June 19, 2013
Megan's Law

by Justice Paul E. Pfeifer

In 1983, when Lindell W. Brunning Jr., was 20 years old, he was convicted of raping a nine-year-old relative and was sentenced to prison for ten to 25 years. Subsequent changes in the law, and another offense by Brunning, led to a case that came before us – the Ohio Supreme Court.

In 1997, while Brunning was still in prison, the Ohio legislature passed Megan’s Law – named for the little New Jersey girl who had been kidnapped, raped and murdered by a sex offender who had moved into her neighborhood.  According to the provisions of Megan’s Law, Brunning was classified as a sexually oriented offender, which required him to give advance notice of any address change and annual address verification for ten years following his release.

A decade later the legislature repealed Megan’s Law and enacted the Adam Walsh Act (“AWA”). The AWA, which went into effect January 1, 2008, contained retroactive reclassification provisions. That meant that Brunning, who was released from prison on November 7, 2008, was reclassified as a Tier III sex offender – the most serious classification.

On August 3, 2009, Brunning filled out and filed a periodic address-verification form on which he stated that he primarily lived at an apartment on Lorain Avenue in Cleveland. On that same form, he listed a secondary address in Parma Heights.

In fact, detectives later learned that Brunning had left the Cleveland apartment in June and was actually living at the Parma address with another registered sex offender. While living at that Parma address, Brunning engaged in sexual conduct with a male minor. He eventually pled guilty to one count of unlawful sexual conduct with a minor and two counts of sexual battery.

In the indictment for that offense Brunning was also charged with three counts related to his registration and reporting requirements: (1) failure to verify his address every 90 days as required by the AWA, (2) failure to provide a notice of change of residence, and (3) tampering with records by providing false information on his periodic address-verification form.

Brunning agreed to plead guilty to all three charges in the indictment. The state agreed that all three counts would merge for sentencing purposes. The trial court approved the agreement and advised Brunning that because of the merging of the three counts, “the maximum penalty you’re looking at on this case is between two to eight years.”

It so happened that Brunning's sentencing hearing was five days after our court issued its decision in a case called State v. Bodyke. In Bodyke our court declared that the reclassification provisions of the AWA were unconstitutional because they were retroactive. We also held that the classifications and community-notification and registration orders imposed previously by judges in accordance with Megan’s Law were reinstated.

Based on Bodyke, Brunning argued that his prosecution under the AWA was invalid and he requested dismissal of the charges. The trial court denied the motion. It also ignored its earlier representation that Brunning would face a maximum total sentence of eight years, instead imposing a 21-year sentence for the three registration-related offenses.

Brunning appealed, arguing that his convictions should be vacated because the law upon which they were based – the AWA – is unconstitutional as applied to him. He further argued that his guilty plea had been “conditioned on false promises made by the state and the trial court” and that the trial court should have merged the offenses for sentencing.

The court of appeals agreed. It reversed all three of Brunning’s convictions, reasoning that all of the charges against him were based upon violations of the AWA, which, because of Bodyke, did not apply to Brunning. After that, the case came before us for a final review.

In his appeal, Brunning argued that neither Megan’s Law nor the AWA applied to him during the period in question, and that there is a gap in the law for offenders who were originally classified under Megan’s Law. That alleged gap runs from January 1, 2008 – when Megan’s Law was repealed and replaced by the AWA – until June 3, 2010 – when Bodyke reinstated the classifications and community-notification and registration orders imposed by Megan’s Law.

We rejected his theory that there is a gap in the law for certain sex offenders. Bodyke reinstated the classifications and registration orders previously imposed by judges. Once reinstated, those orders operated prospectively from the time they were first instituted. They related back to the time they were first imposed and continued in effect as if they had never been changed.

The AWA repealed and replaced Megan’s Law. Later, the decision in Bodyke struck provisions of the AWA that required the Ohio Attorney General to reclassify sex offenders who had already been classified by a judge under Megan’s Law. Would the legislature have wanted the repeal of Megan’s Law to take effect even if the AWA had never been passed? We found the answer to be self-evident.

By replacing Megan’s Law with the AWA – which was more onerous than its predecessor – the legislature signaled its intent to increase public protection, not decrease it. It’s unimaginable that the legislature would have intended offenders originally classified under Megan’s Law to be free from any reporting requirements if the AWA were to be struck down.

There were other issues in this case, but on the matter of registration and community-notification, we made clear that our decision in Bodyke does not require the vacation of a conviction for violating the AWA when the offender, originally classified under Megan’s Law, was indicted for a violation of the AWA that also constitutes a violation under Megan’s Law.

We therefore determined that the repeal of Megan’s Law is invalid as it affects offenders originally classified under Megan’s Law. By a seven-to-zero vote we concluded that offenders originally classified under Megan’s Law have a continuing duty to abide by the requirements of Megan’s Law.

EDITOR'S NOTE: The case referred to is State v. Brunning, 134 Ohio St.3d 438, 2012-Ohio-5752. Case No. 2011-1066. Decided December 6, 2012. Majority opinion written by Justice Paul E. Pfeifer.