Thursday, July 23, 2009

OH Court of Appeals Rules AWA Unconstitutional : Sex offender law ruled unconstitutional Ruling made in appeals court Monday; Supreme Court decision awaited.

An opinion by the 11th District Court of Appeals in Warren may rekindle the debate over whether Ohio’s Adam Walsh Act sex offender law is constitutional.

It may be a brief debate, since the Ohio Supreme Court is expected to render its decision on the constitutionality sometime this fall.

A three-judge panel of the district court, which covers Ashtabula, Geauga, Lake, Portage and Trumbull, handed down the opinion Monday in a Lake County case in which a convicted sex offender is contesting his reclassification as a Tier III offender.

In a 2-1 decision, the court found the new law that resulted in his reclassification unconstitutional.

Under his original 2002 sentence, Jason Ettenger was required to register annually at the sheriff’s department wherever he lived for 10 years.

Under Ohio’s Adam Walsh Act, Ettenger was reclassified and required to register personally with the sheriff’s office once every 90 days for life. The new law stiffened the penalties for failure to register as a sex offender as well as re-classifying nearly every offender convicted in the past 10 years.

Classification of offenders is now determined by the crime they were convicted of. No evidence is weighed on whether the defendant is likely to re-offend.

When the new law took effect Jan. 1, 2008, hundreds of cases were filed across Ohio (actually nearly 4000), challenging the reclassifications as double jeopardy since they already had been sentenced and classified.

In Portage County, more than 80 cases were headed for reclassification when local judges issued a blanket stay “pending a final decision by the Ohio Supreme Court or the federal district court.”

Judges Timothy P. Cannon and Diane V. Grendell found the new law unconstitutional, but for different reasons. They reversed the Lake County court’s decision and sent the case back for reconsideration.

Judge Mary Jane Trapp, dissented from the judgment and other points by Cannon and Grendell, but concurred on their analysis of the separation between legislative and judicial powers, and due process issues brought up in the appeal.