State v. Brunning, 2011 Ohio 1936

Brunning, previously convicted of rape in 1983, was released in 2008 and became subject to Megan's Law registration.
After reclassification as a Tier III offender under the Adam Walsh Act, the State indicted Brunning in two cases: CR-532770 (address verification and change-notification failures plus tampering with records) and CR-532822 (three sexual offenses against the same minor).
Brunning pled guilty to all counts in CR-532770 and to Counts 4, 12, and 18 in CR-532822 (with the SVP specifications removed).
In CR-532770, Brunning received two eight-year sentences for reporting violations and a five-year sentence for tampering, to be served consecutively, though merger should have yielded eight years total for that case.
In CR-532822 Brunning received three five-year terms to be served consecutively, resulting in an aggregate 15-year sentence in that case, and an overall 36-year aggregate sentence.
Bodyke v. Ohio and related decisions held that reclassification under the AWA is unconstitutional if the offender's duties arise from Megan’s Law obligations already imposed by prior orders.
The court vacated Brunning’s conviction in CR-532770 and its sentence, while affirming the judgment in CR-532822.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Unconstitutionality of AWA reclassification as applied	State argues Brunning waived challenges by pleading guilty; Bodyke does not apply.	Brunning contends AWA reclassification is unconstitutional as applied to him since duties arose under Megan's Law from a prior order.	Conviction in CR-532770 vacated; reclassification unconstitutional as applied.
Whether failure to merge CR-532770 sentencing was preserved or cured	State contends sentencing complied with merger and sentencing rules.	Brunning argues improper merger/aggregation of sentences.	Issue moot due to vacatur of CR-532770 conviction.
Whether the CR-532822 sentence is lawful and not an abuse of discretion	State asserts sentences within statutory range and properly imposed as consecutive.	Brunning asserts the aggregate term or consecutive structuring may be improper under Kalish/Mathis standards.	Sentence not contrary to law and not an abuse of discretion; affirmed as to CR-532822.

State v. Bodyke, 126 Ohio St.3d 266 (2010-Ohio-2424) (AWA reclassification unlawful when based on Megan's Law duties)
State v. Gingell, Slip Op. No. 2011-Ohio-1481 (2011-Ohio-1481) (reclassification cannot impose heightened verification if already subject to Megan's Law)
State v. Page, Cuyahoga App. No. 94369, 2011-Ohio-83 (2011-Ohio-83) (reclassification cannot serve as basis for reporting violations if duties arose under Megan's Law)
Kalish, 120 Ohio St.3d 23 (2008-Ohio-4912) (two-prong Kalish framework for reviewing felony sentences)
State v. Foster, 109 Ohio St.3d 1 (2006-Ohio-856) (eliminated mandatory judicial fact-finding but preserved sentencing framework)
State v. Mathis, 109 Ohio St.3d 54 (2006-Ohio-855) (recognizes framework for sentencing within statutory ranges)
State v. Elmore, 122 Ohio St.3d 472 (2009-Ohio-3478) (trial courts retain discretion to run sentences consecutively or concurrently)
State v. Bates, 118 Ohio St.3d 174 (2008-Ohio-1983) (trial court must consider sentencing factors under R.C. 2929.11 and 2929.12)