[Cite as State v. Gall,
2016-Ohio-1562.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case Nos. 26240 and 26245
:
v. : Trial Court Case Nos. 1978-CR-602
: and 1979-CR-84
EUGENE W. GALL :
: (Criminal Appeal from
Defendant-Appellant : Common Pleas Court)
:
...........
OPINION
Rendered on the 15th day of April, 2016.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
AMY E. FERGUSON, Atty. Reg. No. 0088397, 130 West Second Street, Suite 1818,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
WELBAUM, J.
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{¶ 1} Defendant-appellant, Eugene W. Gall, appeals from the decision of the
Montgomery County Court of Common Pleas designating him a sexual predator under
Megan’s Law, R.C. Chapter 2950. For the reasons outlined below, the judgment of the
trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} In 1979, Gall was convicted and sentenced in Montgomery County, Ohio, for
the rape and kidnapping of a 15-year-old girl in Case No. 78-CR-602, and for the rape,
kidnapping, and aggravated murder of a 14-year-old girl in Case No. 79-CR-84. Gall
was sentenced to an aggregate prison term of 14-50 years in Case No. 78-CR-602 and
to life in prison in Case No. 79-CR-84. These sentences were ordered to run
consecutively to each other and consecutively to sentences Gall had already received in
Kentucky. In Kentucky, Gall was sentenced to death for raping and murdering a 12-year-
old girl. He was also sentenced to a concurrent 10-year prison sentence for attempted
murder and wanton endangerment.
{¶ 3} After Gall was sentenced in Ohio, he was sent back to Kentucky to serve his
sentences there. However, approximately 20 years later, on October 30, 2000, the
United States Sixth Circuit Court of Appeals granted a writ of habeas corpus filed by Gall
with respect to his Kentucky death sentence. The Sixth Circuit determined that
pervasive errors at trial led to an unconstitutional conviction and that double jeopardy
prevented Kentucky from retrying him on the rape and murder charges. Gall v. Parker,
231 F.3d 265 (6th Cir.2000). Thereafter, Gall’s conviction was nullified and directed to
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be expunged from his record. Gall v. Scroggy, E.D. Kentucky No. 2:87-56-DCR, 2008
WL 9463883 (Dec. 4, 2008).
{¶ 4} On November 13, 2001, Gall was extradited to Ohio to begin serving his
Montgomery County sentences. According to the State, on September 27, 2013, the
Ohio Bureau of Sentence Computation (OBSC) notified the State that it had calculated
Gall’s jail-time credit and credited him with 5,807 days as a result of the time he served
in Kentucky on the invalidated conviction. Specifically, the State alleges that the OBSC
gave Gall jail-time credit from December 1985, the date Gall completed his 10-year
sentence in Kentucky for attempted murder and wanton endangerment, through
November 13, 2001. The State has challenged the OBSC’s calculation of jail-time credit
in a separate appeal.
{¶ 5} Given that Gall may be subject to parole in the near future, on November 27,
2013, the State filed a motion in Montgomery County Case Nos. 78-CR-602 and 79-CR-
84 requesting the trial court to conduct a sexual offender classification hearing in
accordance with R.C. 2950.09(C) to determine whether Gall is a sexual predator, as he
was not classified at his sentencing in 1979. In response to the motion, the trial court
ordered Gall to undergo a psychological evaluation on March 4, 2014, and then held a
sexual offender classification hearing on April 8, 2014. During the hearing, the trial court
determined, over Gall’s objection, that it was appropriate to classify him under the
Megan’s Law version of Chapter 2950. Then, after considering Gall’s psychological
evaluation report, criminal history, victims, mental health, and the nature of his sexual
conduct, the trial court found by clear and convincing evidence that Gall was a sexual
predator and designated him as such.
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{¶ 6} Gall now appeals from the trial court’s decision designating him a sexual
predator, raising four assignments of error for review.
First, Second, and Fourth Assignments of Error
{¶ 7} For purposes of clarity, we will address Gall’s First, Second, and Fourth
Assignments of Error together. They are as follows:
I. THE COURT ERRED IN CLASSIFYING MR. GALL UNDER
MEGAN’S LAW.
II. RETROACTIVE APPLICATION OF MEGAN’S LAW IS
UNCONSTITUTIONAL BECAUSE IT HAS EVOLVED FROM
REMEDIAL TO PUNITIVE.
IV. THE APPLICATION OF SEXUAL PREDATOR CLASSIFICATION IS
CONSTITUTIONALLY BARRED AS EX POST FACTO PROVISION
RETROACTIVITY [sic].
{¶ 8} Under the foregoing assignments of error, Gall contends the trial court
violated his statutory and constitutional rights by designating him a sexual predator under
Megan’s Law. Specifically, Gall claims that the application of Megan’s Law in this case
runs afoul of the constitutional ban on retroactive and ex post facto laws. In support of
this claim, Gall maintains that Megan’s Law cannot be applied retroactively to him
because the law is unduly punitive in that it imposes additional burdens and restrictions
on sexual offenders that are more demanding than what he would have been subject to
had he been classified at the time of his sentencing in 1979. Gall also contends the
notice provisions of Megan’s Law impermissibly intrude on his rights to maintain privacy,
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acquire property, pursue an occupation, and maintain a favorable reputation. We
disagree with each of Gall’s claims.
{¶ 9} Since 1963, Ohio has had a sex offender registration statute codified under
Chapter 2950 of the Ohio Revised Code. State v. Cook, 83 Ohio St.3d 404, 406,
700
N.E.2d 570 (1998), citing former R.C. Chapter 2950, 130 Laws 669. In 1996, the
General Assembly enacted Am.Sub.H.B. No. 180, also known as Megan’s Law, which
rewrote Chapter 2950.
Id. Megan’s Law provided a new system for sexual offender
registration, classification, and community notification.
Id. at 407. The classification
provision in Megan’s Law, R.C. 2950.09, became effective on January 1, 1997, while the
registration and notification requirements became effective July 1, 1997.
Id. at 406.
The sexual offender classifications under R.C. 2950.09 include a “sexually oriented
offender,” a “habitual sex offender,” and a “sexual predator.”
Id. at 407.
{¶ 10} On multiple occasions, the Supreme Court of Ohio has upheld the
retroactive application of Megan’s Law against claims that it violates the ban on
retroactive laws in Article II, Section 28, of the Ohio Constitution, as well as the ban on
ex post facto laws in Article I, Section 10 of the United States Constitution. Cook at 410-
412; State v. Williams, 88 Ohio St.3d 513, 516,
728 N.E.2d 342 (2000); State v. Ferguson,
120 Ohio St.3d 7,
2008-Ohio-4824,
896 N.E.2d 110.
{¶ 11} In Cook, the Supreme Court found a clear legislative intent for Megan’s Law
to be applied retroactively and explained that purely remedial statutes, such as Megan’s
Law, may be applied retroactively without running afoul of the constitutional ban against
retroactive and ex post facto laws. Id. at 410-423. Despite the fact that Megan’s Law
increased the frequency and duration of reporting beyond what was required by prior law,
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the Supreme Court determined its provisions only “us[ed] past events to establish current
status” and constituted “de minimis procedural requirements” that were necessary to
achieve the legislature’s remedial purpose of protecting the public from sexual offenders.
(Emphasis deleted.) Id. at 412. Accordingly, the court concluded that because the
retroactive application of Megan’s Law was not punitive, but remedial, it did not violate
the constitutional ban on retroactive and ex post facto laws.
{¶ 12} In Ferguson, the Supreme Court considered the same claims in Cook that
were made in light of amendments to the law in 2003. Despite significant changes
wrought by the amendments, the Supreme Court rejected the claim that the amendments
were punitive and once again concluded that Megan’s Law established a remedial,
regulatory scheme that did not violate the ban on retroactive and ex post facto laws.
Ferguson at ¶ 32-39 (finding “an offender’s classification as a sexual predator is a
collateral consequence of the offender’s criminal acts rather than a form of punishment”
and “[t]he more burdensome registration requirements and the collection and
dissemination of additional information about the offender as part of the statute’s
community notification provisions were not born of a desire to punish[;]” rather, “it is a
remedial, regulatory scheme designed to protect the public rather to punish the offender”).
{¶ 13} The Supreme Court reached a different conclusion in State v. Williams, 129
Ohio St.3d 344,
2011-Ohio-3374,
952 N.E.2d 1108, wherein the court reviewed a later
version of Chapter 2950 enacted under Am.Sub.S.B. No. 10, also known as the Adam
Walsh Act (“AWA”). The AWA repealed Megan’s Law and significantly changed the
classification scheme for sexual offenders. The AWA also subjected offenders to longer
and more burdensome reporting and registration requirements than under Megan’s Law,
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and in many cases provided for more severe penalties for violations of the statute. State
v. Montgomery, 2d Dist. Montgomery No. 24450, 2012-Ohio-391, ¶ 5.
{¶ 14} Upon considering all the changes wrought by the AWA, the Supreme Court
in Williams concluded that imposing the AWA’s additional burdens on a sex offender
whose crime was committed prior to its enactment was unconstitutionally punitive and
violated the ban on retroactive laws. Id. at ¶ 21-22. The Supreme Court remanded the
case “for resentencing under the law in effect at the time Williams committed the offense.”
Id. at ¶ 23. In doing so, the court effectively ordered that the provisions of Megan’s Law
would apply to defendants who committed their offenses before the enactment date of
the AWA. State v. Howard, 134 Ohio St.3d 467,
2012-Ohio-5738,
983 N.E.2d 341, ¶ 16.
Therefore, it is well established that the AWA cannot be applied retroactively to sex
offenders who committed their crimes before the enactment date of the AWA and that
Megan’s Law applies to those offenders instead.
{¶ 15} The Supreme Court in Williams implicitly reaffirmed the constitutionality of
applying Megan’s Law retroactively because it did not reverse its prior decisions in Cook
and Ferguson, which recognized that Megan’s Law is remedial in nature and can be
applied retroactively without running afoul of the United States or Ohio Constitutions.
Relying on this precedent, this court has repeatedly recognized that the retroactive
application of Megan’s Law is not a constitutional violation, as we have consistently held
that the sex offender classification, registration, and notification provisions under Megan’s
Law applies to defendants who commit their offense prior to the enactment of Megan’s
Law. State v. Lay, 2d Dist. Champaign No. 2012-CA-7, 2012-Ohio-4447, ¶ 6-8; State v.
Grimes, 2d Dist. Montgomery No. 25375,
2013-Ohio-2569, ¶ 4; State v. Czaplicki, 2d Dist.
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Montgomery No. 25252, 2013-Ohio-1366, ¶ 4-6.
{¶ 16} In this case, Gall attempts to rely on the Supreme Court’s holding in
Williams, 129 Ohio St.3d 344,
2011-Ohio-3374,
952 N.E.2d 1108 to support his claim that
the trial court erred in applying Megan’s Law retroactively. Specifically, Gall is trying to
liken Megan’s Law to the AWA by claiming the former version of Chapter 2950 in effect
when he committed his offenses in the late 1970’s was less burdensome on sexual
offenders, and applying the additional burdens under Megan’s Law now is punitive.
However, as previously discussed, there is an abundance of case law from the Supreme
Court of Ohio holding otherwise. The Supreme Court has consistently held that the
requirements imposed under Megan’s Law are remedial, not punitive, and that the
retroactive application of them does not violate the United States or Ohio Constitutions.
Cook,
83 Ohio St.3d 410-423, 427,
700 N.E.2d 570; Ferguson,
120 Ohio St.3d 7, 2008-
Ohio-4824,
896 N.E.2d 110. Accordingly, we find the trial court did not err in applying
Megan’s Law in this case, even though Gall committed his sexually oriented offenses
before Megan’s Law went into effect. The law is clear that Megan’s Law may be applied
retroactively and that it is not an ex post facto law.
{¶ 17} Gall’s additional claim that the community notification provisions in Megan’s
Law impermissibly intrude on his rights to maintain privacy, to acquire property, to pursue
an occupation, and to maintain a favorable reputation are also without merit. The
Supreme Court rejected these exact same claims in Williams, 88 Ohio St.3d 524-527,
728 N.E.2d 342. Accord State v. Bodyke,
126 Ohio St.3d 266,
2010-Ohio-2424,
933
N.E.2d 753, ¶ 9.
{¶ 18} For the foregoing reasons, Gall’s First, Second, and Fourth Assignments of
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Error are overruled.
Third Assignment of Error
{¶ 19} Gall’s Third Assignment of Error is as follows:
RES JUDICATA BARS THE CLASSIFICATION OF MR. GALL BECAUSE
HE COULD HAVE BEEN CLASSIFIED IN 1979 BUT THE PROSECUTOR
DECLINED.
{¶ 20} Under his Third Assignment of Error, Gall contends res judicata bars him
from being evaluated and classified under Megan’s Law because he should have been
classified at the time of his conviction when a prior version of Chapter 2950 was in effect.
He claims that because he underwent psychological testing for his legal matters in
Kentucky near the time of his conviction in this case that said testing should have sufficed
to classify him at the time of his conviction. Because of this, Gall contends he should
now be classified under and subject to the less burdensome restrictions of the law that
was in effect in 1979, not Megan’s Law. Although he raises a res judicata claim in this
assignment of error, Gall does nothing more than rehash his argument that Megan’s Law
is punitive and unconstitutional when applied to him retroactively, an argument which we
have already overruled. In any event, a claim of res judicata would likewise not prevail.
{¶ 21} “Pursuant to the doctrine of res judicata, a valid final judgment on the merits
bars all subsequent actions based on any claim arising out of the transaction or
occurrence that was the subject matter of the previous action.” State v. Collins, 2d Dist.
Montgomery No. 25612, 2013-Ohio-3645, ¶ 9, citing Grava v. Parkman Township,
73
Ohio St.3d 379,
653 N.E.2d 226 (1995), at syllabus. “The bar applies to a point or a fact
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which was actually and directly in issue in a former action and was there passed upon
and determined by a court of competent jurisdiction.” State v. Coyle, 2d Dist.
Montgomery No. 23450, 2010-Ohio-2130, ¶ 9, citing Norwood v. McDonald,
142 Ohio St.
299,
52 N.E.2d 67 (1943), paragraph three of the syllabus, overruled in part on other
grounds, Grava at syllabus. Accordingly, “[f]or res judicata to apply, the issue under
consideration must have been ‘passed upon’ or ‘conclusively decided’ in an earlier
proceeding.” (Emphasis deleted.) Forsyth v. Dearth, 2d Dist. Clark No. 98-CA-96,
1999
WL 355193, *6 (June 4, 1994), citing Consumers’ Counsel v. Pub. Util. Comm.,
16 Ohio
St.3d 9, 10,
475 N.E.2d 782 (1985). Accord State v. Mitchell,
187 Ohio App.3d 315,
2010-Ohio-1766,
931 N.E.2d 1157, ¶ 17 (6th Dist.) (res judicata inapplicable due to the
“lack of a final order”).
{¶ 22} The record in this case reveals that Gall’s sexual offender classification had
never been determined prior to the trial court’s April 8, 2014 decision. As a result,
because Gall’s classification had not been previously passed upon, there was no final
judgment on that issue. Without a final judgment, res judicata is inapplicable and does
not bar his classification under Megan’s Law. See State v. Baird, 12th Dist. Clermont
No. CA2001-03-043, 2002 WL 649394, *2 (Apr. 22, 2002) (res judicata did not apply to
bar a sexual offender classification hearing because the offender’s classification had not
been previously determined); Pollis v. State, 11th Dist. Trumbull No. 2008-T-0055, 2009-
Ohio-5058, ¶ 39 (noting that res judicata was not at issue in Cook,
83 Ohio St.3d 404,
700 N.E.2d 570 because in that case Megan’s Law was applied retroactively to persons
who had not been previously classified as sexual offenders and, therefore, the new
burdens imposed by Megan’s Law did not impinge on any reasonable expectation of
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finality the offenders had with respect to their convictions).
{¶ 23} See also State v. Tate, 8th Dist. Cuyahoga No. 101112, 2015-Ohio-100, ¶ 3
and 10 (upholding a defendant’s classification under Megan’s Law where the defendant
was serving a prison term for rape charges originating in 1986 and the State did not seek
to have the defendant classified as a sexual predator or habitual sexual offender under
Megan’s Law until 2014); State v. Nelson, 8th Dist. Cuyahoga No. 101228, 2014-Ohio-
5285, ¶ 2-4, 15 (upholding a defendant’s classification under Megan’s Law where the
defendant was serving a prison term for rape charges originating in 1978 and 1989 and
the State requested a classification hearing in 2014 where defendant was classified a
sexual predator).
{¶ 24} For the foregoing reasons, Gall’s Third Assignment of Error is overruled.
Conclusion
{¶ 25} Having overruled all assignments of error raised by Gall, the judgment of
the trial court is affirmed.
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FROELICH, J. and HALL, J., concur.
Copies mailed to:
Mathias H. Heck, Jr.
Andrew T. French
Amy E. Ferguson
Hon. Gregory F. Singer
