State v. Adkins , 2011 Ohio 5308 ( 2011 )

[Cite as State v. Adkins, 2011-Ohio-5308.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO
Plaintiff-Appellee
-v.-
SCOTT ADKINS
Defendant-Appellant
JUDGES:
Hon. W. Scott Gwin, P.J.
Hon. William B. Hoffman, J.
Hon. Sheila G. Farmer, J.
Case No. 2011CA00052
OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas Court, Case No.
2010CR0321
JUDGMENT: Affirmed in part and Reversed in part
and Remanded
DATE OF JUDGMENT ENTRY: October 11, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO KRISTINA R. POWERS
PROSECUTING ATTORNEY Stark County Public Defender's Office
STARK COUNTY, OHIO 200 W. Tuscarawas Street, Suite 200
Canton, Ohio 44702
BY: RENEE M. WATSON
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Hoffman, J.
(¶1) Defendant-appellant Scott Adkins appeals the March 4, 2011 Judgment
Entry of the Stark County Court of Common Pleas denying his motion to dismiss.
Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE CASE
(¶2) In 1996, Appellant entered a plea of guilty to one count of attempted rape,
and was sentenced to prison. Appellant was classified a sexually oriented offender
upon his release from prison pursuant to Megan’s Law, requiring Appellant notify the
Stark County Sheriff of any change of address, in writing, within the twenty days prior to
the change and also to annually verify his address with the Sheriff.
(¶3) In August of 2009, Appellant was reclassified pursuant to the Adam Walsh
Act (AWA) as a Tier III offender under R.C. 2950.032, requiring Appellant provide
periodic verification of his address every ninety days and to continue to report any
change of address.
(¶4) On December 10, 2009, Appellant was placed at the Stark Regional
Community Corrections Center (SRCCC) on an unrelated case. Appellant
subsequently left the SRCCC facility without permission. Once leaving the facility, he
failed to register a change in his address with the Stark County Sheriff, and he was not
found at his previously registered address. Appellant did not verify an address with the
Sheriff within 90 days, but it is conceded he had verified his address within the one year
statutory requirement as previously required by Megan’s law.
(¶5) On April 12, 2010, Appellant entered a plea of guilty to three charges as
contained in a bill of information- two counts of failing to register a change of address,
violations of R.C. Sections 2950.05(A)(E)(1) and 2950.99(A), and one count of failing to
periodically verify his address, a violation of R.C. Sections 2950.06(F) and 2950.99(A).
At the time Appellant entered his plea of guilty in this case, he also had an escape
charge pending in another case which was resolved in conjunction with his plea herein.
The trial court sentenced Appellant to two years on each count to be served
concurrently to each other and concurrent with a three year sentence in the unrelated
case.
(¶6) On February 7, 20111, Appellant filed a motion to dismiss the bill of
information moving the trial court to allow him to withdraw his guilty plea as the offense
to which Appellant entered his pleas was based upon a statute found unconstitutional
by the Ohio Supreme Court on June 3, 2010 in State v. Bodyke, 126 Ohio St.3d 266,
2010-Ohio-2424. Via Judgment Entry of March 4, 2011, the trial court denied the
motion to dismiss.
(¶7) Appellant now appeals, assigning as error:
(¶8) “I. THE TRIAL COURT ERRED BY FAILING TO ALLOW THE
APPELLANT TO WITHDRAW HIS PLEA, THEREBY SUBJECTING HIM TO TIER III
OFFENDER REGISTRATION REQUIREMENTS WHEN HE WAS SUBJECT TO
REGISTRATION UNDER MEGAN’S LAW.”
1
The State does not assert an argument of res judicata, and we choose to not do so
sua sponte.
(¶9) “II. THE APPELLANT WAS DENIED HIS RIGHTS TO DUE PROCESS
AND OF ASSISTANCE OF COUNSEL BECAUSE HIS TRIAL COUNSEL PROVIDED
INEFFECTIVE ASSISTANCE.”
I.
(¶10) It is uncontested the Ohio Supreme Court in State v. Bodyke 126 Ohio
St.3d 266, 2010-Ohio-2424, deemed unconstitutional certain provisions of R.C.
2950.031 and R.C. 2950.032, the Adam Walsh Act. In finding the AWA
unconstitutional, the Court also found severance to be the proper remedy. The Court
did not strike the whole Act. The court held:
(¶11) “Applying these standards, we conclude that severance of R.C. 2950.031
and 2950.032, the reclassification provisions in the AWA, is the proper remedy. By
excising the unconstitutional component, we do not ‘detract from the overriding
objectives of the General Assembly,’ i.e., to better protect the public from the recidivism
of sex offenders, and the remainder of the AWA, ‘which is capable of being read and of
standing alone, is left in place.’ Foster at ¶ 98. We therefore hold that R.C. 2950.031
and 2950.032 are severed and, that after severance, they may not be enforced. R.C.
2950.031 and 2950.032 may not be applied to offenders previously adjudicated by
judges under Megan's Law, and the classifications and community-notification and
registration orders imposed previously by judges are reinstated.”
(¶12) Although Appellant was reclassified under the new law, he had a
continuing obligation pursuant to Bodyke to report and register any change in address
required under Megan’s law, which he failed to do. There was no lapse in Appellant’s
registration requirement created by severance of portions of the Adam Walsh Act.
(¶13) In State v. Poling (June 27, 2011), Stark App. No. 2009-CA-00264, 2011-
Ohio-3201, this Court held:
(¶14) “In conclusion, appellant's reclassification has no bearing on the outcome
of his prosecution. According to Bodyke, appellant's reclassification as a Tier III offender
cannot be enforced, and his original classification as a sexually oriented offender will be
reinstated. Id. at ¶ 66, 933 N.E.2d 753. However, as stated above, appellant was
required to register a change of address at least twenty days prior to changing said
address even before his reclassification from a sexually oriented offender to a Tier III
offender. He failed to do so and was appropriately prosecuted, convicted and
sentenced. The penalty enhancement provisions do not punish the past conduct;
instead, they merely increase the severity of a penalty imposed for a present violation of
the law.”
(¶15) Accordingly, we affirm the trial court’s holding with regard to the two
counts relative to Appellant’s failure to register a change of address.
(¶16) In State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, the Ohio
Supreme Court held an offender who is originally classified under Megan’s Law cannot
be convicted of violating the verification requirements of the AWA. The Court explained,
(¶17) “Thus, pursuant to Bodyke, Gingell's original classification under Megan's
Law and the associated community-notification and registration order were reinstated.
Therefore, the current version of R.C. 2950.06, which requires Tier III sexual offenders
to register every 90 days, does not apply to Gingell. Since Gingell was charged after his
reclassification and before Bodyke, there is no doubt that he was indicted for a first-
degree felony for a violation of the reporting requirements under the AWA. Because the
application of the AWA was based upon an unlawful reclassification, we reverse the
judgment of the court of appeals and vacate Gingell's conviction for a violation of the
90–day address-verification requirement of R.C. 2950.06. Gingell remained accountable
for the yearly reporting requirement under Megan's Law; whether he met that
requirement is not a part of this case.”
(¶18) As Appellant’s original classification required annual verification pursuant
to Megan’s Law, Appellant cannot now be convicted for a violation of the 90-day
address verification requirement under the AWA.
(¶19) Based upon the Supreme Court’s holding in Gingell, the trial court’s
judgment with regard to the one count of Appellant’s failing to periodically verify his
address, a violation of R.C. Sections 2950.06(F) and 2950.99(A), is reversed.
(¶20) Appellant’s first assignment of error is affirmed in part and reversed in
part, and remanded for resentencing.
II.
(¶21) In the second assignment of error, Appellant argues he was denied the
effective assistance of trial counsel.
(¶22) A claim of ineffective assistance of counsel requires a two-prong analysis.
The first inquiry is whether counsel's performance fell below an objective standard of
reasonable representation involving a substantial violation of any of defense counsel's
essential duties to appellant. The second prong is whether the appellant was prejudiced
by counsel's ineffectiveness. Lockhart v. Fretwell (1993), 506 U.S. 364, 113 S.Ct. 838;
Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052; State v. Bradley (1989),
42 Ohio St.3d 136, 538 N.E.2d 373. In order to warrant a finding that trial counsel was
ineffective, the petitioner must meet both the deficient performance and prejudice
prongs of Strickland and Bradley. Knowles v. Mirzayance (2009), ––– U.S. ––––, 129
S.Ct. 1411, 1419, 173 L.Ed.2d 251. We apply the Strickland test to all claims of
ineffective assistance of counsel, both trial counsel, or appellate counsel. State v.
Turner, Licking App. No.2006–CA–123, 2007–Ohio–4583; State v. Godfrey (Sept. 2,
1999), Licking App. No. 97CA0155.
(¶23) To show deficient performance, appellant must establish that “counsel's
representation fell below an objective standard of reasonableness.” Strickland v.
Washington, 466 U.S. at 688, 104 S.Ct. at 2064. This requires showing that counsel
made errors so serious that counsel was not functioning as the “counsel” guaranteed
the defendant by the Sixth Amendment. Strickland v. Washington 466 U.S. at 687, 104
S.Ct. at 2064. Counsel also has a duty to bring to bear such skill and knowledge as will
render the trial a reliable adversarial testing process. Strickland v. Washington 466 U.S.
at 688, 104 S.Ct. 2052 at 2065.
(¶24) Appellant must further demonstrate that he suffered prejudice from his
counsel's performance. See Strickland, 466 U .S. at 691 (“An error by counsel, even if
professionally unreasonable, does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment”). To establish prejudice, “[t]he
defendant must show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694. To prevail on his ineffective-assistance claim, appellant must
show, therefore, that there is a “reasonable probability” that the trier of fact would not
have found him guilty.
(¶25) For the reasons set forth in our analysis and disposition of Appellant’s first
assignment of error, we overrule Appellant’s second assignment of error as moot as to
Appellant’s conviction for one count of failing to periodically verify his address.
(¶26) The March 4, 2011 Judgment Entry of the Stark County Court of Common
Pleas is affirmed in part and reversed in part and remanded for resentencing in
accordance with the law and this Opinion.
By: Hoffman, J.
Gwin, P.J. and
Farmer, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin_____________________
HON. W. SCOTT GWIN
s/ Sheila G. Farmer___________________
HON. SHEILA G. FARMER
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-v.- : JUDGMENT ENTRY
:
SCOTT ADKINS :
:
Defendant-Appellant : Case No. 2011CA00052
For the reasons stated in our accompanying Opinion, the March 4, 2011
Judgment Entry of the Stark County Court of Common Pleas is affirmed in part and
reversed in part and remanded for resentencing in accordance with the law and this
Opinion. Costs divided equally.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin_____________________
HON. W. SCOTT GWIN
s/ Sheila G. Farmer___________________
HON. SHEILA G. FARMER