[Cite as State v. Galloway,

.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. Sheila G. Farmer, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. 15CAA040029 : BRANDON D. GALLOWAY : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 14CR-I-11- 0530 B

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: November 23, 2015

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

CAROL HAMILTON O'BRIEN DAVID H. BIRCH DELAWARE CO. PROSECUTOR 286 South Liberty St. ERIC C. PENKAL Powell, OH 43065 140 North Sandusky St. Delaware, OH 43015 Delaware County, Case No. 15CAA040029 2

Delaney, J.

{¶1} Appellant Brandon D. Galloway appeals from the March 24, 2015

Judgment Entry on Sentence of the Delaware County Court of Common Pleas.

Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} The facts underlying appellant's criminal conviction are not in the record

before us, other than agreement of the parties at the sentencing hearing that the crime

giving rise to this case occurred in 2007.

{¶3} On November 26, 2014, appellant and co-defendant Jackson O. Conn

were charged by indictment with one count of aggravated arson pursuant to R.C.

2909.02(A)(2), a felony of the second degree. Appellant initially entered a plea of not

guilty.

{¶4} On February 13, 2015, the parties reached a negotiated plea agreement

pursuant to Crim.R. 11(F) stipulating appellant would plead to a lesser offense of

attempted arson pursuant to R.C. 2923.02(A) and 2909.03(A)(4), a felony of the third

degree. Appellee recommended a pre-sentence investigation (P.S.I.) and appellant

agreed to pay restitution in an amount to be determined. Appellant then withdrew his

plea of not guilty and entered a plea of guilty to the lesser-included offense.

{¶5} In a Judgment Entry dated February 17, 2015, the trial court found

appellant guilty of attempted arson and referred him to Adult Court Services for

preparation of the P.S.I.

{¶6} Appellant came before the court for sentencing on March 20, 2015 and

was sentenced to a term of community control not to exceed three years. Delaware County, Case No. 15CAA040029 3

{¶7} Relevant here, dated March 24, 2015, appellant signed and

acknowledged a form entitled "Notice of Duties to Register as an Arson Offender (ORC

2909.14)." The Notice states appellant must register with the sheriff of any county in

which he resides, annually, for life. Failure to register or to verify his address upon

request will result in criminal prosecution.

{¶8} Appellant objected to the registration requirement at sentencing.

{¶9} Appellant now appeals from the judgment entry of sentence, including the

notice of the requirement to register as an arson offender.

{¶10} Appellant raises one assignment of error:

ASSIGNMENT OF ERROR

{¶11} "THE TRIAL COURT ERRED BY REQUIRING THE APPELLANT TO

REGISTER AS AN ARSONIST IN VIOLATION OF THE UNITED STATES

CONSTITUTION ARTICLE I, SECTION 10, AND THE OHIO CONSTITUTION

ARTICLE II, SECTION 28."

ANALYSIS

{¶12} Appellant argues the application of the arson offender registry1 to him

violates the Ex Post Facto clause of the United States Constitution and the retroactivity

clause of the Ohio constitution. We disagree.

Appellant is an "arson offender" within the meaning of the arson offender registration requirements. {¶13} Effective July 1, 2013, Ohio became one of three states with an arson

offender registry.2 Ohio's arson offender registry is found in R.C. 2909.13, 2909.14, and

2909.15. These statutes became effective on July 1, 2013.

1 R.C. 2909.13, 2909.14, and 2909.15 will be referred to collectively throughout as the "arson offender registry" or the "arson offender registry statutes." Delaware County, Case No. 15CAA040029 4

{¶14} Relevant to appellant, an "arson offender" is defined as "a person who on

or after the effective date of this section is convicted of or pleads guilty to an arson-

related offense." R.C. 2909.13(B)(1). An "arson-related offense" includes attempted

arson pursuant to R.C. 2923.02(A) and 2909.03(A)(4). R.C. 2909.13(A)(2). Pursuant to

R.C. 2909.14(A)(2), if an arson offender is sentenced after July 1, 2013 and is not

sentenced to a prison term or other term of confinement, "the judge shall provide the

notice to the arson offender at the time of the arson offender's sentencing." R.C.

2909.14(A)(2). This notice provides that the arson offender shall register personally

with the sheriff of the county in which the arson offender resides within ten days from

the sentencing hearing. R.C. 2909.15(A)(2). The arson offender must provide the

information requested upon a registration form prescribed by the attorney general,

annually, in person, for life.3 R.C. 2909.15(C) and (D). The initial registration requires

payment of a fee of $50 and annual registration thereafter requires payment of a fee of

$25. R.C. 2909.15(F).4 Failure to register or to re-register as required is a felony of the

fifth degree. R.C. 2909.15(H).

{¶15} Appellant thus falls squarely within the statutory definition of an arson

offender who is required to register as prescribed. He argues, though, that because he

committed the arson-related offense prior to July 1, 2013, application of the registration

2California and Louisiana also have arson offender registries. Montana's registry of violent offenders includes arson offenders. Franko, Ohio starts arsonist registry, Columbus Dispatch (Jan. 22, 2013). 3R.C. 2909.15(D)(2)(b) permits the trial court to limit the arson offender's duty to register

to a period not less than ten years if the judge receives a request from the prosecutor and investigating law enforcement agency to consider limiting the registration period. There is no such request in the record of the instant case. 4The fees are collected by the sheriff's office where the offender registers and are sent

to the attorney general to be used for maintenance of the arson offender registry database. R.C. 2909.15(F). Delaware County, Case No. 15CAA040029 5

statutes to him violates the Ex Post Facto Clause of the United States Constitution and

the retroactivity prohibition of the Ohio constitution.

{¶16} We are not the first Ohio appellate court to examine these issues. Three

districts have addressed the arson offender registry. In State v. Caldwell, the First

District Court of Appeals found the arson offender registration requirement does not

violate the Ohio Constitution's prohibition against retroactive laws as applied to an

offender who committed an arson-related offense on June 22, 2013 and was sentenced

on November 7, 2013. 1st District Hamilton No. C-130812,

,

. In State v. Reed, the Eleventh District found the arson offender registration

requirements do not violate the Ex Post Facto Clause and do not violate the prohibition

against retroactive laws as applied to an arson offender who committed the offense on

September 4, 2012, was ordered apprehended after he failed to appear for trial, and

was ultimately convicted on November 7, 2013. 11th Dist. Lake No. 2013-L-130, 2014-

Ohio-5463,

. In State v. Mullins, the Tenth District did not reach the issue

of retroactivity, finding instead the defendant was not an "arson offender" because he

was not "convicted" on the effective date of the statute. 10th Dist. Franklin No. 14AP-

480,

. The Mullins court interprets "convicted" to include having been

found guilty and sentenced prior to July 1, 2013; the Mullins defendant had been found

guilty but not yet sentenced on the effective date of the statute. Id. at ¶ 11.

{¶17} In the instant case, appellant acknowledges Caldwell and Reed but

argues the constitutional analysis in each case is flawed. Both cases examine the

arson registry as analogized to registration requirements for sex offenders. Appellant

argues the rationales underlying Caldwell and Reed have been superseded by Delaware County, Case No. 15CAA040029 6

subsequent court decisions finding sex offender registration requirements to be

unconstitutional.

{¶18} We first note statutes enjoy a strong presumption of constitutionality. “An

enactment of the General Assembly is presumed to be constitutional, and before a court

may declare it unconstitutional it must appear beyond a reasonable doubt that the

legislation and constitutional provisions are clearly incompatible.” State v. Cook,

, 409,

,

, citing State ex rel. Dickman v.

Defenbacher,

,

(1955), paragraph one of the syllabus.

We turn now to our analysis of whether requiring appellant to register as an arson

offender violates the Ex Post Facto Clause or the prohibition against retroactive laws.

The arson offender registry does not violate the Ex Post Facto Clause.

{¶19} Section 10, Article I of the United States Constitution, the Ex Post Facto

Clause, prohibits any new punitive measure that creates a material disadvantage to a

defendant when applied to a crime that has already been committed. See, 29A Ohio

Jurisprudence 3d, Criminal Law: Substantive Principles and Offenses, Section 69

(2015). The Clause bars application of any law inflicting a greater punishment for a

crime than the law attached to the crime when it was committed.

Retroactive

sentencing changes are impermissibly ex post facto if they subject a defendant to a

more severe sentence than was available at the time of the offense.

{¶20} The Ex Post Facto Clause applies only to criminal statutes. “* * * [T]he

constitutional prohibition on ex post facto laws applies only to penal statutes which

disadvantage the offender affected by them.” Collins v. Youngblood,

,

,

(1990). In other words, the Ex Post Facto Clause only Delaware County, Case No. 15CAA040029 7

prohibits retroactive measures that are considered criminal punishments, rather than

those that are merely civil regulations. Platt, Gangsters to Greyhounds: The Past,

Present, & Future of Offender Registration,

, 767-

70 (2013). The threshold issue of the Ex Post Facto analysis is whether the law is

penal or remedial. In determining whether a law is punitive, the court will first look to its

stated purpose. If it finds that the legislature expressly or impliedly intended the law to

serve as a punishment, this ends the inquiry and the court will not examine the law's

effect.

If, however, the Act's stated purpose is determined to be regulatory, the

reviewing court will next examine whether the statute is “so punitive either in purpose or

effect as to negate [the State's] intention to deem it ‘civil.”’

The relevant factors are

"whether, in its necessary operation, the regulatory scheme: has been regarded in our

history and traditions as a punishment; imposes an affirmative disability or restraint;

promotes the traditional aims of punishment; has a rational connection to a non-punitive

purpose; or is excessive with respect to this purpose."

citing Smith v. Doe,

,

,

(2003) and Kennedy v. Mendoza–Martinez,

, 168–169,

,

(1963).

{¶21} The Ohio Supreme Court has applied an “intent-effects test” to determine

whether a law is civil or criminal for purposes of Ex Post Facto analysis. See, State v.

Cook,

,

,

. The Court first

considers whether the legislature intended the law to be remedial (and therefore civil) or

penal (and therefore criminal). State v. Williams,

,

,

, ¶ 22. If the intent was for the law to be penal, the inquiry ends; if the

intent was for the law to be remedial, the Court must look to the law’s specific effects. Delaware County, Case No. 15CAA040029 8

A purportedly remedial statute may be deemed punitive and criminal if its effects

“negate a remedial intention.”

citing Cook, supra, 83 Ohio St.3d at 418.

{¶22} The analysis of a law's effects is inherently subjective and whether a law’s

effects are remedial or penal is a “matter of degree.” The Ohio Supreme Court upheld

Megan's Law in Cook because, upon applying the intent-effects test, the statutes were

remedial in intent and not so punitive as to violate the Ex Post Facto Clause:

There is no absolute test to determine whether a retroactive

statute is so punitive as to violate the constitutional prohibition

against ex post facto laws; such a determination is a “matter of

degree.” See Morales, 514 U.S. at 509, 115 S.Ct. at 1603, 131

L.Ed.2d at 597. However, the court in Kennedy v. Mendoza–

Martinez, [

,

,

(1963)],

fashioned useful guideposts for determining whether a statute is

punitive. These guideposts include “[w]hether the sanction involves

an affirmative disability or restraint, whether it has historically been

regarded as a punishment, whether it comes into play only on a

finding of scienter, whether its operation will promote the traditional

aims of punishment—retribution and deterrence, whether the

behavior to which it applies is already a crime, whether an

alternative purpose to which it may rationally be connected is

assignable for it, and whether it appears excessive in relation to the

alternative purpose assigned * * * .” (Footnotes omitted.)

372

U.S. at 168–169, 83 S.Ct. at 567–568,

. Delaware County, Case No. 15CAA040029 9

State v. Cook,

,

,

.

{¶23} The arson offender registry is intended to be remedial, and its effects have

been held to be remedial. In Reed, the Eleventh District found the legislature intended

the arson offender registry to be civil in nature and not punitive. Reed, supra, 2014-

Ohio-5463 at ¶ 80. Applying the "intent-effects" test, the court further found the effects

upon an offender is a "de minimus (sic) administrative requirement." Id., 2014-Ohio-

5463 at ¶ 83. Therefore, the court concluded, the arson offender registry does not

violate the Ex Post Facto Clause. Id.

{¶24} Appellant argues the rationale underlying Reed, which relied heavily upon

Cook, supra, is flawed because later court decisions have found the sex offender

registration requirements to be punitive and thus impermissibly Ex Post Facto. In Cook,

the Ohio Supreme Court found that pre-S.B.10 sex offender registration requirements

[Megan's Law] "serve[ ] the solely remedial purpose of protecting the public;" there is

"no clear proof [the law] is punitive in its effect;" and "notification requirements may be a

detriment to registrants, but the sting of public censure does not convert a remedial

statute into a punitive one." Cook, 83 Ohio St.3d at 423. Appellant relies upon a case

from the Eleventh District, State v. Strickland, which found the sex offender registration

requirements to be punitive. 11th Dist. Lake No. 2008-L-034,

, ¶ 48.

Strickland addressed sex offender registration requirements post-S.B.10, which differed

significantly from those examined in Cook. Most troubling to the Strickland court was

the creation of a public database: Delaware County, Case No. 15CAA040029 10

While the statute at issue in Cook restricted the access of an

offender's information to “those persons necessary in order to

protect the public[,]” Senate Bill 10 requires the offender's

information to be open to public inspection and to be included in the

internet sex offender and child-victim offender database. R.C.

2950.081. Not only does the public have unfettered access to an

offender's personal information but, under Senate Bill 10, an

offender has a legal duty to provide more information than was

required under former R.C. Chapter 2950.

State v. Strickland, 11th Dist. Lake No. 2008-L-04, 2009-Ohio-

5424, ¶ 25, aff'd on other grounds sub nom. In re Sexual-Offender

Reclassification Cases,

,

,

, ¶ 25, order vacated in part on reconsideration sub

nom. State v. Hitchcock,

,

,

.

{¶25} Comparing post-S.B.10 sex offender registration requirements to the

arson offender registration requirements is not a perfect analogy. The schemes are

similar in some respects but significantly different in others. Of consequence to us is

the question of public access: the arson offender registry is not a public record and is

not accessible to the general public. Any individual can access the sex offender

registry. The arson offender registry, though, exists as a tool created for, maintained

by, and available only to arson investigators and law enforcement. R.C. 2909.15(E)(2). Delaware County, Case No. 15CAA040029 11

The arson offender registry thus by design is a regulatory scheme with a rational

connection to a non-punitive purpose.

{¶26} We further agree with Reed that the arson offender registry is not

“excessive with respect to this purpose.” See Reed,

. The

offender is required to register only in his or her county of residence. The relatively

nominal initial registration fee and subsequent annual fees cover the costs of

maintaining the database. Appellant points out that failure to register as required is a

felony of the fifth degree, but we find this is not dispositive of the penal vs. remedial

issue. The criminal penalty lends enforceability to the registration requirements yet, as

Caldwell points out, violation thereof is “a low-level felony that carries a presumption of

probation.”

; R.C. 2909.15(H).

{¶27} In conclusion, our analysis brings us to the same conclusion as that

reached in Reed: the arson offender registry is remedial and does not violate the Ex

Post Facto Clause of the U.S. Constitution. Reed,

.

The arson offender registry is not impermissibly retroactive.

{¶28} The Ohio Constitution prohibits retroactive legislation and the Ohio

Supreme Court has articulated a two-part framework for determining whether a statute

is impermissibly retroactive under Section 28, Article II.

{¶29} Because R.C. 1.48 establishes a presumption that statutes operate

prospectively only, “[t]he issue of whether a statute may constitutionally be applied

retrospectively does not arise unless there has been a prior determination that the

General Assembly specified that the statute so apply.” Van Fossen v. Babcock & Wilcox

Co.,

,

(1988), paragraph one of the syllabus. If Delaware County, Case No. 15CAA040029 12

there is no “‘clear indication of retroactive application, then the statute may only apply to

cases which arise subsequent to its enactment.’ ”

, quoting Kiser v. Coleman,

,

(1986).

{¶30} If we find a “clearly expressed legislative intent” that a statute apply

retroactively, we proceed to the second step and analyze whether the challenged

statute is substantive or remedial. State v. Walls,

,

,

, ¶ 10, citing Cook, 83 Ohio St.3d at 410; see, also, Van

, at paragraph two of the syllabus.

{¶31} Our first question is thus whether the General Assembly has specified that

the arson offender registry applies retroactively. Van Fossen,

. It is

evident from the definition of "arson offender" that the statute is intended to apply

retroactively, i.e., to conduct committed before its enactment. See, Caldwell, 2014-

Ohio-3566 at ¶ 20. Such is the procedural posture of appellant: he committed the

offense in 2007 but was not convicted until after the effective date of the arson registry.

R.C. 2909.13(B)(1).

{¶32} We turn next to the question whether the arson offender registry is

substantive or remedial. Specifically, does the law take away or impair vested rights

acquired under existing laws, or create a new obligation, impose a new duty, or attach a

new disability, in respect to transactions or considerations already past? Van Fossen,

. If so, the law is "substantive" and must be deemed impermissibly

retrospective or retroactive.

Cincinnati v. Seasongood,

, 303,

(1889). Delaware County, Case No. 15CAA040029 13

{¶33} A remedial law, on the other hand, "is not within the mischiefs against

which [Section 28, Article II] * * * was intended to guard." Van Fossen,

. Remedial laws are those affecting only the remedy provided, including "laws

which merely substitute a new or more appropriate remedy for the enforcement of an

existing right."

Such laws may have "the occasional substantive effect," but "it is yet

generally true that laws which relate to procedures are ordinarily remedial in nature * * *

* including rules of practice, courses of procedure and methods of review, * * * * but not

the rights themselves."

. The key issue in the instant case with regard to

retroactivity is whether the arson registry scheme is substantive or remedial. "While we

admit that the line between substantive and remedial may be difficult to ascertain, these

terms, as applied, provide 'readily distinguishable contours.'"

at paragraph three of

the syllabus.

{¶34} We are persuaded by the thorough analysis of Caldwell concluding that

although the arson offender registry imposes new duties and burdens on arson

offenders, those burdens are not substantive in nature.

2014-Ohio-

3566 at ¶ 30. Appellant’s argument does not substantively address Caldwell, which

finds that even under the post-S.B.10 Williams analysis, the arson offender registry

statues are remedial and not punitive because they are overall less onerous than sex

offender registration requirements:

Nonetheless, the arson-offender registration statutes differ

from the sex-offender provisions in significant ways. Sex offenders

must register in potentially three different counties—those in which

they reside, work, and attend school—and some must register as Delaware County, Case No. 15CAA040029 14

frequently as 90 *476 days. Williams at ¶ 13. In contrast, arson

offenders need only register annually in the county in which they

reside. The Williams court emphasized the stigma that follows from

an offender's placement on the public sex-offender registry. Id.

Conversely, the arson-offender registry is visible only to certain law-

enforcement personnel. The sex-offender statutes impose stringent

restrictions on where the offender is permitted to reside, whereas

arson offenders are not subject to any residential restrictions. Id.

And while arson-registry violations may subject the offender to later

prosecution, we think it notable that the failure to register is a low-

level felony that carries a presumption of probation. R.C.

2909.15(H). This is markedly different from the failure of a sex

offender to register, which constitutes a felony of the same degree

as that of the underlying conviction. See R.C. 2950.99. For

example, if a sex offender who committed a first-degree felony sex

offense fails to register, that failure to register constitutes another

first-degree felony with a potential punishment of up to 11 years in

prison. R.C. 2950.99(A)(1)(a) and 2929.14(A)(1). In view of these

considerable differences, we cannot say that the arson-offender

registration requirements are so punitive that they impose a new

burden in the constitutional sense.

State v. Caldwell,

,

, 475-76, ¶ 34

(1st Dist.) Delaware County, Case No. 15CAA040029 15

{¶35} We are persuaded that the arson offender registration requirements are

remedial and not punitive. We find especially pertinent the fact that registration is

limited to the county in which the offender resides and the database of arson offenders

is available only to investigators and law enforcement. The arson offender registry is

not impermissibly retroactive.

{¶36} We conclude by framing the constitutional analyses within the facts of this

case: appellant committed attempted arson in 2007. At that time, the arson offender

registry did not exist. However, “[e]xcept with regard to constitutional protections

against ex post facto laws * * *, felons have no reasonable right to expect that their

conduct will never thereafter be made the subject of legislation.” Caldwell, 2014-Ohio-

3566 at ¶ 22, citing Cook at 412, internal citation omitted. Thus, appellant is not a

subject of the constitutional infirmities the Ex Post Facto Clause and retroactivity

prohibition guard against. We agree, therefore, that “[b]ecause appellant had no

expectation of finality with regard to any duties that may or may not have attached

following his conviction, he does not have a substantive right in this regard; the [arson

offender registry] is remedial in nature, and the General Assembly may retroactively

impose its provisions without running afoul of the Ohio Constitution.”Caldwell, 2014-

Ohio-3566 at ¶ 35.

{¶37} The trial court did not err in notifying appellant of his duty to register as an

arson offender and his sole assignment of error is overruled. Delaware County, Case No. 15CAA040029 16

CONCLUSION

{¶38} Appellant's sole assignment of error is overruled and the judgment of the

Delaware County Court of Common Pleas is affirmed.

By: Delaney, J. and

Farmer, P.J.

Baldwin, J., concur.