2014 Ohio 1321
Ohio Ct. App.2014Background
- David S. McGlosson pled guilty (Dec. 15, 2010) to two counts of gross sexual imposition (third-degree felonies) for sexual contact with a step-daughter under 13; sentenced to concurrent terms totaling seven years and originally classified as a Tier II sex offender under Ohio’s Adam Walsh Act (AWA).
- McGlosson did not appeal his conviction or sentence; his 2011 motion to withdraw his plea was denied and that denial was later affirmed on appeal.
- After State v. Williams, McGlosson petitioned to be recharacterized under the sex-offender law in effect when his offenses occurred (Megan’s Law). The state agreed he should be reclassified from the AWA to Megan’s Law.
- At the May 15, 2013 reclassification hearing the court received a forensic psychologist’s report (Dr. Bobbie Hopes) and reclassified McGlosson as a sexual predator under Megan’s Law.
- McGlosson appealed pro se, raising five assignments of error: ineffective assistance of counsel (various phases), inadequate notice of the hearing, erroneous sexual-predator classification, failure to vacate a purportedly void sentence, and failure to merge allied offenses.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (McGlosson) | Held |
|---|---|---|---|
| 1. Ineffective assistance of counsel (pre-plea/appellate/reclassification) | Res judicata bars pre-plea/plea-stage claims; appellate- counsel claim not decided on direct appeal; trial counsel’s conduct at reclassification did not prejudice defendant | Counsel gave erroneous assurances causing plea; appellate counsel filed Anders brief and failed to communicate; counsel erred at reclassification (legal mistakes, failed objections, failed to invoke rights) | Pre-plea claims barred by res judicata; appellate-counsel claim not decided on direct appeal; reclassification counsel performance not deficient or not prejudicial — no ineffective assistance under Strickland. |
| 2. Notice of reclassification hearing | Court provided notice at April 12 hearing and set May 15 date; hearing occurred as scheduled | Claim of inadequate notice of May 15 hearing | Trial court provided mandatory notice; no abuse of discretion. |
| 3. Classification as sexual predator | State relied on Dr. Hopes’ report and relevant factors under Megan’s Law to support classification | Offenses (GSI) and low actuarial Static-99 score do not warrant sexual-predator label; Dr. Hopes placed him in low risk | Court’s sexual-predator determination supported by clear and convincing evidence (victim’s young age, pattern/duration, threats/cruelty, denial/lack of remorse); upheld. |
| 4. Whether sentence was void post-Williams and required de novo resentencing | Only classification (AWA vs Megan’s Law) was affected by Williams; remand limited to reclassification | Williams rendered his seven-year sentence void and required de novo resentencing | Williams affected only sex-offender classification; trial court properly conducted reclassification only, not de novo resentencing. |
| 5. Failure to merge allied offenses | State contends prior direct-appeal opportunity existed | McGlosson contends counts should have merged as allied offenses | Claim is barred by res judicata because it was not raised on direct appeal; no relief. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong standard for ineffective assistance of counsel: deficient performance and prejudice)
- Cross v. Ledford, 161 Ohio St. 469 (Ohio 1954) (clear-and-convincing evidence standard defined)