[Cite as State v. Benedetta, 2013-Ohio-4364.] STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 12 BE 20 ) PLAINTIFF-APPELLANT ) ) VS. ) OPINION ) RAY BENEDETTA ) ) DEFENDANT-APPELLEE )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 12 CV 49
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellant: Atty. Christopher Berhalter Belmont County Prosecutor 147-A West Main Street St. Clairsville, Ohio 43950
For Defendant-Appellee: Atty. J. Kevin Flanagan Gold, Khoury & Turak 510 Tomlinson Avenue Moundsville, WV 26041
JUDGES:
Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Joseph J. Vukovich Dated: September 26, 2013 [Cite as State v. Benedetta, 2013-Ohio-4364.] WAITE, J.
{¶1} Appellant, the State of Ohio, appeals the decision of the Belmont
County Court of Common Pleas denying a motion to permanently enjoin Appellee
Ray Benedetta from living at his residence at 3863 Lincoln Avenue, Shadyside, Ohio.
The request for injunction was based on the fact that Appellee had been classified as
a sexually oriented offender in 2001, and because the residence was within 1,000
feet of a school. Former R.C. 2950.031 prohibited a sexually oriented offender from
establishing a residence within 1,000 feet of any school. R.C. 2950.031 was
amended and recodified as R.C. 2950.034 as part of 2007 S.B. 10, effective July 1,
2007.
{¶2} The trial court denied the state's motion for injunction because: (1)
Appellee was convicted prior to the enactment of R.C. 2950.034; (2) Appellee was
also convicted prior to the enactment of the original 1,000-foot rule in former R.C.
2950.031; (3) the Ohio Supreme Court ruled that former R.C. 2950.031 was not
intended to be retroactive in operation; and (4) because Appellee acquired a vested
interest in the Lincoln Avenue property long before the enactment of either statute.
The trial court relied primarily on Hyle v. Porter, 117 Ohio St.3d 165, 2008-Ohio-542,
882 N.E.2d 899, syllabus, which held that: “Because R.C. 2950.031 was not
expressly made retrospective, it does not apply to an offender who bought his home
and committed his offense before the effective date of the statute.”
{¶3} Appellant contends that the Hyle holding only applies to offenders who
were actually living in a residence prior to the effective date of R.C. 2950.031.
Appellant further argues that this Court ruled in State v. Byers, 7th Dist. No. 07 CO -2-
39, 2008-Ohio-5051 that a defendant must actually live in the residence in question
prior to the enactment of R.C. 2950.031 for the holding in Hyle to apply.
{¶4} Appellant's attempt to enforce R.C. 2950.034, and his reliance on Hyle
and Byers, are not persuasive for a number of reasons. First, R.C. 2950.034 was
held to be unconstitutionally retroactive as applied to offenders like Appellee who
committed their crimes before the enactment of the statute. State v. Williams, 129
Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108. As our opinion in Byers was
premised on the constitutional validity of R.C. 2950.034, Byers is clearly no longer
binding. Also, Hyle held that former R.C. 2950.031 could not be applied to offenders
who committed their crimes and bought their home prior to the effective date of R.C.
2950.031, and was silent about whether the offender was required to actually reside
on the property prior to the enactment of the statute. Finally, Ohio's appellate courts
are in agreement that the 1,000-foot prohibition created in 2003 by R.C. 2950.031
cannot be applied to a defendant who committed his offense prior to the effective
date of the statute, regardless of the time that defendant may have acquired his
property interest or began living in the residence. Even though Appellee has not filed
a brief in this appeal, we decline to accept Appellant's argument, and the well-
reasoned judgment of the trial court is affirmed.
History of the Case
{¶5} There is no dispute as to the determinative facts of this case. On July
17, 2000, Appellee acquired a vested remainder interest in 3863 Lincoln Avenue,
Shadyside, Ohio. The grantor, Mr. William Brinker, retained a life estate in the -3-
property. The quitclaim deed was properly recorded in Belmont County. Mr. Brinker
died on October 19, 2006, terminating his life estate and giving Appellee fee simple
ownership of the property.
{¶6} In December of 2000, approximately five months after obtaining his
initial property interest, Appellee was indicted on eight counts of compelling
prostitution. On April 13, 2001, Appellee pleaded guilty to one count of attempting to
compel prostitution, a violation of R.C. 2907.21(A)(4). On June 7, 2001, he was
sentenced to nine months of incarceration. At the time of sentencing, he was
adjudicated as a sexually oriented offender. His residence at the time was located at
3193 Hamilton Street, Bellaire, Ohio. He was required to register annually as a
sexual offender for ten years with the Belmont County Sheriff's Office. On January 1,
2012, his reporting requirements concluded.
{¶7} On January 3, 2012, Appellee began residing at 3863 Lincoln Avenue.
The property is within 1,000 feet of Shadyside High School. On January 26, 2012,
the Belmont County Prosecutor filed a motion for permanent injunction to bar
Appellee from this address on the grounds that R.C. 2950.034 prohibited him from
residing within 1,000 feet from a school. The trial court overruled the motion on May
14, 2012. This appeal followed. Appellee has not filed a brief. App.R. 18(C) states:
“If an appellee fails to file the appellee’s brief within the time provided by this rule, or
within the time as extended, the appellee will not be heard at oral argument except
by permission of the court upon a showing of good cause submitted in writing prior to
argument; and in determining the appeal, the court may accept the appellant's -4-
statement of the facts and issues as correct and reverse the judgment if appellant's
brief reasonably appears to sustain such action.”
ASSIGNMENT OF ERROR
The Trial Court erred when it found that §2950.034 did not apply to the
Appellee and denied the State's request for a permanent injunction.
{¶8} Appellant argues that Appellee is not permitted to reside within 1,000
feet of a school due to the prohibition found in R.C. 2950.034, and its predecessor
statute, R.C. 2950.031. Appellant is aware that Appellee committed his crimes long
before the enactment of either R.C. 2950.034 or former R.C. 2950.031. Appellant is
also aware that the Ohio Supreme Court, in Hyle v. Porter, held that former R.C.
2950.031 was not a retroactive statute and could not be applied to an offender who
"bought his home and committed his offense before the effective date of the statute."
Hyle at syllabus. Appellant argues that this Court, in State v. Byers, held that R.C.
2950.034 is enforceable and may be applied to a defendant who committed his crime
before the effective date of the statute if he established a residence near a school
after the effective date of the statute. Appellant argues that R.C. 2950.034 should be
applied in the same manner, here, as in Byers. Appellant contends that, under
Byers, Appellee needed to prove both that his crime was committed before the
statute took effect and that he was actually residing in the premises before the
effective date of the statute. Before dealing with the Byers issues, some background
information is necessary. -5-
{¶9} The question raised in this appeal is whether the statute prohibiting
sexual offenders from residing within 1,000 feet of a school applies to Appellee.
Appellant filed for an injunction pursuant to the authority of R.C. 2950.034, which
became effective under 2007 S.B. 10 on July 1, 2007. In 2007 S.B. 10, former R.C.
2950.031 was amended and recodified as R.C. 2950.034. Former R.C. 2950.031(A)
provided as follows: “ ‘No person who has been convicted of, is convicted of, has
pleaded guilty to, or pleads guilty to either a sexually oriented offense that is not a
registration-exempt sexually oriented offense or a child-victim oriented offense shall
establish a residence or occupy residential premises within one thousand feet of any
school premises.’ 150 Ohio Laws, Part IV, 6657.” Hyle at ¶4. The only significant
difference between former R.C. 2950.031 and the subsequent amended and
renumbered version in R.C. 2950.034 is that R.C. 2950.034 added language
prohibiting an offender from residing within 1,000 feet of a preschool or child day-care
center.
{¶10} The enforcement mechanism allowing a prosecutor to request an
injunction to prohibit a sexual offender from living near a school was created by 2004
Am.Sub.H.B. 473, effective April 29, 2005. Prior to that date, only an owner of
property located within 1,000 feet of a school could seek an injunction.
{¶11} On July 13, 2011, the Ohio Supreme Court in Williams declared R.C.
2950.034 and the rest of 2007 S.B. 10 unconstitutional: “We conclude that S.B. 10,
as applied to Williams and any other sex offender who committed an offense prior to
the enactment of S.B. 10, violates Section 28, Article II of the Ohio Constitution, -6-
which prohibits the General Assembly from enacting retroactive laws.” Williams,
supra, at ¶22. Since Appellee committed his crime prior to 2007 S.B. 10, pursuant to
Williams, he is not subject to the requirements of R.C. 2950.034. Nevertheless, there
remains a question whether he would have been subject to the former law found in
R.C. 2950.031, which became effective in 2003.
{¶12} As mentioned earlier, in 2008, the Ohio Supreme Court in Hyle held
that former R.C. 2950.031 was “not expressly made retrospective, and for that
reason, did not apply to an offender who bought his home and committed his offense
before the effective date of the statute.” Hyle at syllabus. Hyle did not specifically
determine how residency affects the application of former R.C. 2950.031 because the
only question before the Court was whether the statute could be applied to an
offender who committed his crime and bought his home before the effective date of
R.C. 2950.031. Id. at ¶1.
{¶13} Our Byers case was decided after Hyle but before Williams. Appellant
contends that Byers properly interpreted Hyle and should be consistently applied to
similar cases dealing with R.C. 2950.034. We must note that the facts of Byers are
not consistent with the facts of the instant case. In Byers, the defendant committed
his crime in May of 2007. It is not clear from the case the date on which he acquired
his interest in the residence that was located within 1,000 feet of a school. The
relevant statute in Byers was R.C. 2950.034, which became effective on July 1, 2007.
Thus, we know that in Byers that the offender committed the crime after R.C.
2950.031 was enacted, but before R.C. 2950.034 became effective, but it was -7-
unclear whether he lived in the residence before R.C. 2950.034 became effective.
Since the offender committed his crime after R.C. 2950.031 became effective in
2003, there is no question that he was subject to the 1,000-foot rule when he
committed his crime. In the instant case, however, we are clearly aware that
Appellee committed the crime long before either R.C. 2950.031 or R.C. 2950.034
took effect, and also that he acquired his vested property interest before either
statute took effect. Thus, unlike Byers, there was no 1,000-foot prohibition in effect in
any form either when Appellee committed his crime or when he acquired his initial
interest in the property, and the record reflects the exact date on which he acquired
his interest in the property.
{¶14} Even if none of the foregoing was true, the second important aspect of
Byers that needs to be addressed is that it has been effectively overruled by the Ohio
Supreme Court in Williams. The entire Byers opinion is premised on the notion that
2007 S.B. 10 (which includes the repeal of R.C. 2950.031 and its recodification and
amendment in R.C. 2950.034) was meant to be retroactive and that the retroactivity
was constitutional. 2007 S.B. 10 had been challenged a number of times on the
grounds that it was unconstitutionally retroactive, but no definitive ruling on the matter
had been decided at the time Byers was released.
{¶15} Section 28, Article II of the Ohio Constitution states that “[t]he general
assembly shall have no power to pass retroactive laws.” The Ohio Supreme Court
uses a two-step analysis to determine whether a statute violates Section 28, Article II.
The first step is one of statutory construction to determine whether the legislature -8-
intended the statute to apply retroactively. Pursuant to R.C. 1.48, a statute is
presumed to be prospective in its operation unless expressly made retrospective.
See Van Fossen v. Babcock Wilcox Co., 36 Ohio St.3d 100, 105, 522 N.E.2d 489
(1988). If the statute does not pass the first step in the analysis due to a failure to
clearly enunciate the intent for the statute to apply retroactively, there is no need to
address the second part of the analysis. State v. Ferguson, 120 Ohio St.3d 7, 2008-
Ohio-4824, 896 N.E.2d 110, ¶10.
{¶16} The second step interprets and applies the constitutional limitation in
Section 28, Article II. A statute is unconstitutional if it retroactively impairs vested
substantive rights, but not if it is merely remedial in nature. State v. Consilio, 114
Ohio St.3d 295, 2007-Ohio-4163, 871 N.E.2d 1167, ¶9. A statute that is found to be
primarily punitive also cannot be applied retroactively. Ferguson at ¶39; Williams at
¶21.
{¶17} Williams determined that R.C. 2950.034 was intended to apply
retroactively under R.C. 1.48, but went on to hold that: “2007 Am.Sub.S.B. No. 10,
as applied to defendants who committed sex offenses prior to its enactment, violates
Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly
from passing retroactive laws.” Id. at syllabus. Byers, instead of declaring 2007 S.B.
10 (and R.C. 2950.034 along with it) to be unconstitutional, held that 2007 S.B. 10
was intended to be retroactive but was not unconstitutionally retroactive because its
provisions were civil and remedial rather than criminal and punitive in nature. Id. at
¶69. This is no longer a valid interpretation of 2007 S.B. 10 after Williams. Because -9-
Byers relies on the mistaken premise that all of 2007 S.B. 10 (including R.C.
2950.034) is constitutionally retroactive, the legal reasoning used in Byers regarding
R.C. 2950.034 cannot continue to be cited as binding precedent.
{¶18} Although there is no Appellee's brief in this case, we cannot simply
ignore the fact that Hyle, which is the most relevant precedent cited by Appellant, has
regularly been applied to prevent the enforcement of the 1,000-foot rule in situations
almost identical to the facts of this case. For example, in State ex rel. White v.
Billings, 12th Dist. No. CA2006-09-072, 2007-Ohio-4356, the defendant was
convicted of rape in 1991, and moved to a residence within 1,000 feet of a school in
2005 (two years after R.C. 2950.031 became effective). A complaint for injunctive
relief was filed soon after. The injunction was granted by the trial court, and was
upheld by the Twelfth District Court of Appeals. The appellate court tried to
distinguish the facts of Billings from those in Hyle by stating that there was no
precedent for applying Hyle to a situation where a defendant “was convicted of a
sexually-oriented offense that is not a registration-exempt sexually-oriented offense
prior to the effective date of the statute and moved in to a residence within 1,000 feet
of a school premises after the statute became effective.” (Emphasis sic.) Id. at ¶35.
Billings was soon summarily reversed by the Ohio Supreme Court on the basis of
Hyle. State ex rel. White v. Billings, 117 Ohio St.3d 536, 2008-Ohio-1590, 885
N.E.2d 241.
{¶19} Similarly, in Franklin Cty. Prosecuting Atty. v. Walker, 10th Dist. No.
07AP-165, 2007-Ohio-5095, the defendant committed the crime of gross sexual -10-
imposition sometime between 1999 and 2001, was indicted in June of 2003 (prior to
the enactment of R.C. 2950.031), pleaded guilty in December, 2004 (after the
effective date of R.C. 2950.031), and moved to a location within 1,000 feet of a
school in 2006. This case is somewhat more complicated than Billings, because the
defendant had been living near a school for 20 years prior to the injunction being
filed. Due to the pending injunction, he moved two doors away in 2006. His new
residence was also within 1,000 feet of a school. The trial court held that the
defendant had no vested property rights in either residence and issued the injunction.
The Tenth District Court of Appeals affirmed as to both residences. Once again, the
Ohio Supreme Court summarily reversed on the basis of Hyle. Franklin Cty. Pros.
Atty. v. Walker, 117 Ohio St.3d 537, 2008-Ohio-1589, 885 N.E.2d 241.
{¶20} The Tenth District Court of Appeals, mindful of the reversal in Walker,
applied Hyle and affirmed the trial court decision not to grant an injunction against a
defendant who committed his crime prior to the effective date of R.C. 2950.031, and
who had established a residence within 1,000 feet of a school after the enactment of
R.C. 2950.031. O'Brien v. Whalen, 10th Dist. No. 08AP-918, 2009-Ohio-1807.
{¶21} Similar cases can be found from other districts as well. See, e.g.,
Watkins v. Stevey, 11th Dist. No. 2009–T–0022, 2009-Ohio-6854; Vandervoot v.
Larson, 5th Dist. No. 07 CA 46, 2008-Ohio-2913; Toledo v. Rost, 6th Dist. No. L-08-
1202, 2010-Ohio-1890; State v. Ware, 2008-Ohio-2788. All of these cases involve
defendants who committed their crimes prior to the effective date of R.C. 2950.031,
and moved into residences within 1,000 feet of a school after the effective date of the -11-
statute. The Fifth, Sixth, Tenth and Eleventh Districts "have subsequently interpreted
the Ohio Supreme Court's decision in Hyle, and the summary disposition judgments
under authority of Hyle, as precluding retroactive application of R.C. 2950.031
against convicted sex offenders who committed their sex offenses before the
statute's effective date, even where the offender holds no property interest in his
residence." Toledo v. Rost at ¶30.
{¶22} Appellant's argument is that Appellee did not actually move into the
house at 3863 Lincoln Avenue until 2012, and that all the other facts of this case
should be subordinate to that fact. Based on the cases cited above, the date that
Appellee started living in the residence is not the determining factor in whether to
retroactively apply R.C. 2950.031 or 2950.034. In this appeal, the state sought an
injunction pursuant to R.C. 2950.034, which became effective in 2007. We are
mindful that R.C. 2950.034 was declared unconstitutional in Williams. We also know
that Appellee was convicted long before the predecessor statute, former R.C.
2950.031, took effect. Based on these facts alone, R.C. 2950.031 cannot be applied
to him. Given the additional information that Appellee had a vested interest in the
property before R.C. 2950.031 became effective, that Appellee acquired full fee
simple ownership of the property before R.C. 2950.034 became effective, and that
Hyle prevented the retroactive application of R.C. 2950.031 to offenders who
committed their crimes and had a property interest prior to the effective date of the
statute, we can only conclude this matter must be resolved in Appellee's favor.
Finally, as earlier discussed, our Byers opinion is no longer binding precedent and is -12-
not factually consistent with the facts of this case. Thus, both the facts and the legal
precedent cited by Appellant lead to the determination that the trial court was correct
in refusing to grant an injunction prohibiting Appellee from living at 3863 Lincoln
Avenue. Appellant's sole assignment of error is hereby overruled.
Conclusion
{¶23} Appellant argues that application of R.C. 2950.034 or R.C. 2950.031
prohibit Appellee from living at his residence, which is located within 1,000 feet of a
school. Based on the Ohio Supreme Court’s decision in Hyle, it is apparent that
neither R.C. 2950.034 nor R.C. 2950.031 applies to Appellee. R.C. 2950.034 (as
part of 2007 S.B. 10) was declared unconstitutional by the Ohio Supreme Court in
Williams, and is therefore, inapplicable. R.C. 2950.031, as interpreted by Hyle, does
not apply to a defendant in Appellee's position because he committed his crime
before the effective date of the statute. Our Byers opinion is factually distinct and has
effectively been overruled by the Ohio Supreme Court, and does not support
Appellant's argument. Therefore, the trial court was correct in denying the motion for
permanent injunction. Appellant's assignment of error is overruled and the judgment
of the trial court is affirmed.
Donofrio, J., concurs.
Vukovich, J., concurs.