State v. Martin , 2013 Ohio 4353 ( 2013 )

[Cite as State v. Martin, 2013-Ohio-4353.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P. J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
-vs-
Case No. CT2013-0023
ANDREW R. MARTIN
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. CR2009-0110
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 26, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ROBERT L. SMITH ANDREW R. MARTIN
ASSISTANT PROSECUTOR PRO SE
27 North Fifth Street CHILLICOTHE CORR. INSTITUTION
Zanesville, Ohio 43701 Post Office Box 5500
Chillicothe, Ohio 45601
Muskingum County, Case No. CT2013-0023 2
Wise, J.
{¶1} Appellant Andrew R. Martin appeals the decision of the Muskingum
County Court of Common Pleas.
{¶2} Appellee is the State of Ohio.
{¶3} This case comes to us on the accelerated calendar. App.R. 11.1, which
governs accelerated calendar cases, provides, in pertinent part:
{¶4} “(E) Determination and judgment on appeal. The appeal will be
determined as provided by App.R. 11.1. It shall be sufficient compliance with App.R.
12(A) for the statement of the reason for the court’s decision as to each error to be in
brief and conclusionary form. The decision may be by judgment entry in which case it
will not be published in any form.”
{¶5} This appeal shall be considered in accordance with the aforementioned
rule.
STATEMENTS OF FACTS AND CASE
{¶6} On April 7, 2005, Appellant Andrew R. Martin was convicted of a sexually
oriented offense in the state of Wisconsin, Case Number 2005JV000979, and was
sentenced to an eighteen (18) month prison term at the Department of Youth Services
in Wisconsin. Upon completion of this prison term, Appellant was obligated to register
once a year for fifteen (15) years as per Wisconsin's enactment of Megan's Law.
{¶7} After serving his prison sentence, Appellant moved to Ohio,where he
resided in both Licking and Muskingum Counties. On May 28, 2009, Detective Yarger of
the Muskingum County Sheriff's Department became aware that the Appellant, who had
been charged with Failing to Register upon his entry in Licking County, was now
Muskingum County, Case No. CT2013-0023 3
residing in Muskingum County. Further investigation revealed that Appellant was
residing in Muskingum County and had failed to register his change of address within
three (3) days of entering this county.
{¶8} On or about June 3, 2009, Appellant was indicted by the Muskingum
County Grand Jury upon one (1) count of Failure to Register as a Sexual Offender, in
violation of R.C. §2950.04, a felony of the first degree. Both the indictment and the bill of
particulars alleged that Appellant had been convicted of a sexually orientated offense, to
wit: First Degree Sexual Assault of a Child, a felony of the first degree, in the Circuit
Court of Milwaukee County, State of Wisconsin, Case Number 2005JV000779 (date of
conviction, June 28, 2005). This charge was alleged to be a felony of the first degree.
{¶9} On August 3, 2009, Appellant entered a plea of "guilty" to the one (1)
count set forth in the indictment. At the time of the change of plea hearing, the parties
had agreed to recommend to the trial court that Appellant receive a three (3) year prison
sentence to be served consecutive to any sentence ordered by the Licking County
Court of Common Pleas.
{¶10} On August 31, 2009, the Muskingum County Court of Common Pleas
ordered that Appellant serve a mandatory prison sentence of three (3) years to be
served consecutive to the sentence imposed by the Licking County Court of Common
Pleas in case number 09CR0048. Appellant did not file a direct appeal of this sentence
or conviction.
{¶11} On or about January 17, 2010, Appellant filed Defendant's Petition to
Vacate or Set Aside Judgment of Conviction or Sentence. By entry dated February 8,
2010, the trial court denied said petition, finding that Appellant had failed to raise valid
Muskingum County, Case No. CT2013-0023 4
constitutional violations that would justify a hearing on the merits of the motion.
Appellant did not appeal this decision.
{¶12} On or about February 18, 2010, Appellant filed Defendant's Motion to
Correct Sentence. By entry dated March 11, 2010, the trial court denied said petition,
finding that R.C. §2929.13(F)(6) requires that a defendant who is convicted of a felony
of the first degree who has a prior conviction of a felony of the first degree must receive
a mandatory sentence and further finding that the consecutive sentence ordered by the
trial court was the product of a negotiated plea agreement.
{¶13} Appellant filed his Notice of Appeal of the trial court's sentencing entry of
March 11, 2010. This case was assigned case number CT10-0022. In that appeal,
Appellant raised three assignment of error. These three issues centered around
Appellant's complaints about the trial court's use of the word "mandatory" when
sentencing Appellant as opposed to the statutory term "definite sentence," Appellant
also complained that the trial court could not sentence him to a term of imprisonment
that was consecutive to a prison term ordered by the Licking County Court of Common
Pleas. This Court dismissed this matter by entry dated June 14, 2010, "for want of a
timely notice of appeal."
{¶14} In a case that was assigned case number CT2010-0033. Appellant filed a
motion for leave to file a delayed appeal. However, this Court, by entry dated August 13,
2010, found "that Appellant has failed to establish good cause for delay in filing a timely
appeal" and denied his motion, and the appeal.
{¶15} On July 14, 2011, Appellant filed a motion for Re-sentencing in the
Muskingum County Court of Common Pleas. In this motion, Appellant again asserted
Muskingum County, Case No. CT2013-0023 5
that he should not have received consecutive sentences. By entry dated July 18, 2011,
the trial court denied the motion with reference to its entry of March 11, 2010.
{¶16} On July 26, 2011, Appellant filed a Motion for Reconsideration, which the
trial court denied on August 2, 2011.
{¶17} Appellant filed an appeal on August 22, 2011. By opinion dated May 10,
2012, this Court dismissed the appeal after finding it untimely, finding that all of the
issues raised by Appellant should have been raised in a direct appeal of his conviction.
{¶18} On March 27, 2013, Appellant filed a Motion for Withdrawal of Guilty Plea
in the trial court. By entry dated April 10, 2013, the trial court denied that the motion.
{¶19} On April 19, 2013, Appellant filed a Notice of Appeal, which is currently
before this Court. Appellant now appeals, setting forth the following assignment of error:
ASSIGNMENT OF ERROR
{¶20} “I. APPELLANT'S CURRENT CONVICTIONS ARE CONTRARY TO LAW,
AND THEREFORE THEY ARE VOID.”
I.
{¶21} In his sole Assignment of Error, Appellant argues that his convictions are
contrary to law. We disagree.
{¶22} Appellant was convicted of failing to register as a sexual offender,
pursuant to R.C. §2950.04, which provides in relevant part:
{¶23} “(A)(1)(a) Immediately after a sentencing hearing is held on or after
January 1, 2008, for an offender who is convicted of or pleads guilty to a sexually
oriented offense and is sentenced to a prison term, a term of imprisonment, or any other
type of confinement and before the offender is transferred to the custody of the
Muskingum County, Case No. CT2013-0023 6
department of rehabilitation and correction or to the official in charge of the jail,
workhouse, state correctional institution, or other institution where the offender will be
confined, the offender shall register personally with the sheriff, or the sheriff's designee,
of the county in which the offender was convicted of or pleaded guilty to the sexually
oriented offense.
{¶24} “(b) Immediately after a dispositional hearing is held on or after January 1,
2008, for a child who is adjudicated a delinquent child for committing a sexually oriented
offense, is classified a juvenile offender registrant based on that adjudication, and is
committed to the custody of the department of youth services or to a secure facility that
is not operated by the department and before the child is transferred to the custody of
the department of youth services or the secure facility to which the delinquent child is
committed, the delinquent child shall register personally with the sheriff, or the sheriff's
designee, of the county in which the delinquent child was classified a juvenile offender
registrant based on that sexually oriented offense.
{¶25} “***
{¶26} “(4) Regarding an offender or delinquent child who is registering under a
duty imposed under division (A)(2), (3), or (4) of this section as a result of the offender
or delinquent child residing in this state or temporarily being domiciled in this state for
more than three days, the current residence address of the offender or delinquent child
who is registering, the name and address of the offender's or delinquent child's
employer if the offender or delinquent child is employed at the time of registration or if
the offender or delinquent child knows at the time of registration that the offender or
delinquent child will be commencing employment with that employer subsequent to
Muskingum County, Case No. CT2013-0023 7
registration, any other employment information, such as the general area where the
offender or delinquent child is employed, if the offender or delinquent child is employed
in many locations, and the name and address of the offender's or public registry-
qualified juvenile offender registrant's school or institution of higher education if the
offender or public registry-qualified juvenile offender registrant attends one at the time of
registration or if the offender or public registry-qualified juvenile offender registrant
knows at the time of registration that the offender or public registry-qualified juvenile
offender registrant will be commencing attendance at that school or institution
subsequent to registration;”
{¶27} Appellant herein argues that his convictions are contrary to law and void
pursuant to State v. Bodyke, 126 Ohio St. 3d 266, 2010-Ohio-2424, State v. Williams,
129 Ohio St.3d 344, 2011-Ohio-3374.
{¶28} In Bodyke, supra, the Ohio Supreme Court held that R.C. §2950.031 and
§2950.032, which required the attorney general to reclassify sex offenders who have
already been classified by court order under former law, impermissibly instructed the
executive branch to review past decisions of the judicial branch and thereby violated the
separation-of-powers doctrine. In addition, the Court found that R.C.§2950.031 and
§2950.032, violated the separation-of-powers doctrine by requiring the opening of final
judgments.
{¶29} In Williams, supra, the Ohio Supreme Court held that S.B. 10, as applied
to sex offenders who committed an offense prior to the enactment of S.B. 10, violated
Muskingum County, Case No. CT2013-0023 8
Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly
from enacting retroactive laws.1
{¶30} Upon review, we find Bodyke and Williams inapplicable in the case at bar.
{¶31} S.B. 10 did not alter those provisions of R.C. §2950.04(A)(4) which require
offenders to notify the sheriff of a county within three (3) days of entering into a
particular county. Here, Appellant's conviction results from his failure to register a
change of address pursuant to R.C. §2950.04(A)(4) rather than his failure to periodically
register pursuant to R.C. §2950.06. “S.B. 10 did nothing to abate one’s duty to
register.” Miller v. Cordray, 184 Ohio App.3d, 2009-Ohio-3617.
{¶32} The cases cited by Appellant specifically involve tier reclassification of
offenders who had committed sex offenses prior to the enactment of S.B. 10. The
instant case, however, does not involve the issue of offender reclassification.
{¶33} Instead, we have a new criminal offense committed by Appellant, which
required the application of current law. Prior to the current offense, Appellant was put on
notice by the state of Wisconsin that he had to comply with the registration requirements
of any state to which he traveled or moved. When Appellant moved to Ohio in May,
2009, the new, S.B. 10 version of R.C. §2950.04(A)(4) was already in effect.
1
Senate Bill 10, also known as the Adam Walsh Act “(AWA”) reorganized the
classification of sexually oriented offenders. See R.C. §2950.031 and R.C. §2950.032. At
that time, the legislature designated the duty of reorganizing Ohio's sex offender
classification based on conviction alone. Based on the level of offense, offenders were
classified as either Tier I, Tier II, or Tier III offenders, with Tier III being the most serious
of offenders who are required to register for life and to register every ninety days, among
other restrictions.
Muskingum County, Case No. CT2013-0023 9
{¶34} Based on the foregoing, we find Appellant’s conviction for failing to
register was not contrary to law.
{¶35} The decision of the Court of Common Pleas of Muskingum County, Ohio,
is affirmed.
By: Wise, J.
Hoffman, P. J., and
Farmer, J., concur.
/s/ John W. Wise_________________
HON. JOHN W. WISE
/s/ William B. Hoffman_____________
HON. WILLIAM B. HOFFMAN
/s/ Sheila G. Farmer_______________
HON. SHEILA G. FARMER
JWW/d 0909
Muskingum County, Case No. CT2013-0023 10
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
ANDREW R. MARTIN :
:
Defendant-Appellant : Case No. CT2013-0023
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Muskingum County, Ohio, is affirmed.
Costs assessed to Appellant.
/s/ John W. Wise_________________
HON. JOHN W. WISE
/s/ William B. Hoffman_____________
HON. WILLIAM B. HOFFMAN
/s/ Sheila G. Farmer_______________
HON. SHEILA G. FARMER