State v. Torres , 2012 Ohio 922 ( 2012 )

[Cite as State v. Torres, 2012-Ohio-922.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 96930 and 96931
STATE OF OHIO
PLAINTIFF-APPELLANT
vs.
MIGUEL TORRES
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Criminal Appeals from the
Cuyahoga County Court of Common Pleas
Case No. CR-517675
BEFORE: Stewart, P.J., Jones, J., and Rocco, J.
RELEASED AND JOURNALIZED: March 8, 2012
ATTORNEYS FOR APPELLANT
William D. Mason
Cuyahoga County Prosecutor
BY: Daniel T. Van
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Robert L. Tobik
Cuyahoga County Public Defender
BY: Cullen Sweeney
Nathaniel McDonald
Assistant Public Defenders
310 Lakeside Avenue, Suite 400
Cleveland, OH 44113
MELODY J. STEWART, P.J.:
{¶1} In this consolidated appeal, plaintiff-appellant state of Ohio appeals from the
judgments of the Cuyahoga County Common Pleas Court that granted defendant-appellee
Miguel Torres’s motion to withdraw guilty plea and motion to dismiss indictment. The
state complains that because Torres’s reclassification as a tier III sexual offender was
lawful and subjected him to registration requirements under the Adam Walsh Act
(“AWA”), the trial court erred in allowing him to withdraw his guilty plea for failing to
verify his address. The state also contends that the trial court erred when it dismissed the
underlying indictment. For the reasons stated below, we affirm.
{¶2} Torres was convicted of sexual abuse in New York in 1992. He moved to
Ohio in 2007 and was automatically classified as a sexually oriented offender subject to
the registration and reporting requirements under Ohio’s version of Megan’s Law. This
classification required Torres to register his address with the Cuyahoga County Sheriff
annually for ten years. In July 2007, the Ohio General Assembly replaced the existing
sexual offender registration statutes with Ohio’s version of the AWA. When the AWA
became effective in January 2008, Torres was reclassified as a tier III sexual offender.
This reclassification required him to report more frequently and for a longer period of
time: every 90 days for life.
{¶3} Torres last verified his address on May 19, 2008, and 90 days later when he
failed to report, he was indicted for failure to verify his address under the AWA. In
March 2009, Torres entered a plea of guilty to an amended indictment for attempted
failure to verify address and was sentenced to community control sanctions and continued
reporting requirements.
{¶4} In August 2009, a capias was issued at the request of the adult probation
department because Torres had again failed to report as directed. In January 2010, the
trial court found him to be in violation of community control sanctions and sentenced him
to a two-year term of incarceration. In March 2011, Torres filed a motion to withdraw
his guilty plea, and in May 2011, he filed a motion to dismiss the indictment. The trial
court granted Torres’s motion to withdraw his plea in May 2011. In June, when his
motion to dismiss indictment was granted, the state appealed both rulings.
{¶5} For its first assignment of error, the state argues that the trial court erred in
granting Torres’s motion to withdraw guilty plea because the underlying conviction was
based on a lawful reclassification that subjected Torres to registration under the AWA.
The state argues that Torres is not entitled to relief because his duty to register arose by
operation of law because he was convicted out-of-state, and that he had no expectation
of finality.
{¶6} The state derives its right to appeal in criminal cases from R.C. 2945.67(A),
which “draws a distinction between an appeal as of right and an appeal by leave.” State
v. Matthews, 81 Ohio St.3d 375, 377, 691 N.E.2d 1041 (1998). R.C. 2945.67(A) defines
the circumstances under which the state has an absolute right of appeal, and states, in
pertinent part:
A [prosecutor] * * * may appeal as a matter * * * [of] right any decision of
a trial court in a criminal case * * * which decision grants (1) a motion to
dismiss all or any part of an indictment, complaint, or information, (2) a
motion to suppress evidence, or (3) a motion for the return of seized
property or (4) grants post conviction relief * * * and may appeal by leave
of the court to which the appeal is taken any other decision, except the final
verdict, of the trial court in a criminal case * * *.
{¶7} The state filed a timely notice of appeal. However, since the state’s
challenge to the motion to withdraw guilty plea is discretionary, the state was also
required to move this court for leave to appeal. “[A] motion for leave to appeal shall be
filed with the court of appeals within thirty days from the entry of the judgment and order
sought to be appealed * * *.” App.R. 5(A). “[T]he filing of a motion for leave to
appeal by the state in a criminal case is jurisdictional, and the failure to take that action
within thirty days is fatal.” State v. Gowdy, 95 Ohio App.3d 628, 630, 643 N.E.2d 175(2d Dist.1994); see also Garfield Hts. v. Turpin, 8th Dist. No. 74920, 1999 WL 820537(Oct. 14, 1999) (“the court declined to grant the prosecution leave to appeal where the
prosecution did not file a motion for leave to appeal, and there were other cases which
reached the issue which the prosecution sought to raise”). Because the state did not seek
leave to appeal the issue raised in its first assigned error, we decline to address it.
{¶8} The state, in its second assignment of error, similarly asserts that Torres is
subject to registration under the AWA, and as a result, the trial court erred by dismissing
the indictment. The state concedes that this court has held that State v. Bodyke, 126 Ohio
St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, also applies to out-of-state offenders who
have been previously classified under Ohio’s Megan’s Law, and raises this appeal only to
preserve this assignment of error for possible review. Nevertheless, we again note that
this court has held that an “unlawful reclassification under Ohio’s AWA cannot serve as
the predicate for the crime of failure to verify.” Therefore, a defendant indicted under
such an unlawful reclassification cannot be convicted of the offense charged. State v.
Ortega-Martinez, 8th Dist. No. 95656, 2011-Ohio-2540, 2011 WL 2112726, ¶ 17, citing
State v. Smith, 8th Dist. No. 92550, 2010-Ohio-2880, 2010 WL 2541371, ¶ 29; State v.
Page, 8th Dist. No. 94369, 2011-Ohio-83, 2011 WL 208290; see also Hawkins v. State,
8th Dist. Nos. 96080, 96081, 96082, 96083, 96084, 96085, 96086, 96087, 96088, 96089,
96090, 96091, 96092, 2011-Ohio-3393, 2011 WL 2651565. The state’s second
assignment of error is overruled.
{¶9} Judgment affirmed.
It is ordered that appellee recover of appellant his costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas to carry this judgment into execution. A certified
copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of
Appellate Procedure.
MELODY J. STEWART, PRESIDING JUDGE
LARRY A. JONES, SR., J., and
KENNETH A. ROCCO, J., CONCUR