Resentencing examined


COLUMBUS — In 1995, the federal government passed legislation in response to the abduction, rape and murder of a

seven-year-old New Jersey girl named Megan Kanka by her neighbor, a man with a record of sex offenses. Megan’s Law, as it came to be known, required states to put into place a method for alerting local residents when a sexual offender moved into their area.

More than a decade later, a new federal law named after Adam Walsh – a Florida boy who was abducted from a shopping mall, sexually abused and murdered – went into effect. The Adam Walsh Act organizes sex offenders into three tiers according to the crime committed, and mandates that Tier 3 offenders – the most serious tier – update their whereabouts every three months with lifetime registration.

These two laws were at the center of a case involving a man named Darryl Smith, who was convicted of nine counts of rape, two counts of gross sexual imposition, and one count of the unauthorized use of a motor vehicle in 1986, He was sentenced to 16’h to 30 years in prison. After Megan’s Law was enacted, Smith was classified as a sexually oriented offender in 1999, He was released on parole in June 2006.

In 2007, Smith was convicted of failure to verify his address – a violation of Megan’s Law, He was sentenced to three years in prison. That sentence was suspended, and he was placed on five years of community control.

When the Adam Walsh Act – which led to the reclassification of all sex offenders – became effective in 2008, Smith was reclassified as a Tier III offender, That same year, he was arrested and convicted for failure to notify under the Adam Walsh Act.

For that violation, he was sentenced to three years in prison and was ordered to serve the three-year term imposed in 2007 concurrently with the sentence imposed for the new conviction. His parole from his original conviction was revoked. He has been in prison since 2008, and he has been denied parole on several occasions,

On June 11, 2012, Smith filed a motion in court for a new resentencing in the 2007 and 2008 cases.

In his motion, Smith argued that because portions of the Adam Walsh Act were held unconstitutional in 20 I 0 by our court, he had thus been improperly reclassified as a Tier III offender. He asked that his 2007 and 2008 convictions be vacated and the community-notification and registration orders imposed on him in 2007 before the Adam Walsh Act became effective should be reinstated,

The trial court denied both motions. After that, Smith filed an action in the court of appeals seeking two different types of writs ordering the trial court to vacate his convictions,

In particular, Smith asserted that the trial judge – Frances McGee – must vacate his conviction in the 2008 case, reclassify him as he was classified before the Adam Walsh Act became effective, and reinstate the community control sanctions imposed in the 2007 case. But the court of appeals dismissed his motion. After that, he brought his case before us – the Ohio Supreme Court – for a final review.

To be entitled to the writs that he sought, Smith had to meet certain requirements, One of those requirements – common to both types of writ – was that he had to establish the lack of an adequate remedy in the ordinary course of the law.

But a majority of our court concluded that Smith had not established the right to the writs he sought.

According to the majority, regardless of the merits of his arguments, Smith had an adequate remedy – namely, an appeal – in “the ordinary course of the law that precludes both writs.” Specifically, the majority noted, Smith appealed the trial judge’s denial of his motion for a new resentencing in one case and could have appealed the denial in the second case.

Therefore, by a four-to-three vote, our court affirmed the dismissal of Smith’s petition for the writs he sought because he had an adequate remedy in the ordinary course of the law.

Justice Judith Ann Lanzinger, Justice William M. O’Neill and I cast the three dissenting votes. Why did we dissent?

Smith was convicted of several counts of rape and other offenses, and he was imprisoned. After the enactment of Megan’s Law, he was classified as a sexually oriented offender, subject to various reporting requirements. In 2008, Megan’s Law was supplanted by the Adam Walsh Act. That Act has been the subject of much litigation in Ohio, including, notably, a 2010 case our court reviewed called State v Bodyke.

Smith is currently in prison based on his convictions for failure to comply with certain reporting requirements under the Adam Walsh Act. But he asserted that he should be subject to the reporting requirements of Megan’s Law, not the more onerous reporting requirements of the Adam Walsh Act, some of which – as he correctly stated – have been held unconstitutional.

Smith is acting as his own lawyer and, not surprisingly – given the dense thicket of sentencing litigation that has arisen since our decision in Bodyke – his arguments are somewhat muddled. The bottom line is that he could be right in asserting that he is being held unjustifiably for violating reporting requirements that he might not have been required to follow.

This case is substantially similar to a 2011 case called State v, Gingell. In that case, a defendant convicted of rape before Megan’s Law was enacted was reclassified as a Tier III sexual offender under the Adam Walsh Act. He was then convicted for failure to register under provisions of the Adam Walsh Act. But once some of the reporting requirements in the Adam Wash Act were held unconstitutional in Bodyke, Gingell’s original classification under Megan’s Law was reinstated,

To afford substantial justice to Smith, Justices Lanzinger, O’Neill and I would have granted the writs and required the trial court to determine which reporting requirements Smith is subject to, and the current state of his compliance with those requirements.

By Justice Paul Pfeifer

For The Register-Herald

EDITOR’S NOTE: The case referred to is: Smith v. McGee, 144 Ohio St.Jd 50. 2015-0hio-2748. Case No, 2014-1009, Decided July 9,2015, Opinion Per Curiam.

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