State v. Walker , 2012 Ohio 3095 ( 2012 )

[Cite as State v. Walker, 2012-Ohio-3095.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Sheila G. Farmer, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Julie A. Edwards, J.
-vs-
Case No. 12 CAA 02 0010
SCOTT A. WALKER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 09 CRI 03 0116
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 5, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CAROL HAMILTON O'BRIEN SCOTT A. WALKER
PROSECUTING ATTORNEY North Central Corr. Complex
MARK C. SLEEPER 670 Marion/Williamsport Road
ASSISTANT PROSECUTOR Post Office Box 1818
140 North Sandusky Street, 3rd Floor Marion, Ohio 43301
Delaware, Ohio 43015
Delaware County, Case No. 12 CAA 02 0010 2
Wise, J.
{¶1} Appellant Scott A. Walker appeals the decision of the Court of Common
Pleas, Delaware County, which denied his post-conviction motion challenging his Tier III
sex offender classification. The relevant facts leading to this appeal are as follows.
{¶2} On March 4, 2009, appellant was indicted by the Delaware County Grand
Jury on four counts of rape and six counts of sexual battery.
{¶3} On June 19, 2009, appellant, with the assistance of trial counsel, entered
Alford guilty pleas to two counts of sexual battery, R.C. 2907.03(A)(1), felonies of the
third degree. At the time of entry of these pleas, the trial court advised appellant that he
would have the duty to register as a Tier III sex offender.
{¶4} On August 12, 2009, the trial court sentenced appellant to six years in
prison. Appellant at that time signed a form supplied by the court explaining his duties to
register as a sex offender.
{¶5} On January 18, 2012, well over two years after his sentencing, appellant
filed a pro se “Motion to Vacate Current Sexual Oriented Classification Tier and
Reclassify Defendant.”
{¶6} Via a judgment entry filed February 3, 2012, the trial court denied
appellant’s motion to vacate and reclassify.
{¶7} Appellant filed a notice of appeal on February 21, 2012. He herein raises
the following sole Assignment of Error:
{¶8} “I. THE TRIAL COURT ERRED IN DETERMINING THAT THE CRIME
CONVICTED FITTED THE TIER III SEXUAL OFFENDER STATUS.”
Delaware County, Case No. 12 CAA 02 0010 3
I.
{¶9} In his sole Assignment of Error, appellant challenges the trial court’s
denial of his post-conviction motion to change his Tier III sex offender status.
{¶10} R.C. 2950.01(E), (F), and (G) create three “Tiers” of sex offender
registration and notification requirements based on the type of offenses of which a
defendant has been convicted. The most recent substantial changes to R.C. Chapter
2950 took effect on January 1, 2008.1
{¶11} Although there was no trial in this matter and no hearing was conducted
on appellant’s motion to vacate and reclassify, appellant herein essentially argues that
his offenses and conduct would support, at most, a Tier I classification. Appellant further
contends that his trial counsel was ineffective during the 2009 events leading to his
plea, classification, and sentence.
{¶12} As the State notes in its response brief, this case does not involve a
reclassification of an offender classified prior to the enactment in Ohio of the present
Adam Walsh Act. Instead, appellant filed a self-styled motion to vacate in the trial court
on January 18, 2012, almost two and one-half years after his sentence and
classification, seeking additional review of his sex offender classification and status. We
are thus inclined to initially hold that res judicata would have barred such review by the
trial court in these circumstances. See, e.g., State v. Stevenson, Summit App.No.
21953, 2005-Ohio-156, ¶ 7 - ¶ 8 (applying res judicata to a defendant’s attempt to
challenge his classification via a motion to correct sentence approximately six years
after such classification).
1
There is no dispute that the offenses of which appellant was convicted in the case
sub judice were based on conduct occurring on or after December 24, 2008.
Delaware County, Case No. 12 CAA 02 0010 4
{¶13} In the alternative, even if we interpret appellant’s motion of January 18,
2012 as a petition for post-conviction relief, the pertinent jurisdictional time requirements
for such a petition are set forth in R.C. 2953.21(A)(2) as follows: “ * * * A petition under
division (A)(1) of this section shall be filed no later than one hundred eighty days after
the date on which the trial transcript is filed in the court of appeals in the direct appeal of
the judgment of conviction or adjudication * * *. If no appeal is taken, except as
otherwise provided in section 2953.23 of the Revised Code, the petition shall be filed no
later than one hundred eighty days after the expiration of the time for filing the appeal.”
Appellant herein did not timely file his motion to vacate and reclassify under R.C.
2953.21(A)(2), and he makes no attempt to justify an untimely filing pursuant to the
requirements set forth in R.C. 2953.23(A). A court has no jurisdiction to hear an
untimely petition for postconviction relief unless the movant meets the requirements in
R.C. 2953.23(A). State v. Demastry, Fairfield App. No. 05CA14, 2005–Ohio–4962, ¶ 15.
{¶14} Moreover, even if we were to find the trial court had been required to
reach the merits of appellant’s motion to vacate and reclassify, based on appellant’s
two-count conviction of sexual battery under R.C. 2907.03, his Tier III classification
clearly was proper under R.C. 2950.01(G)(1)(a), and therefore the trial court did not err
in denying appellant’s motion to vacate and reclassify.
Delaware County, Case No. 12 CAA 02 0010 5
{¶15} Appellant's sole Assignment of Error is therefore overruled.
{¶16} For the reasons stated in the foregoing opinion, the decision of the Court
of Common Pleas, Delaware County, Ohio, is hereby affirmed.
By: Wise, J.
Farmer, P. J., and
Edwards, J., concur.
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JUDGES
JWW/d 0608
Delaware County, Case No. 12 CAA 02 0010 6
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
SCOTT A. WALKER :
:
Defendant-Appellant : Case No. 12 CAA 02 0010
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Delaware County, Ohio, is affirmed.
Costs assessed to appellant.
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JUDGES