Ohio Supreme Court Upholds Law That Requires Persons With Knowledge of Their HIV+ Status to Disclose to Another Prior to Engaging in Sex

In October 2017, the Supreme Court of Ohio in the case of State of Ohio v. (Orlando) Batista (2017), 151 Ohio St.3d 584, 2017-Ohio-8304, held that because ORC Section 2903.11(B)(1) — criminal felonious assault — regulates conduct, not speech, it does not violate the First Amendment to the United States Constitution, and it is rationally related to the State’s legitimate interest in preventing the transmission of the human immunodeficiency virus (HIV) to sexual partners who may not be aware of the risk and, therefore, does not violate the Equal Protection Clauses of either the United States or Ohio Constitutions.

Defendant Batista maintained that ORC 2903.11(B)(1), which prohibits those persons with knowledge of their HIV status from engaging in sexual conduct with another person without disclosing that knowledge to the other person prior to engaging in the sexual conduct was a content based regulation that compels speech in violation of the First Amendment to the United States Constitution.  Batista also contended that the statute violated the Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution and Article I, Section 2 of the Ohio Constitution because there was no rational basis for a distinction between HIV positive individuals and individuals with other infectious diseases, such as Hepatitis C or between the methods of transmitting HIV.

The State of Ohio argued that the felonious assault statute prohibits only uninformed sexual conduct and any effect this prohibition has on speech is incidental.  The State further argued that the statute is narrowly tailored to that interest (preventing spread of HIV) because it neither prohibits an infected person from having sexual relations with another, nor compels public disclosure of a person’s HIV positive status.

Ultimately, the Supreme Court of Ohio held that although ORC 2903.11(B)(1) requires those who know they are HIV positive to disclose their status if they choose to engage in sexual conduct with another person, that the disclosure is incidental to the statute’s regulation of the targeted conduct.  Thus, the statute regulates conduct, not speech, and therefore does not violate the First Amendment right to free speech.

The Court also held that the federal Equal Protection Clause does not forbid classification, but it requires that different treatment be related to the purpose of the law and because there is some conceivable basis to support the legislative arrangement, the statute does not violate equal protection.  The Court further stated, “we cannot say that there is no plausible policy reason for the classification or that the relationship between the classification and the policy goal renders it arbitrary or irrational.”

Imposing Separate Sentences For Allied Offenses of Similar Import is Contrary to Law and Void

In November 2016, the Supreme Court of Ohio in the case of State v. Williams (2016), 148 Ohio St. 3d 403, 2016-Ohio-7658, 71 N.E.3d 234, 2016 Ohio LEXIS 2782, held that the imposition of separate sentences for guilty findings in regard to allied offenses of similar import was contrary to law and the sentences were void on the face of the judgement of conviction.  In Williams, the State of Ohio elected to have the defendant sentenced on the aggravated murder as charged in count three, and the trial court had no discretion to impose separate sentences on counts one and two.

The Court stated that a trial court only has authority to impose a sentence that conforms to law, and Ohio Revised Code Section 2941.25 prohibits the imposition of multiple sentences for allied offenses of similar import.  Relying upon State v. Whitfield (2010), 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, the Court stated that the trial court should permit the State to select the allied offense to proceed on for purposes of imposing sentence and the trial court should impose sentence for only that offense.  The Court further held that imposing separate sentences for allied offenses of similar import is contrary to law and such sentences are void.  Also, that res judicata does not preclude a court from correcting those sentences after a direct appeal.

The Supreme Court of Ohio also relied upon State v. Holmes (2014), 8th Dist. No.100388, 2014-Ohio-3816, which held that once a trial court determines that two offenses are allied and are subject to merger, the trial court acts without authority when it imposes a sentence on both offenses.  Thus, acting without authority renders the sentence void.  The Court also relied on State v. Underwood (2010), 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, wherein it explained that trial courts have a mandatory duty to merge allied offenses, that imposition of concurrent sentences for allied offenses is not authorized by law, and that an offender is prejudiced by having more convictions than authorized by statute.

The determination of whether an accused may be convicted and sentenced for multiple offenses is dependent upon whether:  (1) the offenses are dissimilar in import or significance — in other words, each offense caused separate, identifiable harm; (2) the offenses were committed separately; or (3) the offenses were committed with separate animus (intention, ill will) or motivation.  State v. Ruff (2015), 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892.  Furthermore, that under Ohio Revised Code Section 2941.25, the merger doctrine prohibits the imposition of multiple sentences.  And when the trial court disregards statutory mandates, principles of res judicata, including the doctrine of the law of the case, do not preclude appellate review at any time on direct appeal or by collateral attack.  The Court also recognized that a resentencing hearing limited to correcting the void sentence is a proper remedy for a trial court’s failure to comply with mandatory sentencing laws.  See State v. Fischer (2010), 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332.

In contrast, however, the Court also cited State v, Rogers (2015), 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, which states that an accused’s failure to raise the issue of allied offenses of similar import in the trial court forfeits all but plain error and that a forfeited error is not reversible error unless it affected the outcome of the proceeding and reversal is necessary to correct a manifest miscarriage of justice.