Is 'Adam Walsh' Classification of Sex Offender Who Was Never Classified Under Megan's Law Constitutional?
Case Also Asks If Offender Has Right to Counsel for Classification Hearing
State of Ohio v. Lambert Dehler, Case no. 2009-1974
11th District Court of Appeals (Trumbull County)
- Does retroactive imposition of sex-offender registration requirements enacted in 2007 as part of the Ohio Adam Walsh Act (AWA) on an offender whose crime was committed before the effective date of the AWA violate the ex post facto and due process clauses of the U.S. Constitution, and/or the provision of the Ohio Constitution prohibiting retroactive laws?
- Does the Supreme Court of Ohio’s 2010 decision in State v. Bodyke bar the attorney general from imposing AWA registration and community notification requirements on pre-1997 sex offenders who never received a sex offender classification by a court under the prior, Megan’s Law, version of Ohio’s sex offender statute?
- Is an indigent sex offender who files a timely petition contesting his classification under the AWA entitled to the appointment of legal counsel to represent him?
BACKGROUND: Under Megan’s Law, which took effect Jan. 1, 1997, the cases of all prison inmates who were serving sentences for sexually-related crimes on that date were required to be reviewed by the trial court in which the offender was convicted prior to or within one year after the offender’s release from prison. The purpose of this review was for the court to determine, based on the circumstances of each offender’s crimes and his/her personal and social history, whether that person should be classified as a low-risk (sexually-oriented), medium risk (habitual) or high-risk (sexual predator) offender. After classifying the offender, the court was then required to impose post-release registration and community notification requirements set by law for the class of offenders into which he or she had been placed. From 1997 through June 2007, when an incarcerated pre-1997 sex offender approached the completion of his/her prison term, the Ohio Department of Corrections notified the trial court in which that person was convicted. The court then reviewed the offender’s case, assigned the offender to a Megan’s Law classification, and notified the offender of his/her statutory post-release registration and (where applicable) community notification requirements.
Effective July 1, 2007, Megan’s Law was repealed and replaced by the AWA. Under the provisions of the AWA, pre-release judicial review of the cases of pre-1997 offenders was eliminated and the attorney general was empowered to automatically assign all past offenders to one of three newly-created “tiers” based exclusively on the crime(s) for which that person was convicted and assign new, more restrictive registration and community notification requirements on each offender.
In a June 2010 decision, State v. Bodyke, the Supreme Court of Ohio severed (voided) the provisions of the AWA that authorized the attorney general to reclassify and impose more severe registration and community notification requirements on sex offenders who had previously been classified by a court under Megan’s Law. In this case, the Court is asked to decide whether its severance of the offending sections of law in Bodyke also bars the attorney general from imposing AWA registration and community notification requirements on pre-1997 sex offenders who did not become eligible for release from prison during the time Megan’s Law was in effect, and who therefore never came before a court for classification under the Megan’s Law version of the statute.
Lambert Dehler was convicted on two counts of rape and two counts of gross sexual imposition in 1992 and sentenced to long prison terms. Because he did not become eligible for release during the 1997-2007 period when Megan’s Law was in effect, the corrections department never referred Dehler’s case to the trial court for post-release sex offender classification. In January 2008, Dehler received a letter from the state attorney general’s office informing him that, pursuant to the AWA, the attorney general had classified Dehler as a Tier III (highest risk) offender based on his rape convictions, and that based on his classification, upon release from prison he would be subject to lifetime registration and community notification requirements.
Dehler filed a petition in the Trumbull County Court of Common Pleas contesting his classification, and requested that legal counsel be appointed to represent him in pursuing that petition. The trial court granted summary judgment in favor of the state, noting that under prior Ohio Supreme Court decisions an order imposing registration or community notification requirements on a sex offender has been held to be a civil, remedial order that does not increase the “punishment” for a past crime. Applying that same analysis to Dehler’s claims, the trial court held that imposing AWA registration requirements on Dehler retroactively was not unconstitutional and Dehler had no right to appointed counsel in a civil proceeding that did not expose him to a threat of imprisonment. Dehler appealed. The 11th District Court of Appeals affirmed the trial court’s award of summary judgment in favor of the state.
Dehler sought and was granted Supreme Court review of the 11th District’s holdings.
With regard to whether the AWA imposes “punishment,” and therefore may not be applied retroactively, Dehler’s attorneys advance arguments similar to those offered in the preceding case.
(See State v. Williams preview above). They also assert the state attorney general has no legal authority to impose or change a criminal sentence except under the provisions of the AWA that have been voided by this Court’s decision in State v. Bodyke, and therefore the attorney general acted without jurisdiction in imposing AWA registration and notification requirements on Dehler.
With regard to the right to counsel, Dehler’s attorneys argue that because AWA registration and community notification requirements are now part of the sentence imposed on a defendant by a trial court at the conclusion of a criminal trial, any proceeding to contest the imposition of those requirements on Dehler based on his 1992 convictions is criminal in nature and invokes his right to appointed legal counsel.
As in State v. Williams (see preceding case preview above), attorneys for the state cite prior Supreme Court of Ohio decisions holding that sex offender classification, registration and community notification requirements are civil rather than criminal in nature, and therefore are not subject to constitutional challenges under either the ex post facto clause of the U.S. Constitution or the retroactivity clause of the Ohio Constitution. For the same reason, they say, because imposition of the AWA’s registration and notification requirements is a remedial action intended to protect the public rather than to inflict “punishment” on the offender, court proceedings to contest an AWA classification are civil rather than criminal in nature, and offenders challenging their classifications are therefore not entitled to appointed counsel.
Deena L. DeVico, 330.675.2916, for the state and Trumbull County prosecutor's office.
Jason A. Macke, 614.466.5394, for Lambert Dehler.