[This opinion has been published in Ohio Official Reports at
86 Ohio St.3d 160.]
THE STATE OF OHIO, APPELLANT, v. BREWER, APPELLEE.
THE STATE OF OHIO, APPELLANT, v. RHODES, APPELLEE.
THE STATE OF OHIO, APPELLANT, v. SOWARDS, APPELLEE.
THE STATE OF OHIO, APPELLANT, v. HANRAHAN, APPELLEE.
[Cite as State v. Brewer, 1999-Ohio-146.]
Criminal procedure—Classification as sexual predator—Sexual predator hearing
conducted pursuant to R.C. 2950.09(C)(2) must take place prior to
offender’s release from confinement—Hearing must be scheduled far
enough in advance of offender’s release date to allow officials to satisfy
statutory notification duties under R.C. 2950.03(A)(1).
1. A sexual predator hearing conducted pursuant to R.C. 2950.09(C)(2) must
take place prior to the offender’s release from confinement.
2. A sexual predator hearing pursuant to R.C. 2950.09(C)(2) must be
scheduled far enough in advance of the offender’s release date to allow
officials to satisfy their statutory notification duties under R.C.
2950.03(A)(1).
(Nos. 98-390, 98-739, 98-740 and 98-741—Submitted January 27, 1999—
Decided July 28, 1999.)
APPEALS from the Court of Appeals for Clermont County, No. CA97-03-030, and
Franklin County, Nos. 97APA06-793, 97APA07-907 and 97APA03-394.
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{¶ 1} Four cases have been consolidated sua sponte in these discretionary
appeals. The facts of each are as follows:
SUPREME COURT OF OHIO
Case No. 98-390
Brian D. Brewer
{¶ 2} On December 20, 1994, Brian D. Brewer pled guilty to one count of
sexual battery, a third-degree felony, and one count of gross sexual imposition, a
fourth-degree felony. Brewer was sentenced on January 10, 1995. The commission
of the crime, conviction, and sentencing all occurred prior to January 1, 1997, the
effective date of R.C. 2950.09. Brewer completed his sentence and was released
from prison on January 13, 1997. Subsequent to his release, Brewer received notice
to appear in the Clermont County Common Pleas Court for a hearing to determine
whether he should be classified as a sexual predator pursuant to R.C. 2950.09. The
court classified him as a sexual predator. Brewer appealed. The Twelfth District
Court of Appeals reversed, holding that the trial court lacked jurisdiction to hold a
sexual predator hearing under the statute after an offender had already been released
from confinement.
Case No. 98-739
Christopher L. Rhodes
{¶ 3} In May 1990, Christopher L. Rhodes pled guilty to one count of
attempted rape of a victim under the age of thirteen. Rhodes was sentenced to an
indefinite prison term of three to fifteen years. The commission of the crime, the
conviction, and the sentencing all occurred prior to the effective date of R.C.
2950.09. Prior to his release, Rhodes was screened by the Department of
Rehabilitation and Correction (“ODRC”) pursuant to R.C. 2950.09(C)(1), and it
was determined that he “may fit the criteria of a sexual predator.”
{¶ 4} Rhodes was released from prison on or about January 13, 1997.
Subsequently, the trial court scheduled a sexual predator hearing pursuant to R.C.
2950.09(C)(2) for April 11, 1997. Rhodes filed a motion to dismiss. Following a
briefing by both parties, the trial court granted the motion to dismiss on the grounds
that the court did not have jurisdiction under the statute to conduct a hearing after
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January Term, 1999
the offender had already been released from prison. The state appealed. The Tenth
District Court of Appeals affirmed the dismissal.
Case No. 98-740
State v. Sowards
{¶ 5} In 1987, Douglas L. Sowards pled guilty to three counts of gross
sexual imposition. He was sentenced in the same year. Sowards was released from
prison on January 5, 1997, four days after the effective date of R.C. 2950.09. In
May 1997, the trial court held a post-release hearing and determined that Sowards
should be classified a sexual predator. Sowards appealed and the Tenth District
Court of Appeals reversed, holding that the statute did not permit the trial court to
conduct a post-release hearing.
Case No. 98-741
Michael Hanrahan
{¶ 6} Michael Hanrahan pled guilty to four counts of gross sexual
imposition in May 1994. Prior to the effective date of R.C. 2950.09, Hanrahan was
sentenced to four years of imprisonment. His release date was set for March 7,
1997. On March 4, 1997, Hanrahan was notified that a hearing had been set for
March 6, the day before his scheduled release. He was not informed of the nature
of the hearing at that time. Defense counsel objected to the lack of meaningful
notice both prior to and during the hearing. The prosecutor also indicated that the
notice was insufficient to allow either the state or the defense to produce all relevant
witnesses. The trial court acknowledged that the notice did not provide Hanrahan
with sufficient opportunity to prepare or to procure witnesses and offered to
continue the hearing. Defense counsel declined the continuance in order to avoid
waiving the argument that hearings conducted pursuant to R.C. 2950.09 must be
held prior to the release of the defendant. The prosecution also declined the
continuance in order to ensure the completion of the hearing prior to Hanrahan’s
scheduled release date. The trial court found Hanrahan to be a sexual predator.
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SUPREME COURT OF OHIO
Hanrahan appealed, alleging that he was denied due process of law because he did
not receive proper notice of the hearing. The Tenth District Court of Appeals
reversed.
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Donald W. White, Clermont County Prosecuting Attorney, Daniel J. Breyer,
Chief Assistant Prosecuting Attorney, and David H. Hoffmann, Assistant
Prosecuting Attorney, for appellant state of Ohio in case No. 98-390.
Ron O’Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor,
Assistant Prosecuting Attorney, for appellant state of Ohio in case Nos. 98-739, 98-
740 and 98-741.
R. Daniel Hannon, Clermont County Public Defender, and Joy M. Albi,
Assistant Public Defender, for appellee Brian Brewer in case No. 98-390.
Judith M. Stevenson, Franklin County Public Defender, and Paul Skendelas,
Assistant Public Defender, for appellee Christopher Rhodes in case No. 98-739.
Judith M. Stevenson, Franklin County Public Defender, and Allen V. Adair,
Assistant Public Defender, for appellee Douglas Sowards in case No. 98-740.
Patrick A.T. West, for appellee Michael Hanrahan in case No. 98-741.
David H. Bodiker, Ohio Public Defender, and Robert L. Lane, Chief
Appellate Counsel, urging affirmance in case No. 98-390 for amicus curiae, Ohio
Public Defender.
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MOYER, C.J.
{¶ 7} The cases before us raise the question of whether the statutory scheme
created by the General Assembly allows a sexual predator hearing under R.C.
2950.09(C)(2) to take place after an offender has already been released from
confinement. We hold that in order to adjudicate an offender as a sexual predator,
the statutes require that a hearing be conducted prior to the release of the prisoner,
and further that the hearing must be scheduled far enough in advance of the
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January Term, 1999
offender’s release date to allow officials to satisfy their statutory notification duties
under R.C. 2950.03(A)(1).
{¶ 8} R.C. Chapter 2950 contains a number of interrelated sections setting
forth the substantive and procedural requirements for the classification and
registration of sexual offenders. The cases before us all involve offenders who were
convicted and sentenced prior to January 1, 1997, and were serving a term of
confinement on or after that date. Therefore, our decision and opinion are confined
to the statutory provisions that relate to this particular group of offenders.
{¶ 9} Under R.C. Chapter 2950, all convicted sexual offenders are required
to register at least yearly for a minimum of ten years. R.C. 2950.04; 2950.06;
2950.07. If the offender has “been adjudicated as being a sexual predator,” the
registration requirements and related consequences are more onerous. For
example, offenders who have been adjudicated as being a sexual predator are
required to provide additional information at the time of registration pursuant to
R.C. 2950.04(C), to provide more frequent periodic verifications pursuant to R.C.
2950.06(B)(1), and to continue to register and provide periodic verification
requirements until the offender’s death pursuant to R.C. 2950.07(B)(1). In
addition, the registration information provided by a sexual predator is available to
victims who request it pursuant to R.C. 2950.10, and is provided to the surrounding
community whether or not citizens specifically request it pursuant to R.C. 2950.11.
Also, R.C. 2950.13 gives the Attorney General authority to make additional rules
addressing offenders who have been adjudicated to be sexual offenders.
{¶ 10} R.C. Chapter 2950 defines the term “adjudicated as being a sexual
predator” clearly and unambiguously. R.C. 2950.01(G)(3) reads as follows:
“An offender is ‘adjudicated as being a sexual predator’ if any of the
following applies:
“…
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SUPREME COURT OF OHIO
“(3) Prior to [January 1, 1997], the offender was convicted of or pleaded
guilty to, and was sentenced for, a sexually oriented offense, the offender is
imprisoned in a state correctional institution on or after [January 1, 1997], and,
prior to the offender’s release from imprisonment, the court determines pursuant
to division (C) of section 2950.09 of the Revised Code that the offender is a sexual
predator.” (Emphasis added.)
{¶ 11} Thus, if the determination is not made prior to the offender’s release,
the offender has not been “adjudicated as being a sexual predator” according to the
statute and is not subject to the more onerous requirements imposed upon that class
of offenders. In effect, though the court may not lose jurisdiction to hold a hearing,
the hearing cannot have the result of adjudicating the offender to be a sexual
predator if it is not held prior to the offender’s release.
{¶ 12} The determination as to whether an offender should be classified a
sexual predator is made pursuant to the procedures set forth in R.C. 2950.09(C).
The court may not make a determination that the offender is a sexual predator
without a hearing. R.C. 2950.09(C)(2). Although R.C. 2950.09(C)(2) does not
specifically state that this hearing is to be conducted prior to the offender’s release,
there is no other logical way to interpret this section. Because the sexual predator
determination must be made prior to the offender’s release under the statute, and
the only purpose of the hearing is to make that determination, it follows that the
hearing must be conducted prior to the offender’s release in order to have any effect.
{¶ 13} There are other statutory requirements that must be followed which
affect the timing of the hearing. These requirements are implicated in only one of
the consolidated cases, case No. 98-741 (Michael Hanrahan). Hanrahan’s hearing
was held one day before his release from prison. The statutes explicitly provide the
offender with due process rights including the right to notice of the date, time, and
place of the hearing, and the right to testify, present evidence, and to call, examine,
and cross-examine witnesses and expert witnesses. R.C. 2950.09(C)(2);
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January Term, 1999
2950.09(B)(1). The trial court and the prosecutor acknowledged that the notice
given Hanrahan on March 4 was not sufficient to enable him to exercise his right
to present evidence and call witnesses at a hearing set for March 6.
{¶ 14} R.C. 2950.03 requires that the offender be provided with notice,
including information regarding registration duties, and including a statement as to
whether the offender has been adjudicated as being a sexual predator. See R.C.
2950.03(A) and 2950.03(B)(1)(c). This notice must be provided by the appropriate
official “at least ten days before the offender is released.” R.C. 2950.03(A)(1). As
the offender cannot be adjudicated as being a sexual predator without a hearing, the
hearing and determination must be completed at least ten days prior to the
offender’s release in order for the appropriate officials to provide the required
notice under the terms of the statute.
{¶ 15} For the aforementioned reasons, we hold that a sexual predator
hearing conducted pursuant to R.C. 2950.09(C)(2) must take place prior to the
offender’s release from confinement and that the hearing must be scheduled far
enough in advance of the offender’s release date to allow officials to satisfy their
statutory notification duties under R.C. 2950.03(A)(1).
{¶ 16} The judgments of the courts of appeals are affirmed.
Judgments affirmed.
DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON, JJ.,
concur.
COOK, J., dissents.
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