[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as State v. Townsend , Slip Opinion No. 2020-Ohio-5586.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O
. 2020-O HIO -5586
T HE S TATE OF O HIO , C ROSS -A PPELLANT , v . T OWNSEND , C ROSS -A PPELLEE . [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it

may be cited as State v. Townsend , Slip Opinion No. 2020-Ohio-5586.] Sexually-violent-predator specifications

— Retroactive application

— Application of the current version of R.C. 2971.01(H)(1) to unindicted crimes committed before April 29, 2005, violates Ex Post Facto Clause

— Judgment affirmed. (No. 2019-0606—Submitted June 16, 2020— Decided December 10, 202 0.)
C ROSS -A PPEAL from the Court of Appeals for Cuyahoga County, No. 107186, 2019-Ohio-1134.

_______________________ D ONNELLY , J. {¶ 1} The Eighth District Court of Appeals vacated certain sexuallyviolent-predator specifications t hat had been applied to the se ntence of crossappellee, Albert Townsend, holding that as so applied, they vio late the Ex Post
Facto Clause of the United Stat es Constitution. We affirm the judgment of the court of appeals.S UPREME C OURT OF O HIO

2 I. FACTS AND PROCEDURAL HISTORY {¶ 2} In 2017, cross-appellant, the sta te of Ohio, indicted Albert Townsend on numerous counts of rape, kidna pping, and related crimes invo lving three victims. The state alleged that he committed these crimes agai nst M.W. in January 2003, C.W. in January or February 2005, and B.G. in November 20 06. The Cuyahoga County Grand Jury incl uded sexually-violent-predator s pecifications on the nine counts of rape, complicity to commit rape, kidnapping, and attempted rape. A jury found Townsend guilty on all these counts, including the sexually-violentpredator specifications, and th e trial court sentenced him to 5 6 years to life in prison. Because he was convicted of those specifications, his sentence was enhanced. {¶ 3} Townsend appealed, and the court of appeals upheld his convicti ons on all assignments of error excep t those challenging his convic tions on the sexuallyviolent-predator specifications that attached to the crimes tha t he committed before April 29, 2005. On the authority of State v. Smith , 104 Ohio St.3d 106, 2004-Ohio6238, 818 N.E.2d 283, the court vaca ted Townsend’s convictions on those specifications as violating the Ex Post Facto Clause of the Uni ted States Constitution. 2019-Ohio-1134, ¶ 66. The court of appeals rema nded the cause to the trial court for resentencing. Id . at ¶ 67. {¶ 4} Both parties sought this court’s jurisdiction. We accepted jur isdiction over the state’s cross-appeal, which presents the following pro position of law: “The General Assembly legislatively clarified the definition of sexu ally violent predator through [House Bill No.] 473. The amendment’s application to a defendant who committed an offense prior to April 29, 2005 does not violate t he Ex Post Facto Clause of the United States Constitution or Retroactivity Claus e of the Ohio
Constitution.” See 157 Ohio St.3d 1418, 2019-Ohio-3797, 131 N.E.3d 956.January Term, 2020

3 II. ANALYSIS
A. Ex Post Facto Clause {¶ 5} Article I, Section 10, of the U.S. Constitution reads, “No Stat e shall * * * pass any * * * ex post facto Law. ” The clause prohibits, among other things, “Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.” Calder v. Bull , 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798). See Cummings v. Missouri , 71 U.S. (4 Wall.) 277, 325- 326, 18 L.Ed. 356 (1866) (the Ex Post Facto Clause forbids the enactment of laws that impose “a punishment for an act which was not punishable a t the time it was committed; or imposes additional punishment to that then prescr ibed”). In essence, “the Framers sought to assure that legislative Acts give fair w arning of their effect and permit individuals to rely on their meaning until explicitl y changed.” Weaver
v. Graham , 450 U.S. 24, 28-29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), citi ng Dobbert v. Florida , 432 U.S. 282, 298, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). {¶ 6} Accordingly, the “touchstone of this Court’s inquiry is whether a given change in law presents a ‘ “sufficient risk of increasing the measure of punishment attached to the covered crimes.” ’ ” Peugh v. United States , 569 U.S. 530, 539, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013), quoting Garner v. Jones , 529 U.S. 244, 250, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000), quoting California Dept. of Corrs. v. Morales , 514 U.S. 499, 509, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995).
The United States Supreme Court has stated, “Critical to relief under the Ex Post
Facto Clause is not an individual’s right to less punishment, but th e lack of fair notice and governmental restraint when the legislature increase s punishment beyond what was prescribed whe n the crime was consummated.” Weaver at 30. B. Former and current versions of R.C. 2971.01 {¶ 7} The version of R.C. 2971.01(H)(1) in effect when Townsend committed the offenses against M.W. and C.W. defined “sexually violent predator” as “a person who has been convicted of or pleaded guilty to committing , on or afterS UPREME C OURT OF O HIO

4 the effective date of this sec tion, a sexually violent offense and is likely to engage in the future in one or more sexually violent offenses.” (Emph asis added.) Am.Sub.H.B. No. 180, 146 Ohio Laws, Part II, 2560, 2652. The e ffective date of that version was January 1, 1997. Id . at 2560-2561, 2668. In Smith , 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283, at ¶ 18, we stated that th e words of R.C. 2971.01(H)(1) “clearly indicate” that a defendant cannot be cha rged as a sexually violent predator unless the de fendant has “already been convict ed of a sexually
violent offense.” We therefor e concluded, “Conviction of a sex ually violent offense cannot support the specifi cation that the offender is a sexually violent predator as defined in R.C. 2971.01(H)(1) if the conduct leadin g to the conviction and the sexually violent predator specification are charged in the same indictment.”
Smith at syllabus. {¶ 8} Shortly thereafter, the General Assembly amended R.C. 2971.01(H)(1), effective April 29, 2005. Am.Sub.H.B. No. 473, 150 Ohio Laws, Part IV, 5707, 5817, 5832. R.C. 2971.01(H)(1) now defines “sex ually violent predator” as “ a person who, on or after January 1, 1997, commits a sexually v iolent offense and is likely to engage in the future in one or more se xually violent
offenses.” The state characterizes this amendment as a clarification and n ot a change in the law, asserting that it represented what the Gener al Assembly had always intended and in any ev ent created no new penalty. C. Applying R.C. 2971.01 to the crimes {¶ 9} As a preliminary matter, the crimes against B.G. occurred after April 29, 2005, and are therefore not part of this cross-appeal. The crimes against M.W. and C.W. occurred before April 29, 2005. Accordingly, any appl ication of the
amended statute to Townsend base d on the first two sets of crim es is patently retroactive—because the statutory change occurred after the off enses were committed. See Weaver , 450 U.S. at 30, 101 S.Ct. 960, 67 L.Ed.2d 17. The question is whether that application is constitutional.January Term, 2020

5 {¶ 10} Of central concern in an Ex Post Facto Clause analysis is wheth er the defendant had “fair warning” and therefore notice of the ch ange in the law.
Weaver at 28. The Ex Post Facto Clause requires the government to “ ‘ abide by the rules of law it establishes to govern the circumstances und er which it can deprive a person of his or her liberty or life.’ ” Peugh , 569 U.S. at 544, 133 S.Ct. 2072, 186 L.Ed.2d 84, quoting Carmell v. Texas , 529 U.S.513, 533, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000). {¶ 11} Changes in sentencing laws implicate the Ex Post Facto Clause. In analyzing a change in federal sentencing guidelines, the Suprem e Court of the United States concluded, “A retrospective increase in the Guide lines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute

an ex post facto violation.” Id . The Supreme Court of the United States has invalidated on Ex Post Facto grounds a sentencing scheme that m ight have caused a defendant to receive a sentence greater than the sentence he would have received under the sentencing scheme in place when he committed his crim es. Miller v.
Florida , 482 U.S. 423, 435-436, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987). {¶ 12} In this case, the statutory change created more than “a suffici ent risk of a higher sentence” by actually imposing a sexually-violent-p redator specification on Townsend that had not applied when he committed his crimes. Peugh at 544.
Townsend received a harsher sent ence based on the difference be tween the sentencing scheme in place when he committed his crimes and the sentencing scheme in place when he was indicted. 1 The amendments to R.C. 2971.01(H)(1)

1. The state asserted in its reply brief and at oral argument that under the former version of the statute, the application of a sexually-violent-predator specifi cation to an offense depended on whether an offender had a prior conviction when he was indicted for the offense and not when he committed the offense. Thus, in the state’s view, Townsend was not subj ected to a harsher penalty with respect to the offenses committed against C.W. in early 20 05 because even under the prior version of the statute, he had notice that he could be indicted with a sexually-violent-predator specification if he were first convicted of his 2003 crimes aga inst M.W. Because the state did not raise this argument in its ini tial brief on the merits, it has been forfeited, and we decline to consider it. See State v. Quarterman , 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 18.S UPREME C OURT OF O HIO

6 resulted in a new definition of “sexually violent predator” tha t allowed, for the first time, the underlying conduct in an i ndictment to satisfy the sp ecification without a prior conviction. As a result, t he amendment enhanced Townsend ’s punishment by subjecting him to indefinite s entencing under R.C. 2971.03. Wi thout the sexuallyviolent-predator specification, Townsend would have faced a def inite term of three to 10 years for the first-degree felony offenses (rape and kidn apping) that he committed before April 29, 2005. See former R.C. 2929.14(A)(1), Am.Sub.H.B. No. 327, 149 Ohio Laws, Part IV, 7536, 7567. Here, the trial c ourt imposed a prison sentence of five years to life for each of the 2003 offe nses in Counts 1, 2, 3, 7, and 11 and ten years to life for the 2005 offense in Count 9 . Given the harsh consequences that the new sentencing scheme imposed on Townsend , we have no difficulty concluding that enforcing the new sentencing scheme against him did not comport with “principles o f ‘fundamental justice.’ ” Peugh at 546, quoting
Carmell at 531. {¶ 13} When he committed his crimes against M.W. and C.W., Townsend had not been convicted of or pleaded guilty to a sexually viole nt offense and therefore was not subject to being declared a sexually violent predator under the former statute pursuant to Smith , 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283, at syllabus. Based on the amendment to R.C. 2971.01(H)(1) , which became effective on April 29, 2005, Townsend was properly indicted as a sexually violent predator regarding crimes committed after that effective date. The portion of the indictment alleging him to be a sexually violent predator for a cts committed when the initial version of R.C. 2971.01( H)(1) was effective, howeve r, is
unconstitutional. Weaver , 450 U.S. at 30, 101 S.Ct. 960, 67 L.Ed.2d 17; Miller at
435-436. See In re Von , 146 Ohio St.3d 448, 2016-Ohio-3020, 57 N.E.3d 1158, ¶ 17, in which we stated that “only persons who commit their un derlying offense
on or after the effective date of [a punitive statute] can be constitutionally subjected to its requirements. ” (Emphasis sic.)January Term, 2020

7 D. Clarification {¶ 14} The state’s proposition of law and argument emphasize the conce pt of clarification. The state marsh als considerable evidence tha t in enacting Am.Sub.H.B. No. 473, the General A ssembly believed that it was merely “clarifying” the sexually-violent-predator sentencing law. The General Assembly’s characterization of the amendment as a “clarificatio n,” however, does not resolve our constitutional inquiry. “[I]t is the effect, n ot the form of the law
that determines whether it is ex post facto .” Weaver at 31. Legislative labels do not immunize laws from scrutiny under the Ex Post Facto Clause. Collins v. Youngblood , 497 U.S. 37, 46, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). {¶ 15} Moreover, we are unconvinced t hat amended R.C. 2971.01(H)(1) was a mere clarification. As discussed, before Am.Sub.H.B. No. 473, by the plain language of R.C. 2971.01(H)(1), Townsend could not have been in dicted as a sexually violent predator becau se he had not been convicted of or pleaded guilty to a sexually violent offense. See Smith at ¶ 27 (“the General Assembly intended that a conviction of a sexually violen t offense that existed prior t o the current indictment must be used to support a sexual ly-violent-predator specificati on”). The state alleges that the enactment of Am.Sub.H.B. No. 473 clarified tha t Townsend had always been subject to indictment as a sexually violent predato r. But we interpreted the meaning of the former version of the statute in Smith . The General Assembly’s subsequent amendment of the sta tute does not undo this court’s interpretation of the prior version. The amended statute subjected Townsend to a longer sentence. Peugh , 569 U.S. at 539, 133 S.Ct. 2072, 186 L.Ed.2d 84. By subjecti ng Townsend to a harsher sentence than he otherwise would have been subject ed, the statute is unconstitutional as applied. See State v. Haven , 105 Ohio St.3d 418, 2005-Ohio2286, 827 N.E.2d 319, in which, after the effective date of R.C . 2971.01(H)(1), we answered in the negative the following certified question: “Can an offender beS UPREME C OURT OF O HIO

8 convicted of a sexually violent predator specification without there being a separate, prior convic tion for a sexually violent offense?” Id. at ¶ 1-2.
III. CONCLUSION {¶ 16} We affirm the judgment of the court of appeals. The applicatio n of the current version of R.C. 2971.01(H)(1) to Townsend for his c rimes in 2003 and
2005 violates the Ex Post Facto Cl ause of the United States Con stitution. We
remand the cause to the trial court for resentencing. Judgment affirmed
and cause remanded.
O’C ONNOR , C.J., and K ENNEDY , F RENCH , F ISCHER , D E W INE , and
S TEWART , JJ., concur.

_________________ Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Daniel T. Van and Mary M. Frey, Assistant Prosecuting Attorneys, for c ross-appellant. Timothy Young, Ohio Public Defen der, and Patrick T. Clark, Ass istant Public Defender, for cross-appellee.

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