State v. Eads , 197 Ohio App. 3d 493 ( 2011 )

[Cite as State v. Eads, 197 Ohio App.3d 493, 2011-Ohio-6307.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
THE STATE OF OHIO, :
Appellee, : C.A. CASE NO. 24696
v. : T.C. NO. 10CR4016
EADS, : (Criminal appeal from
Common Pleas Court)
Appellant. :
:
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OPINION
Rendered on the 9th day of December , 2011.
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Mathias H. Heck, Montgomery County Prosecuting Attorney, and Johnna M. Shia,
Assistant Prosecuting Attorney, for appellee.
D.K. Rudy Wehner, Montgomery County Public Defender, and Tina M. McFall,
Assistant Public Defender, for appellant.
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FROELICH, Judge.
{¶ 1} Justin T. Eads was convicted after a bench trial in the Montgomery
County Court of Common Pleas of failure to verify his residence, as required by R.C.
2950.06, and failure to notify the sheriff of his change of address, in violation of R.C.
2950.05. Because the underlying sex offenses were two counts of rape, both
offenses under R.C. Chapter 2950 were first-degree felonies under the current
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version of R.C. 2950.99.
{¶ 2} After the trial court found him guilty, Eads moved for the court to
reinstate community-control sanctions. Eads argued that R.C. 2950.99 does not
require a mandatory prison term for first-time convictions for failure to notify and
failure to verify, even if they are felonies of the first degree. The trial court overruled
Eads’s motion and sentenced him to mandatory terms of three years in prison on
each count, to be served concurrently. The court further ordered, however, that
Eads’s sentence be stayed and that he be released on bond pending appeal.
{¶ 3} Eads appeals from his conviction and sentence, raising two
assignments of error.
I
{¶ 4} Eads’s first assignment of error states:
{¶ 5} “It was plain error when the trial court found the defendant guilty when
he had no duty to register and no duty to notify because current R.C. 2950 is
unconstitutional as applied to him pursuant to State v. Williams.”
{¶ 6} In his first assignment of error, Eads claims that his classification as a
Tier III sex offender under the current version of R.C. Chapter 2950 (S.B. 10) is
unconstitutional and, as a result, he could not be found guilty of failing to register and
to notify under that statute.
{¶ 7} The original version of Ohio’s sex offender classification and
registration law was enacted in 1963. See former R.C. Chapter 2950, 130 Ohio Laws
669. In 1996, the Ohio General Assembly enacted Ohio’s version of “Megan’s Law,”
which “repealed prior versions of R.C. Chapter 2950 and created Ohio’s first
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comprehensive registration and classification system for sex offenders.” State v.
Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, ¶ 7, citing State v. Cook (1998), 83
Ohio St.3d 404, 407. Under Ohio’s Megan’s Law, judges classified sex offenders,
after a hearing, as either a sexually oriented offender, habitual sex offender, or sexual
predator, based on the judge’s consideration of various factors. Sex offenders were
subject to registration, classification, and/or community-notification requirements in
accordance with their specific classification.
{¶ 8} In 2006, the United States Congress passed the Adam Walsh Child
Protection and Safety Act, which divided sex offenders into three tiers based solely
upon the offense committed. Bodyke at ¶ 18. Later that same year, while Megan’s
Law was still in effect in Ohio, Eads, then a juvenile, committed acts of rape. In 2007,
the Ohio General Assembly enacted 2007 Am.Sub.S.B. No. 10, which replaced
Megan’s Law with Ohio’s version of the Adam Walsh Act (“S.B. 10”), effective
January 1, 2008. Bodyke at ¶ 20; current R.C. Chapter 2950.
{¶ 9} In 2008, Eads was adjudicated delinquent in juvenile court for two
counts of rape, based on his 2006 conduct. The juvenile court committed Eads to
the Department of Youth Services and notified him that he would be required to
register as a Tier III sex offender, but was not designated a public-registry-qualified
juvenile-offender registrant and was not subject to community-notification provisions.
We find no indication that Eads appealed from the juvenile court’s judgment.
{¶ 10} Eads registered with the sheriff’s office on 11 occasions, which included
four notifications to the sheriff of a change of address. However, in November 2010,
Eads failed to timely verify his address (although he notified the sheriff’s office by
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telephone that he was in Kentucky), and he was subsequently located in Berea,
Kentucky.
{¶ 11} In January 2011, Eads was indicted for failing to verify his residence
and failing to notify the sheriff of his change of address. After a bench trial, the trial
court convicted Eads of both charges. In May 2011, the trial court sentenced him to
three years on each count, and this appeal followed.
{¶ 12} In July 2011, the Supreme Court of Ohio rendered its decision in State
v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374. In that case, Williams was indicted
in 2007 for unlawful sexual contact with a minor; Williams pled guilty to the charge.
At his plea hearing, Williams was informed that he would not be subject to reporting
requirements. Williams subsequently requested that he be sentenced under Megan’s
Law, rather than S.B. 10, which was in effect at the time of Williams’s sentencing.
The court applied S.B. 10 and informed Williams that he would be designated a Tier II
sex offender. Williams appealed, arguing that S.B. 10 could not constitutionally be
applied retroactively to a defendant whose offense occurred prior to the effective date
of that statute.
{¶ 13} The Supreme Court of Ohio agreed with Williams. The court initially
found that the Ohio legislature had expressly made S.B. 10 retroactive. It further
concluded: “When we consider all the changes enacted by S.B. 10 in aggregate, we
conclude that imposing the current registration requirements on a sex offender whose
crime was committed prior to the enactment of S.B. 10 is punitive. Accordingly, we
conclude that S.B. 10, as applied to defendants who committed sex offenses prior to
its enactment, violates Section 28, Article II of the Ohio Constitution, which prohibits
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the General Assembly from passing retroactive laws.” Williams at ¶ 21. The court thus
held: “We conclude that S.B. 10, as applied to Williams and any other sex offender
who committed an offense prior to the enactment of S.B. 10, violates Section 28,
Article II of the Ohio Constitution, which prohibits the General Assembly from
enacting retroactive laws.” (Emphasis added.) Id. at ¶ 22.
{¶ 14} The state asserts that res judicata bars Eads from reaping the benefit of
Williams, because Eads failed to challenge his classification as a Tier III sex offender
through a direct appeal from his 2008 juvenile court adjudication. The state argues
that Eads cannot collaterally challenge his 2008 classification and that his argument
is barred by res judicata.
{¶ 15} In general, “[a] new judicial ruling may be applied only to cases that are
pending on the announcement date. State v. Evans (1972), 32 Ohio St.2d 185, 186,
61 O.O.2d 422, 291 N.E.2d 466. The new judicial ruling may not be applied
retroactively to a conviction that has become final, i.e., where the accused has
exhausted all of his appellate remedies. Id.; State v. Lynn (1966), 5 Ohio St.2d 106,
108, 34 O.O.2d 226, 214 N.E.2d 226.” Ali v. State, 104 Ohio St.3d 328,
2004-Ohio-6592, ¶ 6.
{¶ 16} In accordance with this general rule, the Ohio Supreme Court has
consistently refused to apply new judicial pronouncements retroactively to
convictions that had become final. See, e.g., Ali (State v. Comer, 99 Ohio St.3d 463,
2003-Ohio-4165, “should not be retroactively applied to defendants whose
convictions had become final”); State v. Colon, 119 Ohio St.3d 204, 2008-Ohio-3749,
¶ 3 (“Our holding in Colon I is only prospective in nature, in accordance with our
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general policy that newly declared constitutional rules in criminal cases are applied
prospectively, not retrospectively”); State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856(applying its ruling to the cases before it and “those pending on direct review”).
{¶ 17} We do not find that the general rule applies in this instance. Section
28, Article II of the Ohio Constitution provides: “The general assembly shall have no
power to pass retroactive laws * * *.” The Retroactivity Clause “nullifies those new
laws that ‘reach back and create new burdens, new duties, new obligations, or new
liabilities not existing at the time [the statute becomes effective].’ ” (Bracketed
material sic.) Bielat v. Bielat (2000), 87 Ohio St.3d 350, 352-353, quoting Miller v.
Hixson (1901), 64 Ohio St. 39, 51. “Any law ‘passed’ in violation of that section is
therefore void. Further, because such a law purports to apply retroactively, a
holding that the law violates Section 28, Article II likewise applies retroactively to any
person to whom the law was retroactively applied.” State v. Pritchett, 2d Dist. No.
24183, 2011-Ohio-5978, ¶ 26.
{¶ 18} In Williams, the Supreme Court concluded that S.B. 10 retroactively
created new burdens, duties, and obligations on persons (such as Eads) who
committed sex offenses prior to the effective date of that statute. Williams, 129 Ohio
St.3d 344, 2011-Ohio-3374, at ¶ 20. Accordingly, the retroactive application of S.B.
10 to those persons is a nullity, and Eads’s classification as a Tier III sex offender is
void.
{¶ 19} We further note that, with respect to S.B.10, the Ohio Supreme Court
has applied its holdings broadly. In State v. Bodyke, 126 Ohio St.3d 266,
2010-Ohio-2424, the Supreme Court concluded that “R.C. 2950.031 and 2950.032,
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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. In addition, R.C. 2950.031 and 2950.032 violate the
separation-of-powers doctrine by requiring the opening of final judgments.” The
court severed the reclassification provisions from S.B. 10. The court thus held: “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.” (Emphasis added.) Id. at ¶ 66
{¶ 20} Following its expansive language, the Supreme Court has not limited its
holding in Bodyke to that case and to those sex offenders who had pending cases
based on challenges to their reclassifications. Rather, the Supreme Court has
applied Bodyke to all sex offenders who were reclassified by the attorney general
under R.C. 2950.031 and 2950.032.
{¶ 21} For example, in State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481,
Gingell was convicted of three counts of rape in 2000 and was originally classified as
a sexually oriented offender. In accordance with S.B. 10, Gingell was reclassified by
the attorney general as a Tier III sex offender, who was required to register every 90
days for life. Gingell was later prosecuted for failing to verify his address and failing
to register a change of address; he pled guilty to failing to verify his address. Gingell
appealed, claiming that the trial court erred in retroactively applying the current
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version of R.C. 2950.99 (which made Gingell’s offense a first-degree felony), rather
than the version that was in effect at the time of his original classification. Bodyke
was rendered during the pendency of Gingell’s appeal.
{¶ 22} Although Gingell had not challenged his reclassification as a Tier III sex
offender and had pled guilty to failing to verify his address in accordance with the S.B.
10’s 90-day reporting schedule, the Supreme Court gave Gingell the benefit of
Bodyke. The court reasoned: “[P]ursuant 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 [S.B. 10]. 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.” Gingell at ¶ 8.
{¶ 23} Like the broad holding in Bodyke, the holding in Williams expressly
applies to “any other sex offender who committed an offense prior to the enactment of
S.B. 10.” Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, at ¶ 22. Considering this
language in Williams and the Supreme Court’s broad application of Bodyke in
Gingell, we conclude that Williams must be applied to Eads, despite his failure to
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challenge his classification under S.B. 10 in a direct appeal of his delinquency
adjudication.
{¶ 24} In summary, Eads’s classification as a Tier III sex offender by the
juvenile court violated Ohio’s Retroactivity Clause and is void. The prosecution for
Eads’s failures to verify his address and notify the sheriff’s office of his new address
was based on that unconstitutional classification. As a result, Eads cannot be
prosecuted for failing to verify his address and to notify the sheriff’s office of his new
address as a Tier III offender.
{¶ 25} Finally, we cannot conclude that Eads’s convictions for failing to verify
his address and failing to notify the sheriff of a change of address are proper on the
ground that Eads would have been required to verify his address and notify the sheriff
of a change of address under Megan’s Law. At this juncture, Eads has never been
designated as a sexually oriented offender, habitual sexual offender, or sexual
predator by a judge, and it is unclear what his designation would be.1 Absent a
sex-offender classification by the juvenile court, Eads’s convictions for failing to verify
his address and failing to register a change of address must be vacated.
{¶ 26} Eads’s first assignment of error is sustained.
II
{¶ 27} Eads’s second assignment of error states:
1
A juvenile court’s obligation to classify a juvenile sex offender is governed by portions of
both R.C. Chapter 2152 and R.C. Chapter 2950 and involves a two-step process. First, the juvenile
court must determine whether the juvenile is a juvenile offender registrant (“JOR”) who is subject to
classification and registration. If so, the juvenile court must determine the appropriate classification
for the juvenile. The record reflects that Eads was 17 when he committed the rapes. Accordingly,
the juvenile court was required to classify Eads as a JOR. See R.C. 2152.83(A)(1).
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{¶ 28} “The trial court erred when it overruled the defendant’s motion to
reinstate community control sanctions and found mandatory time is required by
statute.”
{¶ 29} In light of our disposition of Eads’s first assignment of error, Eads’s
second assignment of error is overruled as moot.
III
{¶ 30} The trial court’s judgment will be vacated.
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Judgment vacated.
DONOVAN and HALL, JJ., concur.
HALL, Judge, concurring:
{¶ 31} Eads was separately charged with failure to verify his current residence
address and failure to notify the county sheriff of a change of address, both occurring
on or after November 20, 2010. Without doubt, because of the unique timing of his
underlying conviction and sentencing, Eads should have been designated as one of
the available sexual-offender levels under Megan’s Law, rather than a tiered offender
under the Adam Walsh Act, but he was not. He did not appeal his incorrect Tier III
designation.
{¶ 32} However, on June 3, 2010, before the offense dates in Eads’s
indictment, the Ohio Supreme Court released State v. Bodyke, 126 Ohio St.3d 266,
2010-Ohio-2424, and announced: “We therefore hold that R.C. 2950.031 and
2950.032 are severed and, that after severance, they may not be enforced. R.C.
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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.” This decision
announced the policy that Adam Walsh registration restrictions should not apply to
Megan’s Law offenders. In the more recent case of State v. Gingell, 128 Ohio St.3d
444, 2011-Ohio-1481, the Supreme Court applied the Bodyke holding, making Tier III
registration inapplicable, even though Gingell had not independently challenged his
Tier III reclassification at the time it was done. Those two cases, coupled with State
v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374 (holding that imposing Adam Walsh
registration requirements on offenders whose act was before its enactment is
unconstitutional) require that Eads’s conviction be reversed.
{¶ 33} I would hold that a defendant can raise the issue of the Megan’s
Law-Adam Walsh switch in the direct appeal of his conviction for violation of his
registration requirements. Not before us is whether a final conviction for violation of
registration requirements can be collaterally attacked based on recent jurisprudence.
{¶ 34} Eads now has no registration requirement, and it may be required that
the state of Ohio apply to the juvenile court for relief.
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