IN THE SUPREME COURT OF OHIO

IN THE SUPREME COURT OF OHIO STATE OF OHIO, Plaintiff-Appellee, vs. JOSHUA COUNTRYMAN, Defendant-Appellant. Case No. On Appeal from the Washington County Court of Appeals Fourth Appellate District Case No. 08CA12 MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT JOSHUA COUNTRYMAN OFFICE OF THE OHIO PUBLIC DEFENDER ALISON L. CAUTHORN #0042343 Assistant Prosecuting Attorney Washington County Prosecutor's Office 205 Putnam Street Marietta, Ohio 45750 740-373-6623 740-373-8748 (Fax) COUNSEL FOR PLAINTIFF-APPELLEE STATE OF OHIO SARAH M. SCHREGARDUS #0080932 Assistant State Public Defender (Counsel of Record) 8 East Long Street, 11th floor Columbus, Ohio 43215 (614) 466-5394 (614) 752-5167 (Fax) sarah.schregardus@opd.ohio.gov COUNSEL FOR DEFENDANT-APPELLANT JOSHUA COUNTRYMAN

TABLE OF CONTENTS Page No. EXPLANATION OF WHY THIS CASE IS ONE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION...1 STATEMENT OF THE CASE AND FACTS...2 ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW...3 PROPOSITION OF LAW I: The retroactive application of Senate Bill 10 violates the Ex Post Facto and Due Process Clauses of the United States Constitution and the Retroactivity Clause of Section 28, Article II of the Ohio Constitution. Fourteenth Amendment to the United States Constitution; Section 10, Article I of the United States Constitution; and Sections 10 and 28, Articles I and II, respectively, of the Ohio Constitution...3 PROPOSITION OF LAW II: A defendant is deprived of the effective assistance of counsel when his trial counsel fails to raise an objection to the imposition of Senate Bill 10. Sixth Amendment to the United States Constitution; Section 10, Article I of the Ohio Constitution...14 CONCLUSION...15 CERTIFICATE OF SERVICE...16 APPENDIX State v. Joshua Countryman, Decision and Judgment Entry, Washington County Court of Appeals Case No. 08CA12, (December 8, 2008)... A-1

EXPLANATION OF WHY THIS CASE IS ONE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION This Court has not yet addressed the constitutionality of Ohio's newly enacted version of the federal Adam Walsh Act, Senate Bill 10 ("SB 10"). Specifically, this case presents this Court with the opportunity to address the retroactive application of SB 10 to defendants whose criminal conduct pre-dates the enactment of SB 10, but who were sentenced after SB 10 was enacted. Mr. Countryman's issues similarly effect hundreds of other defendarits. This case does not involve a reclassification hearing, but rather arises out of the original sentence. Cf. State v. Bodyke, Case No. 2008-2502, Mem. in Support of Jurisdiction filed 12/31/08 (challenging a SB 10 classification resulting from a reclassification hearing). Ohio's courts have come to conflicting conclusions regarding the retroactive application of SB 10. See William Sigler v. State of Ohio (Aug. 11, 2008), Richland C.P. No. 07CV1863, unreported (SB 10 is unconstitutional as applied to defendants whose crimes predated its enactment), State's appeal pending, 5th Dist. Case No. 2008-CA-79; State of Ohio v. Evans (May 9, 2008), Cuyahoga C.P. No. CV-08 646797, unreported (SB 10 violates the Ex Post Facto Clause of the United States Constitution and the Retroactivity Clause of the Ohio Constitution); State v. Byers, 7th Dist. No. 07 CO 39, 2008-Ohio-5051 (because SB 10 is civil in nature, it may be applied retroactively); State v. King, 2nd Dist. No. 08-CA-02, 2008-Ohio-2594 (same). The Fourth District Court of Appeals, like the Seventh and Second Districts, found SB 10 to be civil in nature, and thus may be retroactively applied. State v. Countryman, 4th Dist. No. 08CA12, 2008-Ohio-6700. This Court should accept jurisdiction in Mr. Countryman's case in order to resolve this conflict and to instruct the courts how to apply SB 10. In the altemative, because State v. Bodyke, Case No. 2008-2502, raises some of the same constitutional issues as Mr. Countryman's 1

case presents, and Mr. Bodyke filed an appeal in this Court on December 31, 2008, Mr. Countryman requests the Court to accept jurisdiction in Mr. Countryman's case, if it accepts jurisdiction in Bodyke, and to hold his case in abeyance until the Court decides Bodyke. The Court may then dispose of Mr. Countryman's case based on its judgment in Bodyke. STATEMENT OF THE CASE AND FACTS This direct appeal concerns the unconstitutional retroactive application of Senate Bill 10. On January 30, 2008, Joshua Countryman entered a guilty plea to rape, a violation of R.C. 2907.02(A)(1)(b), for an offense that took place on December 23, 2006. Mr. Countryman, DOB. 12/25/87, admitted he engaged in consensual sexual activity with a female acquaintance, DOB 5/7/94, which resulted in her becoming pregnant. At the time of the offense, Mr. Countryman was in the 11`h grade at Marietta High School. On March 6, 2008, the trial court sentenced Mr. Countryman to six years in prison and classified him as a Tier III offender under the newly enacted Senate Bill 10. Mr. Countryman filed a timely appeal and argued that the retroactive application of SB 10 violated the Ex Post Facto, Due Process, and Double Jeopardy Clauses of the United States Constitution, and the Retroactivity Clause of Section 28, Article II of the Ohio Constitution. The court of appeals affirmed Mr. Countryman's classification. 2

PROPOSITION OF LAW I The retroactive application of Senate Bill 10 violates the Ex Post Facto and Due Process Clauses of the United States Constitution and the Retroactivity Clause of Section 28, Article II of the Ohio Constitution. Fourteenth Amendment to the United States Constitution; Section 10, Article I of the United States Constitution; and Sections 10 and 28, Articles I and II, respectively, of the Ohio Constitution. On June 30, 2007, the Governor fundamentally changed Ohio's sex-offender classification and notification provisions' by signing Senate Bill 10 ("SB 10"). But SB 10 may not constitutionally be applied to crimes that occurred before the date of its enactment. Senate Bill 10, 127`h General Assembly, Sections 2, 3, and 4 (2007). Before SB 10, a person who committed a sexually oriented offense was entitled to a hearing at which the trial court determined whether the defendant was a sexual predator, a habitual sex offender or a habitual child-victim offender, or a sexually oriented offender. Former R.C. Chapter 2950. Before adjudicating a defendant as a sexual predator, a trial court was required to take ten factors into account to weigh the dangerousness of the defendant and the risk of re-offending. Id. at 2950.09(B)(3) (repealed January 1, 2008). If a defendant was determined to be a sexual predator, the defendant's registration duties "continued until the offender's death." Id. at R.C. 2950.07(B)(1) (amended January l, 2008). However, if a trial court determined that the offender was not a sexual predator but that "the offender previously ha[d] been convicted of or pleaded guilty to a sexually oriented offense other than the offense in relation to which the hearing [was] being conducted or previously ha[d] been convicted of or pleaded guilty to a child-victim oriented offense," the defendant was to be adjudicated a child-victim predator or a habitual sex offender. Former R.C. Chapter 2950 at 'Mr. Countryman refers to Ohio's former sex-offender registration and notification law, House Bill 180 effective January 1, 1997, as "former R.C. Chapter 2950." 3

2950.01(B)(1) (amended January 1, 2008). A defendant who was adjudicated a child-victim predator or a habitual sex offender was required to comply with the registration mandates for twenty years. Former R.C. Chapter 2950 at 2950.07(B)(2) (repealed January 1, 2008). A defendant who was not adjudicated to be either a sexual predator or a habitual sex offender was classified as a sexually oriented offender and required to register for ten years. Former R.C. Chapter 2950 at R.C. 2950.07(B)(3) (repealed January 1, 2008). Senate Bill 10 eradicated former R.C. Chapter 2950's sex-offender cl.assification system. Instead of focusing on an offender's risk to the public, a trial court must place an offender into a "tier" based solely on the offense that was committed. On December 23, 2006-the date which the offense occurred in this case-mr. Countryman may have been classified as a sexually oriented offender and ordered to comply.with various registration requirements for ten years under former R.C. Chapter 2950. But, as mandated by SB 10's classification system, the trial court had to automatically place Mr. Countryman into "Tier III," which requires Mr. Countryman to comply with registration requirements for the rest of his life. R.C. 2950.07(B)(2). A. The retroactive application of Senate Bill 10 violates the Ex Post Facto Clause of the United States Constitution and the Retroactivity Clause of the Ohio Constitution. The retroactive application of SB 10 to crimes that occurred before July 1, 2007 violates the Ex Post Facto Clause of the United States Constitu6on and the Retroactivity Clause of the Ohio Constitution. Section 28, Article II of the Ohio Constitution provides that "the general assembly shall have no power to pass retroactive laws." Additionally, Section 10, Article I of the United States Constitution prohibits any legislation that "changes the punishment, and inflicts greater punishment, than the law annexed to the crime, when committed." Miller v. Florida 4

(1987), 482 U.S. 423, 429. Ex post facto laws are prohibited in order to ensure that legislative acts "give fair warning to their effect and permit individuals to rely on their meaning until explicitly changed." Weaver v. Graham (1981), 450 U.S. 24, 28-29. 1. Senate Bill 10 violates Section 10, Article I of the United States Constitution. The Ex Post Facto Clause of the United States Constitution prevents the legislature from abusing its authority by enacting arbitrary or vindictive legislation aimed at disfavored groups. See Miller v. Florida, 482 U.S. at 429. However, the Ex Post Facto Clause applies only to criminal statutes. California Dept. of Corrections v. Morales (1995), 514 U.S. 499, 504. The United States Supreme Court has declined to set out a specific test for determining whether a statute is criminal or civil for purposes of applying the Ex Post Facto Clause. See Morales, 514 U.S. at 508-509. But the Court has recognized that determining whether a statute is civil or criminal is a matter of statutory interpretation. Helvering v. Mitchell (1938), 303 U.S. 391, 399. Ohio courts use the "intent-effects test" to delineate between civil and criminal statutes for the purposes of an ex post facto analysis of sex-offender registration and notification statutes. State v. Cook (1998), 83 Ohio St.3d 404, 415-417 (the intent of the General Assembly in enacting former Revised Code Chapter 2950 was remedial, not punitive). See, also, Kansas v. Hendricks (1997), 521 U.S. 346 (applying the intent-effects test in the ex post facto analysis of a Kansas statute permitting the state to institutionalize sexual predators with mental abnormalities or personality disorders that made it likely the defendant would reoffend). When applying the intent-effects test, a reviewing court must first determine whether the General Assembly, "in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other." United States v. Ward (1980), 448 U.S. 242, 248-249. But even if the General Assembly indicated an intention to establish a civil penalty, a

statute will be determined to be criminal if "the statutory scheme [is] punitive either in purpose or effect as to negate that intention." Id. The Intent of Senate Bill 10 In the intent-prong of the analysis, a reviewing court must determine whether the General Assembly's objective in promulgating SB 10 was penal or remedial. A court must look to the language and purpose of the statute in order to determine legislative intent. State v. S.R. (1992), 63 Ohio St.3d 590, 594-595. In State v. Cook, this Court concluded that former R.C. Chapter 2950 was not intended to be punitive. Cook, 83 Ohio St.3d at 417. The Court explained that because "the General Assembly specifically stated that `the exchange or release of [information required by this law] is not punitive,"' the Ohio legislature intended the law to be remedial. Id., quoting R.C. 2950.02(A). Although SB 10's changes to former R.C. Chapter 2950 do not delete the language stating that "the exchange or release of [information required by the law] is not punitive," the purpose of the new statute has changed. Under former R.C. Chapter 2950, an individual's classification and registration requirements were tied directly to his or her ongoing threat to the community. Under the new scheme, an individual's registration and classification obligations depend only upon his or her offense of conviction. Contrary to former R.C. Chapter 2950- which permitted a trial court to classify a defendant as a sexual predator, a habitual sexual offender, or a sexually oriented offender only after conducting a hearing and considering numerous factors-sb 10 assigns sex offenders to one of three tiers based solely on the offense that the defendant allegedly committed. Thus, the statutory scheme has been transformed from a "narrowly tailored" solution, Cook, 83 Ohio St.3d at 417, to a scheme that does not consider the offender's risk to the community or likelihood of reoffending. 6

Additionally, the formal attributes of a legislative enactment, such as the manner of its codification and the enforcement procedures that it establishes, are probative of the legislative punitive intent. Smith v. Doe (2003), 538 U.S. 84, 94. The legislature's election to place SB 10 squarely within Title 29, Ohio's Criminal Code, demonstrates that it intended the enforcement mechanisms established by SB 10 to be criminal in nature, i.e., punitive. Moreover, the failure of an individual to comply with the registration, verification, or notification requirements of SB 10 subjects the offender to criminal prosecution and criminal penalties. R.C. 2950.99. The legislature's intent to punish defendants like Mr. Countryman is revealed by its placement of SB 10 in the Criminal Code and broad offense-based classifications. The Effect of Senate Bill 10 Even if this Court were to determine that the General Assembly intended SB 10 to operate as a remedial statute, the statute has a "punitive effect so as to negate a declared remedial intention." Allen v. Illinois (1985), 478 U.S. 364, 369. When assessing the punitive effects of a particular statute, the United States Supreme Court has suggested that a reviewing court consider the following factors: (1) whether the restriction is an affinnative disability or restraint; (2) whether it is analogous to a historical form of punishment; (3) whether it promotes the traditional aims of punishment; (4) whether it is rationally related to a non-punitive purpose; and (5) whether it is excessive in relation to its allegedly non-punitive purpose. Smith v. Doe, 538 U.S. at 97. Senate Bill 10 imposes burdens on defendants that have historically been regarded as punishment and operate as affirmative disabilities and restraints. While registering as a sex offender may have adverse consequences to a defendant, "running from mild personal embarrassment to social ostracism," the further limitation regarding where an offender may live 7

causes SB 10 to resemble colonial punishments of "public shaming, humiliation, and banishment." Id. at 98. According to SB 10's residency restrictions, Mr. Countryman is categorically barred from residing within 1000 feet of a school, preschool, or child day-care center. R.C. 2950.034. Additionally, the wide dissemination of all offenders' personal information, including their photographs; addresses, e-mail addresses; travel documents; fingerprints; and DNA samples also resemble shaming punishments intended to inflict public disgrace. R.C. 2950.04(B); R.C. 2950.04(C). See Stephen P. Garvey, Can Shaming Punishments Educate?, 65 U. Chi. L. Rev. 733, 739 (1998) ("Punishments widely described as `shaming' penalties thus come in two basic but very different forms: those that rely on public exposure and aim at shaming; and those that do not rely on public exposure and aim at educating."). Along with being analogous to historical forms of punishment and placing additional restraints upon convicted sex offenders, SB 10 also furthers the traditional aims of punishment: retribution and deterrence. Smith v. Doe, 538 U.S. at 102. By placing a defendant into a tier that is based on the offense that he or she committed, and without determining whether the defendant is likely to commit another sexual offense in the future, the General Assembly is attempting to prospectively deter the commission of sexually oriented offenses. See Roper v. Simmons (2005), 543 U.S. 551, 571-72. The automatic placement of an offender into a tier without determining whether he or she is likely to reoffend is also a form of retribution. See Tison v. Arizona (1987), 481 U.S. 137, 180-81. Accordingly, because SB 10 is criminal in nature and has a punitive effect, this Court may determine whether SB 10's retroactive application is constitutional under federal law. Section 10, Article I of the United States Constitution. A law falls within the ex post facto 8

prohibition if it meets two elements: first, the law must be retrospective, applying to events occurring before its enactment; and second, the law must disadvantage the offender affected by it. Miller, 482 U.S. at 430. A law is retrospective if it "changes the legal consequences of acts completed before its effective date." Id. at 431, citing Weaver v. Graham (1981), 450 U.S. 24, 31. As to the second element, the United States Supreme Court explained that it is "axiomatic that for a law to be ex post facto it must be more onerous than the prior law." Id. (internal citation omitted). This Court described the requirements and consequences of former R.C. Chapter 2950 as "onerous" in State v. Brewer (1999), 86 Ohio St.3d 160, 164. And SB 10 imposes even more demanding registration obligations than former R.C. Chapter 2950. Senate Bill 10 is Retrospective. The General Assembly mandated that SB 10 be applied retroactively. See R.C. 2950.031(A)(1); R.C. 2950.07(C)(2). As described above, SB 10 changes the legal consequences of Mr. Countryman's conduct on December 23, 2006. Therefore, SB 10 is retrospective. Senate Bill 10 Disadvantages Mr. Countryman. According to former R.C. Chapter 2950, a strong probability exists that Mr. Countryman would have been classified as a sexually oriented offender and ordered to comply with various registration requirements for ten years. Mr. Countryman was 19 years old at the time of the offense and in the 11`b grade. Former R.C. 2950.09(B)(3)(a). Nothing in the record indicated that Mr. Countryman had previously committed a sexually oriented offense. Former R.C. 2950.09(B)(3)(b). Furthermore, the record did not evidence that Mr. Countryman used any alcohol or drugs before allegedly conmiitting the offense. Former R.C. 2950.09(B)(3)(e). And the record did not indicate that the alleged victim was mentally disabled. Former R.C. 9

2950.09(B)(3)(g). However, under SB 10's classification system, Mr. Countryman was automatically placed into "Tier III" and must comply with registration requirements for the rest of his life. R.C. 2950.07(B)(1). Therefore, Mr. Countryman was disadvantaged by the trial court's application of SB 10 to his pre-sb 10 conduct. 2. Senate Bill 10 violates Section 28, Article II of the Ohio Constitution. Section 28, Article II of the Ohio Constitution forbids the enactment of retroactive laws. Van Fossen v. Babcock & Wilcox Co. ( 1988), 36 Ohio St.3d 100, 106, 522 N.E.2d 489. Ohio's Constitution affords its citizens greater protection against retroactive laws than does the Ex Post Facto Clause of the United States Constitution. Van Fossen, 36 Ohio St.3d at 105, footnote 5 ("[Ohio's Constitution of 1851 provides a] much stronger prohibition than the more narrowly constructed provision in Ohio's Constitution of 1802. Section 16, Article VIII of th[e 1802] Coiistitution stated: `No ex post facto law, nor any law impairing the validity of contracts, shall ever be made,' merely reflecting the terms used in Section 10, Article I of the United States Constitution."). In considering whether a particular law may be applied retrospectively, a reviewing court must first determine whether it should apply the rule of statutory construction or immediately engage in the constitutional review of the statute. Van Fossen, 36 Ohio St.3d at 105. The issue of whether a statute may constitutionally be applied retrospectively does not arise unless there has been a prior determination that the General Assembly has specified that the statute so apply. Id. When "there is no clear indication of retroactive application, then the statute may only apply to cases which arise subsequent to its enactment." Kiser v. Coleman (1986), 28 Ohio St.3d 259, 262. Because the General Assembly has mandated that SB 10 be applied retroactively, further review.is necessary. 10

When the General Assembly has ordered that a new law be applied retroactively, a reviewing court must determine whether the new law affects a person's substantive rights. Kunkler v. Goodyear Tire & Rubber Co. (1988), 36 Ohio St.3d 135, 137. A statute is substantive-and therefore unconstitutional if applied retroactively-if the statute "impairs or takes away vested rights, affects an accrued substantive right, or iinposes new or additional burdens, duties, obligation or liabilities as to a past transaction, or creates a new right." Cook, 83 Ohio St.3d at 411. Senate Bill 10 eliminates Mr. Countryman's preexisting right to reside where he wishes. R.C. 2950.034; Nasal v. Dover, 169 Ohio App.3d 262; 2006-Ohio-5584, at 23. Moreover, due to the fact that under SB 10 Mr. Countryman must register as a sex offender for the rest of his life, as opposed to ten years under former R.C. Chapter 2950's registration and classification requirements, the law imposes new obligations and burdens which did not exist at the time that Mr. Countryman committed the alleged offense. Consequently, SB 10 not only violates the Ex Post Facto Clause of the United States Constitution, but it also violates the Retroactivity Clause of Section 28, Article II of the Ohio Constitution. B. Senate Bill 10's Residency Restrictions violate the Due Process Clause of the United States Constitution and Section 16, Article I of the Ohio Constitution. In addition to procedural protections, the Due Process Clause contains a substantive component "which forbids the goverrnnent to infringe certain `fundamental' liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling State interest." Reno v. Flores (1993), 507 U.S. 292, 301-302. Emphasis original. Even when a fundamental liberty is not implicated, the Due Process Clause requires State legislation to "rationally advance some legitimate purpose." Reno v. Flores, 507 U.S. at 306. 11

According to SB 10's residency restrictions, Mr. Countryman is categorically barred from residing within 1000 feet of a school, preschool, or child day-care center. R.C. 2950.034. Moreover, "the possibility of being repeatedly uprooted and forced to abandon his home" exists if a school, preschool, or day-care center opens near a residence that Mr. Countryman may choose in the future. See Mann v. Georgia Dept. of Corr. (2007), 282 Ga. 754, 653 S.E:2d 740. As such, SB 10's restrictions not only operate as a direct restraint on Mr. Countryman's liberty, but they infringe upon Mr. Countryman's fundamental right to live where he wishes, as well as his right to privacy. Senate Bill 10 restrains Mr. Countryman's liberty. Freedom from physical restraint has always been recognized "as the core of the liberty protected by the Due Process Clause." Hendricks, 521 U.S. at 356, citing Foucha v. Louisiana (1992), 504 U.S. 71, 80. And the residency restrictions may not constitute a civil commitment, as the limitations are not "restraints... shared by the public generally." See Jones v. Cunningham (1963), 371 U.S. 236, 240 (explaining that parole constitutes a restraint); Hensley v. Municipal Court, San Jose Milpitas Judicial Dist. (1973), 411 U.S. 345, 351. Like a parolee or a convicted offender released on his or her own recognizance, a sex offender who is subject to Ohio's residency restrictions labors under a significant and tangible restraint on his or her liberty. Senate Bill 10 infringes upon Mr. Countryman's fundamental right to live where he chooses. Moreover, should Mr. Countryman be released from prison in the future, SB 10's residency restrictions unconstitutionally limit his right to "live and work where he [chooses]." Meyer v. Nebraska (1923), 262 U.S. 390, 399; Kramer v. United States (6th Cir. 1945), 147 F.2d 756, 759; Valentyne v. Ceccacci, 8th Dist. No. 83725, 2004-Ohio-4240, at 47. By restricting sexually oriented offenders to residences that are not located within 1000 feet of any school, 12

preschool, or day-care facility, R.C. 2950.034 infringes upon an individual's constitutional right to establish a residence of his or her own choosing. Washington v. Glucksberg (1997), 521 U.S. 702, 720-21. Senate Bill 10 does not rationally advance a legitimate State ^urpose. Assuming that SB 10's residency restrictions for sex offenders were designed to promote the safety of children, and that purpose constitutes a compelling State interest, the State cannot meet the burden of demonstrating that SB 10 is narrowly tailored or rationally related to protecting school children from sex offenders. By imposing the restrictions on all sex offenders-even those whose crime involved an adult-the statute fails to discriminate between offenders who present an ongoing risk to children and those who do not. Additionally, empirical research not only indicates that the residency restrictions are ineffective as a mechanism for protecting children, but that such restrictions may actually be counterproductive because they destabilize the lives of alleged offenders and undernune the public-safety aims of statutes. See Minn. Dept. of Corrections, Level Three Sex Offenders Residential Placement Issues, 2003 Report to the Legislature, 9 (2003) ("Enhanced safety due to proximity restrictions may be a comfort factor for the general public, but it does not have any basis in fact."; "[B]lanket proximity restrictions on residential locations of [sex offenders] do not enhance community safety."). As such, R.C. 2950.034 must be struck down as unconstitutional. PROPOSITION OF LAW 11 A defendant is deprived of the effective assistance of counsel when his trial counsel fails to raise an objection to the imposition of Senate Bill 10. Sixth Amendment to the United States Constitution; Section 10, Article I of the Ohio Constitution. Mr. Countryman's trial counsel was ineffective when he failed to object to the trial court's retroactive application of Senate Bill 10. That failure prejudiced Mr. Countryman. Had 13

trial counsel objected to the imposition of Senate Bill 10, the result of Mr. Countryman's sentencing hearing would have been different. To establish a claim of ineffective assistance of counsel, a defendant must sliow that counsel's performance was deficient and that the deficient performance caused prejudice. Strickland v. Washington (1984), 466 U.S. 668. Strickland established a two-prong test for determining whether a defendant has been deprived of the right to the effective assistance of counsel. First, a defendant must show that counsel's performance was deficient. Id. at 687. Second, the defendant must show that the deficient performance prejudiced the outcome. Id. The test for determining prejudice is whether there is a reasonable probability that but for counsel's unprofessional error, the result of the proceedings would have been different. Id. at 694. Ohio recognizes the right to effective assistance of counsel and has adopted essentially the same test as Strickland. See State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. Mr. Countryman's trial counsel was ineffective for not objecting when the court retroactively applied Senate Bill 10 and classified Mr. Countryman as a Tier III offender. (See Proposition of Law I). Since the crime for which Mr. Countryman was convicted occurred prior to Senate Bill 10, trial counsel should have objected, as application of Senate Bill 10 to Mr. Countryman violated the principles of ex post facto and due process. Had trial counsel objected, the outcome of Mr. Countryman's sentencing hearing would have been different. The trial court either would not have classified Mr. Countryman as a Tier III Offender, or, in the alternative, it would have preserved the issue for further review. Senate Bill 10 is a new creature to Ohio's courts. To be sure, this Court has yet to rule on its constitutional firmness. Its future is uncertain. Trial counsel should have known that in order to preserve the issue, he needed to object. As new legal issues arise, attorneys are required 14

to stay abreast of the issues. Ohio Rules of Prof'l Conduct 1.1, Cmt. 6. As this Court stated in State v. Payne, 114 Ohio St. 3d 502, 2007-Ohio-4642, 873 N.E.2d 306, the failure of trial counsel to object can have consequences that will forever foreclose a defendant from relief from unconstitutional errors. Thus, Mr. Countryman was prejudiced by his trial counsel's failure to object. CONCLUSION This Court should accept Mr. Countryman's appeal because it raises substantial constitutional questions, involves a felony, and is of great public and general interest. In the alternative, if this.court grants jurisdiction in State v.. Bodyke, Case No. 2008-2502, this Court should accept Mr. Countryman's appeal and bold it in abeyance for its decision in Bodyke. Respectfully submitted, E OF THE OHIQEUBLIC DEFENDER Assistant State Public Defender Counsel of Record 8 East Long Street, 11th Floor Columbus, Ohio 43215 (614) 466-5394 (614) 752-5167 (Fax) sarah.schregardus@opd.ohio.gov COUNSEL FOR JOSHUA COUNTRYMAN 15

CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing Memorandum in Support of Jurisdiction was sent via regular mail on this 22d day of January, 2009 to Alison Cauthom, Assistant Prosecuting Attorney, Washington County Courthouse, 205 Putnam Street, Marietta Ohio, 45750. H M. SCY-IREUAR.DUF` #0080932 tant State Public Defender COUNSEL FOR JOSHUA COUNTRYMAN #293003 16

IN THE SUPREME COURT OF OHIO STATE OF OHIO, Plaintiff-Appellee, vs. JOSI-NA COUNTRYMAN, Defendant-Appellant. Case No. On Appeal from the Washington County Court of Appeals Fourth Appellate District Case No. 08CA12 APPENDIX TO MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT JOSHUA COUNTRYMAN

IN THE COURT OF APPEALS 4"H APPELLATE DISTRICT 205 PUTNAM STREET MARIETTA, OH 45750 OHIO STATE OF vs. JOSHUA COUNTRYMAN TO : ATTY SARAH MARIE SCHREGARDUS 8 E. LONG STREET, 11 TH FLOOR COLUMBUS OH 43215 CASE NO. 08CA 12 PURSUANT TO APPELLATE RULE 22-B, YOU ARE HEREBY NOTIFIED THAT A DECISION AND JUDGMENT ENTRY, COPY HERETO ATTACHED, NOTICE OF FILING HAS BEEN FILED IN SAID COURT OF APPEALS IN THE ABOVE STYLED ACTION ON 12/08/08 RULE 22-B PAPERS ATTACHED: DECISION AND JUDGMENT ENTRY DATED: 12/08/08 JUDY R. VAN DYK CLERK OF COURTS ORIGINAL NOTICE TO: ATTY ALISON L CAUTHORN DATED 12/10/08

FOURTH RiSTRlCT COURT.UF APPEFI.S IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY State of Ohio, Plaintiff-Appellee, V. Joshua Countryman, Case No. 08CA12 DECISION AND JUDGMENT ENTRY Defendant-Appellant. APPEARANCES: Timothy Young, Ohio State Public Defender, and Sarah M. Schregardus, Assistant State Public Defender, Columbus, Ohio, for appellant. James E. Schneider, Washington County Prosecutor, and Alison L. Cauthorn, Assistant Washington County Prosecutor, Marietta, Ohio, for appellee. Kiine, J.:. {11} Joshua Countryman appeals the Washington County Court of Common Pleas' classification that he is a Tier III sex offender subject to the requirements of Senate Bill 10, which was in effect on the date the court classified and sentenced him, but was not in effect on the date he committed the sex crime of rape. {12} The classification of sexual offenders and the notification requirements of the same are contained in Chapter 2950 of the Revised Code. Senate Bill 10 amended Chapter 2950 of the Revised Code. Parts of Senate Bill 10 were effective on July 1, 2007, and parts of it were effective on January 1, 2008.

Washington App. No. 08CA12 2 {13} On appeal, Countryman contends that the trial court's retroactive application of Senate Bill 10 is unconstitutional. Because Countryman failed to raise his various constitutional arguments in the trial court, we find that he has forfeited his right to raise them for the first time on appeal. Countryman next contends that the trial court's retroactive application of Senate Bill 10 was plain error. Because we disagree with the premise of all of Countryman's arguments (i.e., that Senate Bill 10 is punitive), we do not find any error, let alone plain error. Countryman next contends that he was denied the effective assistance of trial counsel because his counsel failed to object to the court's retroactive application of Senate Bill 10. Because Countryman failed to meet the Strickland twopronged test, we disagree. Accordingly, we affirm the judgment of the trial court. { 4} A Washington County Grand Jury originally indicted Countryman for two separate counts of rape. However, pursuant to a plea agreement, the State dismissed one of the rape offenses in exchange for a guilty plea to the other rape offense. The trial court found Countryman guilty of the rape that occurred on or about December 23, 2006. { 5} On March 6, 2008, the trial court sentenced Countryman to six years in prison and classified him a Tier III offender under the newly enacted Senate Bill 10. {16} Countryman appeals his Tier III classification under Senate Bill 10 and asserts the following three assignments of error: I. "The retroactive application of Senate Bill 10 violates the Ex Post Facto, Due Process, and Double Jeopardy

Washington App. No. 08CA12 3 Clauses of the United States Constitution and the Retroactivity Clause of Section 28, Ar4cle II of the Ohio Constitution." II. "The trial court committed plain error when it retroactively applied Senate Bill 10 to Joshua Countryman, whose crimes of conviction predated the enactment of Senate Bill 10." And, III. "Joshua Countryman was denied the effective assistance of trial counsel when his counsel failed to raise an objection to the imposition of Senate Bill 10." IL { 7} Countryman contends in his first assignment of error that the trial court's retroactive application of Senate Bill 10 is unconstitutional for various reasons. {18} App.R. 12(A)(2) states, "The court may disregard an assignment of error presented for review if the party raising it fails to identify in the record the error on which the assignment of error is based[.]" Countryman does not cite to the record to show where the trial court overruled the issues he now presents for review. Also, we have reviewed the record Countryman provided and find that Countryman failed to raise these issues in the trial court. As such, because Countryman failed to raise his constitutional arguments in the trial court, we first address whether Countryman may raise them for the first time on appeal. {79} "Failure to raise at the trial court level the issue of the constitutionality of a statute or its application, which issue is apparent at the time of trial, constitutes a waiver of such issue and a deviation from this state's orderly procedure, and therefore need not be heard for the first time on appeal." State v.

Washington App. No. OBCA12 4 Awan (1986), 22 Ohio St.3d 120, syllabus. "The waiver doctrine announced in Awan is discretionary." In re M.D. (1988), 38 Ohio St.3d 149, 151. {110} Here, we decline to exercise our discretion to review Countryman's assignment of error and find that he has forfeited his right to raise the constitutional issues asserted in his first assignment of error..in addition, we note that other courts have addressed these identical issues and did not find any state or federal constitutional violations. See, e.g., State v. Byers, Columbiana App. No. 070039, 2008-Ohio-5051. III. {111} Countryman contends in his second assignment of error that "[t]he trial court committed plain error when it retroactively applied Senate Bill 10[.]" He asserts that the rape offense predated the enactment of Senate Bill 10. He maintains that the court's retroactive application violated the Ex Post Facto and Due Process Clauses of the United States Constitution. {112} Pursuant to Crim.R. 52(B), we may notice plain errors or defects affecting substantial rights, although they were not brought to the attention of the court. The Supreme Court of Ohio has found that "[b]y its very terms, the rule places three limitations on a reviewing court 's decision to correct an error despite the absence of a timely objection at trial." State v. Barnes, 94 Ohio St3d 21, 27, 2002-Ohio-68. See State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642. First, an error must exist. Id., citing State v. Hill (2001), 92 Ohio St.3d 191, 200, citing United States v. Olano (1993), 507 U.S. 725, 732 ( interpreting Crim.R. 52[B]'s identical federal counterpart, Fed.R.Crim.P. 52[b]. Second, the error must be

Washington App. No. OBCA12 5 plain, obvious, or clear. Id. (Citations omitted). Third, the error must affect "substantial rights," which the court has interpreted to mean that "the trial court's error must have affected the outcome Id. citing Hill at 205; State v. Moreland (1990), 50 Ohio St.3d 58, 62; State v. Long (1978), 53 Ohio St.2d 91, paragraph two of the syllabus. { 13} "The burden of demonstrating plain error is on the party asserting it. (Cite omitted.) A reversal is warranted if the party can prove that the outcome 'would have been different absent the error."' Payne at 17 (Citation omitted.) A reviewing court should use its discretion under Crim.R. 52(B) to notice plain error "with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." State v. Long (1978), 53 Ohio St.2d 91, paragraph three of the syllabus. {114} Here, Countryman acknowledges that the Supreme Court of Ohio in State v. Cook, 83 Ohio St.3d 404, 1998-Ohio-291, found the former version of Chapter 2950 of the Revised Code constitutional. Senate Bill 10 amended the former statute so that classification is no longer based on an individualized analysis. Instead, classification is now based on the type of crime committed. In addition, Senate Bill 10 increased the reporting requirements.' 1 Senate Bill 5 also amended Chapter 2950 of the Revised Code. Recently, in State v. Ferguson, _Ohio St.3d_, 2008-Ohio-4824, the Supreme Court of Ohio found Senate Bill 5 constitutional. The defendant in Ferguson contended that Senate Bill 5 was unconstitutional because it violated the Ex Post Facto Clause of the United States Constitution, and Section 10, Article 1, and Section 26, Article II of the Ohio Constitution, which states that the General Assembly has no power to enact laws that apply retroactively. The defendant focused on three changes to Chapter 2950: (1) the designation "predator" and duty to register remain throughout defendants' lives (with no review); (2) defendants must personally register in the counties where they reside, attend school, and work; and, (3) certain information about sexual offenders are public records maintained by the attorney general in an internet database.

Washington App. No. 08CA12 6 {115} The crux of all of Countryman's constitutional arguments is that Senate Bill 10 ties sex-offender classification, registration, and notification requirements directly and solely to the crime of conviction. As such, Countryman claims that Senate Bill 10 has created a sex-offender registration scheme that is no longer remedial and civil in nature. He maintains that sex-offender registration, as it functions under Senate Bill 10, is purely punitive, and is, in fact, part of the original sentence. In short, Countryman asserts that Senate Bill 10 is punitive because, instead of the court looking at defendants individually to determine how dangerous they are before it classifies them, classification is now tied solely to the type of crime committed. {116} We do not find Countryman's argument persuasive. The Supreme Court of the United States has already stated, "[t]he State's determination to legislate with respect to convicted sex offenders as a class, rather than require individual determination of their dangerousness, does not make the statute a punishment[.]" Smith v. Doe (2003), 538 U.S. 84, 104. {117} Therefore, because the premise of Countryman's constitutional arguments is based on the statute being punitive or criminal, instead of civil, his ex post facto and due process arguments fail. Consequently, we do not find any error, let alone plain error. {118} Accordingly, we overrule Countryman's second assignment of error. IV. A-7

Washington App. No. OSCA12 7 {119} Countryman contends in his third assignment of error that he "was denied the effective assistance of trial counsel" because his counsel failed to object to the court's application of Senate Bill 10. {120} "In Ohio, a properly licensed attorney is presumed competent and the appellant bears the burden to establish counsel's ineffectiveness." State v. Wright, Washington App. No. 0oCA39, 2001-Ohio-2473, citing State v. Hamblin (1988), 37 Ohio St.3d 153, cert. den. (1988), 488 U.S. 975; Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. To secure reversal for the ineffective assistance of counsel, one must show two things: (1) "that counsel's performance was deficient* * * " which "requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment[;]" and (2) "that the deficient performance prejudiced the defense* **[,]" which "requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington (1984), 466 U.S. 668, 687. Absent both showings, "it cannot be said that the conviction **" resulted from a breakdown in the adversary process that renders the result unreliable." Id. {121} This court "when addressing an ineffective assistance of counsel claim, should not consider what, in hindsight, may have been a more appropriate course of action." Wright, citing State v. Phillips (1995), 74 Ohio St.3d 72. Instead, this court "must be highly deferential." Id., citing Strickland at 689. Further, "a reviewing court: 'must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable profess'ional assistance; that is,

Washington App. No. OBCA12 8 the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy."' Id., citing Strickland at 689. {122} Here, Countryman bases his ineffective assistance of counsel claim on the arguments he made in his first and second assignments of error. However, we did not find error. Therefore, under the first prong of the Strickland test, we find that Countryman's trial counsel's performance was not deficient. {123} Accordingly, we overrule Countryman's third assignment of error and affirm the judgment of the trial court. JUDGMENT AFFIRMED.

Washington App. No. 08CA12 9 JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED and that Appellant shall pay the 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 Washington County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 for the Rules of Appellate Procedure. Exceptions. Abele, P.J. and McFarland, J.: Concur in Judgment and Opinion. For the Court BY: I ^. " Roger L. Kline, Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.