COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73315 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION VICTOR MULLINS : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : MARCH 18, 1999 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-269,985 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: WILLIAM D. MASON Cuyahoga County Prosecutor WILLIAM B. VODREY, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JAMES A. DRAPER Cuyahoga County Public Defender SCOTT ROGER HURLEY, Assistant 1200 West Third Street, N.W. 100 Lakeside Place Cleveland, Ohio 44ll3-1569 KENNETH A. ROCCO, J.: Appellant appeals from the trial court's order that found him to be a sexual predator pursuant to R.C. 2950.01. Although -2- appellant challenges both the order and the law pursuant to which it was issued on several constitutional and procedural grounds, this court determines the trial court's order was appropriate; therefore, it is affirmed. Appellant Victor Mullins was indicted on October 1, 1991 for three counts of rape, in violation of R.C. 2907.02, and three counts of gross sexual imposition, in violation of R.C. 2907.05. On April 13, 1992, appellant entered a plea of guilty to the three counts of rape. The remaining counts were nolled. Appellant was sentenced to a term of eight to twenty-five years. On August 20, 1997, the trial court ordered that appellant be returned for a hearing pursuant to Amended Substitute House Bill 180 ( H.B. 180 ) in order for the court to determine whether appel- lant was a sexual predator. At the hearing, the trial judge noted that appellant had pled guilty to the rape charges in return for the state's request that the ages of the victims be deleted. The judge was then informed by the prosecutor that the victims were five, four, and two years old. No other evidence was presented by either appellant or appellee. The court thereafter concluded that appellant was a sexual predator as defined by R.C. Chapter 2950. This appeal followed. Appellant's first, second, and fourth through tenth assign- ments of error state: I. H.B. 180, AS APPLIED TO APPELLANT, VIO- LATES ARTICLE I, SEC. 10, OF THE UNITED STATES CONSTITUTION AS EX POST FACTO LEGISLATION, AND VIOLATES ARTICLE II, SEC. 28, OF THE OHIO CONSTITUTION AS RETROACTIVE LEGISLATION. -3- II. THE SEXUAL PREDATOR HEARING IN THE CASE AT BAR VIOLATED APPELLANT'S DUE PROCESS RIGHTS, GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTION, WHEN THE HEARING FAILED TO COMPORT WITH THE MANDATES OF H.B. 180 WHICH INCLUDE "WITNESSES," "EVI- DENCE," AND THE "RIGHT TO CROSS-EXAMINE" THE EVIDENCE AGAINST APPELLANT. IV. APPLICATION OF H.B. 180 IN THE CASE AT BAR VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION. V. APPLICATION OF THE "CLEAR AND CONVINCING EVIDENCE" STANDARD IN APPELLANT'S H.B. 180 HEARING VIOLATES EQUAL PROTECTION, GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION, AND DUE PROCESS, GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. VI. H.B. 180 IS VOID FOR VAGUENESS SINCE IT COMPELS A COURT TO MAKE A PREPONDERANCE DETERMINATION BASED UPON CLEAR AND CON- VINCING EVIDENCE. VII. H.B. 180 IS AN UNCONSTITUTIONAL BILL OF ATTAINDER. VIII H.B. 180, AS APPLIED TO APPELLANT CONSTI- TUTES DOUBLE JEOPARDY, IN VIOLATION OF THE FIFTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART I, SEC. 10 OF THE OHIO CONSTITUTION. IX. THE PUBLIC NOTIFICATION PROVISIONS OF H.B. 180, AS APPLIED TO APPELLANT, VIO- LATE APPELLANT'S CONSTITUTIONAL RIGHT TO PRIVACY. X. H.B. 180, WITH ITS LEGISLATED STIGMA OF PUBLIC NOTIFICATION, CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT, IN VIOLATION OF THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I., SEC. 9, OF THE OHIO CONSTITUTION. -4- This court recently addressed and rejected identical chal- lenges to the constitutionality of R.C. Chapter 2950 in State v. Ward(Jan. 28, 1999), Cuyahoga App. No. 72371, unreported. Accord- ingly, appellant's first, second and fourth through tenth assign- ments of error are summarily overruled. Appellant's third assignment of error alleges: THE EVIDENCE IS INSUFFICIENT, AS A MATTER OF LAW, TO PROVE "BY CLEAR AND CONVINCING EVI- DENCE" THAT APPELLANT "IS LIKELY TO ENGAGE IN THE FUTURE IN ONE OR MORE SEXUALLY ORIENTED OFFENSES." The record does not support appellant's argument. The trial court conducted a hearing on September 10, 1997. The court took note of the fact that there were three separate victims. R.C. 2950.09(B)(2)(d). The victims were ages two, four, and five years old. R.C. 2950.09(B)(2)(c). Appellant was twenty-two years old at the time of the offenses. R.C. 2950.09(B)(2)(a). Additionally, according to the indictment, the offenses occurred from September 1990 to January 1991, thus demonstrating a pattern of abuse. R.C. 2950.09(B)(2)(h). Notably, appellant's trial counsel never reques- ted permission to present either any additional or mitigating evidence. The record demonstrates the trial court was well within its prerogative to determine appellant is a sexual predator. R.C. 2950.01(E). State v. Cook, supra. The transcripts of the hearing reveal the trial court considered the statutory factors prior to making its determination. As the court stated in State v. Cook, supra, at 426: Our review of the record persuades us that the defendant had a fair hearing, that he was ably -5- represented by competent counsel, and that the court considered the criteria under R.C. 2950.09(B)(2), and fairly evaluated the defen- dant and his counsel's responses. Although the trial judge did not state that his find- ings were to a "clear and convincing stan- dard," we presume that the judge followed the law. State v. Martin (1955), 164 Ohio St. 54, 59, 57 O.O. 84, 87, 128 N.E.2d 7, 12. The statute does not require the court to list the criteria, but only to "consider all relevant factors, including" the criteria in R.C. 2950.09(B)(2) in making his or her findings. We find here, from the evidence in the record, that the judge did so. *** Therefore, the determination that defen- dant is a sexual predator is not against the manifest weight of the evidence. The trial court's action in this case thus had a sufficient evidentiary basis. Accordingly, appellant's third assignment of error also is overruled. Even though there is sufficient evidence in the record to support the trial court's conclusion, this court notes that appel- lee, in its brief, states that [t]he record in this case discloses that appellant pled guilty to having sexual relations with his own three children over a period of several years and swearing some or all of them to secrecy about this reprehensible conduct. However, the appellate record does not support appellee's contention. If such evidence is indeed available, it should have been entered into the record since it is pertinent to several of the relevant factors enumerated in R.C. 2950.09(B)(2). Where such evidence is not in the trial transcript, the victim impact statement or the presen- tence investigation report, appellee could have provided the investigating detective as a witness at the hearing. -6- In order to provide further guidance for the trial court in cases such as appellant's, this court notes the following admoni- tion, set forth in State v. Ward, supra, at 11-12: We disagree with the state's argument that defendant stipulated to being a sexual preda- tor. Defendant stipulated to the facts sup- porting his conviction on a sexually oriented offense, not that he was, in fact, a sexual predator. This is an important distinction, for if we accept the state's argument it would mean that any conviction for a sexually ori- ented offense would be irrebutable proof that an offender is a sexual predator. This con- clusion cannot hold, because the statute is not one strike and you're out. * * * *** [S]imply committing a single sexually oriented offense is not proof, without further evidence or other compelling facts, that the offender is likely to engage in the future in one or more sexually oriented offenses. Had the legislature intended the result argued by the state, it would have done away with the hearing and weighing of evidence and simply classified any person committing a sexually oriented offense as a sexual predator. (Emphasis added; citations omitted.) The trial court does well, therefore, to consider as many factors as possible in a case such as appellant's in making its determination of the likelihood of the offender's recidivism. See, also, State v. Cook, supra, at 424-426. Especially in view of both the law's stated paramount purpose, viz., protecting children from those persons in our society who would prey upon them and the obviously limited availability of law enforcement resources for notification and monitoring, the procedures of Megan's Law provide the trial courts of Ohio with the opportunity to accurately -7- identify those convicted pedophiles who pose the greatest risk to children. The statute is narrowly tailored to comport with the respective danger and recidivism levels of the different classifications of sex offenders. Id. at 422. Therefore, the trial court's determination similarly should be precise. While in cases such as Cook there may be sufficient evidence in the trial transcripts, victim statements, and/or presentence reports relating to the factors listed in R.C. 2950.09(B)(2), there will be cases where the use of expert testimony, whether such testimony is psychiatric, psychological or criminological, may be useful in supplementingthe bare facts of a conviction. See, e.g., State v. Ward, supra; State v. Ferrell (Mar. 18, 1999), Cuyahoga App. No. 72732, unreported; State v. Patterson (Feb. 11, 1999), Cuyahoga App. No. 72448, unreported. Appellant's eleventh assignment of error states: APPLICATION OF H.B. 180 TO APPELLANT, WHO PLED NO CONTEST TO OFFENSES PRIOR TO THE EFFECTIVE DATE OF THIS LEGISLATION, VIOLATED APPELLANT'S DUE PROCESS RIGHTS AND CRIM. R.11, SINCE HE COULD NOT HAVE BEEN INFORMED OF THE REGISTRA- TION/NOTIFICATION CONSEQUENCES OF HIS PLEA AT THE TIME OF HIS PLEA. Appellant argues that he was not advised that a possible consequence of his guilty plea would be "a lifelong requirement that he register his whereabouts with law enforcement officials who are obligated to notify his neighbors and others that he was a 'sexual predator.'" Appellant contends this causes his plea to be invalid. -8- Since, however, appellant neither filed a motion to withdraw his plea in the trial court nor appealed from any denial of such a motion, his argument may not be considered. State v. Kimble (Feb. 4, 1998), Lorain App. No. 97CA006730, unreported. Even if this court could do so, the following observations in Cook, supra, at 412-413 render appellant's argument unpersuasive: [In State ex rel. Matz v. Brown (1988), 37 Ohio St.3d 279, w]e held that "[e]xcept with regard to constitutional protections against ex post facto laws *** felons have no reason- able right to expect that their conduct will never thereafter be made the subject of legis- lation." (Emphasis added.) Id., 37 Ohio St.3d at 281-282, 525 N.E.2d at 808. * * * As to the dissemination of information regard- ing the offender's status, a conviction has always been public record. Therefore, appellant's eleventh assignment of error also is overruled. Appellant's twelfth assignment of error states: THE TRIAL COURT ERRED IN IMPOSING REGISTRATION REQUIREMENTS UPON APPELLANT, SINCE APPELLANT WAS SENTENCED PRIOR TO THE EFFECTIVE DATE OF R.C. 2950.04, WHICH PROVIDES FOR THE MANNER OF OFFENDER REGISTRATION. Appellant contends, pursuant to this court's decision in State v. Hook (Dec. 18, 1997), Cuyahoga App. No. 72780, unreported, that the trial court improperly applied the provisions of R.C. 2950.04 since the statute's effective date was subsequent to his sentenc- ing. However, this court's decision in Hooks applies only to those cases where the offense was committed prior to January 1, 1997 but -9- the offenders were sentenced during the period from January 1, 1997 to July 1, 1997. Thus, appellant's argument is without merit. Appellant's appeal is overruled. -10- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES M. PORTER, A.J. and ANN DYKE, J. CONCUR JUDGE KENNETH A. ROCCO N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .