[Cite as State v. Jackson,

.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, : No. 19AP-393 v. : (C.P.C. No. 88CR-3371)

Edward Jackson, : (REGULAR CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on August 18, 2020

On brief: Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for appellee.

On brief: Edward Jackson, pro se.

APPEAL from the Franklin County Court of Common Pleas

BEATTY BLUNT, J.

{¶ 1} Defendant-appellant, Edward Jackson, appeals the decision of the Franklin

County Court of Common Pleas denying his motion for de novo sentencing hearing and

appointment of counsel. He asserts a single assignment of error:

The Defendant-Appellant was Deprived of his State and Federal Constitutional Rights When the State via Legislative Enactment, Added a Collateral Sanction 30 Years After the Original Sentence Was Imposed and Was Not the Law at the Time of Imposition.

{¶ 2} In 1989, a jury found Jackson guilty of three counts of kidnapping with

specifications, two counts of rape with specifications, one count of attempted rape with

specifications, one count of gross sexual imposition with specifications, and one count of No. 19AP-393 2

having weapon under disability with specifications. Jackson was sentenced, and on appeal

this court affirmed the findings of guilt but remanded for the correction of sentencing

errors. See State v. Jackson, 10th Dist. No. 89AP-1015 (Aug. 23, 1990). On remand Jackson

was sentenced to an aggregate indefinite prison term of 51 to 105 years, and this court

affirmed that sentence on appeal. See State v. Jackson, 10th Dist. No. 97APA12-1660

(June 30, 1998). During his incarceration, Jackson has filed numerous post-trial pleadings

challenging his convictions and sentence. See, e.g., State v. Jackson, 10th Dist. No. 01AP-

427 (Sept. 28, 2001). He has not been granted parole and remains incarcerated, and his

next parole hearing is currently scheduled for July 2022.

{¶ 3} Jackson's current challenge involves the requirement of violent-offender

registration required by Am.Sub.S.B. No. 231 (hereinafter Senate Bill 231), "Sierah's Law."

See R.C. 2903.41 through 2903.44. Jackson believes he is entitled to a de novo sentencing

hearing because of that requirement. In his motion, Jackson asserted he was notified by

prison kiosk in April 2019 that, pursuant to the new law, following his release he would be

required to enroll in the violent offender database and maintain that registration for ten

years. See, e.g., R.C. 2903.43. Jackson argued the registration requirements annulled,

reversed, or modified a judgment already rendered by changing his sentence, that R.C.

2903.43 was an ex post facto law, it was unconstitutionally retroactive, and it violated his

right to due process. In response, plaintiff-appellee, State of Ohio, argued that his motion

"is a non-sequitur as to the [violent offender database] issues" and was not ripe for decision

because Jackson was not yet subject to registration. The state also argues that Jackson's

motion was not a "motion to rebut" the new registration requirement (as authorized under

R.C. 2903.42(A)(2)(b)) since it did and could not assert that Jackson was not the "principal

offender," as the evidence presented at his trial was that he was the sole perpetrator of the No. 19AP-393 3

crimes for which he was convicted. See generally Jackson, 10th Dist. No. 89AP-1015

(reciting evidence at trial). The trial court denied Jackson's motion on May 20, 2019, and

this timely appeal followed.

{¶ 4} Senate Bill 231 creates a new statewide violent offender database and

requires a qualifying offender to register for that database in the county where the offender

resides for ten years following release from confinement. Generally, such offenders must

appear in person at the county sheriff's office within ten days following release from

incarceration to register, must re-register annually, and must provide notice of change of

address to the sheriff within three days. The information obtained is kept in a non-public

database by the Bureau of Criminal Investigation for the use of law enforcement, but the

information obtained is kept by the county sheriff and some of that information is

designated as a public record and must be kept open to inspection at the sheriff's office.

R.C. 2903.43(F)(3)(a). Registered offenders who fear for their safety may file a motion with

the county court of common pleas to have the data made non-public, R.C. 2903.43(F)(3)(c),

and an offender who was not the principle offender in committing the offense may be

relieved from the duty of registration following a hearing and the grant of a motion for relief

from registration by the county common pleas court. R.C. 2903.42(A)(4). Jackson contends

the legislature's action in requiring him to register retroactively resentenced him in

violation of the retroactive law prohibition in the Ohio Constitution and the limitation of ex

post facto laws in the United States Constitution.

{¶ 5} Analysis of the ex post facto question is primarily guided by the United States

Supreme Court's decision in Smith v. Doe,

(2003). In Smith, the court analyzed

the application of Alaska's "Megan's Law" statute to sex offenders whose offenses pre-dated

the effective date of the law, and concluded that the registration provisions of the law were No. 19AP-393 4

"nonpunitive," and that therefore "retroactive application [of those provisions] does not

violate the Ex Post Facto Clause."

. These conclusions resulted from the court's

determinations that registration of sex offenders under Alaska's law was rationally related

to the legitimate non-punitive purpose of public safety, that the decision to regulate "with

respect to convicted sex offenders as a class, rather than require individual determination

of their dangerousness, does not make the statute a punishment," id at 104, that the Alaska

law's registration requirements—15 years annually for single-offense or non-aggravated

offense offenders and lifetime quarterly for aggravated or multiple-offense offenders, see

at 90—were not excessive in duration given its public-safety justification, and that the

decision "to make its registry system available and easily accessible" by posting the

registration on the internet "was not so excessive a regulatory requirement as to become a

punishment" because "the notification system is a passive one: An individual must seek

access to the information."

. See also State v. Cook,

(1998) (holding that "registration and notification provisions of [the 1997 Ohio sex offender

registration law] do not violate the Ex Post Facto Clause because its provisions serve the

remedial purpose of protecting the public") and State v. Ferguson,

, 2008-

Ohio-4824 (holding over dissent that 2003 modification of sex offender registration law

remained a "civil, remedial statute" and "cannot be deemed unconstitutional on ex post

facto grounds").

{¶ 6} By contrast, Jackson's challenge to retroactive application of S.B. 231 is a

matter of state constitutional law. In State v. Williams,

, 2011-Ohio-

3374, the Supreme Court of Ohio analyzed the 2007 amendments to Ohio's sex offender

registration law under Ohio Constitution, Article II, Section 28, the prohibition against

retroactive lawmaking. The court noted that under the amendments, known as S.B. No. 10, No. 19AP-393 5

"[T]he statutory scheme has changed dramatically" and contained far more onerous

requirements than Ohio's previous registration law, under which it had previously

described registration as "an inconvenience 'comparable to renewing a driver's license.' "

Id. at ¶ 16, quoting

. The court observed that under the new law:

[s]ex offenders are no longer allowed to challenge their classifications as sex offenders because classification is automatic depending on the offense. Judges no longer review the sex-offender classification. In general, sex offenders are required to register more often and for a longer period of time. They are required to register in person and in several different places. * * * Furthermore, all the registration requirements apply without regard to the future dangerousness of the sex offender. Instead, registration requirements and other requirements are based solely on the fact of a conviction.

William at ¶ 20. The court therefore held that "[w]hen we consider all the changes enacted

by S.B. 10 in aggregate, we conclude that imposing the current registration requirements

on a sex offender whose crime was committed prior to the enactment of S.B. 10 is punitive

* * * [and] violates Section 28, Article II of the Ohio Constitution, which prohibits the

General Assembly from passing retroactive laws." Id. at ¶ 21.

{¶ 7} Notwithstanding the contrasting conclusions between Smith and Williams,

there are substantial commonalities between the ex post facto analysis and the retroactive

laws analysis, and both questions frequently turn on whether the statute in question is

criminal and punitive rather than civil and remedial.

{¶ 8} Here, the registration requirements and limited reach of the violent offender

database are much more akin to the annual, ten-year "de minimis administrative"

registration that was approved in Cook than the additional punishment rejected in

Williams, and as such Jackson's arguments are of doubtful merit. Compare R.C. 2903.43

with

(analyzing provisions of former R.C. Chapter 2950 and concluding that No. 19AP-393 6

application of provisions did not violate the Ex Post Facto Clause). But we also believe it is

unnecessary to fully analyze his constitutional claims, as we conclude that the state's

suggestion that this case is not ripe for our decision is correct. In determining whether an

issue is ripe for review, the court weighs three factors: "(1) whether the alleged future harm

is likely to occur; (2) whether delayed review is likely to cause hardship to the parties; and

(3) whether the factual record is developed sufficiently to allow a fair resolution." Baker v.

Ohio Dept. of Rehab. & Corr., 10th Dist. No. 11AP-987,

, ¶ 10. And

ultimately, "if a claim rests upon future events that may not occur at all or may not occur as

anticipated, then the claim is not ripe for review."

Given that Jackson remains

incarcerated with no expected release date, given the nature of and length of sentence for

his offenses, and that parole conditions and sex-offender registration will already be

required upon his release, we believe the state has shown that it is more than possible that

Jackson's registration duties under the statute may be either duplicative of or subsumed

under his other duties upon release, if in fact he is released prior to his maximum sentence

date.

{¶ 9} But perhaps most importantly to our review, even if registration as a violent

offender could constitute an ex post facto criminal law or retroactive punishment as applied

to Jackson, the remedy he requests—de novo sentencing—is unavailable. Rather, the

appropriate remedy for an unconstitutional post-sentence registration order in such cases

is to simply reinstate the original order and sentence. See, e.g., State v. Bodyke,

,

(holding that new sex-offender registration

requirements "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"). Accordingly, even if Jackson were entitled No. 19AP-393 7

to some relief based on his arguments, that relief would not include a de novo sentencing,

and the trial court did not err by denying his motion requesting a de novo sentencing

hearing.

{¶ 10} For these reasons, Jackson's assignment of error is overruled, and the

judgment of the Franklin County Court of Common Pleas denying his motion for de novo

sentencing hearing is affirmed.

Judgment affirmed. KLATT, J, concurs. LUPER SCHUSTER, J., concurs separately.

LUPER SCHUSTER, J., concurring separately.

{¶ 11} While I concur in the judgment of the majority overruling Edward Jackson's

sole assignment of error, I write separately because I would reach that result for different

reasons.

{¶ 12} The majority finds that Jackson's motion did not present a justiciable issue

because the matter is not ripe. Indeed, "[i]n order to be justiciable, a controversy must be

ripe for review." Keller v. Columbus,

,

, ¶ 26. In my

view, however, this case presents a ripe issue. Ripeness is a question of timing, and the

"ripeness doctrine seeks to prevent courts from engaging in premature adjudication."

Johnson v. Ferguson-Ramos, 10th Dist. No. 04AP-1180,

, citing

State ex rel. Elyria Foundry Co. v. Indus. Comm.,

(1998). "A claim is

not ripe for our consideration if it rests on contingent future events that may not occur as

anticipated or may never occur at all." State v. Loving,

, 2009-Ohio-

15, ¶ 4 (10th Dist.), citing Texas v. United States,

(1998). No. 19AP-393 8

{¶ 13} Pursuant to "Sierah's Law," which became effective March 20, 2019 and

established a violent offender database, prison officials notified Jackson that he is classified

a "violent offender" under R.C. 2903.41(A)(2). R.C. 2903.42(A)(1)(b). This classification

creates a rebuttable presumption that Jackson, as a violent offender, will be required to

register annually for ten years with the sheriff of the county in which he resides. R.C.

2903.42; R.C. 2903.43. Even though Jackson remains in prison, and thus his obligation to

enroll in the violent offender database is not yet implicated, the constitutionality of his

classification as a violent offender under R.C. 2903.41, and the pending obligations

associated with that classification, is a ripe issue. See State v. Jarvis, 5th Dist. No. CT 2019-

0029,

(reviewing constitutionality of the retroactive application of Sierah's

Law to a defendant informed of his reporting obligations but not yet released from prison);

State v. Hubbard, 12th Dist. No. CA2019-05-086,

(same).

{¶ 14} Despite being ripe, the trial court lacked jurisdiction to consider Jackson's

constitutional challenge as submitted. "Once a final judgment has been issued pursuant to

Crim.R. 32, the trial court's jurisdiction ends." State v. Gilbert,

, 2014-

Ohio-4562, ¶ 9. "Absent statutory authority, a trial court is generally not empowered to

modify a criminal sentence by reconsidering its own final judgment." State v. Carlisle,

,

. However, a trial court has authority to reconsider its

own valid, final judgment in a criminal case when a void sentence has been imposed and

when the judgment contains a clerical error. State ex rel. Cruzado v. Zaleski,

,

, ¶ 19, citing Crim.R. 36. None of these circumstances authorizing

continuing jurisdiction after final judgment apply here. No. 19AP-393 9

{¶ 15} Although Jackson generally moved for a "de novo sentencing hearing" on April

25, 2019, in substance he did not request the trial court revisit or modify its final judgment

based on it being void or containing a clerical error. And because Jackson did not seek to

render any aspect of the trial court's judgment void, it would be improper to classify

Jackson's motion as a petition for postconviction relief. See R.C. 2953.21(A)(1) ("Any

person who has been convicted of a criminal offense * * * and who claims that there was

such a denial or infringement of the person's rights as to render the judgment void or

voidable under the Ohio Constitution or the Constitution of the United States, * * * may file

a petition in the court that imposed the sentence, stating the grounds for relief relied upon,

and asking the court to vacate or set aside the judgment or sentence."). Instead of

requesting the trial court modify its final judgment, Jackson sought declaratory relief from

the recently enacted statutory scheme he argues has been unconstitutionally applied to him.

{¶ 16} Under Sierah's Law, a trial court that previously sentenced a violent offender

has limited continuing jurisdiction over that offender's criminal case after final judgment

has been entered. Pursuant to R.C. 2903.42(A)(2), a person classified as a violent offender

may file a "motion" with "the court that is sentencing the offender" or "the court that

sentenced the offender." For a defendant classified as a violent offender during his time in

prison, he must file the motion before he is released from prison.

"The motion shall

assert that the offender was not the principal offender in the commission of that offense

and request that the court not require the offender to enroll in the violent offender database

and not have all VOD duties with respect to that offense." R.C. 2903.42(A)(2)(b). Thus, a

violent offender may only rebut the enrollment presumption by proving that he was not the

principal offender in the commission of the offense that classifies the person a violent No. 19AP-393 10

offender. R.C. 2903.42(A)(4). Because Jackson's motion did not assert he was not the

principal offender, the trial court lacked a statutory basis for exercising continuing

jurisdiction over the case. Consequently, I find the trial court properly denied Jackson's

April 25, 2019 motion, and I decline to review the constitutionality of Sierah's Law as

applied to Jackson.

{¶ 17} For these reasons, I concur separately.