ADAMSON v. STATE, 2008-L-045 (1-4-2010)

CYNTHIA WESTCOTT RICE, J.

{¶ 1} Appellant, Phillip Adamson, appeals from the judgment entry of the Lake County Court of Common Pleas reclassifying him from a sexually oriented offender to a Tier III sex offender as required by Am. Sub. Senate Bill 10 (a.k.a. the Adam Walsh Act). For the reasons discussed in this opinion, the trial court's judgment is affirmed.

{¶ 2} On December 23, 1987, appellant was found guilty, after a trial by jury, on one count of kidnapping, in violation of R.C. 2905.01, one count of robbery, in violation of R.C. 2911.02, and six counts of rape, in violation of R.C. 2907.02. In 2000, upon his release from prison, the trial court held a hearing under former R.C. Chapter 2950. et seq. and classified appellant a "sexually oriented offender." Appellant's classification required him to report once a year for a period of ten years.

{¶ 3} On November 26, 2007, pursuant to Ohio's Adam Walsh Act (S.B. 10), appellant received a Notice of New Classification and Registration Duties from the Office of the Ohio Attorney General. Appellant was reclassified as a Tier III offender. On January 18, 2008, appellant filed a petition to contest his reclassification as a violation of his constitutional rights. After a hearing, the trial court concluded appellant was unable to prove, by clear and convincing evidence, that his new registration requirements did not apply in the manner specified by the Attorney General. Appellant filed a timely notice of appeal and assigns the following as error:

{¶ 4} "The trial court erred when it denied appellant's petition challenging reclassification and reclassified his sex offender status pursuant to Ohio's Adam Walsh Act, Senate Bill 10, and unconstitutional body of laws."

{¶ 5} Under his sole assignment of error, appellant presents six arguments. In particular, appellant contends S.B. 10 is unconstitutional because: (1) it violates the separation of powers doctrine; (2) it violates the prohibition against the enactment of ex post facto legislation; (3) it violates the retroactivity clause of the Ohio Constitution; (4) it violates the prohibition against double jeopardy; (5) it violates appellant's due process rights as well as his right to privacy; and (6) it constitutes a breach of contract as well as provisions against the impairment of contracts set forth in both the United States and Ohio Constitutions. {¶ 6} Before addressing appellant's arguments, we first point out that each appellate district in Ohio, including this one, have concluded that S.B. 10 passes constitutional muster. See, e.g., State v. Swank, 11th Dist. No. 2008-L-019, 2008-Ohio-6059; Sewell v. State, 181 Ohio App.3d 280, 2009-Ohio-872; State v. Desbiens, 2d Dist. No. 22489, 2008-Ohio-3375; In re Smith, 3d Dist. No. 1-07-58, 2008-Ohio-3234; State v. Longpre, 4th Dist. No. 08CA3017, 2008-Ohio-3832; State v. Hughes, 5th Dist. No. 2008-CA-23, 2009-Ohio-2406; State v. Bodyke, 6th Dist. Nos. H-07-040, H-07-041, H-07-042, 2008-Ohio-6387; State v. Byers, 7th Dist. No. 07 CO 39, 2008-Ohio-5051; State v. Holloman-Cross, 8th Dist. No. 90351, 2008-Ohio-2189; In re G.E.S., 9th Dist. No. 24079, 2008-Ohio-4076; State v. Gilfillan, 10th Dist. No. 08AP-317, 2009-Ohio-1104; Ritchie v. State, 12th Dist. No. CA2008-07-073, 2009-Ohio-1841.

{¶ 7} Moreover, several of appellant's arguments have been considered and rejected by this court in Swank. Id. at ¶ 98-100 (separation of powers); Id. at ¶ 71-89 (ex post facto); ¶ 90-97 (retroactive legislation); ¶ 101-111 (due process of law). By operation of stare decisis, these arguments are therefore overruled. However, since our holding in Swank, litigants, particularly those who have experienced a reclassification such as appellant, have further developed their positions. In light of these developments, we shall revisit these arguments to amplify our previous conclusion that S.B. 10 is not unconstitutional.

{¶ 8} Appellant first argues S.B. 10 violates the doctrine of separation of powers by altering a previous, final adjudication relating to his classification. We do not agree.

{¶ 9} We first point out that, while S.B. 10 authorizes the Ohio Attorney General to reclassify offenders previously classified under H.B. 180, see R.C. 2950.031, such reclassification does not vacate or modify a prior final judgment of the court. There is no doubt that a judicial determination of a sex offender's classification under H.B. 180 (former R.C. Chapter 2950.) is a final judgment for purposes of appeal. State v. Washington, 11th Dist. No. 99-L-015, 2001-Ohio-8905, 2001 Ohio App. LEXIS 4980, *9. Still, such a judgment does not deprive the legislature of its constitutional authority to classify sex offenders.

{¶ 10} "[T]he classification of sex offenders into categories has always been a legislative mandate, not an inherent power of the courts. *** Without the legislature's creation of sex offender classifications, no such classification would be warranted. Therefore, *** we cannot find that sex offender classification is anything other than a creation of the legislature, and therefore, the power to classify is properly expanded or limited by the legislature." In re Smith, supra, at ¶ 39.

{¶ 11} Put simply, S.B. 10 does not require the Attorney General (via legislative mandate) to reopen final judicial judgments. The new scheme merely changes the classification and registration requirements for sex offenders and mandates that new procedures be applied to sex offenders currently registered under the former law. In State v. Cook, 83 Ohio St.3d 404, 1998-Ohio-291, the Court pointed out that "where no vested right has been created, `a later [legislative] enactment will not burden or attach a new disability to a past transaction or consideration in the constitutional sense, unless the past transaction or consideration *** created at least a reasonable expectation of finality." Id. at 412, quoting State ex rel. Matz v. Brown (1988), 37 Ohio St.3d 279, 281. With the exception to the constitutional protection against ex post facto laws, which, as will be discussed in greater detail infra, S.B. 10 does not violate, "` felons have no reasonable right to expect that their conduct will never thereafter be made the subject of legislation.'" (Emphasis sic.) Cook, supra, quoting Matz, supra, at 281-282. Accordingly, because convicted sex offenders have no reasonable "settled expectations" or vested rights concerning the registration obligations imposed on them, S.B. 10 does not function to abrogate a final prior judicial adjudication. See State v. King, 2d Dist. No. 08-CA-02, 2008-Ohio-2594, at ¶ 33; State v. Linville, 4th Dist. No. 08CA3051, 2009-Ohio-313.

{¶ 12} Finally, in State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824 the Ohio Supreme Court held that an offender's classification as a sexual predator is merely a "collateral consequence of the offender's criminal acts rather than a form of punishment per se." In that case, the Court concluded the offender had "not established that he had any reasonable expectation of finality in [such] a collateral consequence ***." Id. at 14. Here, we acknowledge that appellant possesses a reasonable expectation in the finality of his conviction; however, this expectation does not extend to his former classification. His previous sexual classification is nothing more than a collateral consequence arising from his criminal conduct. Even though appellant's registration and notification obligations have changed under S.B. 10, he has failed to provide this court with any authority indicating he possessed a reasonable expectation of finality in the collateral consequence of his former classification.

{¶ 13} The new registration and notification scheme does not violate the doctrine of separation of powers and, as a result, we reaffirm our conclusion in Swank. {¶ 14} Appellant next contends S.B. 10, through its retroactive application, violates the prohibition against ex post facto laws. Again, we disagree. {¶ 15} All of Ohio's appellate districts, including this court, have relied on the Supreme Court of Ohio's decision in Cook, supra, as a foundation for upholding the constitutionality of S.B. 10. In Cook, the Court addressed H.B. 180, the statutory predecessor of S.B. 10. The Court held that, although H.B. 180 was retroactive, the purpose of its registration and notification requirements was to protect the public from released sex offenders. The Court in Cook held that because H.B. 180 was remedial and not punitive in nature, it did not present an ex post facto or retroactivity violation. Id. at 413, 423.

{¶ 16} Since the Ohio Supreme Court's ruling in Cook, the Court has reaffirmed its holding that R.C. Chapter 2950 is not an ex post facto law.

{¶ 17} In State v. Williams, 88 Ohio St.3d 513, 2000-Ohio-428, the defendant alleged that H.B. 180 violated the Double Jeopardy Clause because it inflicted a second punishment for a single offense. Relying on its reasoning in Cook, the Supreme Court reaffirmed that R.C. Chapter 2950 is "neither `criminal,' nor a statute that inflicts punishment," and held there was no violation of the Double Jeopardy Clause. Id. at 528.

{¶ 18} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, the Court held:

{¶ 19} "Consistent with our jurisprudence in [ Cook and Williams], we find that the sex-offender-classification proceedings under R.C. Chapter 2950 are civil in nature and that a court of appeals must apply the civil manifest-weight-of-the-evidence standard in its review of the trial court's findings." {¶ 20} In Ferguson, supra, the Supreme Court of Ohio considered whether the more stringent revisions to H.B. 180, incorporated in S.B. 5, effective July 31, 2003, violated the prohibitions against ex post facto and retroactive laws.

{¶ 21} Ferguson had been convicted of rape and kidnapping in 1990. In 2006, the trial court classified Ferguson as a sexual predator.

{¶ 22} Ferguson challenged three amendments in S.B. 5. First, he challenged former R.C. 2950.07(B)(1), which provided that the designation "predator" remains for life, as does the concomitant duty to register. The previous version of this section allowed for review of the predator classification by a judge and the possible removal of that classification. See former R.C. 2950.09(D).

{¶ 23} Second, Ferguson challenged former R.C. 2950.04(A), which provided that sex offenders are required to personally register with the sheriff in their county of residence, the county in which they attend school, and the county in which they work, and that they must do so every 90 days. R.C. 2950.06(B)(1)(a). Previously, offenders had been required to register only in their county of residence. See former R.C. 2950.06(B)(1).

{¶ 24} Third, Ferguson challenged amended R.C. 2950.081, which expanded the community-notification requirements. After S.B. 5, any statements, information, photographs, and fingerprints required to be provided by the offender are public records and are included in the Internet database of sex offenders maintained by the Attorney General's office. Former R.C. 2950.081 and 2950.13.

{¶ 25} In Ferguson, the Supreme Court (O'Connor, J. writing for the majority) held: {¶ 26} "As we have before, we acknowledge that R.C. Chapter 2950 may pose significant and often harsh consequences for offenders, including harassment and ostracism from the community. *** We disagree, however, with Ferguson's conclusion that the General Assembly has transmogrified the remedial statute into a punitive one by the provisions enacted through S.B. 5.

{¶ 27} "***

{¶ 28} "As an initial matter, we observe that an offender's classification as a sexual predator is a collateral consequence of the offender's criminal acts rather than a form of punishment per se. Ferguson has not established that he had any reasonable expectation of finality in a collateral consequence that might be removed. *** Absent such an expectation, there is no violation of Ohio's retroactivity clause. ***

{¶ 29} "***

{¶ 30} "We conclude that the General Assembly's purpose for requiring the dissemination of an offender's information is the belief that education and notification will help inform the public so that it can protect itself. `Widespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of a valid regulation.'" (Emphasis added.) Id. at 14-16, quoting Smith v. Doe (2003), 538 U.S. 84, 99.

{¶ 31} Also, the Ferguson Court held that the lifetime classification imposed on sexual predators as well as the more burdensome registration requirements and the collection and internet dissemination of additional information about the offender as part of the statute's notification provisions were part of a remedial, regulatory scheme designed to protect the public rather than to punish the offender. Id. at 15. {¶ 32} Furthermore, in Smith, supra, relied on by the Ohio Supreme Court in Ferguson, the United States Supreme Court considered an ex post facto challenge to Alaska's sex offender registration act. In disposing of this challenge, the Court addressed many of the arguments asserted by appellant herein.

{¶ 33} The Alaska Act contained registration and notification requirements that were expressly made retroactive. Under the Act, the offender was required to register with local law enforcement authorities and in so doing to provide his name, aliases, identifying features, address, place of employment, date of birth, conviction information, driver's license number, information about vehicles to which he has access, and his postconviction medical treatment history. He was also required to permit authorities to photograph and fingerprint him. The nonconfidential information was made available on the internet.

{¶ 34} Under the Alaska statute, if the offender was convicted of a nonaggravated sex offense, he was required to provide annual registration for 15 years. In contrast, if he was convicted of an aggravated sex offense, he was required to register quarterly for life. Thus, the frequency and length of registration were based solely on the type of offense of which he was convicted, rather than any finding concerning the likelihood that the offender would reoffend. Further, if a sex offender failed to comply with the Act, he was subject to criminal prosecution.

{¶ 35} The convicted sex offenders in Smith filed an action in the district court seeking a declaration that the Alaska Act violated the Ex Post Facto Clause of the Federal Constitution. The district court entered summary judgment in favor of the state. The Ninth Circuit held the Act violated the Ex Post Facto Clause because, although the legislature intended the Act to be a nonpunitive, civil regulatory scheme, the effects of the Act were punitive.

{¶ 36} In reversing the decision of the Ninth Circuit, the United States Supreme Court held the intent of the Act was remedial and not punitive. In arriving at this holding, the Supreme Court considered various factors. First, it considered the legislative purpose set forth in Alaska's Act. The Court held: "Because we `ordinarily defer to the legislature's stated intent, [ Kansas v.] Hendricks, [ 521 U.S. 346], at 361, `"only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty,' Hudson v. United States, 522 U.S. 93, 100 *** (1997) (quoting [ United States v.] Ward, [ 448 U.S. 242,] at 249 ***." Id. at 92.

{¶ 37} The Supreme Court noted that the Alaska Legislature expressed its intent in the statute. It found "sex offenders pose a high risk of reoffending," and stated that "protecting the public from sex offenders" is the "primary governmental interest" of the law. The legislature found the "release of certain information about sex offenders to public agencies and the general public will assist in protecting the public safety." Smith at 93. We note the legislative intention set forth in S.B. 10 is virtually identical to that expressed in the Alaska legislation.

{¶ 38} The Supreme Court held the imposition of restrictive measures on sex offenders is a legitimate nonpunitive governmental objective, and that nothing on the face of the statute suggests the legislature sought to create anything other than a civil scheme to protect the public from harm. Id. {¶ 39} In addressing respondent's argument that placement of the Act in Alaska's criminal code was probative of a punitive intent, the Court held this factor was not dispositive. The Court held: "The location and labels of a statutory provision do not by themselves transform a civil remedy into a criminal one." Id. at 94. Further, the Court held the "`codification of the Act in the State's criminal *** code is not sufficient to support a conclusion that the legislative intent was punitive." Id. at 95. As a result, the General Assembly's placement of S.B. 10 in Ohio's criminal code is not dispositive of the legislature's intent.

{¶ 40} The Supreme Court also addressed the Alaska statute's requirement that the judgment of conviction for sex offenses "`set out the requirements of [the Act] and *** whether that conviction will require the offender to register for life or a lesser period.'" The Court held:

{¶ 41} "The policy to alert convicted offenders to the civil consequences of their criminal conduct does not render the consequences themselves punitive. When a State sets up a regulatory scheme, it is logical to provide those persons subject to it with clear and unambiguous notice of the requirements and the penalties for noncompliance. The Act requires registration either before the offender's release from confinement or within a day of his conviction (if the offender is not imprisoned). Timely and adequate notice serves to apprise individuals of their responsibilities and to ensure compliance with the regulatory scheme. Notice is important, for the scheme is enforced by criminal penalties. See [Secs.] 11.56.835, 11.56.840. Although other methods of notification may be available, it is effective to make it part of the plea colloquy or the judgment of conviction. Invoking the criminal process in aid of a statutory regime does not render the statutory scheme itself punitive." (Emphasis added.) Id. at 95-96.

{¶ 42} As with the Alaska statute, S.B. 10 requires the judge to notify the offender of his registration duties at the time of sentencing. Based upon the United States Supreme Court's holding in Smith, this does not render S.B. 10's regulatory system punitive.

{¶ 43} After determining that Alaska's Act was not punitive in intent, the Court in Smith considered whether the Act was punitive in effect. In analyzing the effects of a statute for purposes of determining whether it is an ex post facto law, courts refer to the factors noted in Kennedy v. Mendoza-Martinez (1963), 372 U.S. 144, 168-169.

{¶ 44} First, the Supreme Court considered whether the regulatory scheme has traditionally been regarded as a punishment. The Court noted that the sex offender registration statutes are of recent origin, which suggests "it did not involve a traditional means of punishing." Id. at 97. The Supreme Court further held that early punishments, such as shaming or banishment, always involved more than the dissemination of information. Id. at 98. They either held the offender up before his fellow citizens for face to face shaming or expelled him from the community. Id. The Court held: "By contrast, the stigma of Alaska's Megan's Law results *** from the dissemination of accurate information about a criminal record, most of which is already public. Our system does not treat the dissemination of truthful information in furtherance of a legitimate governmental objective as punishment." Id.

{¶ 45} Moreover, the Court held the fact that Alaska posts the offender's information on the internet does not alter its decision. The Court held: {¶ 46} "It must be acknowledged that notice of a criminal conviction subjects the offender to public shame, the humiliation increasing in proportion to the extent of the publicity. And the geographic reach of the Internet is greater than anything which could have been designed in colonial times. These facts do not render Internet notification punitive. The purpose and the principal effect of notification are to inform the public for its own safety, not to humiliate the offender. Widespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of a valid regulation.

{¶ 47} "The State's Web site does not provide the public with means to shame the offender by, say, posting comments underneath his record. An individual seeking the information must take the initial step of going to the Department of Public Safety's Web site, proceed to the sex offender registry, and then look up the desired information. The process is more analogous to a visit to an official archive of criminal records than it is to a scheme forcing an offender to appear in public with some visible badge of past criminality. The Internet makes the document search more efficient, cost effective, and convenient for Alaska's citizenry." Smith, supra, at 99.

{¶ 48} Second, the Supreme Court held Alaska's Act imposes no disability or restraint. The Court held that because the Act does not impose a physical restraint, it does not resemble the punishment of imprisonment, which is the paradigmatic affirmative disability or restraint. Id. at 100. The Court held the statute's obligations are less harsh than the sanction of "occupational debarment," which the Court has held to be nonpunitive. Id. {¶ 49} The Court also rejected the argument that the Act's registration system is parallel to probation in terms of the restraint imposed. Id. at 101. The Court held:

{¶ 50} "*** Probation and supervised release entail a series of mandatory conditions and allow the supervising officer to seek the revocation of probation or release in case of infraction. *** By contrast, offenders subject to the Alaska statute are free to move where they wish *** with no supervision. Although registrants must inform the authorities after they change their facial features (such as growing a beard), borrow a car, or seek psychiatric treatment, they are not required to seek permission to do so. A sex offender who fails to comply with the reporting requirement may be subjected to a criminal prosecution for that failure, but any prosecution is a proceeding separate from the individual's original offense. *** [T]he registration requirements make a valid regulatory program effective and do not impose punitive restraints in violation of the Ex Post Facto Clause." (Internal citations omitted.) Id. at 101-102.

{¶ 51} Third, the Court rejected the argument that the statute's deterrent quality renders it punitive since deterrence is one purpose of punishment. The Court held: "This proves too much. Any number of governmental programs might deter crime without imposing punishment. To hold that the mere presence of a deterrent purpose renders such sanctions "criminal" . . . would severely undermine the Government's ability to engage in effective regulation.'" Id. at 102, quoting Hudson, supra, at 105.

{¶ 52} Fourth, the Court held the Act's rational connection to a nonpunitive purpose was the "most significant" factor in its determination that the statute's effects are not punitive. The Court held the Act has a legitimate, nonpunitive purpose of public safety, which is advanced by alerting the public to the risk of sex offenders in their community. Id. at 102-103.

{¶ 53} Fifth, the Court held the Act was not excessive even though it applies to all convicted sex offenders without regard to the likelihood that they would reoffend in the future. The United States Supreme Court held:

{¶ 54} "Alaska could conclude that a conviction for a sex offense provides evidence of substantial risk of recidivism. The legislature's findings are consistent with grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class. The risk of recidivism posed by sex offenders is `frightening and high.' McKune v. Lile, 536 U.S. 24, 34 (2002); see also Id., at 33 (`When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault') (citing U.S. Dept. of Justice, Bureau of Justice Statistics, Sex Offenses and Offenders 27 (1997); U.S. Dept. of Justice, Bureau of Justice Statistics, Recidivism of Prisoners Released in 1983, p. 6 (1997)).

{¶ 55} "The Ex Post Facto Clause does not preclude a State from making reasonable categorical judgments that conviction of specified crimes should entail particular regulatory consequences. *** The State's determination to legislate with respect to convicted sex offenders as a class, rather than require individual determination of their dangerousness, does not make the statute a punishment under the Ex Post Facto Clause.

{¶ 56} "In the context of the regulatory scheme the State can dispense with individual predictions of future dangerousness and allow the public to assess the risk on the basis of accurate, nonprivate information about the registrants' convictions without violating the prohibitions of the Ex Post Facto Clause." Id. at 103-104.

{¶ 57} The Supreme Court's analysis of this factor therefore defeats the argument that S.B. 10 is unconstitutional because its classification system is based solely on the type of crime committed by the offender.

{¶ 58} The Supreme Court also rejected the argument that the Act was excessive in that it places no limit on the number of persons who have access to the offender's information. The Court held:

{¶ 59} "[T]he notification system is a passive one: An individual must seek access to the information. The Web site warns that the use of displayed information "to commit a criminal act against another person is subject to criminal prosecution. Given the general mobility of our population, for Alaska to make its registry system available and easily accessible throughout the State was not so excessive a regulatory requirement as to become a punishment. ***" Id. at 105.

{¶ 60} Post-Smith, federal appellate courts have repeatedly held that SORNA does not violate the Ex Post Facto Clause of the United States Constitution. Since S.B. 10 places Ohio law in conformity with the federal SORNA, decisions of federal appellate courts considering the federal act are strongly persuasive in considering challenges to S.B. 10.

{¶ 61} In United States v. May (C.A. 8, 2008), 535 F.3d 912, the Eighth Circuit applied Smith in holding SORNA does not violate the Ex Post Facto Clause. The court held that Congress' stated intent was to protect the public from sex offenders by enacting a regulatory scheme that is "civil and nonpunitive." Id. at 920. In concluding the scheme was not so punitive that it negated Congress' stated intention to deem it civil, the court held:

{¶ 62} "The only punishment that can arise under SORNA comes from a violation of [Sec] 2250, which punishes convicted sex offenders who travel in interstate commerce after the enactment of SORNA and who fail to register as required by SORNA. Congress clearly intended SORNA to apply to persons convicted before the Act's passage. *** If SORNA did not apply to previously convicted sex offenders, SORNA would not serve Congress' stated purpose of establishing a `comprehensive national system' for sex offender registration. Section 16901. *** Section 2250 punishes an individual for traveling in interstate commerce and failing to register. The statute does not punish an individual for previously being convicted of a sex crime. *** Thus, prosecuting May under [Sec] 2250 is not retrospective and does not violate the ex post facto clause." (Emphasis added.) Id.

{¶ 63} In United States v. Hinckley (C.A. 10, 2008), 550 F.3d 926, the Tenth Circuit adopted the reasoning of May, and held that neither SORNA's registration requirements nor the criminal penalties attached to non-compliance in Sec. 2250 violate the Ex Post Facto Clause. Relying on Smith, supra, the court held that the legislative intent expressed in SORNA's preamble and SORNA's primary effect satisfy the requirements of the Ex Post Facto Clause. Id. at 936.

{¶ 64} In Hinckley, the defendant attempted to distinguish the regulatory scheme in Smith from the federal SORNA. The defendant argued the Smith scheme was primarily civil in nature, and, unlike SORNA, did not require internet dissemination of offenders' information, did not establish a community notification program, did not require in-person reporting, and did not include felony criminal penalties for failing to register. Id. at 937. The court reasoned that SORNA's declaration of intent "shapes the statute as one involving public safety concerns, making clear that the law is designed `to protect the public from sex offenders and offenders against children,' and comes as a `response to the vicious attacks by violent predators.'" Id. quoting 42 U.S.C. Sec. 16901. The court then independently assessed whether the so-called civil statute is so punitive either in purpose or effect as to negate Congress' express intention. Toward this end, the court observed that while SORNA uses criminal penalties to further its public safety ends, "`[i]nvoking the criminal process in aid of a statutory regime does not render the statutory scheme itself punitive.'" Hinckley, supra, quoting Smith at 96.

{¶ 65} Moreover, the court in Hinckley pointed out that SORNA, just as Alaska's regulatory scheme in Smith, merely provides for the "`dissemination of accurate information about a criminal record, most of which is already public.'" Hinckley, quoting Smith, supra, at 98. The Hinckley court held that while the public display of information may result in humiliation for the registrant, it is not an "`integral part of the objective of the regulatory scheme.'" Hinckley, supra, at 938, quoting, Smith, supra, at 99. To the contrary, the court in Hinckley held that SORNA aims to "`inform the public for its own safety, not to humiliate the offender. Widespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of a valid regulation.'" Hinckley, supra, quoting Smith, supra. The court held the primary effect of the Act supports Congress' intent that the statute operate as a civil, regulatory scheme. {¶ 66} Next, in United States v. Dixon (C.A. 7, 2008), 551 F.3d 578, the Seventh Circuit observed, based on the holding in Smith, SORNA's registration requirement (which, if an offender fails to follow, he or she can be prosecuted) is regulatory rather than punitive. The Dixon court unequivocally held that, in light of Smith, an offender "could not successfully *** challenge the registration requirement itself as an ex post facto law." Id. at 584.

{¶ 67} In United States v. Ambert (C.A. 11, 2009), 561 F.3d 1202, the Eleventh Circuit also held that SORNA did not violate protections against ex post facto laws. The court held that SORNA does not "impose a retroactive duty to register for prior convicted sex offenders or punish a defendant for actions that occurred prior to February 28, 2007[, the date the Attorney General determined the act was retroactive]." Id. at 1207. The court held that SORNA imposed a duty to register beginning on the date of the Attorney General's retroactivity determination. Id. The court further held a violation of the Act only occurs thereafter when a defendant fails to register after the date the statute became applicable. Id.

{¶ 68} Also, in United States v. Samuels (Apr. 2, 2009), 6th Cir. No. 08-5537, 2009 U.S. App. LEXIS 7084, the Sixth Circuit, relying on Smith and May, held SORNA presented no ex post facto violation. The court observed the intent and effects of SORNA are non-punitive and, moreover, SORNA only criminalizes behavior occurring after the enactment of the statute itself. Samuels, supra, at *11-*13. See, also, United States v. Gould (C.A. 4, 2009), 568 F.3d 459 (released June 18, 2009).

{¶ 69} Even though many of the cases outlined above do not directly address S.B. 10, the qualitative components of the schemes these cases addressed are substantially the same as S.B. 10. We therefore reaffirm our holding in Swank that Ohio's Adam Walsh Act does not violate constitutional protections against ex post facto legislation.

{¶ 70} Next, appellant argues S.B. 10 violates Article 11, Section 28 of the Ohio Constitution which prohibits retroactive legislation. Again, we disagree.

{¶ 71} R.C. 1.48 provides: "A statute is presumed to be prospective in its operation unless expressly made retrospective." Here, S.B. 10 expressly states it shall apply retroactively. Further, while it is clear that S.B. 10 imposes different obligations upon appellant, such an imposition does not imply the law is substantive in nature. To the contrary, because appellant had no reasonable expectation of finality in the collateral consequence of his former classification, the new obligations do not affect or take away a vested, substantive right. As a result, S.B. 10 is procedural in nature and is valid under Article II, Section 28 of the Ohio Constitution. See Ferguson, supra, at 14-16.

{¶ 72} Next, appellant asserts S.B. 10 violates protections against double jeopardy. Our opinion in Swank did not specifically address the Double Jeopardy argument; however, one can easily deduce from the substantive conclusions this court drew in Swank, as well as additional analysis of this opinion, S.B. 10 does not violate constitutional protections against Double Jeopardy.

{¶ 73} "The Double Jeopardy Clause states that no person shall `be subject for the same offence to be twice put in jeopardy of life or limb.'" State v. Williams, supra, 527-528, citing the Fifth Amendment to the United States Constitution; see, also, Section 10, Article I, Ohio Constitution. The double jeopardy clauses in both the United States and Ohio Constitutions prevent states "from punishing twice, or from attempting a second time to criminally punish for the same offense." Williams, supra, at 528, citing Kansas v. Hendricks, 521 U.S. 346. Consequently, the preliminary question in a double jeopardy analysis is whether the government's actions entail criminal punishment. Hudson v. United States (1997), 522 U.S. 93.

{¶ 74} As discussed at length in Swank as well as in this opinion, S.B. 10 is non-punitive and therefore does not violate constitutional protections against double jeopardy. {¶ 75} Lastly, appellant argues his reclassification constitutes a breach of contract and violates provisions against the impairment of contracts pursuant to the United States and Ohio Constitutions. We disagree.

Swank sufficiently addressed due process challenges to S.B. 10 and therefore we believe those conclusions need no further expansion or amplification.

{¶ 76} Initially, the record does not indicate appellant leveled a contract clause-related objection at the trial court. His failure to allow the trial court to rule on this aspect of his argument operates as a waiver of the issue on appeal. This problem notwithstanding, it should go without saying that in order to allege S.B. 10 impairs a contractual obligation, there must be an existing contract which was allegedly dissolved or breached by operation of the law. Strangely, however, both appellant and the state, in their respective factual recitations, assert appellant was found guilty after a trial by jury to the rape counts which led to his initial classification. The transcript of appellant's oral hearing challenging his reclassification reflects the same. Without a plea agreement with an attendant recommendation relating to appellant's classification (to which, in any event, a trial judge was not bound), appellant has no standing to argue S.B. 10 violates constitutional protections against the impairment of contracts. The disconnect is further illustrated by appellant's concession that, upon his release from prison in 2000, he was initially classified under former R.C. Chapter 2950. Even had appellant entered a plea agreement with the state in 1987, any such agreement could not have included a recommendation from the state pursuant to H.B. 180, codifying Ohio's Megan's Law (effective in 1996).

{¶ 77} Regardless of these problems, appellant's (misplaced) contract clause argument lacks merit because sex offender registration and notification statutes do not create a "contract" with offenders. Sigler v. State, 5th Dist. No. 08-CA-79, 2009-Ohio-2010, at ¶ 87. The Supreme Court of Ohio has stated that "absent a clearly stated intent to do so, statutes do not create contractual rights that bind future legislatures." State ex rel. Horvarth v. State Teachers Retirement Bd., 83 Ohio St.3d 67, 76, 1998-Ohio-424. This principle has been referred to as the "unmistakability doctrine." Id. The doctrine is helpful not only for determining the existence of a contractual relationship, but also for "defining the contours" of any contractual responsibilities found to exist. Id. The "unmistakability doctrine" supports the conclusion that no promise of legislative inaction was tacit in the prior sexual offender registration and notification laws of Ohio. Sigler, supra. With no extant agreement, appellant had no existing expectancy interest in his classification under H.B. 180.

{¶ 78} Based upon the above analysis, appellant's sole assignment of error therefore lacks merit.

{¶ 79} For the reasons discussed in this opinion, the judgment entry of the Lake County Court of Common Pleas is hereby affirmed.

MARY JANE TRAPP, P.J., concurs with Concurring Opinion.

DIANE V. GRENDELL, J., dissents with Dissenting Opinion.