[Cite as State v. Conley, 2016-Ohio-5310.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.      27869

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
PATRICK CONLEY                                       STOW MUNICIPAL COURT
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   2014CRB03864

                                 DECISION AND JOURNAL ENTRY

Dated: August 10, 2016



        SCHAFER, Judge.

        {¶1}     Defendant-Appellant, Patrick Conley, appeals the judgment of the Stow

Municipal Court convicting him of voyeurism, classifying him as a Tier I sex offender, and

ordering him to comply with the various registration duties applicable to that classification. For

the reasons that follow, we affirm.

                                                I.

        {¶2}     Conley was charged with one count of voyeurism in violation of R.C. 2907.08(A),

a third-degree misdemeanor. This charge arose from Conley secretly recording people who used

the unisex bathroom at his place of work. During the pendency of the case, Conley requested

that the Adam Walsh Act, R.C. Chapter 2950 (the “Act”), be declared unconstitutional as it

applies to him. The trial court rejected Conley’s constitutionality arguments and he entered a no-

contest plea. The trial court accepted his plea and entered a finding of guilt. It subsequently

imposed a 30-day jail term with 15 days suspended and 15 days to be served on house arrest as
                                                     2


well as six months of community control.1 The trial court also classified Conley as a Tier I sex

offender, meaning that he has to register once a year for the next 15 years.

          {¶3}      Conley filed this timely appeal, which presents three assignments of error for our

review.

                                                     II.

                                          Assignment of Error I

          The Adam Walsh Act, as applied to Patrick Conley, violates the Eighth
          Amendment prohibition against cruel and unusual punishment and
          constitutes a Bill of Attainder.

          {¶4}      The language of Conley’s first assignment of error suggests that he challenges his

Tier I sex offender classification both as an unconstitutional Bill of Attainder and as cruel and

unusual punishment in violation of the Eighth Amendment to the United States Constitution.

However, Conley does not develop his Bill of Attainder argument in the body of his brief, so we

decline to fashion one on his behalf and address it. See App.R. 16(A)(7). Consequently, we

limit our discussion to Conley’s cruel and unusual punishment argument and we must reject it.

                     A. Presumption of Constitutionality and As-Applied Challenges

          {¶5}      The statutes enacted by the General Assembly are entitled to a “strong

presumption of constitutionality.” State v. Romage, 138 Ohio St.3d 390, 2014-Ohio-783, ¶ 7.

As a result, “if at all possible, statutes must be construed in conformity with the Ohio and United

States Constitutions.”        State v. Collier, 62 Ohio St.3d 267, 269 (1991).        In line with the

presumption of constitutionality, a court is only empowered to declare a statute unconstitutional

if it “‘appear[s] beyond a reasonable doubt that the legislation and constitutional provisions are

clearly incompatible.’” State v. Cook, 83 Ohio St.3d 404, 409 (1998), quoting State ex rel.


          1
              The trial court stayed Conley’s sentence, pending the resolution of this appeal.
                                                3


Dickman v. Defenbacher, 164 Ohio St. 142 (1955), paragraph one of the syllabus. When

considering whether a statute passes constitutional muster, we are mindful that the General

Assembly is “the ultimate arbiter of public policy,” State ex rel. Cincinnati Enquirer, Div. of

Gannett Satellite Information Network v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, ¶ 21, and

that we have “‘nothing to do with the policy or wisdom of a statute[, which] is the exclusive

concern of the legislative branch[,]’” State ex rel. Ohio Academy of Trial Lawyers v. Sheward,

86 Ohio St.3d 451, 457 (1999), quoting State ex rel. Bishop v. Mt. Orab School Dist. Bd. of Edn.,

139 Ohio St. 427, 438 (1942).

       {¶6}    “A statute may be challenged as unconstitutional on the basis that it is invalid on

its face or as applied to a particular set of facts.” State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-

606, ¶ 17. Since Conley has brought an as applied challenge in this matter, he is “‘contend[ing]

that application of the statute in the particular context in which he has acted * * * [is]

unconstitutional.’” Id., quoting Ada v. Guam Soc. of Obstetricians & Gynecologists, 506 U.S.

1011, 1011 (1992) (Scalia, J., dissenting).      Such a “challenge focuses on the particular

application of the statute.” State v. Carrick, 131 Ohio St.3d 340, 2012-Ohio-608, ¶ 16.

                                    B. The Eighth Amendment

       {¶7}    Preliminarily, we must address whether Conley’s registration requirements are

subject to Eighth Amendment scrutiny. A sanction is only subject to such scrutiny if it is

punitive, as opposed to remedial. See Austin v. United States, 509 U.S. 602, 609 (1993) (“The

purpose of the Eighth Amendment * * * was to limit the government’s power to punish. The

Cruel and Unusual Punishments Clause is self-evidently concerned with punishment.”). The

State, relying on dicta in United States v. Kebodeaux, 133 S.Ct. 2496 (2013), about the civil

nature of the federal sex offender registry, argues that the Act’s registration requirements are
                                                 4


remedial and not subject to Eighth Amendment scrutiny. While many courts have adopted this

view of sex offender registration requirements, see State v. Blankenship, Slip Opinion No. 2015-

Ohio-4624, ¶ 42 (O’Donnell and Kennedy, JJ., concurring in judgment only) (noting that “every

federal circuit court to consider the issue has recognized that the federal sex offender registration

scheme which Ohio adopted does not impose additional criminal punishment on sex offenders”),

we are bound to apply the Ohio Supreme Court’s determination that the Act’s registration

requirements are punitive, see State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, ¶ 16

(“Following the enactment of [the Act], all doubt has been removed. R.C. Chapter 2950 is

punitive.”); see also State v. Dickens, 9th Dist. Lorain No. 07CA009218, 2008-Ohio-4404, ¶ 25

(“An appellate court has no authority to overrule decisions of the Ohio Supreme Court but is

bound to follow them.”). It is especially clear that we are bound to view the Act’s registration

requirements as punitive based on the Court’s recent reaffirmation of that principle in

Blankenship, where a plurality of the Court stated as follows: “We have established that the

enhanced sex-offender reporting and notification requirements enacted by S.B. 10 are punitive in

nature, and violate the Eight Amendment when applied to certain juveniles.” Blankenship at ¶

33 (plurality opinion).

       {¶8}    Having determined that Conley’s Eighth Amendment claim is cognizable, we turn

to the controlling standard for such claims.2 The Eighth Amendment to the United States

Constitution states that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor




       2
          Although the Ohio Constitution contains a prohibition of cruel and unusual punishment
in Article I, Section 9 that “provides unique protection for Ohioans,” Blankenship at ¶ 31, Conley
has not raised a claim based on the Ohio Constitution’s prohibition. Accordingly, we limit our
discussion to the protection provided by the United States Constitution.
                                                5


cruel and unusual punishments inflicted.” This prohibition applies against the States via the

Fourth Amendment. State v. Hairston, 118 Ohio St.3d 1073, 2008-Ohio-2338, ¶ 12, citing

Robinson v. California, 370 U.S. 660 (1962). “[T]he bulk of Eighth Amendment jurisprudence

concerns not whether a particular punishment constitutes torture, but whether it is

disproportionate to the crime. The central precept is that ‘punishment for crime should be

graduated and proportioned to [the] offense.’” Blankenship at ¶ 17, quoting Weems v. United

States, 217 U.S. 349, 367 (1910). The Supreme Court of Ohio has “recognized that cases

involving cruel and unusual punishments are rare, ‘limited to those involving sanctions which

under the circumstances would be considered shocking to any reasonable person.’” Id. at ¶ 32,

quoting McDougle v. Maxwell, 1 Ohio St.2d 68, 70 (1964); see also State v. Chaffin, 30 Ohio

St.2d 13 (1972), paragraph three of the syllabus (“A punishment does not violate the

constitutional prohibition against cruel and unusual punishments, if it not be so greatly

disproportionate to the offense as to shock the sense of justice of the community.”).

       {¶9}      When considering Conley’s Eighth Amendment claim, we must engage in a two-

step analysis:

       The Court first considers objective indicia of society’s standards, as expressed in
       legislative enactments and state practice to determine whether there is a national
       consensus against the sentencing practice at issue. Next, guided by the standards
       elaborated by controlling precedents and by the Court’s own understanding and
       interpretation of the Eight Amendment’s text, history, meaning, and purpose, the
       Court must determine in the exercise of its own independent judgment whether
       the punishment in question violates the Constitution.

(Internal quotations omitted.) Graham v. Florida, 560 U.S. 48, 61 (2010). Conley has not

questioned the existence of a national consensus regarding sex offender registration

requirements, which the Ohio Supreme Court has previously recognized. See State v. Cook, 83

Ohio St.3d 404, 406 (1998) (noting that all 50 states have a sex offender registration law and that
                                                 6


Ohio has had one in place since 1963). As a result, our analysis focuses on the second step of the

Graham test. “With regard to the second step, a review undertaken in our own independent

judgment, there are three considerations: (1) the culpability of the offender in light of his crime

and characteristics; (2) the severity of the punishment in question; and (3) the penological

justification.” Blankenship at ¶ 22, citing Graham at 67.

            C. Conley’s Tier I Classification Is Not Cruel and Unusual Punishment

       {¶10} To guide our consideration of these items, the State points us to Blankenship,

where the Supreme Court of Ohio addressed whether it was cruel and unusual punishment to

require that a defendant convicted of unlawful sexual contact with a minor, a fourth-degree

felony, register as a Tier II sex offender for a period of 25 years. A majority of the Court

concluded that the defendant’s Tier II sex offender classification was not cruel and unusual

punishment, but no reasoning carried the day with a plurality of the justices applying the test

outlined in Graham and two justices concluding that sex offender registration requirements are

not subject to Eighth Amendment scrutiny. In applying the Graham test, the plurality explained

that the defendant, a 21-year-old, was “more culpable and more deserving of punishment” for his

sexual relations with a 15-year-old, where he was aware of her age and continued to contact her

in violation of a court order. Blankenship, 2015-Ohio-4624, at ¶ 24. It also concluded that his

jail term of 12 days and 25-year registration period were not severe punishments. Id. at ¶ 25-27.

On this point, the plurality noted that “[o]ur research reveals no case in which similar registration

and verification requirements have been held to be cruel and unusual punishment.” Id. at ¶ 27.

And, finally, the plurality stated that “the penological grounds for imposing [sex offender

registration requirements] are still accepted in many quarters and are justified in part upon the

perceived high rate of recidivism and resistance to treatment among sex offenders.” Id. at ¶ 30.
                                                 7


       {¶11} Although Blankenship’s holding is limited to the registration requirements for

Tier II sex offenders, see id. at ¶ 38, we believe that the plurality’s reasoning is illuminative to

our resolution of Conley’s Eighth Amendment claim against the registration requirements for

Tier I sex offenders.3 And, applying Blankenship’s reasoning here, we likewise conclude that

Conley has failed to show that his Tier I sex offender registration requirements constitute cruel

and unusual punishment.

       {¶12} Conley was convicted of voyeurism after setting up an electronic device in the

bathroom at his place of work for the purpose of recording a 20-year-old co-worker while she

used the toilet. The victim, who had known Conley since she was a young child, told the trial

court that this event harmed her emotionally and that she believed Conley deserved the

maximum punishment that he could receive. From this record, we conclude, like the Court in

Blankenship, that Conley is “more culpable and more deserving of punishment.” Id. at ¶ 24.

       {¶13} As to the severity of Conley’s punishment, we note that his 15-year registration

period is much shorter than the 25-year registration period imposed in Blankenship. Id. at ¶ 4.

Nevertheless, the Court determined that the 25-year registration requirement implicated in that

matter “do[es] not meet the high burden of being so extreme as to be grossly disproportionate to

the crime or shocking to a reasonable person.” Id. at ¶ 38. Since the Court in Blankenship

determined that a registration period that is nearly twice as long as the one imposed here is


       3
          There is limited case law on the interplay between the Eighth Amendment and sex
offender registration requirements from the federal courts or other state courts because many
jurisdictions have concluded that such requirements are not subject to Eighth Amendment
scrutiny. E.g. People in Interest of J.O., __ P.3d __, 2015-COA-119, ¶ 24 (Colo.App.) (“Most
jurisdictions to have addressed this issue continue to hold that sex offender registration for a
juvenile is not punitive.”); In re Alva, 33 Cal.4th 254, 262 (2004) (“[W]e conclude that
California’s law requiring the mere registration of convicted sex offenders is not a punitive
measure subject to either state of federal proscriptions against punishment that is ‘cruel’ and/or
‘unusual.’”).
                                                 8


permissible under the Eighth Amendment, we can discern no reason to conclude that Conley’s

15-year registration period is so severe as to reach the level of unconstitutionality. See Rummel

v. Estelle, 445 U.S. 263, 272 (1980) (noting that “[o]utside the context of capital punishment,

successful challenges to the proportionality of particular sentences have been exceedingly

rare.”); McDougle v. Maxwell, 1 Ohio St.2d 68, 69 (1964) (“As a general rule, a sentence that

falls within the terms of a valid statute cannot amount to a cruel and unusual punishment.”).

       {¶14} And, finally, the Court’s discussion in Blankenship regarding the Act’s

registration requirements and their penological aim applies with equal force here. While there

may be scholarly debate regarding the propriety of sex offender registration requirements, see

Blankenship, 2015-Ohio-4624, at ¶ 29 (collecting scholarly articles criticizing sex offender

registration schemes), it is still true that those requirements are widely accepted both in Ohio and

across the country, id. at ¶ 63 (O’Donnell and Kennedy, JJ., concurring in judgment only)

(noting that the Act was adopted as part of “a national, uniform system of sex offender

registration and notification”). Consequently, a review of the record reveals that Conley was

culpable for his actions, that the trial court gave him a non-severe jail term and registration

period, and that the registration period satisfied the penological aim of reducing recidivism

among sex offenders. In light of this, we conclude that Conley has failed to carry his burden of

showing that his Tier I sex offender classification constitutes cruel and unusual punishment.

       {¶15} Accordingly, we overrule Conley’s first assignment of error.

                                     Assignment of Error II

       The Adam Walsh Act, as applied to Patrick Conley, violates the Due Process
       Clause of the United States Constitution and Section 16, Article I of the Ohio
       Constitution.
                                                 9


       {¶16} In his second assignment of error, Conley contends that the Act, as it applies to

him, violates the due process clauses contained in the United States Constitution and Ohio

Constitution. We disagree.

                                           A. Due Process

       {¶17} The Fourteenth Amendment to the United States Constitution prohibits depriving

“any person of life, liberty, or property, without due process of law[.]” Article I, Section 16 of

the Ohio Constitution similarly provides that “every person, for an injury done him in his land,

goods, person, or reputation, shall have remedy by due process of law[.]”            Despite these

provisions’ different wordings, the Ohio Supreme Court has determined that they afford

“equivalent” protections. Direct Plumbing Supply Co. v. Dayton, 138 Ohio St. 540, 544 (1941).

The Due Process Clause has both a procedural and a substantive component. See Washington v.

Glucksberg, 521 U.S. 702, 719 (“The Due Process Clause guarantees more than fair process, and

the ‘liberty’ it protects includes more than the absence of physical restraint.”). Conley has raised

due process challenges under both of these components and we consider each in turn.

                      B. The Act Does Not Violate Procedural Due Process

       {¶18} The procedural component of due process is “flexible and varies depending on the

importance attached to the interest and the particular circumstances under which the deprivation

may occur.” State v. Hochhausler, 76 Ohio St.3d 455, 459 (1996); see also Cafeteria Workers v.

McElroy, 367 U.S. 886, 895 (1961) (“[U]nlike some legal rules, * * * [due process] is not a

technical conception with a fixed content unrelated to time, place, and circumstances.”). Despite

the flexibility of the concept, it does “demand[] that the right to notice and an opportunity to be

heard must be granted at a meaningful time and in a meaningful manner where the state seeks to

infringe a protected liberty or property interest.” Hochhausler at 459. “To trigger protections
                                                 10


under these clauses, a sexual offender must show that he was deprived of a protected liberty or

property interest as a result of the registration requirement.” State v. Hayden, 96 Ohio St.3d 211,

2002-Ohio-4169, ¶ 6.

       {¶19} Conley’s procedural due process argument focuses on two items. First, he argues

that he was denied procedural due process because the trial court did not hold a hearing

regarding his classification. Second, Conley asserts that he was denied procedural due process

because the provisions for 15-year registration period for Tier I sex offenders and the possible

18-month sentence for a failure to register are inconsistent with the 60-day maximum jail term

for his voyeurism conviction. Neither of these items supports a determination that Conley was

denied procedural due process.

       {¶20} In Hayden, the Supreme Court of Ohio considered a procedural due process

challenge to the Act’s precursor, Megan’s Law. The Court rejected the challenge, stating that

“[n]either the Due Process Clause of the Fourteenth Amendment to the United States

Constitution nor the analogous clause in Ohio’s Constitution, Section 16, Article I, requires a

hearing[.]” Id. at ¶ 13. This holding has been applied with equal force to procedural due process

challenges to the Act. E.g., State v. Moore, 2d Dist. Darke No. 2014-CA-13, 2015-Ohio-551, ¶

10 (“We find the case before us to be indistinguishable from the holding in Hayden.”); State v.

Hudson, 3d Dist. Marion No. 9-12-38, 2013-Ohio-647, ¶ 52 (“[W]e note that Hudson was not

entitled to a hearing to challenge his initial duty to register as a sexually oriented offender since

that duty attached as a matter of law.”). Conley has failed to provide any authority that would

allow us to look past Hayden’s mandate. See App.R. 16(A)(7). As a result, we must apply that

precedent and reject Conley’s argument on this point. See State v. Bruce, 170 Ohio App.3d 92,
                                                11


2007-Ohio-175, ¶ 6 (1st Dist.) (stating that the Court of Appeals was “bound” to follow Supreme

Court’s precedent and could not overrule or modify that precedent).

       {¶21} We also reject Conley’s procedural due process argument regarding the

inconsistency among the maximum jail term for his voyeurism conviction and his 15-year

registration period and 18-month maximum prison term for a failure to register violation. We are

unable to see how this inconsistency implicates a violation of procedural due process. Conley’s

15-year registration period was produced as a matter of law by virtue of his voyeurism

conviction. See R.C. 2950.01(E)(1)(a) (stating that a person convicted under R.C. 2907.08 is a

Tier I sex offender); R.C. 2950.07(B)(3) (providing for 15-year registration period for Tier I sex

offenders); Hudson at ¶ 52 (stating that classification and registration requirements “attached as a

matter of law”). The 18-month maximum prison term for a potential failure to register was also

created solely by virtue of his third-degree-misdemeanor voyeurism conviction and subsequent

Tier I classification. See R.C. 2950.99(A)(1)(a)(iii) (stating that a failure to register conviction

where the underlying conviction was a fifth-degree felony or misdemeanor constitutes a fourth-

degree felony). Since there was no procedural due process violation in Conley’s classification as

a Tier I sex offender without a hearing, there can be no such violation that results from any

purported inconsistency coming from that classification. Consequently, we reject Conley’s

procedural due process arguments.

            C. Conley Lacks Standing to Bring a Substantive Due Process Challenge

       {¶22} We now turn to Conley’s substantive due process arguments. The concept of

substantive due process refers to the special protection granted to “those fundamental rights and

liberties which are, objectively, deeply rooted in this Nation’s history and tradition, and implicit

in the concept of ordered liberty, such that neither liberty nor justice would exist if they were
                                                  12


sacrificed.” (Internal quotations omitted.) Glucksberg, 521 U.S. at 720-721. Conley argues that

his Tier I classification and its resultant restriction that he not live within 1,000 feet of a school,

preschool, or day-care facility, see R.C. 2950.034(A), infringes upon his substantive due process

rights because they preclude him from establishing a residence of his choosing. We are unable

to reach the merits of Conley’s argument because he lacks standing to assert it.

       {¶23} Article IV, Section 4(B) of the Ohio Constitution only vests courts with

jurisdiction “over all justiciable matters.” (Emphasis added.) “A matter is justiciable only if the

complaining party has standing to sue.” ProgressOhio.org, Inc. v. JobsOhio, 139 Ohio St.3d

520, 2014-Ohio-2382, ¶ 11, citing Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio

St.3d 13, 2012-Ohio-5017, ¶ 41; see also State ex rel. Suster, 84 Ohio St.3d 70, 77 (1998)

(“Standing is a threshold question for the court to decide in order for it to adjudicate the

action.”). The Supreme Court of Ohio has previously determined that “[t]he constitutionality of

a state statute may not be brought into question by one who is not within the class against whom

the operation of the statute is alleged to have been unconstitutionally applied and who has not

been injured by its alleged unconstitutional provision.” Palazzi v. Estate of Gardner, 32 Ohio

St.3d 169 (1987), syllabus. Further, “a hypothetical or potential injury will not give a person

standing to challenge the constitutionality of a statute.” (Internal quotation omitted.) Brooks v.

State, 9th Dist. Lorain No. 08CA9452, 2009-Ohio-1825, ¶ 11. Based on these rules, Ohio courts

have consistently determined that unless a classified sex offender presents evidence that he has

been deprived of property rights due to the Act’s residency requirements, he lacks standing to

assert a substantive due process challenge to those requirements. E.g., State v. Hall, 2d Dist.

Montgomery No. 22969, 2009-Ohio-3020, ¶ 17; State v. Pierce, 8th Dist. Cuyahoga No. 88470,

2007-Ohio-3665, ¶ 33.
                                                13


       {¶24} Here, Conley has not offered any evidence showing that he has been deprived of

his right to live where he chooses. There is no indication that he lives in a residence that is

within 1,000 feet of a school, preschool, or daycare. There is also no indication that Conley

intends to move to a residence within such an area. Consequently, the record does not reflect

that he has suffered an injury that would give him standing to bring a substantive due process

challenge to the Act’s residency requirements. In light of the foregoing, we reject Conley’s

substantive due process challenge.

       {¶25} Conley has failed to establish that the Act, as it applies to him, violates procedural

due process. He has also failed to establish standing for his substantive due process claim.

Accordingly, we overrule Conley’s second assignment of error.

                                     Assignment of Error III

       The Adam Walsh Act, as applied to Patrick Conley, violates the Equal
       Protection Clauses of the United States and Ohio Constitutions.

       {¶26} In his third assignment of error, Conley asserts that the Act, as it applies to him,

violates his right to the equal protection of the laws. We disagree.

                                        A. Equal Protection

       {¶27} The Fourteenth Amendment to the United States Constitution relevantly provides

that “[n]o State shall * * * deny to any person within its jurisdiction the equal protection of the

laws.” The Ohio Constitution provides a similar protection in Article I, Section 2: “All political

power is inherent in the people. Government is instituted for their equal protection and benefit.”

The federal and Ohio equal protection clauses are “functionally equivalent,” State v. Williams,

126 Ohio St.3d 65, 2010-Ohio-2453, ¶ 38, and “are to be construed and analyzed identically,”

Am. Assn. of Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ., 87 Ohio St.3d 55,

60 (1999). The import of these provisions is not that they categorically forbid classifications.
                                                14


Burnett v. Motorists Mut. Ins. Co., 118 Ohio St.3d 493, 2008-Ohio-2751, ¶ 30. Rather, they

“‘simply keep[] governmental decisionmakers from treating differently persons who are in all

relevant respects alike.’” Id., quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).

          {¶28} When assessing an equal protection challenge, a court must “apply varying levels

of scrutiny * * * depending on the rights at issue and the purportedly discriminatory

classifications created by law.” Pickaway Cty. Skilled Gaming, L.L.C. v. Cordray, 127 Ohio

St.3d 104, 2010-Ohio-4908, ¶ 18.        If the challenged statute does not implicate a suspect

classification, then the court applies rational basis review. State v. Klembus, 146 Ohio St.3d 84,

2016-Ohio-1092, ¶ 9. The parties in this matter both agree that rational basis review applies

here. Under this test, the challenged statute “does not violate equal-protection principles if it is

rationally related to a legitimate government interest.” Williams at ¶ 39, citing Eppley v. Tri-

Valley Local School Dist. Bd. of Edn., 122 Ohio St.3d 56, 2009-Ohio-1970, ¶ 15. To properly

resolve this question, we must engage in a two-step analysis. “We must first identify a valid

state interest. Second, we must determine whether the method or means by which the state has

chosen to advance that interest is rational.” McCrone v. Bank One Corp., 107 Ohio St.3d 272,

2005-Ohio-6505, ¶ 9, citing Buchman v. Wayne Trace Local School Dist. Bd. of Edn., 73 Ohio

St.3d 260, 267 (1995).      In addition to the deference that comes from the presumption of

constitutionality, “we are to grant substantial deference to the predictive judgment of the General

Assembly” when applying rational basis review. State v. Williams, 88 Ohio St.3d 513, 531

(2000). And, we must be mindful that “[o]ur equal protection review does not require us to

conclude that the state has chosen the best means of serving a legitimate interest, only that is has

chosen a rational one.” Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 354

(1994).
                                                 15


                              B. The Act Serves a Valid State Interest

       {¶29} As the challenger of the Act, Conley “must negative every conceivable basis

before an equal protection challenge will be upheld.” Williams at 531. Conley has failed to

carry this burden as it relates to the first step of our analysis. The Act includes several of the

General Assembly’s findings before enacting it, including that “protection of members of the

public from sex offenders and child-victim offenders is a paramount governmental interest.”

R.C. 2950.02(A)(2). Conley has not argued that this is an invalid state interest, nor has any court

concluded that it is invalid. See, e.g., State v. Moore, 2d Dist. Darke No. 2014-CA-13, 2015-

Ohio-551, ¶ 18 (“We have held that: ‘the legislature’s stated purpose in imposing the registration

and notification requirements was to protect the safety and general welfare of the people. * * *

[T]his is a legitimate governmental objective.’”), quoting State v. Lewis, 2d Dist. Greene No. 97

CA 134, 1998 WL 771399, *3 (Oct. 2, 1998). Having determined that the Act advances a valid

state interest, we move to the Act’s relationship to that end.

                     C. The Act is Rationally Related to a Valid State Interest

       {¶30} Conley also fails to carry his burden to show that the Act is not rationally related

to the valid state interest of protecting the public. In attempting to carry his burden, Conley

points out two aspects of the Act’s interplay with other provisions of the Revised Code as

purportedly reflecting its irrationality: (1) he is able to expunge his voyeurism conviction after

one year under R.C. 2953.32(A)(1), 2953.36(E); and (2) he is subject to a maximum 18-month

prison term if he fails to register, which is far greater than the 60-day maximum jail term he

could receive for his conviction in this matter. Neither of these factors indicates irrationality.

       {¶31} The availability of an expungement to Conley after one year does not render the

Act irrationally related to the aim of protecting the public from sex offenders.            Conley’s
                                                   16


argument on this point does not vary the General Assembly’s findings regarding the recidivism

of sex offenders and the public’s need to receive adequate notice and information about them.

See R.C. 2950.02(A)(1), (2). And, we note that while Conley may request an expungement for

his voyeurism conviction, such an expungement is not mandated and is left to the trial court’s

discretion based upon its consideration of several factors. See R.C. 2953.32(C). Consequently,

we decline to seize upon the possibility of an expungement to conclude that the Act is

irrationally related to the state interest of protecting the public.

        {¶32} We likewise reject Conley’s argument about the relationship of the potential

penalty for a failure to register and the possible sentence he could receive for his voyeurism

conviction. If a defendant convicted of a misdemeanor fails to register as required, he commits a

new criminal offense that is a felony of the fourth degree. See R.C. 2950.99(A)(1)(a)(iii). Thus,

when a defendant is found guilty of failing to register, a court does not sentence him again for his

underlying conviction but rather for the new misconduct of failing to register. See State v. Lloyd,

132 Ohio St.3d 135, 2012-Ohio-2015, ¶ 42 (“[T]he penalty provision [of R.C. 2950.99] builds

upon the registration provisions.”). Compare State v. Beverly, 4th Dist. Ross No. 01CA2603,

2002 WL 59643, *3 (Jan. 11, 2002) (“Thus, when the defendant violates community control, the

court imposes an appropriate sanction for that misconduct, but not for the original or underlying

crime.”). Additionally, “[w]hen a person commits a failure to register offense, he exhibits

recidivist behavior given that (1) he already has a prior offense that triggered the registration

requirements, and (2) the failure to register offense stems from a person’s inability to follow the

law and adhere to the registration requirements imposed upon him.” State v. Richey, 10th Dist.

Franklin No. 09AP-36, 2009-Ohio-4487, ¶ 20. In light of the inherently recidivist nature of a

failure to register violation, we cannot conclude that the General Assembly was irrational in
                                                17


making such a violation a fourth-degree felony as opposed to requiring that the violation match

the degree of the underlying conviction, as suggested by Conley. See R.C. 2950.02(A)(2)

(stating that “[s]ex offenders and child-victim offenders pose a risk of engaging in further

sexually abusive behavior even after being released from imprisonment, a prison term, or other

confinement or detention”). Compare R.C. 2919.25(D)(3)-(4) (providing that defendant with

previous domestic violence convictions faces a higher-degree offense for later domestic violence

convictions).

       {¶33} In sum, the Act is rationally related to the valid state interest of protecting the

public from sex offenders. Accordingly, we overrule Conley’s third assignment of error.

                                                III.

       {¶34} Having overruled Conley’s three assignments of error, we affirm the judgment of

the Stow Municipal Court.

                                                                             Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Stow Municipal

Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                18


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JULIE A. SCHAFER
                                                     FOR THE COURT




HENSAL, J.
CONCURS.

CARR, P. J.
CONCURRING IN JUDGMENT ONLY.

       {¶35} I concur in judgment only in regard to the second assignment of error. With

respect to the first and third assignments of error, Conley acknowledged in his brief that these

two issues were before the Supreme Court of Ohio in State v. Blankenship, 145 Ohio St.3d 221,

2015-Ohio-4624. I concur based on Conley’s acknowledgement that Blankenship is controlling.


APPEARANCES:

SARAH. M. SCHREGARDUS, Attorney at Law, for Appellant.

NICOLE WELSH, Attorney at Law, for Appellee.
