Civil Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 12 CV 49.
For Plaintiff-Appellant Atty. Christopher Berhalter Belmont County Prosecutor
For Defendant-Appellee: Atty. J. Kevin Flanagan Gold, Khoury & Turak
JUDGES: Hon. Cheryl L. Waite, Hon. Gene Donofrio, Hon. Joseph J. Vukovich.
(¶1} Appellant, the State of Ohio, appeals the decision of the Belmont County Court of Common Pleas denying a motion to permanently enjoin Appellee Ray Benedetta from living at his residence at 3863 Lincoln Avenue, Shadyside, Ohio. The request for injunction was based on the fact that Appellee had been classified as a sexually oriented offender in 2001, and because the residence was within 1, 000 feet of a school. Former R.C. 2950.031 prohibited a sexually oriented offender from establishing a residence within 1, 000 feet of any school. R.C. 2950.031 was amended and recodified as R.C. 2950.034 as part of 2007 S.B. 10, effective July 1, 2007.
(¶2} The trial court denied the state's motion for injunction because: (1) Appellee was convicted prior to the enactment of R.C. 2950.034; (2) Appellee was also convicted prior to the enactment of the original 1, 000-foot rule in former R.C. 2950.031; (3) the Ohio Supreme Court ruled that former R.C. 2950.031 was not intended to be retroactive in operation; and (4) because Appellee acquired a vested interest in the Lincoln Avenue property long before the enactment of either statute. The trial court relied primarily on Hyle v. Porter, 117 Ohio St.3d 165, 2008-Ohio-542, 882 N.E.2d 899, syllabus, which held that: "Because R.C. 2950.031 was not expressly made retrospective, it does not apply to an offender who bought his home and committed his offense before the effective date of the statute."
(¶3} Appellant contends that the Hyle holding only applies to offenders who were actually living in a residence prior to the effective date of R.C. 2950.031. Appellant further argues that this Court ruled in State v. Byers, 7th Dist. No. 07 CO 39, 2008-Ohio-5051 that a defendant must actually live in the residence in question prior to the enactment of R.C. 2950.031 for the holding in Hyle to apply.
(¶4} Appellant's attempt to enforce R.C. 2950.034, and his reliance on Hyle and Byers, are not persuasive for a number of reasons. First, R.C. 2950.034 was held to be unconstitutionally retroactive as applied to offenders like Appellee who committed their crimes before the enactment of the statute. State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108. As our opinion in Byers was premised on the constitutional validity of R.C. 2950.034, Byers is clearly no longer binding. Also, Hyle held that former R.C. 2950.031 could not be applied to offenders who committed their crimes and bought their home prior to the effective date of R.C. 2950.031, and was silent about whether the offender was required to actually reside on the property prior to the enactment of the statute. Finally, Ohio's appellate courts are in agreement that the 1, 000-foot prohibition created in 2003 by R.C. 2950.031 cannot be applied to a defendant who committed his offense prior to the effective date of the statute, regardless of the time that defendant may have acquired his property interest or began living in the residence. Even though Appellee has not filed a brief in this appeal, we decline to accept Appellant's argument, and the well-reasoned judgment of the trial court is affirmed.
History of the Case
(¶5} There is no dispute as to the determinative facts of this case. On July 17, 2000, Appellee acquired a vested remainder interest in 3863 Lincoln Avenue, Shadyside, Ohio. The grantor, Mr. William Brinker, retained a life estate in the property. The quitclaim deed was properly recorded in Belmont County. Mr. Brinker died on October 19, 2006, terminating his life estate and giving Appellee fee simple ownership of the property.
(¶6} In December of 2000, approximately five months after obtaining his initial property interest, Appellee was indicted on eight counts of compelling prostitution. On April 13, 2001, Appellee pleaded guilty to one count of attempting to compel prostitution, a violation of R.C. 2907.21(A)(4). On June 7, 2001, he was sentenced to nine months of incarceration. At the time of sentencing, he was adjudicated as a sexually oriented offender. His residence at the time was located at 3193 Hamilton Street, Bellaire, Ohio. He was required to register annually as a sexual offender for ten years with the Belmont County Sheriffs Office. On January 1, 2012, his reporting requirements concluded.
(¶7} On January 3, 2012, Appellee began residing at 3863 Lincoln Avenue. The property is within 1, 000 feet of Shadyside High School. On January 26, 2012, the Belmont County Prosecutor filed a motion for permanent injunction to bar Appellee from this address on the grounds that R.C. 2950.034 prohibited him from residing within 1, 000 feet from a school. The trial court overruled the motion on May 14, 2012. This appeal followed. Appellee has not filed a brief. App.R. 18(C) states: "If an appellee fails to file the appellee's brief within the time provided by this rule, or within the time as extended, the appellee will not be heard at oral argument except by permission of the court upon a showing of good cause submitted in writing prior to argument; and in determining the ...