Sexual offender registration

COLUMBUS — In 1996 the Ohio leg­is­la­ture passed a sex offender reg­is­tra­tion statute that came to be known as Megan’s Law. It was named for seven-year-old Megan Kanka, the lit­tle New Jer­sey girl who, in the sum­mer of 1994, was abducted from her home, then raped and mur­dered by a neigh­bor named Jesse Timmendequas.

Tim­mend­e­quas, who had a record of sex offenses, had qui­etly moved in just across the street from Megan and her fam­ily. He lived in a house with two other con­victed child molesters.

The appalling cir­cum­stances sur­round­ing Megan’s mur­der jolted the New Jer­sey leg­is­la­ture into action. Within three months New Jer­sey law­mak­ers had crafted leg­is­la­tion that required pub­lic noti­fi­ca­tion when a sex offender moved into a neigh­bor­hood. Because released sex offend­ers have the high­est risk of recidi­vism — mean­ing that they often end up com­mit­ting the same crimes again after get­ting out of prison — all 50 states and the fed­eral gov­ern­ment even­tu­ally passed some type of sex offender reg­is­tra­tion laws.

Ohio already had a sex offender reg­is­tra­tion law that had been in place since 1963. But in 1996 the Ohio leg­is­la­ture rewrote the law and updated it. The pur­pose of reg­is­tra­tion laws is to pro­vide pub­lic aware­ness: if the com­mu­nity knows that a sex offender is get­ting out of prison and mov­ing into the neigh­bor­hood, the peo­ple can “pre­pare them­selves and their chil­dren” for the offender’s release — some­thing Megan’s par­ents didn’t have a chance to do.

All of which leads us to the case of Ronald Gin­gell. In 1981, Gin­gell was con­victed of three counts of rape. He was incar­cer­ated and was orig­i­nally clas­si­fied as a sex­u­ally ori­ented offender in accor­dance with amend­ments that had been added to Megan’s Law in 2003.

To com­ply with Megan’s Law, Gin­gell had to ver­ify his address once each year for ten years. Under the law, Gingell’s fail­ure to prop­erly reg­is­ter as a sex­u­ally ori­ented offender would have been a fifth-degree felony.

But as of Jan­u­ary 1, 2008, the Ohio Gen­eral Assem­bly repealed Megan’s Law and replaced it with the Adam Walsh Act. The Adam Walsh Act was named for the six-year-old boy who was abducted from a Sears store in Hol­ly­wood, Florida, in 1981. The search for the kid­napped boy became national news, but sadly he was never seen alive again.

The Adam Walsh Act orga­nizes sex offend­ers into three tiers, with Tier III being the most seri­ous. In accor­dance with the new law, Gin­gell was reclas­si­fied by the attor­ney gen­eral as a Tier III sex­ual offender.

A Tier III offender is required to ver­ify his address every 90 days for the rest of his life. And the fail­ure to ver­ify an address is the same degree offense as the under­ly­ing sex­ual offense. In Gingell’s case, that meant that a fail­ure to ver­ify his address would be a first-degree felony.

On July 2, 2008, Gin­gell was indicted on two first-degree felony counts for vio­lat­ing the law. The first count alleged that Gin­gell had failed to ver­ify an address on or about May 6, 2008; the sec­ond alleged that Gin­gell had failed to pro­vide notice of an address change on June 24, 2008.

Gin­gell pleaded guilty to the first count; the sec­ond count was dis­missed. On Novem­ber 19, 2008, the trial court sen­tenced Gin­gell to an eight-year prison term and five years of post-release control.

After being sen­tenced, Gin­gell took his case to the court of appeals. He argued that the trial court had made an error in retroac­tively apply­ing pro­vi­sions of the Adam Walsh Act to his case, which made his fail­ure to ver­ify his address a first-degree felony. Gin­gell main­tained that the court should have applied the ver­sion of the law that was in place at the time of his orig­i­nal clas­si­fi­ca­tion, which would have made his fail­ure to ver­ify his address a fifth-degree felony.

The court of appeals held that there was no retroac­tive appli­ca­tion of the law because Gingell’s fail­ure to reg­is­ter occurred after the Jan­u­ary 1, 2008 date of the new law.

After that, his case came before us — the Supreme Court of Ohio. Gingell’s appeal was based pri­mar­ily upon the issue of the retroac­tiv­ity of the law. How­ever, dur­ing the time that his appeal was pend­ing, our court issued a deci­sion in a case called State v. Bodyke, which addressed the con­sti­tu­tion­al­ity of the reclas­si­fi­ca­tion under the Adam Walsh Act of sex­ual offend­ers pre­vi­ously clas­si­fied under Megan’s Law.

In Bodyke, our court held that the reclas­si­fi­ca­tion pro­vi­sions in the Adam Walsh Act were uncon­sti­tu­tional and sev­ered them from the Act. Our court specif­i­cally addressed what that sev­er­ance meant for offend­ers like Gin­gell, who had orig­i­nally been clas­si­fied under Megan’s Law and were then reclas­si­fied under the Adam Walsh Act.

In that opin­ion, we said that the reclas­si­fi­ca­tion pro­vi­sions 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.”

Thus, in accor­dance with our deci­sion in the Bodyke case, Gingell’s orig­i­nal clas­si­fi­ca­tion under Megan’s Law and the asso­ci­ated community-notification and reg­is­tra­tion order were rein­stated. There­fore, the cur­rent ver­sion of the law, which requires Tier III sex­ual offend­ers to reg­is­ter every 90 days, does not apply to Gingell.

Since Gin­gell was charged after his reclas­si­fi­ca­tion and before our deci­sion in the Bodyke case, there was no doubt that he was indicted for a first-degree felony for a vio­la­tion of the report­ing require­ments under the Adam Walsh Act. Because the appli­ca­tion of the Adam Walsh Act was based upon an unlaw­ful reclas­si­fi­ca­tion, we reversed the judg­ment of the court of appeals — by a seven-to-zero vote — and vacated Gingell’s con­vic­tion for a vio­la­tion of the 90-day address-verification require­ment that’s in the Adam Walsh Act.

How­ever, Gin­gell remained account­able for the yearly report­ing require­ment under Megan’s Law. Whether he met that require­ment was not a part of this case, and thus we did not issue a rul­ing on that matter.

EDITOR’S NOTE: The case referred to is: State v. Gin­gell, 128 Ohio St.3d 444, 2011-Ohio-1481. Case No. 2010–0047. Decided April 5, 2011. Major­ity opin­ion writ­ten by Jus­tice Paul E. Pfeifer.