State v. Guthrie , 2012 Ohio 1264 ( 2012 )

[Cite as State v. Guthrie, 2012-Ohio-1264.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
)
VS. ) CASE NO. 09-CO-40
)
GLEN A. GUTHRIE, ) OPINION
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Columbiana County, Ohio
Case No. 01CR199, 05CV62
JUDGMENT: Reversed
APPEARANCES:
For Plaintiff-Appellee Robert Herron
Prosecutor
Timothy J. McNicol
Assistant Prosecuting Attorney
105 South Market Street
Lisbon, Ohio 44432
For Defendant-Appellant Attorney George Urban
111 Second Street, N.W.
Suite 302
Canton, Ohio 44702
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: March 21, 2012
[Cite as State v. Guthrie, 2012-Ohio-1264.]
DONOFRIO, J.
{¶1} Defendant-appellant Glen Guthrie appeals a decision of the
Columbiana County Common Pleas Court dismissing his petition contesting his
reclassification under Ohio’s Adam Walsh Act, R.C. 2905.01 et seq.
{¶2} On August 30, 2002, Guthrie entered Alford pleas of guilty to two
counts of gross sexual imposition in violation of R.C. 2907.05(A)(4), both third-degree
felonies. On November 1, 2002, the trial court sentenced Guthrie to four years
community control. The trial court also classified Guthrie as a sexually oriented
offender under what was then Ohio’s Megan’s Law. That classification required
Guthrie to register annually for ten years and did not include a community notification
requirement.
{¶3} In 2007, Ohio’s General Assembly enacted Am.Sub.S.B. No. 10 which
repealed Megan’s Law and replaced it with the Adam Walsh Act (AWA). The AWA
put in place a retroactive scheme which divided sex offenders into three categories,
termed tiers (Tier I, Tier II, and Tier III), based solely on the crime committed.
{¶4} On November 26, 2007, the Ohio Attorney General’s office sent Guthrie
notice that he would be reclassified under the new law as a Tier II sexual offender.
The Tier II classification imposed more stringent requirements on Guthrie requiring
him to register every 180 days for 25 years, but community notification was still not
required.
{¶5} On January 17, 2008, Guthrie filed a dual motion to vacate his plea and
motion to contest application of AWA to him. He took issue with the reclassification,
arguing that his sexually-oriented-offender classification and its less stringent
registration requirements were part of his negotiated plea agreement. Guthrie
simultaneously initiated a civil suit, filing a petition to contest the reclassification along
with a motion for a temporary restraining order. Guthrie argued that the AWA
violated numerous provisions of the Ohio and United States Constitutions, including
separation of powers, prohibition against retroactive laws, ex post facto clause,
double jeopardy, due process, and impairment of contract. Although community
notification did not apply to his proposed reclassification as a Tier II sexual offender
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under the AWA, he inexplicably also filed a motion for relief from community
notification pursuant to R.C. 2950.11(F)(2).
{¶6} On September 10, 2008 the trial court joined the Ohio Attorney General
and the Sheriff of Columbiana County as parties to the action; restrained the Sheriff
from enforcing the provisions of Ohio’s AWA until further order of the court; and
invited all parties to file briefs regarding the constitutionality of Ohio’s AWA. The trial
court also consolidated Guthrie’s case with all similar cases pending on the trial
court’s docket, to be decided by the Common Pleas Court sitting en banc for
purposes of determining the threshold constitutional issues.
{¶7} In judgment entries filed on June 1, 2009, and October 30, 2009, the
trial court rejected all the constitutional arguments advanced by Guthrie and upheld
his reclassification as a Tier II offender under the AWA. This appeal followed.
{¶8} Guthrie sets forth five assignments of error, advancing the same
constitutional arguments he made below:
{¶9} “THE TRIAL COURT ERRED IN FAILING TO INVALIDATE SENATE
BILL 10 WHEN THE STATUTORY PROVISIONS VIOLATED THE APPELLANT’S
RIGHT TO DUE PROCESS.”
{¶10} “THE TRIAL COURT ERRED IN HOLDING THAT SENATE BILL 10
WAS NOT UNCONSTITUTIONAL IN VIOLATION OF ARTICLE II, SECTION 28 OF
THE OHIO CONSTITUTION, THE RETROACTIVITY CLAUSE.”
{¶11} “THE TRIAL COURT ERRED IN HOLDING THAT SENATE BILL 10
WAS NOT UNCONSTITUTIONAL IN VIOLATION OF ARTICLE 1, SECTION 10 OF
THE UNITED STATES CONSTITUTION, THE EX POST FACTO CLAUSE.”
{¶12} “THE TRIAL COURT ERRED IN HOLDING THAT SENATE BILL 10
WAS NOT UNCONSTITUTIONAL IN VIOLATION OF ARTICLE II, SECTION 28 OF
THE OHIO CONSTITUTION, THE RIGHT TO CONTRACT CLAUSE.”
{¶13} “THE TRIAL COURT ERRED IN HOLDING THAT SENATE BILL 10
WAS NOT UNCONSTITUTIONAL IN VIOLATION OF ARTICLE I, SECTION 10 OF
THE OHIO CONSTITUTION, THE DOUBLE JEOPARDY CLAUSE.”
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{¶14} One of Guthrie’s arguments under his first assignment of error
concerning separation of powers is dispositive of this appeal. In State v. Bodyke, 126
Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, the Ohio Supreme Court found
the reclassification provisions of the AWA unconstitutional. Concerning the
separation of powers argument, the Bodyke court concluded at paragraphs two and
three of the syllabus that:
{¶15} “R.C. 2950.031 and 2950.032, which require the attorney general to
reclassify sex offenders who have already been classified by court order under
former law, impermissibly instruct the executive branch to review past decisions of
the judicial branch and thereby violate the separation-of-powers doctrine.”
{¶16} “R.C. 2950.031 and 2950.032, which require the attorney general to
reclassify sex offenders whose classifications have already been adjudicated by a
court and made the subject of a final order, violate the separation-of-powers doctrine
by requiring the opening of final judgments.”
{¶17} The Court concluded severance was the proper remedy holding that
“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.” Id. at ¶66.
{¶18} Accordingly, Guthrie’s first assignment of error is with merit. Guthrie’s
remaining assignments of error present other constitutional challenges to Ohio’s
AWA which are moot and need not be addressed by this court. See, e.g. Cechura v.
State, 7th Dist. No. 09 CO 41, 2010-Ohio-6505, at ¶11 (reversing on authority of
Bodyke and finding remaining constitutional arguments moot); Dudkowski v. State,
8th Dist. No. 93221, 2010-Ohio-2887, at ¶14 (reversing per Bodyke and declining to
address the remaining arguments); State v. Bernthold, 10th Dist. No. 09AP-642,
2010-Ohio-2775, at ¶8 (reversing per Bodyke, concluding remaining assignments of
error are moot). See, also, App.R. 12(A).
{¶19} Accordingly, the judgment of the trial court is hereby reversed and
Guthrie’s original sexually-oriented-offender classification reinstated.
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Vukovich, J., concurs.
DeGenaro, J., concurs.