Court
News Ohio
State Law
Cannot Be Applied
Retroactively to Keep Sex Offender from Living Near School
By Stephanie Beougher
October 3, 2013
The 7th
District Court of
Appeals has sided with a lower court that state law cannot be applied
retroactively to stop a convicted sex offender from living near a
Belmont County school.
Ray
Benedetta was convicted
in 2001 of attempting to compel prostitution and was required to
report his residence for 10 years as a sexually oriented offender. A
few days after his reporting requirement ended in 2012, he moved into
a house within 1,000 feet of Shadyside High School that he had a
vested interest in before his criminal case. Soon after that, the
county prosecutor sought a permanent injunction to keep Benedetta
from living there.
Appeals
Court Judge Cheryl
L. Waite wrote in the 3-0 decision that the Belmont County Common
Pleas Court was correct when it denied the injunction because the
state law cited by the prosecutor cannot be applied retroactively
under a 2011 Ohio Supreme Court case
“R.C.
2950.034 was held
to be unconstitutionally retroactive [State v. Williams,
2011-Ohio-3374] as applied to offenders like Appellee who committed
their crimes before the enactment of the statute,” Judge Waite
stated. “Ohio's appellate courts are in agreement that the
1,000-foot prohibition created in 2003 by R.C. 2950.031 cannot be
applied to a defendant who committed his offense prior to the
effective date of the statute, regardless of the time that defendant
may have acquired his property interest or began living in the
residence.”
Judge
Waite also denied the
prosecutor’s argument that in State v. Byers, the 7th District
Court of Appeals ruled the state law was enforceable and could be
applied retroactively: “Our Byers opinion is factually distinct and
has effectively been overruled by the Ohio Supreme Court, and does
not support Appellant's argument.”
Judges
Gene Donofrio and
Joseph J. Vukovich joined Judge Waite in the ruling.
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