications: the first involves

‘challenges to the length of term-of-years sentences given all the circumstances in a particular

case.’ The second, which until recently was applied only in capital cases, involves ‘cases in

which the Court implements the proportionality standard by certain categorical restrictions.’” Id.

at ¶26, quoting Graham v. Florida,

,

,

(2010).

{¶ 6} The Ohio Supreme Court’s decision in In re C.P. involved the second

classification—proportionality review based on categorical restrictions. The court noted that this

classification itself involved two subsets, one based on the nature of the offense and one based on

the characteristics of the offender. Id. at ¶27. In re C.P. dealt with the second subset, the

characteristics of the offender. Id. Specifically, the Ohio Supreme Court considered the

offender’s status as a juvenile and whether that particular characteristic made the imposition of

automatic, lifetime sex-offender registration and notification requirements unconstitutionally

disproportional. Id. at ¶27-58.

{¶ 7} Unlike the offender in In re C.P., Blankenship was not a juvenile when he

committed his sex offense. Because he does not fit within the category at issue in In re C.P., the

Ohio Supreme Court’s Eighth Amendment analysis in that case has little, if any, applicability to

him. Blankenship also fails clearly to identify any other group into which he does fit where a

categorical rule might be established prohibiting Tier II sex-offender registration as cruel and

unusual punishment.

{¶ 8} As noted above, proportionality review based on categorical restrictions can

consider the nature of the offense (for example, a categorical prohibition of capital punishment 4

for non-homicide crimes against individuals) or the characteristics of the offender (for example, a

categorical prohibition of capital punishment for offenders who committed their crimes before

age eighteen). Id. at ¶27-28. At best, Blankenship’s appellate brief suggests a categorical

prohibition of Tier II sex-offender registration for young-adult offenders who present a relatively

low risk of recidivism, who have a caring relationship with their victim, and who did not use

drugs or alcohol to facilitate their sex offenses.

{¶ 9} When considering Eighth Amendment challenges on the basis of cruel and

unusual punishment, courts engage “in a two-step process in adopting categorical rules in regard

to punishment: first, the court considers whether there is a national consensus against the

sentencing practice at issue, and second, the court determines ‘in the exercise of its own

independent judgment whether the punishment in question violates the Constitution.’” Id. at ¶29,

quoting Graham.

{¶ 10} On appeal, Blankenship concedes the lack of a national consensus against lengthy

sex-offender registration for individuals such as him. This fact militates against his Eighth

Amendment challenge. With regard to our own independent judgment, we also find no Eighth

Amendment violation. Blankenship contends he is not a sex offender and that he is not in need of

any treatment. Implicit in this argument is that there is no need for sex-offender registration.

(Appellant’s brief at 5). As a matter of law, however, Blankenship is a sex offender by virtue of

his conviction for a sexually-oriented offense. The fact that a psychologist believes he is unlikely

to re-offend does not make his registration requirement cruel and unusual punishment. Nor are

we persuaded that anything about the facts of Blankenship’s case establishes an Eighth

Amendment violation. He met the fifteen-year-old victim on the internet. The record contains 5

evidence that he knew the victim’s age before twice having sex with her. While the criminal case

against him was pending, he violated a court order by having contact with the victim. He then

lied and denied the contact. The psychologist’s report estimates his risk of committing another

sex offense at twelve percent over five years and nineteen percent over fifteen years, placing him

in the low-to-moderate risk category.

{¶ 11} This court has recognized that “Eighth Amendment violations are rare, and

instances of cruel and unusual punishment are limited to those punishments, which, under the

circumstances, would be considered shocking to any reasonable person.” State v. Harding, 2d

Dist. Montgomery No. 20801,

. We see nothing in the foregoing facts to

convince us that Blankenship’s Tier II sex-offender registration requirement constitutes cruel and

unusual punishment. Accordingly, his assignment of error is overruled.

{¶ 12} The trial court’s judgment is affirmed.

.............

WELBAUM, J., concurs.

DONOVAN, J., dissenting:

{¶ 13} I disagree. Although ensuring public safety is a fundamental regulatory goal

and should be given serious weight in the classification of sex offenders, Blakenship’s

designation, in my view, is illustrative of a classification that is grossly disproportionate to the

nature of the offense and character of Blankenship. The 25-year designation completely ignores

the nature of the felony of the fourth degree, the characteristics of a young adult offender who has

no prior felony convictions and is at low to moderate risk to re-offend.

{¶ 14} Justice is blindfolded to reflect neutrality, but this does not mean that justice 6

should be sightless to the consequences of a Tier II Sex Offender classification on a 21-year-old

for half of his adult life. As the Supreme Court stated in State v. Williams,

,

,

, at ¶ 16: “Following the enactment of S.B. 10, all doubt has

been removed: R.C. Chapter 2950 is punitive. The statutory scheme has changed dramatically

since this court described the registration process imposed on sex offenders as an inconvenience

‘comparable to renewing a driver’s license.’ [State v.] Cook, 83 Ohio St.3d [404,] at 418,

[1998].”.

{¶ 15} Blankenship received a thirty-day jail sentence with twenty days suspended, a

total of ten days in jail. Yet he was punished with a scarlet letter of twenty-five years duration.

This twenty-five years is part of his punishment and, in my view, is grossly disproportionate in

severity to the crime committed. This classification carries significant restraints on

Blankenship’s liberty and a social stigma that interferes with employability, travel and housing.

{¶ 16} In my view, some of the analysis of In Re: C.P. applies equally to young adult

offenders such as Blankenship who do not have prior felonies and who pose no real threat to the

community. Although I accept and understand that juveniles and adults are constitutionally

different in Eighth Amendment analysis of sentencing due to their diminished culpability and

prospects of reform, this distinction should not preclude consideration of whether Blankenship’s

classification is cruel, unusual and excessive. Blankenship is certainly an individual to whom

the trial judge should have the discretion to apply less onerous punishment.

{¶ 17} Blankenship was just shy of graduating with an associates degree from Clark

State and was working 16-20 hours per week while in school at a department store. Numerous

teachers, his former high school principal, and former employer vouched for his character and 7

future promise. There is a mismatch between the culpability and character of Blankenship and

the severity of his punishment, a 25-year classification. Although I recognize and accept that the

legislature’s role is to affix punishment for certain offenses, the 25-year classification for

Blankenship is a sentence which is demonstrably grossly disproportionate to the nature of the

offense and character of the offender. I would find an Eighth Amendment violation and reverse.

..........

Copies mailed to:

Lisa M. Fannin Richard E. Mayhall Hon. Richard J. O’Neill