State v. Raber

2012 Ohio 5636, 982 N.E.2d 684, 134 Ohio St. 3d 350
CourtOhio Supreme Court
DecidedDecember 5, 2012
Docket2011-1383
StatusPublished
Cited by116 cases

This text of 2012 Ohio 5636 (State v. Raber) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Raber, 2012 Ohio 5636, 982 N.E.2d 684, 134 Ohio St. 3d 350 (Ohio 2012).

Opinions

O’Donnell, J.

{¶ 1} Kyle Raber appeals from a judgment of the Ninth District Court of Appeals that affirmed his classification as a Tier I sex offender based on his guilty plea to one count of sexual imposition. At issue is whether the trial court retained authority to classify him as a Tier I sex offender more than a year after the entry of a final judgment of conviction for a sexually oriented offense.

{¶ 2} R.C. 2950.03(A)(2) directs a trial court to notify a sex offender of the duty to register as a sex offender at the time of a sentencing for a sexually oriented offense. However, pursuant to R.C. 2950.01(B)(2)(a), one who commits a sexually oriented offense is not a sex offender — and has no duty to register — if the offense involved “consensual sexual conduct or consensual sexual contact” with a victim over 18 years old who is not under the custodial authority of the perpetrator.

{¶ 3} At sentencing on November 26, 2008, the parties disputed whether the sexually oriented offense at issue here involved consensual activity. The court afforded the state an opportunity to demonstrate a lack of consent, but the state failed to do so, and the trial court subsequently sentenced Raber but did not order him to register as a sex offender. Notably, the trial court did not have a duty to order Raber to register as a sex offender pending its determination as to the consensual nature of the conduct, and having entered its judgment without [352]*352the registration requirement, it implicitly incorporated into the judgment a finding that Raber has no duty to register.

{¶ 4} The court therefore lacked authority to reopen its sentencing to reconsider its prior judgment or to find the sexual activity to be nonconsensual and classify Raber as a Tier I sex offender more than a year after it had imposed its original sentence. In addition, because sex-offender registration is now punitive in nature, double-jeopardy protections barred the court from subsequently classifying Raber as a Tier I sex offender at a new proceeding held more than a year after its original sentence.

{¶ 5} Accordingly, the judgment of the court of appeals is reversed.

Facts and Procedural History

{¶ 6} On February 18, 2008, 18-year-old Kyle Raber and his 18-year-old former girlfriend engaged in consensual intercourse in her bedroom. Raber then asked her for anal sex. Athough she denied his request, he proceeded.

{¶ 7} A Wayne County grand jury indicted him on April 4, 2008, on one count of sexual battery, a felony of the third degree, and on October 28, 2008, Raber pled guilty to an amended count of sexual imposition, a third-degree misdemean- or.

{¶ 8} At the sentencing hearing held on November 26, 2008, the parties disputed whether the misdemeanor conviction for sexual imposition required Raber to register as a sex offender, because R.C. 2950.01(B)(a) does not require registration if the offense involved consensual sexual activity with another over the age of 18. At the sentencing hearing, only hearsay statements of Raber’s former girlfriend were presented on the issue of consent. The parties agreed to brief the sex-offender-registration question, and the trial court took the matter under advisement. However, the parties never submitted briefs on the issue, and on December 1, 2008, the court entered judgment, sentencing Raber to 60 days in jail (30 of them suspended), imposing a $500 fine, and ordering two years of community control. Significantly, the court did not classify Raber as a sex offender and did not provide him with notice of a duty to register as a sex offender.

{¶ 9} Thereafter, on October 19, 2009 — more than ten months after entering its judgment of conviction — the trial court, sua sponte, scheduled a hearing for November 18, 2009. No transcript of this hearing appears in the record. The next day, however, the judge inexplicably transferred the matter to a different judge, who presided over an evidentiary hearing on March 2, 2010, to determine whether Raber should be classified as a sex offender subject to Tier I registration. At that hearing, the victim testified that she had consented to vaginal sex but not to anal intercourse. The second trial judge then found the sexual conduct [353]*353to be nonconsensual and classified Raber as a Tier I sex offender subject to registration, and at another hearing on April 13, 2010, the court provided notice of Raber’s Tier I classification, and the court journalized its judgment the next day, more than 14 months after the original sentencing.

{¶ 10} On August 6, 2010, the trial court released Raber from the two-year term of community control earlier imposed.

{¶ 11} Raber appealed his Tier I classification to the Ninth District Court of Appeals, claiming that his December 2008 conviction was a final order, and therefore, the court had no jurisdiction in 2010 to hear and decide the sex-offender-registration issue. The court rejected these arguments, holding that an order classifying a sex offender constitutes a separate judgment from the underlying conviction and sentence, and therefore, the trial court had not modified a final order when it imposed sex-offender registration 14 months after it had sentenced him. State v. Raber, 9th Dist. No. 10CA0020, 2011-Ohio-3888, 2011 WL 3426173, ¶ 7-8. The court also concluded that Raber had forfeited any argument that the classification as a Tier I sex offender violated due process and prohibitions against double jeopardy and self-incrimination, because he failed to assert those claims in the trial court. Id. at ¶ 10.

{¶ 12} Raber now appeals to this court, urging that the trial court lacked jurisdiction to modify his conviction and sentence, which, he asserts, became a final judgment when the state failed to appeal. He notes that the court of appeals relied on caselaw construing the imposition of sex-offender registration pursuant to Megan’s Law, which is a civil, remedial law, but he maintains that those cases do not apply to the classification of a sex offender pursuant to current R.C. Chapter 2950, which this court has now held to be punitive. State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶ 16. Further, Raber contends that his classification as a Tier I sex offender deprived him of due process by reopening a final judgment and that it violated the prohibition against double jeopardy by imposing additional punishment at a subsequent proceeding.

{¶ 13} The state claims that Raber agreed to delay the determination of whether he should be classified as a sex offender to a later time and that he benefited from this delay by not having to register. It also argues that any error is harmless, because “even Raber agrees that he should have been adjudicated a sex offender” and because a lack of consent is inherent in a guilty plea to sexual imposition. Lastly, the state asserts that the trial court had jurisdiction to correct the “clerical omission in the prior order” and impose sex-offender registration, and it maintains that there is no violation of due process or the prohibition against double jeopardy, because the court had authority to correct this omission.

[354]*354{¶ 14} Accordingly, the issue becomes whether the trial court had authority to classify Raber as a sex offender 14 months after entering its judgment of conviction.

Law and Analysis

S.B. 10

{¶ 15} In January 2008, 2007 Am.Sub.S.B. No. 10 (“S.B. 10”) took effect.

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Cite This Page — Counsel Stack

Bluebook (online)
2012 Ohio 5636, 982 N.E.2d 684, 134 Ohio St. 3d 350, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-raber-ohio-2012.