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Sex Offender’s Out-of-State Registration Counts Toward Ohio Sex Offense Reporting Requirement

Sex Offender’s Out-of-State Registration Counts Toward Ohio Sex Offense Reporting Requirement  (Court News Ohio link below)

A man convicted under an Ohio sex offender reporting law completed his 10-year registration requirements while living in Kentucky and did not have to start the reporting period over when he moved to Ohio, the Supreme Court of Ohio ruled today.

In a unanimous decision, the Supreme Court rejected the Hamilton County Prosecutor’s Office contention that Michael Schilling’s Ohio sex offender reporting obligation paused while he was living and registering as a sex offender in Kentucky and then resumed when he moved back to Ohio in 2020.

Writing for the Court, Justice Melody Stewart explained that Schilling had committed a sex offense in Ohio in 2007, but was not convicted for that offense until 2008. At sentencing, Schilling was notified by the court that his conviction required him to register as a sex offender under the Adam Walsh Act, Ohio’s sex offender reporting law, which took effect January 1, 2008.  Justice Stewart explained that this notification was erroneous to the extent that Megan’s Law, Ohio’s sex offender reporting law in effect at the time the offense was committed, applied to Schilling.

The Court concluded that there is an active duty to report under Megan’s Law when an offender lives, works, or goes to school in Ohio, but that this duty is inactive when the offender remains out of state. The Court concluded that the period, or duration, of the reporting obligation imposed by Megan’s Law is not “tolled,” or paused, when an offender remains out of state.  Instead, the period continues to run even if there is no active reporting obligation.

“That Schilling lived in Kentucky during that time and was not obligated to register or report in Ohio but instead was obligated to register and report in Kentucky under that state’s laws does not change the dates during which Ohio’s Megan’s Law applied to him,” Justice Stewart stated.

The decision affirmed a portion of a First District Court of Appeals decision that found Schilling did not have to start a new 10-year reporting period when he moved to Hamilton County in 2020. The Supreme Court reversed the part of the First District’s ruling that determined Schilling was mistakenly sentenced under the Adam Walsh Act to a 15-year reporting requirement, but too much time had passed for anyone to challenge the mistake.

A Decade of Changes Made to Ohio Sex Offender Laws
Ohio made significant changes to its sex offender registration laws in 1996 when it adopted Megan’s Law. That law classified sex offenders as either sexually oriented offenders, habitual offenders, or sexual predators. The length of registration and reporting to local law enforcement had different durations, including 10 years for sexually oriented offenders. The law was updated in 2003 and expressly stated it applied retroactively to offenders who committed certain sex offenses before the law’s passage.

In 2007, Ohio lawmakers passed the Adam Walsh Act, which replaced Megan’s Law and created three tiers of “sexually oriented offenders.” Tier 1 was the lowest offender level, requiring an offender to register any residential address with the applicable county sheriff’s office annually for 15 years. The law allowed a Tier I offender to apply to the court for discretionary release from registration and reporting after 10 years. The Adam Walsh Act also was to apply retroactively to offenders whose offenses occurred before its passage.

Offenders challenged the constitutionality of the retroactive application of both Megan’s Law and the Adam Walsh Act. The Ohio Supreme Court previously found that Megan’s Law can be applied retroactively, while the Adam Walsh Act could not. The rulings effectively gave Ohio two sets of sex offender laws. Megan’s Law would apply to those whose acts occurred before 2008, and those whose offenses took place in 2008 and later would be sentenced under the Adam Walsh Act.

Schilling’s arrest for attempted voyeurism, a misdemeanor, was related to a September 2007 incident. The Hamilton County Municipal Court heard the case in 2008, and Schilling was convicted. He was sentenced to 90 days in jail, with 80 days suspended; a fine; and three years of community control.

Trial Court Directs Kentucky Man to Mistakenly Register Under Wrong Law
At his sentencing, the municipal judge signed and provided Schilling a document explaining his duties to register as a sex offender under the Adam Walsh Act that just took effect in 2008. The law required that he initially register his residential address with the applicable county sheriff’s office.

During his June 2008 sentencing, neither Schilling nor the prosecutor’s office indicated that Schilling had been notified of his duty to report as a sex offender under the wrong law since his acts took place in 2007. Neither side appealed the error. On the day of his sentencing, Schilling registered as a sex offender with the Hamilton County Sherriff’s Office and noted that he was an “out-of-state resident.” He returned to his home state of Kentucky, where he registered as a sex offender with the Kentucky State Police.

In September 2019, more than 11 years after his conviction, Schilling moved to Ohio and asked the Hamilton County Common Pleas Court to terminate his Adam Walsh Act sex offender registration early. Citing R.C. 2950.15, which provided the process for Tier 1 offenders under the Adam Walsh Act to request to have their 15-year reporting requirement terminated after 10 years of compliance, Schilling argued he took every required step to eliminate his reporting obligation.

Prosecutor Opposes Requirement Release
Schilling was misclassified as a Tier 1 offender under the Adam Walsh Act in 2008, the prosecutor argued when opposing Schilling’s request to drop his reporting requirement. Schilling should have been notified of his duty to report under Megan’s Law. Unlike the Adam Walsh Act, Megan’s Law did not have a provision allowing a judge to reduce the reporting requirement, the prosecutor argued. The prosecutor also maintained that under Megan’s Law, Schilling’s time reporting in Kentucky did not count and was tolled. The office asserted that once he moved to Ohio, Schilling’s reporting requirements had to continue for 10 more years.

The trial court ruled that Schilling should have been notified of his duty to report under Megan’s Law but it did not believe it had the authority to address the issue of whether Schilling should get credit for the time he reported in Kentucky. The trial court indicated that Schilling would have to apply for credit with the local sheriff’s office.  When the sheriff denied the credit request, Schilling again asked the trial court to intervene and issue a judgment concluding that Schilling had completed his 10-year registration period under Megan’s Law. The trial court denied the request. Schilling appealed to the First District for a ruling on his request to terminate the reporting.

The First District, citing the Supreme Court’s 2020 State v. Henderson decision, ruled that the prosecutor could not challenge the trial court’s original sentencing announcement that placed Schilling under the Adam Walsh Act. Even if the court was wrong at the time, the prosecutor failed to appeal the decision and therefore lost the opportunity to challenge it at a later time. The original ruling stands, the First District concluded. The appellate court then determined that Schilling had the right as a tier I offender under the Adam Walsh Act to apply for early termination of his reporting requirement based on his more than 10 years of reporting in Kentucky.

The prosecutor appealed to the Supreme Court, which agreed to hear the case.

Supreme Court Analyzed Sentencing Laws
Justice Stewart first explained that the First District incorrectly applied the Henderson decision to Schilling’s case. Under Henderson, a party in most cases cannot contest a trial court’s judgment unless the party argues in a direct appeal that the trial court made an error, the opinion explained. The First District ruled it was too late for the prosecutor to argue more than a decade later that Schilling was subject to Megan’s Law.

The Supreme Court disagreed. It ruled that Henderson applies only to incidents where the trial court has the discretion to make a ruling and issues a mistaken decision. However, as the Court explained,  the duty to comply with Megan’s Law arises automatically from the fact that a person has been convicted of a sex offense that was committed prior to January 1, 2008, the effective date of the Adam Walsh Act. Schilling’s reporting duties were dictated by the offense committed and automatically set by the law, not by an act of the trial court, the Court ruled.

Schilling was subject to Megan’s Law, the Supreme Court ruled, and as such was required to report for 10 years. The Court’s opinion explained that the law provided instructions for how offenders living, working, or going to school in Ohio register their addresses and that offenders living, working, or attending school out of state are subject to that state’s reporting obligations, whatever they may be.

Under the law in effect, Schilling’s duty to comply with the law began in June 2008 when he was convicted and ended in June 2018.

“Nothing in Megan’s Law establishes a different registration or reporting commencement date or duration or otherwise tolls the ten-year period of registration and reporting that applies to a sexually oriented offender who was convicted in Ohio merely because the offender lives out of state,” the Court stated.

Schilling is no longer obligated to report as a sex offender for his 2008 conviction, the Court concluded.

2022-0782. State v. Schilling, Slip Opinion No. 2023-Ohio-3027

Link to full article posted by Court News Ohio here: 

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