The Akron Legal News

Arsonist loses challenge to new state registration law

ANNE YAMSON
Special to the Legal News
Published: September 17, 2014

Recently a panel of judges in Ohio’s 1st District Court of Appeals considered an appeal from convicted arsonist Edward Caldwell, who challenged the constitutionality of Ohio’s recently enacted law requiring arson offenders to register annually.

Caldwell pleaded guilty to one count of aggravated arson after he set his couch on fire on June 22, 2013.

Nine days later, on July 1, Ohio’s new registration laws went into effect.

Caldwell was convicted on Sept. 24 and sentenced on Nov. 7.

Caldwell’s appeal hinged on whether the registration requirements can be applied to offenders who committed their crimes prior to the effective date of the law without violating the Ohio Constitution’s prohibition on retroactive legislation.

Caldwell claimed his rights were violated while the trial court and court of appeals both agreed that the registration requirement is not unconstitutional because it does not “burden any vested right or finality interest.”

“The arson-offender registration scheme is contained in R.C. 2909.13, 2909.14 and 2909.15,” wrote Judge Patrick DeWine on behalf of the three-judge appellate panel. “Those sections list the registration requirements and the persons subject to those requirements, provide guidelines for notifying offenders of the duty to register and for maintaining the registry and impose penalties for the failure to register.”

Under the new law, registration is mandatory for all arson offenders who are convicted or plead guilty on or after the effective date of the statute.

They are required to re-register annually for life with the sheriff of the county in which they reside.

Failure to register constitutes a felony of the fifth degree and a violation of postrelease and community control sanctions.

Under the state constitution, the appellate panel ruled that the arson statutes are retroactive.

“The presumption that the registration statutes apply prospectively may be overcome only upon a ‘clearly expressed legislative intent’ that they apply retroactively,” wrote Judge DeWine. “The date of the offense is the governing date when assessing whether a given statute is retroactive.”

Upon further review, the court of appeals called the registration statutes “unambiguous,” noting that they apply to any person who “on or after the effective date ... is convicted of or pleads guilty to an arson-related offense.”

That scenario, Judge DeWine wrote, necessarily incorporates criminal conduct that occurred prior to the effective date of the law.

“Because the General Assembly plainly intended for the registration requirements to apply to conduct occurring before the statutes’ effective date, we conclude that the statutes are retroactive,” Judge DeWine wrote.

The panel also ruled that the legislation’s intention did not violate the Retroactivity Clause of the Ohio Constitution.

Citing numerous previous court opinions, it found that committing a felony “is not a transaction that creates a reasonable expectation of finality.”

In other words, “felons have no reasonable right to expect that their conduct will never thereafter be made the subject of legislation,” Judge DeWine wrote.

The registration statutes do not create new burdens for arson offenders, the court of appeals ruled, and Caldwell did not have a vested right in not being subject to registration requirements at the time he committed his offense.

Caldwell, however, contended that the requirements are punitive and compared them to the sex-offender registry.

But the court of appeals noted several differences between those registration requirements, including the fact that the sex-offender registry is public record while arson registrations are visible only to certain law-enforcement personnel.

“And while arson-registry violations may subject the offender to later prosecution, we think it notable that the failure to register is a low-level felony that carries a presumption of probation,” wrote Judge DeWine. “This is markedly different from the failure of a sex offender to register, which constitutes a felony of the same degree as that of the underlying conviction.”

The appellate panel concluded that registration programs have “long been a valid regulation technique with a remedial purpose.”

It held that the arson registration requirements are not incompatible with the state’s constitution and Caldwell was properly subjected to the punishment as part of his offense.

It also held that Caldwell was properly notified of the registration requirements before affirming the judgment of the Hamilton County court.

Presiding Judge Lee Hildebrandt and Judge Sylvia Hendon concurred.

The case is cited State v. Caldwell, 2014-Ohio-3566.

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