State v. Woolridge , 2012 Ohio 4088 ( 2012 )

[Cite as State v. Woolridge, 2012-Ohio-4088.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellant : C.A. CASE NO. 24924
v. : T.C. NO. 11CR3345
LARRY WOOLDRIDGE : (Criminal appeal from
Common Pleas Court)
Defendant-Appellee :
:
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OPINION
Rendered on the 7th day of September , 2012.
..........
JOHNNA M. SHIA, Atty. Reg. No. 0067685, Assistant Prosecuting Attorney, 301 W. Third
Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellant
TINA M. McFALL, Atty. Reg. No. 0082586, Assistant Public Defender, 117 S. Main Street,
Suite 400, Dayton, Ohio 45422
Attorney for Defendant-Appellee
..........
FROELICH, J.
{¶ 1} Appellant, the State of Ohio, appeals the sentence of the Montgomery
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County Court of Common Pleas of appellee, Larry Wooldridge, following his guilty plea to
failure to notify the Montgomery County Sheriff of his change of address. At issue is
whether the trial court erred in sentencing Wooldridge pursuant to the sentencing statute in
effect at the time of his original sex offender classification, as opposed to the amended
sentencing statute in effect at the time of his notification violation. Because we hold that
the trial court did not err, we will affirm.
{¶ 2} On November 24, 1999, Wooldridge, who was then 47 years old, was
convicted of one count of rape of a child under the age of 13, a felony of the first degree, and
three counts of gross sexual imposition of three different children, each under the age of 13.
State v. Wooldridge, Montgomery C.P. No. 1998 CR 2940. Wooldridge was sentenced to a
total of ten years in prison. The trial court designated him as a sexual predator under Ohio’s
version of Megan’s Law, which became effective in 1997.
{¶ 3} In 2006, the federal Adam Walsh Child Protection and Safety Act was
enacted by Congress, which divided sex offenders into three tiers based solely on the type of
sex offense committed. On January 1, 2008, Am.Sub.S.B. 10, which replaced Megan’s
Law with Ohio’s version of the Adam Walsh Act (“AWA”), became effective. The AWA
required the Ohio Attorney General to reclassify existing sex offenders based on the tier
system and to notify them of the reclassification. Pursuant to the AWA, Wooldridge was
reclassified as a Tier III sex offender.
{¶ 4} R.C. 2950.05 outlines a sex offender’s registration and notification
obligations. Under the version of R.C. 2950.05 in effect at the time of Wooldridge’s
original classification (as a sexual predator), he was required to register every 90 days for
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life and to provide written notice to the sheriff of a change of address at least 20 days prior to
changing his address. R.C. 2950.05, as amended by S.B. 10 in 2008, also required
Wooldridge (as a Tier III offender), to register every 90 days for life and to provide written
notice to the sheriff at least 20 days prior to changing his address.
{¶ 5} R.C. 2950.99 sets forth the penalties for a sex offender’s failure to comply
with his registration and notification obligations. Under the version of R.C. 2950.99 in
effect at the time of Wooldridge’s original classification in 1999, the penalty for failure to
notify was a felony of the fifth degree. In 2004, pursuant to S.B. 5, the penalties for
registration offenses were increased. For example, when the underlying sex offense was a
first-degree felony, the registration offense was a third-degree felony. See former R.C.
2950.99. Current R.C. 2950.99, which was amended by S.B. 97 and also became effective
on January 1, 2008, further increased the penalties for violations of the registration and
notification requirements of R.C. 2950.05. Pursuant to R.C. 2950.99, a failure to notify is a
felony of the first degree when the underlying sex offense is a first-degree felony, and
requires a mandatory three-year term in prison if the offender were previously convicted of a
registration or notification violation. R.C. 2950.99(A)(1)(a)(ii)(2)(B).
{¶ 6} Following his release from prison, on October 5, 2011, Wooldridge was
indicted for failure to notify, a felony of the first degree, for failing to provide notice of his
change of address to the Montgomery County Sheriff at least 20 days prior to that change, a
requirement imposed on Wooldridge as a Tier III sex offender, as required by R.C. 2950.04
and 2950.041. On October 27, 2011, over the state’s objection, the trial court accepted
Wooldridge’s guilty plea to failure to notify, a felony of the fifth degree, which was the
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degree of his notification offense at the time of his original classification. The trial court
accepted this reduced plea. On November 10, 2011, again, over the state’s objection and
pursuant to this court’s decision in State v. Milby, 2d Dist. Montgomery No. 23798,
2010-Ohio-6344, the trial court sentenced Wooldridge on the offense as a fifth-degree felony
to community control sanctions not to exceed five years.
{¶ 7} The state appeals the trial court’s sentence, asserting the following for its
sole assignment of error:
{¶ 8} “The trial court erred as a matter of law when it sentenced Wooldridge to
community control sanctions because the sentencing statute in effect at the time he
committed his offense classified his offense as a felony of the first degree requiring a
mandatory 3-year prison sentence.”
{¶ 9} In State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753,
the Supreme Court of Ohio struck down as unconstitutional the reclassification provisions in
the AWA, i.e., R.C. 2950.031 and 2950.032, which required the Attorney General to
reclassify sex offenders pursuant to the tiered scheme. Id. at ¶ 60-61. The court severed
those provisions from the AWA as violating the separation-of-powers doctrine, and held that
they “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.
{¶ 10} The state concedes that, pursuant to Bodyke, Wooldridge’s reclassification as
a Tier III sex offender and the community-notification and registration orders attending that
reclassification may not be applied, and his original classification as a sexual predator and
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the community-notification and registration orders pursuant to that classification are
reinstated.
{¶ 11} The state asks us to “reconsider” our decision in Milby and to hold that
because Wooldridge committed his notification violation after the January 1, 2008 effective
date of current R.C. 2950.99, the trial court should have imposed the heightened felony
classification and sentence authorized by that statute. However, because the state asserts
the identical argument it presented in Milby and subsequent cases, which we fully considered
and rejected, we will follow our precedent.
{¶ 12} In Milby, this court held that because the prohibition against failing to notify
the sheriff of a change of address did not change when R.C. 2950.05 was amended by S.B.
10 in 2008, the defendant had an ongoing duty to notify that neither the amendment of that
section nor Bodyke had changed. Id. at ¶ 31. As a result, this court held that Milby could
be convicted of failure to notify based on the original classification to which he was
reinstated. Id. However, this court further held that, because the related amendment of
R.C. 2950.99(A)(1)(a) increased the violation from a felony of the third degree to a
first-degree felony, Milby could not be convicted of the greater offense, and was entitled to a
remand for resentencing as a third-degree felony. Id.
{¶ 13} This court applied Milby in State v. Johnson, 2d Dist. Montgomery No.
24029, 2011-Ohio-2069. Johnson had been designated a sexually oriented offender in
1994. His classification was changed to Tier III under AWA. In 2009, he was charged
with a first-degree felony failure to provide notice of his change of address. Pursuant to
Milby, this court held that, because the prohibited conduct in failing to give notice of the
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new address did not change when R.C. 2950.05 was amended, the defendant’s duty was not
altered by the AWA. Johnson at ¶ 9. As a result, he could be convicted for failing to
notify based on his prior sexual offender classification to which he was reinstated under
Bodyke. Id. However, pursuant to Milby, because the related amendment of R.C.
2950.99(A)(1)(a)(i) changed the violation from a third-degree felony to a first-degree felony,
of which the defendant was convicted, this court reversed and remanded for re-sentencing
for a third-degree felony. Id.{¶ 14} Likewise, in State v. Alexander, 2d Dist. Montgomery No. 24119,
2011-Ohio-4015, Alexander had been convicted of rape, a first-degree felony, and
designated as a sexually oriented offender in 2004. He was reclassified under AWA in
2008 as a Tier III offender. He was charged with failing to notify the sheriff of his new
address in 2010, a first-degree felony. This court stated, “[L]ike in Johnson [and Milby],
appellant should have been found guilty of a third-degree felony and not a first-degree
felony.” Id. at ¶ 38.
{¶ 15} Similarly, in State v. Alltop, 2d Dist. Montgomery No. 24324,
2011-Ohio-5541, the defendant was classified as a sexual predator in 2006. This court
applied Milby in holding that because the defendant’s failure-to-notify offense was changed
from a third-degree felony to a first-degree felony by S.B. 97, the penalty codified at R.C.
2950.99(A)(1)(a)(ii) for violation of the reporting requirements could not be applied. Id. at
¶ 15-16. Consequently, a remand for resentencing as a third-degree felony, which was the
penalty in place when the defendant was originally classified as a sexual predator, was
appropriate. Id. at ¶ 16.
[Cite as State v. Woolridge, 2012-Ohio-4088.]
{¶ 16} Finally, in State v. Howard, 195 Ohio App.3d 802, 2011-Ohio-5693, 961
N.E.2d 1196 (2d Dist.), discretionary appeal allowed, 131 Ohio St.3d 1472, 2012-Ohio-896,
962 N.E.2d 803, this court noted that, while Howard’s duty to provide notice of a change of
address had not changed, the amendment of R.C. 2950.99 changed the penalty for failure to
notify from a felony of the fifth degree to a felony of the first degree, and subjected Howard
to a mandatory term of incarceration. This court held that the fact that Howard committed
his failure-to-notify offense after the effective date of S.B. 97, which changed the sentencing
provisions for violations of R.C. 2950.05, did not affect the outcome. Id. at ¶ 12. Pursuant
to Milby, this court held that the trial court erred when it convicted Howard of a first-degree
felony and sentenced him accordingly, instead of finding him guilty of a fifth-degree felony.
Id.
{¶ 17} Thus, based on Milby, as followed in Johnson, Alexander, Alltop, and
Howard, when a failure-to-notify conviction is reversed and remanded for resentencing after
an improper AWA reclassification, the penalty for the notification violation reverts to the
penalty that was in place at the time of the defendant’s original classification.
{¶ 18} We acknowledge that, following the Supreme Court’s decision in Bodyke, a
conflict exists among Ohio appellate districts that have considered the application of the
penalties in current R.C. 2950.99 to sex offenders classified under Megan’s Law. Our
holdings are consistent with those of the Seventh and Eighth Districts. State v. Savors, 197
Ohio App.3d 61, 2012-Ohio-1297, 965 N.E.2d 1086 (7th Dist.); State v. Smith, 8th Dist.
Cuyahoga Nos. 96582, 96622 & 96623, 2012-Ohio-261. However, our holdings are in
conflict with the First, Fifth, and Twelfth Districts. State v. Freeman, 1st Dist. Hamilton
No. C-100389, 2011-Ohio-4357; State v. Bowling, 1st Dist. Hamilton No. C-100323,
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2011-Ohio-4946; State v. Poling, 5th Dist. Stark No. 2009-CA-00264, 2011-Ohio-3201;
State v. Topping, 12th Dist. Warren No. CA2011-07-067, 2012-Ohio-2259. The decisions
in conflict with ours generally hold that current R.C. 2950.99 is not applied retroactively to
offenders classified under Megan’s Law who fail to register or notify after the effective date
of current R.C. 2950.99. This is because an offender who violates these duties is not being
punished for the original sex offense for which he is required to register and notify, but,
rather, is punished for violating his ongoing registration and notification duties. E.g.,
Topping at ¶ 20.
{¶ 19} Pursuant to this court’s precedent, we hold the trial court did not err in
convicting Wooldridge of failure to notify because, under former law, he was required to
provide notice of an address change at least 20 days prior to changing his address. See
former R.C. 2950.05(A). Further, the trial court did not err in sentencing Wooldridge for a
fifth-degree felony because, at the time of his original classification, that was the degree of
felony attributed to a failure to notify the sheriff of his change of address.
{¶ 20} For the reasons stated in this opinion, the state’s assignment of error is
overruled, and the judgment of the Montgomery County Court of Common Pleas will be
affirmed.
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FAIN, J., concurs.
RICE, J., dissenting:
{¶ 21} I must respectfully dissent. Wooldridge should have been sentenced as a
first-degree felony offender because current R.C. 2950.99 does not violate the prohibition
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against retroactive laws.
{¶ 22} The first-degree penalty for Wooldridge’s violation of his duty to register,
which arose from his past sex offense, is punishment for a violation of law committed after
the enactment of the penalty enhancement provisions contained in R.C. 2950.99. His
conviction for failure to register does not punish Wooldridge’s past conduct but is a penalty
imposed for a current violation of his duty to register.
{¶ 23} In 1999, Wooldridge was convicted of rape. At that time, he was classified
as a sexual predator under Megan’s Law. After the AWA became effective on January 1,
2008, he was reclassified as a Tier III sex offender. This appeal arises from Wooldridge’s
October 5, 2011 indictment for failure to notify the sheriff of a change of address.
{¶ 24} At the time of Wooldridge’s rape conviction, pursuant to former R.C.
2950.99, failure to notify the sheriff of an address change was a fifth-degree felony.
Pursuant to current R.C 2950.99, effective January 1, 2008, a failure-to-notify violation was
elevated to a first-degree felony. After the effective date of current R.C. 2950.99,
Wooldridge was indicted for failure to notify the sheriff of his change of address as a
first-degree felony.
{¶ 25} The Supreme Court of Ohio in Bodyke, supra, struck down and severed the
reclassification provisions of the AWA, 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. Those classifications had already been adjudicated by a court and
requiring the executive branch to review past decisions of the judicial branch violated the
separation-of-powers doctrine. Although the court in Bodyke reinstated the classifications
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and registration orders imposed under Megan’s Law, it did not vacate or sever the current
sentencing statute, R.C. 2950.99. Id. at ¶ 66. Thus, the Supreme Court left the current
penalty provisions intact. Because Wooldridge’s classification and registration duties
imposed under Megan’s Law were reinstated, he is subject to the reporting requirements
under that law. However, because the current penalty statute was not severed, I believe
Wooldridge is subject to R.C. 2950.99’s increased penalties.
{¶ 26} Unlike the majority, I do not believe that application of current
R.C.2950.99 to Wooldridge violates the prohibition against retroactive laws. “A law is
retroactive if it ‘changes the legal consequences of acts completed before its effective date.’”
Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987), quoting
Weaver v. Graham, 450 U.S. 24, 31, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). In contrast, a
statute that does not change the legal consequences of acts completed before its effective
date, but “simply mandates an enhanced penalty for acts committed after the effective date
of the provision,” is not retroactive. State v. Clark, 1st Dist. Hamilton No. C-910541, 1992
WL 188535, *1 (Aug. 5, 1992).
{¶ 27} Current R.C. 2950.99 did not change the legal consequences of
Wooldridge’s rape offense, which he committed before the statute’s effective date. Rather,
the statute simply imposed an enhanced penalty for registration violations committed after
the effective date of the statute. The conduct which led to his present registration conviction
took place long after current R.C. 2950.99 became effective. As a result, I do not believe
the statute is a retroactive law.
{¶ 28} This conclusion finds support in State v. Cook, 83 Ohio St.3d 404, 700
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N.E.2d 570 (1998). In Cook, the Supreme Court of Ohio considered the heightened penalty
for a registration violation imposed by Megan’s Law in 1997. The court stated:
Even prior to the promulgation of the current version of R.C. Chapter 2950,
failure to register was a punishable offense. See former R.C. 2950.99, 130
Ohio Laws 671. Thus, any such punishment flows from a failure to register,
a new violation of the statute, not from a past sex offense. In other words,
the punishment is not applied retroactively for an act that was committed
previously, but for a violation of law committed subsequent to the enactment
of the law.
Cook at 420-421.
{¶ 29} In Clark, the defendant challenged former R.C. 2929.11, which provided
that if an offender had previously been convicted of an aggravated felony, the minimum term
of incarceration for the current offense would be imposed as a term of actual incarceration.
The First District rejected the defendant’s ex post facto argument. The court held the
statute was not retroactive because it did not change the legal consequences of acts
completed before the effective date, but, rather, simply mandated an enhanced penalty for
acts committed after the effective date of the statute where the defendant had previously
been convicted of a felony. Id. at *4.
{¶ 30} Likewise, in State v. Sargent, 126 Ohio App.3d 557, 710 N.E.2d 1170 (12th
Dist.1998), the defendant was convicted of aggravated arson. Based on a prior robbery
conviction, the trial court increased his sentence under former R.C. 2929.01(EE) as a repeat
violent offender. The defendant argued the statute was an ex post facto law. The Twelfth
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District disagreed, holding that statutes which enhance the penalty for repeat offenders based
in part upon criminal conduct occurring prior to passage of the enhancement statutes are
not ex post facto laws. Id. at 566. The enhancement statutes do not punish the past
conduct; instead, they merely increase the severity of a penalty imposed for criminal
behavior that occurs after enactment of the enhancement legislation. Id.
{¶ 31} This court reached the same conclusion in State v. Sanders, 2d Dist. Miami
Nos. 95 CA 11, 95 CA 12, 1995 WL 634371 (Sep. 29, 1995). There, the defendant pled no
contest to OVI. As a recidivist offender, she was subject to a mandatory term of
confinement. The trial court granted her motion to declare the mandatory sentencing statute
unconstitutional. On appeal by the state, this court reversed, holding:
The conduct which led to Sanders’ [current] conviction for a violation
of R.C. 4511.19 took place on March 17, 1994. According to the version of
R.C. 4511.99(A) then in effect, which became effective on September 1,
1993, Sanders was subject to greater penalties * * * because she had been
convicted of violations of R.C. 4511.19 twice before within five years. * * *
Because these prior violations took place before the effective date of R.C.
4511.99(A), the trial court found that the penalty enhancement provisions of
that statute violate the Constitutional prohibitions against ex post facto laws.
Statutes which enhance the penalty for repeat offenders based in part
upon criminal conduct occurring prior to passage of the enhancement
provision do not constitute ex post facto legislation. The enhancement
provisions do not punish the past conduct; rather, the enhancement provisions
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merely increase the severity of a penalty imposed for criminal behavior that
occurs after passage of the enhancement legislation. * * *
R.C. 4511.99(A) does not impose a punishment on Sanders for her
past convictions. It merely increases the severity of the punishment imposed
for her current offense because of those past convictions. It is not an ex post
facto law.
Sanders at *13.
{¶ 32} I do not see a meaningful distinction between the analogous enhancement
statutes, found to be constitutional by this court as well as the First, Eighth, and Twelfth
Districts, and current R.C. 2950.99. Although Wooldridge’s duty to register flowed from
his sex offense, his failure to notify the sheriff of his address change was a new offense that
he committed after the effective date of current R.C. 2950.99. Thus, the penalty
enhancement provisions do not punish Wooldridge’s past conduct. Rather, they merely
increase the severity of a penalty imposed for a current violation of his duty to register,
which arose from his past sex offense. For this reason, I do not believe current R.C.
2950.99 violates the prohibition against retroactive laws.
{¶ 33} For the foregoing reasons, I respectfully dissent.
.........
(Hon. Cynthia Westcott Rice, Eleventh District Court of Appeals, sitting by assignment of
the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Johnna M. Shia
Tina M. McFall
Hon. Steven K. Dankof