IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT
HAMILTON COUNTY, OHIO
CRAIG SAUNDERS,
: Case No. C0801080
: (Consolidated with C0801081)
Defendant-Appellant,
: Trial No. B0709112
: Trial No. SP0800398
v.
:
:
STATE OF OHIO,
:
:
Plaintiff-Appellee.
:
:
BRIEF OF DEFENDANT-APPELLANT CRAIG SAUNDERS
Margie Slagle, 0082217
Counsel for Defendant-Appellant
Ohio Justice & Policy Center
215 East Ninth Street, Suite 601
Cincinnati, Ohio 45202
Phone: (513) 421-1108 ext. 20
Fax: (513) 562-3200
Email: mslagle@ohiojpc.org
TABLE OF CONTENTS
AND
ASSIGNMENTS OF ERROR
I. STATEMENT OF THE CASE .................................................................... 1
A.
PROCEDURAL POSTURE ..................................................................................................... 1
B.
STATEMENT OF THE FACTS ................................................................................................ 3
II. ASSIGNMENTS OF ERROR AND ARGUMENT ......................................... 6
A.
FIRST ASSIGNMENT OF ERROR .......................................................................................... 6
AS A MATTER OF LAW, THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A
CONVICTION FOR FAILURE TO NOTIFY THE SHERIFF OF A CHANGE IN RESIDENCE ...................... 6
ISSUE PRESENTED FOR REVIEW AND ARGUMENT
The State Failed to Allege Sufficient Facts to Support the Essential
Elements of the Offense ...................................................................................................... 6
Authorities
Cases
State v.Ohmer (1st Dist.), 162 Ohio App.3d 150, 2005-Ohio-3487,
832 N.E.2d 1243 ......................................................................................................................... 8
State v. Valentine, 1st Dist. No. C-070388, 2008-Ohio-1842 .................................................... 6
Statutes
R.C. 2950.05 ...................................................................................................................... passim
R.C. 2937.07 ............................................................................................................................... 6
Rules
Crim.R. 11(B)(2) ......................................................................................................................... 6
i
B.
SECOND ASSIGNMENT OF ERROR ...................................................................................... 9
THE TRIAL COURT ERRED AS A MATTER OF LAW BY CONCLUDING THAT MR.
SAUNDERS HAS A DUTY TO REGISTER IN OHIO BECAUSE R.C. 2950.04(A)(3)
VIOLATES MR. SAUNDERS'S CONSTITUTIONAL RIGHT TO TRAVEL .............................................. 9
ISSUES PRESENTED FOR REVIEW AND ARGUMENT .......................................................... 10, 11, 13
R.C. 2950.04(A)(3) Differentiates Between Ohio Resident Offenders
Based upon their Date of Entry into Ohio and the Law of their Former
State of Conviction ........................................................................................................... 10
Authorities
Statutes
R.C. 2950.04 ...................................................................................................................... passim
Imposing a Different Classification on Mr. Saunders Based upon The Date
He Entered the State Violates Mr. Saunders’s Constitutional Right to
Travel Protected by the Privileges or Immunities Clause of the Fourteenth
Amendment ....................................................................................................................... 11
Authorities
Cases
Saenz v. Roe (1999), 526 U.S. 489, 119 S.Ct. 1518 .................................................. passim
Shapiro v. Thompson (1969), 394 U.S. 618, 89 S.Ct. 1322.............................................. 11
United States v. Guest (1966), 383 U.S. 745, 86 S.Ct. 1170. ........................................... 11
Statutes
R.C. 2950.04 .................................................................................................................. passim
No Compelling State Purpose Justifies a Classification Based on Length of
Residency .......................................................................................................................... 13
Authorities
Cases
Doe v. McVey (E.D.Pa.2005), 381 F.Supp.2d 443................................................................ 15
ii
Republican Party of Minnesota v. White (2002), 536 U.S. 765, 122 S.Ct.
2528................................................................................................................................... 13
Shapiro v. Thompson (1969), 394 U.S. 618, 89 S.Ct. 1322.................................................. 13
State v. Dickerson (2006), 142 Idaho 514, 129 P.3d 1263 .................................................. 14
III. CONCLUSION ..................................................................................... 15
CERTIFICATE OF SERVICE ...................................................................... 16
APPENDIX............................................................................................... A-1
iii
I.
STATEMENT OF THE CASE
A. PROCEDURAL POSTURE
On October 22, 2007, Defendant-Appellant Craig Saunders was indicted and charged
with failure to provide notice of a residence address change to the sheriff’s office at least twenty
days prior to changing his residence in violation of R.C. 2950.05.1 After he entered a not guilty
plea,2 Mr. Saunders filed a Motion to Dismiss asserting that he had no legal duty to register
under Ohio law because his conviction and the completion of his prison term predated the
effective date of Ohio’s registration scheme.3 Mr. Saunders also filed a Supplemental Motion to
Dismiss asserting that he had no duty to register under Ohio law because R.C. 2950.034(A)(3)(a)
violated his constitutional right to travel.4
While the criminal charge was pending, Mr. Saunders was reclassified as a Tier III
offender after the enactment of Senate Bill 10.5 Pursuant to R.C. 2950.11(F)(2), Mr. Saunders
filed a petition seeking an exemption from community notification.6 He subsequently filed an
amended petition to also contest his reclassification pursuant to R.C. 2950.031(E).7 Mr.
Saunders asserted that he had no duty to register under Ohio law because R.C. 2950.034(A)(3)(a)
violated his constitutional right to travel and equal protection guarantees.8 Mr. Saunders further
claimed that he should have been reclassified a Tier I offender because his Connecticut offense
1
T.d. 1, B0709112.
T.d. 3, B0709112.
3
T.d. 17, B0709112.
4
T.d. 26, B0709112.
5
T.d. 2, SP0800398.
6
T.d. 3, SP0800398.
7
T.d. 6, SP0800398.
8
T.d. 6, p. 4-5, SP0800398.
2
1
of conviction was comparable to a Tier I offense under Ohio law.9 In September 2008, the trial
court reassigned and transferred Mr. Saunders’s petition to the trial court that was assigned to
hear the failure to register charge.10
After the petition was transferred, the trial court scheduled one hearing to resolve both
the petition to contest reclassification and the criminal charge.11 At the hearing, the court
overruled Mr. Saunders’s Supplemental Motion to Dismiss the criminal charge, finding that “the
law applies to him.”12 The court further found that Mr. Saunders was a Tier I offender because
the State determined that “based upon the apples-to-apples comparison of the statute that he was
convicted for in Connecticut and corresponding statute in Ohio being Gross Sexual Imposition,
that would make it a Tier I offense.”13
Mr. Saunders withdrew his not guilty plea and entered a plea of no contest to an
attempted failure to notify the sheriff of a change of residence, a misdemeanor of the first
degree.14 Following the change of plea, both the state and Mr. Saunders gave an explanation of
the circumstances surrounding the charge.15 The court found Mr. Saunders guilty16 and
sentenced him to 180 days in jail, suspended the 180 days, and imposed one year of probation.17
9
T.d. 6, p. 5, SP0800398.
T.d. 8, 9, SP0800398.
11
T.p. 2.
12
T.p. 3.
13
T.p. 4.
14
T.p. 3-4.
15
See T.p. 10-16.
16
T.p. 16.
17
T.p. 22.
10
2
The court informed Mr. Saunders that he had the right to appeal “anything in this case you would
like.”18
Mr. Saunders timely appealed his conviction and the court’s decision that he had a duty
to register under Ohio law.19
B. STATEMENT OF THE FACTS
1. CRAIG SAUNDERS
Craig Saunders is a sex offender who moved to Ohio in 2006 and currently resides in
Hamilton County.20 In February 1991, he pled guilty to Sexual Assault in Connecticut and was
released from prison in June 1993.21 Under Connecticut law, Mr. Saunders has a duty to register
for life.22 Mr. Saunders is currently classified as a Tier I offender who must register with the
Hamilton County Sheriff’s Office once a year.23
On August 16, 2007, Mr. Saunders changed his residence address and notified the sheriff
of his new address.24 At that time, he was told to report in person on October 27, 2007 to verify
his registration information.25 After a sheriff informed him that his new residence was too close
to a school, Mr. Saunders became homeless26 and promptly reported his homeless status to the
sheriff.27 The sheriff told Mr. Saunders that he was required to check-in with the sheriff on a
18
T.p. 25.
T.d. 37, B0709112.
20
T.d. 26 at 1, B0709112.
21
T.p. 10.
22
Id.
23
T.p. 4.
24
T.p. 11.
25
Id.
26
Id. at 13-14.
27
Id. at 11.
19
3
daily basis.28 Mr. Saunders complied with this request for approximately six weeks29 and
continuously reported that he was sleeping in Washington Park.30
On October 12, 2007, Mr. Saunders reported again to verify that he was still sleeping in
Washington Park.31 He also informed a sheriff that he that he had found a job and would be
“starting work for Bachsheider Trucking on Monday, October 15.”32 Because he was working,
Mr. Saunders failed to verify his homeless status in person from October 15-October 19th,33
although he did have a telephone conversation with the sheriff’s department on October 18th.34
After Mr. Saunders failed to report in person on October 15, 16, 17, and 19, “[t]he sheriff’s
office presented charges for a violation of 2950.0535 for failing to provide a change of address.”36
Mr. Saunders was arrested at work.37
2. THE STATUTORY REQUIREMENTS OF R.C. 2950.05
Former R.C. 2950.05(A) requires sex offenders to provide written notice of any change
of address at least twenty days prior to the address change. If an offender unexpectedly changes
his residence, the offender must notify the sheriff of this change within one business day.38 If
the “residence address change is not to a fixed address, the offender *** shall include in the
28
Id. See also T.d. 21 at 3.
T.p. 14.
30
Id.
31
T.p. 11, 14.
32
Id. at 14.
33
Id. at 12, 14.
34
Id. at 16.
35
All references to Chapter 2950 refer to the former version of the chapter that were effective
prior to January 1, 2008. Mr. Saunders was charged under the version of R.C 2950.05 that was
effective in 2007. The statute was amended as of January 1, 2008, but the amended statute
contains the same requirements.
36
T.p. 12.
37
T.p. 14.
38
R.C. 2950.05(F)(1).
29
4
registration a detailed description of the place or places at which the offender *** intends to stay
and, not later than the end of the first business day immediately following the day on which the
person obtains a fixed residence address, shall register with that sheriff that fixed residence
address.”39 The statute further provides that if an offender registers a transitional address, “the
place or places so described in the registration shall be considered the person's residence address
and registered residence address, until the person registers a fixed residence address as described
in this division.”40
3. THE DUTY TO REGISTER
FORMER CHAPTER 2950
FOR
OFFENDERS UNDER
In 1996, the General Assembly enacted a comprehensive sex offender registration
scheme that became effective on July 1, 1997. O.R.C. 2950.04(A)(1) required registration for
sex offenders who had been adjudicated habitual offenders prior to July 1, 1997 or were
convicted or serving a prison sentence for a sex offense on or after July 1, 1997. If an offender
was convicted of a sex offense in another state and moved to Ohio after July 1, 1997, he must
register if he had a duty to register under the law of his former state of conviction.41
39
R.C. 2950.05(B).
Id.
41
R.C. 2950.04(A)(3)(a).
40
5
II.
ASSIGNMENTS OF ERROR AND ARGUMENT
A. FIRST ASSIGNMENT OF ERROR
AS A MATTER OF LAW, THE EVIDENCE WAS INSUFFICIENT TO
SUPPORT A CONVICTION FOR FAILURE TO NOTIFY THE SHERIFF
OF A CHANGE IN RESIDENCE.
1. THE STATE FAILED TO ALLEGE SUFFICIENT FACTS TO
SUPPORT ALL OF THE ELEMENTS OF THE OFFENSE.
The plea of no contest constitutes an admission, not of guilt, but of the truth of the facts
alleged in the indictment, information, or complaint.42 In order to obtain a conviction of a
defendant who has pled no contest, the state must offer an explanation of the circumstances to
support the charge.43 When a defendant pleads “no contest” to a misdemeanor charge, “the
judge or magistrate may make a finding of guilty or not guilty from the explanation of the
circumstances of the offense."44 “To find the defendant guilty, the explanation of circumstances
must contain sufficient information to support all the essential elements of the offense. When the
explanation of circumstances fails to satisfy all the elements of an offense, the defendant has a
substantive right to be discharged by a finding of not guilty.”45
Mr. Saunders was charged with a failure to report a change of address to the sheriff in
violation of R.C. § 2950.05(B). In order to be found guilty, the State had to establish that Mr.
Saunders changed his residence address and failed to notify the sheriff of this change.46 In its
explanation, the State established that Mr. Saunders was homeless and sleeping in Washington
42
Crim.R. 11(B)(2).
R.C. 2937.07.
44
R.C. 2937.07.
45
State v. Valentine, 1st Dist. No. C-070388, 2008-Ohio-1842 (internal citations omitted).
46
See id. See also former R.C. 2950.05(B).
43
6
Park, was told to report daily to the sheriff, and failed to report on October 15, 16, 17, and 19.47
Because Mr. Saunders did not report on those days, “[t]he sheriff’s office then presented charges
for a violation of 2950.05 for failing to provide a change of address.”48 But, the State did not
allege or prove that Mr. Saunders was no longer staying at Washington Park, a necessary
element to the crime.49 Nor did the State allege or prove that Mr. Saunders obtained a fixed
address and failed to report it within the requisite time frame.50 The State introduced no
evidence whatsoever indicating that Mr. Saunders changed his residence address and failed to
report that change.
The State’s sole explanation for the charge is that Mr. Saunders failed to verify his
homeless status in person on a daily basis.51 But, R.C. 2950.05 does not require homeless
individuals to report in person on a daily basis. Instead, the statute allows an offender to register
as homeless if he provides a detailed description of where he intends to stay. 52 This address
“shall be considered” the offender’s address until he registers a permanent address.53 When the
offender obtains a fixed address, he must notify the sheriff's office by the end of the first
business day.54
Mr. Saunders became homeless after he was notified that he was living too close to a
school. The State concedes that Mr. Saunders promptly reported his homeless status on
September 4, 2007 in compliance with R.C. § 2950.05(B). After this initial notification to the
47
T.p. 12.
Id.
49
See former 2950.05(B).
50
Id.
51
T.p. 12. See also T.d. 21 at 3, B0709112.
52
See 2950.05(B).
53
Id.
54
Id.
48
7
sheriff, Mr. Saunders was not legally required to report to the sheriff until he obtained a fixed
address.55 Yet, the sheriff requested that Mr. Saunders appear in person daily and confirm that
he was still staying at Washington Park. Mr. Saunders complied with this request from
September 4th through October 12th although he had no legal obligation to do so.
Despite his homeless status, Mr. Saunders secured full-time employment and began
working on October 15. Mr. Saunders did not verify his homeless status in person with the
sheriff from October 15-October 20 because he was at work, although he did have telephone
contact with the sheriff on October 18. The State arrested and charged Mr. Saunders for
violating R.C. 2950.05 solely because he failed to report to the sheriff’s office on the days that he
was working.
But, R.C. 2950.05 explicitly allows an offender to register as homeless if he provides a
detailed description of where he intends to stay.56 Mr. Saunders repeatedly provided the detailed
description that he was sleeping at Washington Park. Mr. Saunders continued to stay at
Washington Park until his arrest. He did not obtain a fixed address and fail to report that
address within the first business day. The State did not allege or prove that Mr. Saunders
changed his address and failed to notify the sheriff’s office. To the contrary, all of the State’s
evidence shows that Mr. Saunders diligently complied with his registration duties.
Thus, the state failed to set forth an explanation of circumstances that included all the
elements of the offense charged. The State failed to establish that: 1) Mr. Saunders changed his
55
Id. Mr. Saunders was required to verify his address every ninety days in person pursuant to
R.C. § 2950.06(F), but his periodic verification duty is not an issue in this case.
56
Id. See also State v.Ohmer (1st Dist.), 162 Ohio App.3d 150, 2005-Ohio-3487, 832 N.E.2d
1243, at ¶ 20 (Explaining that: “The offender must then notify the sheriff's office at the end of
the first business day after the offender has obtained a fixed address. This means that an offender
can now register as homeless, as long as he describes his intended residence”).
8
residence address and 2) that Mr. Saunders failed to timely notify the sheriff’s office of the
changed address. The trial court erred when it found Mr. Saunders guilty, and this Court should
reverse Mr. Saunders’s conviction.
B. SECOND ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED AS A MATTER OF LAW BY
CONCLUDING THAT MR. SAUNDERS HAS A DUTY TO REGISTER IN
OHIO BECAUSE R.C. 2950.04(A)(3) VIOLATES MR. SAUNDERS’S
CONSTITUTIONAL RIGHT TO TRAVEL.
Sex offenders who committed their offenses in Ohio are only required to register if they
were serving sentences for a sex offense on July 1, 1997, were convicted on or after July 1, 1997,
or were habitual sex offenders prior to July 1, 1997.57 But, offenders who were convicted in
other jurisdictions are required to register regardless of when they committed their offenses if
their former jurisdiction required registration.58 This provision requires out-of-state sex
offenders like Mr. Saunders who committed his offense and completed his sentence before July
1, 1997 to register while R.C. 2950.04(A)(1) exempts Ohio sex offenders who committed their
offenses and completed their sentence before July 1997.
The disparity in the statute's treatment of in-state offenders versus those who were
convicted elsewhere and subsequently move to Ohio violates the constitutional right to travel.59
As a new citizen, Mr. Saunders is being treated differently from citizens already domiciled in
Ohio, and the statute creates fixed, permanent distinctions between sex offenders based upon the
date when they establish Ohio residency.60
57
R.C. 2950.04(A)(1); see also State v. Champion. 106 Ohio St.3d 120, 2005-Ohio-4098, 832
N.E.2d 718 (holding that
58
R.C. 2950.04(A)(3)(a).
59
See State v. Dickerson (Idaho App. 2006), 142 Idaho 514, 129 P.3d 1263, 1270.
60
Id.
9
1. R.C. 2950.04(3) DIFFERENTIATES BETWEEN OHIO
RESIDENT OFFENDERS BASED UPON THEIR DATE OF
ENTRY INTO OHIO AND THE LAW OF THEIR FORMER
STATE OF CONVICTION
In 1997, the General Assembly enacted a comprehensive sex offender registration
scheme. The new scheme required registration for anyone convicted of a sex offense or serving
time for a sex offense on or after July 1, 1997 and anyone declared a habitual sex offender prior
to July 1, 1997.61 But, regardless of the date of conviction, anyone who committed a sex offense
in another jurisdiction and moves to Ohio after July 1, 1997, is required to register if the offender
had a duty to register under the law of the other jurisdiction.62 The statute creates a disparity for
those who lived in Ohio prior to July 1, 1997 and those who move to Ohio after July 1, 1997.
Any sex offender who resided in Ohio prior to July 1, 1997 has no duty to register even if the
offense was committed in another jurisdiction that required registration.
The effect of this statute is to impose two distinct classifications for sex offenders with
out-of-state convictions: 1) offenders who established residency in Ohio prior to July 1, 1997
have no duty to register; and 2) offenders who establish residency after July 1, 1997 have no duty
to register unless their previous jurisdiction imposed a duty to register. Thus, the statute
impermissibly discriminates against offenders like Mr. Saunders who moved to Ohio after July
1, 1997 from a state that required him to register for life. Had Mr. Saunders moved to Ohio on
June 30, 1997, he would not have a duty to register in Ohio regardless of the law of his former
jurisdiction. Had Mr. Saunders moved to Ohio after July 1, 1997 from a state that did not require
him to register, Mr. Saunders would have no duty to register. But, because Mr. Saunders moved
to Ohio after July 1, 1997, from a state that required him to register for life, Ohio law requires
61
62
R.C. 2950.04(A)(1).
R.C. 2950.04(A)(3)(a).
10
him to register. Thus, the duty to register is based on the date that Mr. Saunders moved to Ohio
and the law in his former state of residency. Ohio's different treatment of in-state offenders
versus those who were convicted elsewhere and subsequently moved to Ohio violates Mr.
Saunders’s constitutional right to travel.
2. THIS DISPARATE TREATMENT VIOLATES MR.
SAUNDERS’S CONSTITUTIONAL RIGHT TO TRAVEL
PROTECTED BY THE PRIVILEGES OR IMMUNITIES
CLAUSE OF THE FOURTEENTH AMENDEMENT
The Privileges or Immunities Clause of the Fourteenth Amendment guarantees to
individuals the fundamental right to interstate travel.63 The United States Supreme Court has
determined that the right to travel “embraces at least three different components. It protects the
right of a citizen of one State to enter and to leave another State, the right to be treated as a
welcome visitor rather than an unfriendly alien when temporarily present in the second State,
and, for those travelers who elect to become permanent residents, the right to be treated like
other citizens of that State.”64 The third component of the right to travel is implicated in this
case because Mr. Saunders is being treated differently than other Ohio citizens who established
their residency prior to July 1, 1997. And he is being treated differently than citizens who
established their residency after July 1, 1997 if the registration laws of those citizens’ states of
conviction mirrors Ohio law.
Saenz v. Roe65 is instructive. In Saenz, the U.S. Supreme Court held that a California law
that limited the welfare benefits of newly arrived citizens, who resided in California for less than
twelve months, to the level that they received from their former state of domicile violated “the
63
See Saenz v. Roe (1999), 526 U.S. 489, 119 S.Ct. 1518; Shapiro v. Thompson (1969), 394 U.S.
618, 89 S.Ct. 1322; United States v. Guest, (1966), 383 U.S. 745, 86 S.Ct. 1170.
64
Saenz, 526 U.S. at 500.
65
Id. at 489.
11
right of the newly arrived citizen to the same privileges and immunities enjoyed by other citizens
of the same state,” protected by the privileges or immunities clause of the Fourteenth
Amendment. 66 The Court concluded that the statute created classifications based upon: 1) the
duration of residency in the state and 2) the laws of the state of their former residence.67 The
Court further noted that the statute created a favored class consisting of citizens who had resided
in the state for the requisite time frame and new arrivals whose former state laws were
comparable to California.68 “Thus, within the broad category of citizens who resided in
California for less than a year, there are many who are treated like lifetime residents. And within
the broad subcategory of new arrivals who are treated less favorably, there are many smaller
classes whose benefit levels are determined by the law of the States from whence they came.”69
After determining that the statute implicated the fundamental right to travel, the Supreme
Court concluded that California must not only justify its policy that “discriminate[s] against
those who have been citizens for less than a year, but also [explain] why it is permissible to
apply such a variety of rules within that class.”70 Ultimately, the Court held that it is
“constitutionally impermissible” to create classifications “to deter welfare applicants from
migrating to California.”71 The Court held that the Fourteenth Amendment does not allow for
“degrees of citizenship based on length of residence” or “subclasses of similarly situated citizens
based on the location of their prior residence.”72 The Court concluded that the Fourteenth
66
Id. at 502-503.
Id. at 505.
68
Id.
69
Id.
70
Id. at 505.
71
Id. at 506.
72
Id. at 506-507 (internal citations omitted).
67
12
Amendment guarantees that citizens “have the right to choose to be citizens of the State wherein
they reside. The States, however, do not have any right to select their citizens.”73
3. NO COMPELLING STATE PURPOSE JUSTIFIES
CLASSIFICATION BASED ON LENGTH OF RESIDENCY
A
To determine whether R.C. 2950.04(A)(3)(a) unconstitutionally violates Mr. Saunders’s
right to travel, this Court must determine whether Ohio has any permissible reason to create two
distinct classifications for sex offenders with out-of-state convictions.74 Because the
fundamental right to travel is implicated, this Court must apply strict scrutiny to the challenged
law.75 In order for an infringement to pass constitutional muster under strict scrutiny, the state
has the burden to prove that the infringement is necessary to promote a compelling state interest
and is narrowly tailored to meet that end.76
Thus far, the State has not set forth any reason for the disparate treatment, and the statute
itself is silent as to the legislative intent. The only conceivable purpose is to deter the migration
of sex offenders to Ohio, a “constitutionally impermissible” purpose.77 In Shapiro v.
Thompson,78 the Supreme Court held that “the purpose of deterring the in-migration of indigents
cannot serve as justification for the classification created by the one-year waiting period, since
that purpose is constitutionally impermissible. If a law has no other purpose * * * than to chill
the assertion of constitutional rights by penalizing those who choose to exercise them, then it (is)
patently unconstitutional.”79 The Supreme Court further explained in Saenz that “our cases have
73
Id. at 510.
Id. at 505.
75
Saenz, 536 U.S. at 504.
76
Republican Party of Minnesota v. White (2002), 536 U.S. 765, 774-775, 122 S.Ct. 2528.
77
Id. at 506.
78
(1969), 394 U.S. 618, 89 S.Ct. 1322.
79
Id. at 631 (internal citation omitted).
74
13
not identified any acceptable reason for qualifying the protection afforded by the Clause for the
‘citizen of State A who ventures into State B’ to settle there and establish a home.”80 Thus, it is
unclear whether any state rationale could be sufficient to violate the fundamental right to travel.81
State v. Dickerson82 is instructive. In Dickerson, the Idaho Court of Appeals held that the
state sex offender registration law that created a classification that differentiated between
offenders based solely upon their date of entry into the state unconstitutionally violated the right
to travel.83 The Court concluded that the classifications were not legitimately related to the
State’s purported rationale.84
The State alleged that the classifications were necessary because the state had an interest
in identifying and tracking out of state offenders who subsequently move to Idaho because sex
offenders have a high rate of recidivism.85 Although the court acknowledged that identifying
and monitoring offenders is a legitimate state interest, the court concluded that monitoring only
out of state offenders with old convictions was not a legitimate purpose.86 The state alleged that
the offenders who committed offenses in other states were harder to track because their records
were located in other states.87 The court concluded that “that premise is highly doubtful”
because “[n]othing in the record supports the State's premise that long-term residents with pre-
80
Saenz, 536 U.S. at 502 (quoting Zobel v.Williams (1982), 457 U.S. 55, 74, 102 S.Ct. 2309)
(O'Conner, J., concurring in judgment).
81
Id.
82
(2006), 142 Idaho 514, 129 P.3d 1263.
83
Id. at 1271.
84
Id. at 1270.
85
Id.
86
Id.
87
Id.
14
1993 convictions are easy for law enforcement authorities to identify and monitor.”88 The court
held “that the State's interest in apprehending re-offending sex offenders was not rationally
advanced by a classification that differentiated between offenders based solely upon their date of
entry into the state.”
Similarly, Ohio’s law impermissibly differentiates between offenders based upon their
entry into the state. Therefore, this Court should find that R.C. 2950.04(A)(3)(a) is
unconstitutional as applied to Mr. Saunders, and that Mr. Saunders has no legal duty to register
in Ohio.
III.
CONCLUSION
Craig Saunders’s conviction for failure to register should be reversed because the State
did not allege or prove the required elements and because requiring Mr. Saunders to register
unconstitutionally violates his fundamental right to travel. This Court should vacate Mr.
Saunders’s conviction and find that Mr. Saunders has no legal duty to register in Ohio.
Respectfully submitted,
___________________________
Margie Slagle, #0082217
Counsel for Defendant-Appellant
Ohio, Justice and Policy Center
215 East 9th Street, Suite 601
Cincinnati, OH 45202
Phone: 421-1108, ext. 20
Fax: (513) 562-3200
Email: mslagle@ohiojpc.org
Id. See also Doe v. McVey (E.D.Pa.2005), 381 F.Supp.2d 443, 451 (concluding that: “In short,
any concern over the public's lack of knowledge about out-of-state offenders applies with equal
force to in-state offenders and, therefore, cannot justify Pennsylvania's disparate treatment of the
two groups”).
88
15
CERTIFICATE OF SERVICE
I hereby certify that a true and accurate copy of Appellant’s Brief was served by U.S.
Mail upon the Hamilton County Prosecuting Attorney’s Office, 230 East 9th Street, Suite 4000,
Cincinnati, Ohio 45202, on this 10th day of March, 2009.
_____________________________
Margie Slagle
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