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This case went before the Ohio Supreme Court on Wednesday, November 4, 2009.

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Roman Chojnacki v. Marc Dann, Ohio Atty. General [Nancy Rogers], in his Official Capacity, Case nos. 2008-0991 and 2008-0992
12^th District Court of Appeals (Warren County)

ISSUE: Is a trial court’s denial of a request for appointed legal counsel by an indigent sex offender who is appealing his reclassification under S.B. 10 a “final, appealable order” subject to immediate review by a court of appeals?

BACKGROUND:  In this case, Roman Chojnacki was convicted in 2006 on three counts of unlawful sexual activity with a minor.  He was sentenced to 12 years in prison, and is currently incarcerated at the Warren Correctional Institution in Warren County. Based on the facts of his case and psychiatric evaluations, Chojnacki was assessed to present a relatively low risk for future offenses and was therefore classified as a “sexually oriented offender,” the category which imposed the least restrictive post-release reporting and registration requirements under the state laws in effect at the time of his conviction.

Under S.B. 10, enacted by the General Assembly in 2007 and effective Jan. 1, 2008, persons previously convicted of sexually related crimes and placed in various categories of sex offenders became subject to reclassification under a new set of offender categories. As a result of these changes, Chojnacki and other persons previously classified as sexually oriented offenders were reclassified as “Tier II” offenders who are subject to significantly more restrictive post-release requirements, including mandatory registration with local police authorities every six months for 25 years.

After receiving a letter notifying him of his reclassification, Chojnacki filed a petition in the Warren County Court of Common Pleas contesting the reclassification, and a motion asking the court to appoint legal counsel to represent him in that action.  The trial court denied the request for appointed counsel.  Chojnacki attempted to appeal that ruling to the 12^th District Court of Appeals, however the 12^th District held that it did not have jurisdiction to review his claim because the trial court’s ruling denying appointed counsel did not qualify as  a “final appealable order.”  The court of appeals subsequently certified that its denial of jurisdiction was in conflict with a ruling by the 2^nd District, which had accepted jurisdiction and reviewed the issue of appointed counsel in a similar case.

The Supreme Court agreed to review the case to resolve the conflict between appellate districts. 

Attorneys for Chojnacki argue that the trial court’s denial of his petition for appointed counsel meets the statutory requirements of a final appealable order because the appeal of a sex-offender reclassification 1) “affects a substantial right” of the offender (i.e. his right to be free of retroactive changes to his post-release registration and reporting requirements); and 2) the appeal process provided for in S.B. 10 meets the definition of a “special proceeding” in which an offender seeks a “provisional remedy,” and is therefore subject to immediate appellate review.

Attorneys for the state respond that the classification or reclassification of sex offenders, and any appeal arising from that process, does not invoke an offender’s substantive constitutional right to legal counsel because such proceedings are civil rather than criminal in nature.  They point out that the issue Chojnacki has raised on appeal is not whether his reclassification was constitutional, but rather the narrow issue of whether the denial of appointed counsel in a S.B. 10 appeal proceeding is immediately appealable, or must wait for appellate review until the trial court has ruled on the underlying appeal of the reclassification.

Contacts
Sarah M. Schregardus, 614.466.5394, for Roman Chojnacki.

Christopher P. Conomy, 614.728.9474, for the state and Warren County prosecutor’s office.

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