State v. BatesState v. Bates
For Plaintiff-Appellee:
DANIEL G. PADDEN, PROSECUTING ATTORNEY, 139 West 8th Street, Box 640, Cambridge, OH 43725-0640
For Defendant-Appellant:
BRYAN BATES, PRO SE, P.O. Box 5500, Chillicothe, OH 45601
OPINION
{¶1} Defendant-appellant Bryan William Bates appeals the March 1, 2013 judgment entries of the Guernsey County Common Pleas Court classifying appellant as a sexually oriented offender, informing him of his duty to register as a sex offender, and finding appellant not to be a sexual predator for purposes of sex offender registration and notification. Plaintiff-appellee is the State of Ohio.
Facts & Procedural History
{¶2} On June 29, 2007, appellant was indicted on twelve counts of pandering sexually oriented material involving a minor in violation of
{¶3} A jury found appellant guilty as charged and, by judgment entry of sentence filed April 18, 2008, the trial court sentenced appellant to an aggregate term of thirteen years in prison and classified him as a Tier II sex offender pursuant to
{¶4} In April of 2012, appellant filed a motion to vacate and correct his sentence based upon the Ohio Supreme Court‘s decision in State v. Williams, 129 Ohio St.3d 344, 952 N.E.2d 1108 (2011), which held that defendants whose crimes were committed prior to the AWA‘s enactment should have been classified according to the statutory scheme in place at the time they committed their crimes, even if they were sentenced after the enactment of the AWA. The State of Ohio agreed with appellant that the AWA, as codified in
{¶5} The trial court initially set appellant‘s motions for hearing on October 1, 2012. On August 23, 2012, the trial court granted appellant‘s motion for standby counsel. On August 27, 2012, appellant filed a motion for court appointed forensic expert for the sex offender classification hearing, stating this expert would provide a meaningful review and comprehensive analysis of the alleged computer evidence in question. Appellant also filed a motion for court appointed psychologist to assist in determining the recidivism factors in his case. Further, appellant filed subpoenas for multiple individuals who testified during his original trial to appear for the sex offender classification hearing. Based on the pendency of the Bates III appeal, the trial court continued the hearing scheduled for October 1, 2012.
{¶6} On December 7, 2012, the trial court scheduled a hearing for sex offender classification on March 1, 2013. Appellant again subpoenaed multiple individuals, including those who testified at his original trial. On January, 4, 2013, the trial court issued an entry denying appellant‘s motion for forensic expert and court-appointed psychologist. In a January 7, 2013 motion, appellant requested the trial court allow him to view his pre-sentence investigation documents and victim impact statements so that he could make arguments regarding the statutory factors listed in
{¶7} The trial court held a classification hearing on March 1, 2013. The trial court found that appellant‘s convictions were pursuant to
{¶8} On March 1, 2013, the trial court issued a judgment entry and notice of duties to register as sexually oriented offender. The judgment entry detailed the registration requirements after appellant‘s release from prison, stated the length of appellant‘s registration requirement, and included the penalties for failure to register.
{¶9} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEREAS THE TRIAL COURT REVISIT[ED] ITS OWN FINAL ORDER FAILING TO VACATE THE APPELLANT‘S SENTENCE THAT VIOLATE[S]
{¶10} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEREAS THE COURT ABUSED ITS DISCRETION BY FAILING TO CORRECTLY APPLY THE STATUTORILY MANDATED TERM
{¶11} “III. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEREAS THE APPELLANT‘S JUDGMENT OF CONVICTION PURSUANT TO CRIM.R. 32(C) IS INVALID.
{¶12} “IV. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEREAS [THE COURT] FAILED TO ADVISE THE APPELLANT OF HIS RIGHT TO APPEAL.
{¶13} “V. APPELLANT‘S SENTENCE IS CONTRARY TO LAW.
{¶14} “VI. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEREAS THE COURT DENIED THE APPELLANT‘S MOTION FOR DISCOVERY.”
I.
{¶15} Appellant argues that the trial court‘s order setting a sexual offender classification hearing vacated appellant‘s entire sentence because the trial court utilized the word “resentencing” in its initial entry setting the hearing and thus the trial court erred when it did not conduct a de novo sentencing hearing and instead conducted only a reclassification hearing. Appellant also contends that the trial court was required to conduct a de novo sentencing hearing rather than simply a classification hearing. We disagree.
{¶16} If there is an error in classification, only the portion of the defendant‘s sentence classifying him incorrectly under the sex offender classification system is void. State v. Hurst, 5th Dist. No. 12-CA-20, 2012-Ohio-6075. If an appeals court determines a defendant has been improperly classified, the remedy for this improper classification is to remand the matter to the trial court for classification proceedings in accordance with the law in effect at the time the offenses were committed. State v. Dillon, 5th Dist. No. CT11-0062, 2012, 2012-Ohio-773. The sex offender classification proceedings under Megan‘s Law were determined by the Ohio Supreme Court to be civil in nature and are separate and distinct from an offender‘s underlying criminal conviction and sentence. State v. Wood, 5th Dist. No. 09-CA-205, 2010-Ohio-2759, citing State v. Cook, 83 Ohio St.3d 404, 1998-Ohio-291, 700 N.E.2d 570 (1998); and State v. Williams, 88 Ohio St.3d 513, 527, 728 N.E.2d 342 (2000). Accordingly, the trial court in this case did not err as a matter of law in failing to conduct a de novo sentencing hearing due to the incorrect classification. In this case, due to the Ohio Supreme Court‘s ruling in State v. Williams, 129 Ohio St.3d 344, 952 N.E.2d 1108 (2011), appellant was incorrectly classified under the AWA. The trial court thus properly conducted a classification hearing in accordance with Former R.C. 2950, Megan‘s Law, in effect at the time the offenses were committed.
{¶17} The trial court utilized the term “resentencing” in its August 10, 2012 judgment entry setting for hearing appellant‘s “motion to resentence him according to the statutorily mandated sentencing scheme in place at the time his crimes were allegedly committed.” Due to the pendency of the Bates III appeal, the original date set for the hearing was continued. On December 7, 2012, the trial court again set the classification hearing and specifically stated that appellant‘s entire sentence is not void pursuant to State v. Harris, 132 Ohio St.3d 318, 972 N.E.2d 509, 2012-Ohio-1908 (2012). We find the use of the word “resentencing” in the trial court‘s initial entry setting hearing does not vacate appellant‘s entire sentence, See State v. Bates, 5th Dist. Nos. 2012-CA-06, 2012-CA-10, 2012-Ohio-4360, and the trial court properly granted appellant‘s request by reclassifying him according to the statutorily mandated sentencing scheme (i.e. Megan‘s Law) in place at the time his crimes were committed. The trial court did not err in failing to vacate appellant‘s entire sentence.
{¶18} Appellant‘s first assignment of error is overruled.
II.
{¶19} Appellant next argues the trial court erred as a matter of law in failing to hold a sexual predator determination hearing, by denying appellant the ability to call witnesses during the sexual predator determination hearing, and in failing to make findings of fact regarding whether appellant is or is not a sexual predator. Appellant also again argues the trial court erred in failing to vacate his entire sentence and conduct a de novo sentencing hearing.
{¶20} Appellant bases his argument on former R.C. 2950.09(B), which provided that a trial court “shall conduct a hearing to determine whether the offender is a sexual predator,” Former R.C. 2950.09(B)(1)(a), and the offender “shall have an opportunity to testify, present evidence, call and examine witnesses and expert witnesses, and cross-examine witnesses and expert witnesses regarding the determination as to whether the offender * * * is a sexual predator.” Former R.C. 2950.09(B)(2). The statute also lists the factors a trial court should consider when determining whether an offender is a sexual predator. Former R.C. 2950.09(B)(3).
{¶21} A court does not need to interpret a statute “when statutory language is plain and unambiguous and conveys a clear and definite meaning.” Campbell v. Carlisle, 127 Ohio St.3d 275, 939 N.E.2d 153, 2010-Ohio-5707, ¶ 8. The plain language of the statute indicates the trial court “shall” conduct a hearing as to whether appellant is a sexual predator. Here, the State of Ohio, both in writing prior to the classification hearing and during the classification hearing itself, stipulated that it was not seeking to classify appellant as a sexual predator and was seeking to classify appellant as the least-restrictive classification under Megan‘s Law, a sexually oriented
{¶22} Further, when Megan‘s Law was in effect, the Ohio Supreme Court held that if a defendant was convicted of a sexually oriented offense as defined in
{¶23} The Ohio Supreme Court defined a sexually oriented offender under Megan‘s Law as a “person who has committed a sexually oriented offense as the term is defined in
III.
{¶24} Appellant contends that the trial court‘s March 1, 2013 judgment entry does not comply with Criminal Rule 32(C) and there is no judgment of conviction that contains the registration requirements and penalties for violating the registration requirements. We disagree.
{¶25} Former R.C. 2950.03(B)(1) provides specific instructions for the notice that is required to be given to defendants who qualify for such notice pursuant to Former R.C. 2950.03(A). The March 1, 2013 judgment entry entered by the trial court complies with Former R.C. 2950.03(B)(1) because it specifically details when appellant must register, where he must register, how often he has to verify his address in person, what procedure he must follow if he changes his residence address, and details the penalties for the failure of appellant to register.
{¶26} Further, the Ohio Supreme Court determined that the classification scheme contained in former R.C. 2950 (Megan‘s Law) is civil in nature and has the valid remedial and non-punitive purpose of protecting the public. State v. Cook, 83 Ohio St.3d 404, 1998-Ohio-291, 700 N.E.2d 570 (1998); and State v. Williams, 88 Ohio St.3d 513, 527, 728 N.E.2d 342 (2000). Under Megan‘s Law, the sexual offender classification is not part of a defendant‘s sentence or underlying criminal conviction, but is a civil action within the underlying criminal case. Billiter v. O‘Farrell, 5th Dist. No. 2012AP090055, 2013-Ohio-792; State v. Wood, 5th Dist. No. 09-CA-205, 2010-Ohio-2759;
{¶27} The trial court‘s original sentencing entry and judgment entry of conviction was issued by the trial court on April 17, 2008. After appellant filed a motion to correct
IV.
{¶28} Appellant alleges the trial court erred as a matter of law by failing to advise him of right to appeal. We disagree. First, appellant fails to cite any legal authority or statues in support of his argument that the trial court is required to advise him of his right to appeal after reclassification.
{¶29} However, even assuming the trial court was required to notify appellant of his appellate rights, we find any error is harmless in this case because appellant has not suffered any prejudice. Appellant filed a timely appeal in this matter, the trial court granted his motion to have the transcript of the classification hearing prepared at the State of Ohio‘s expense, and his arguments are being considered by this Court. See
V.
{¶30} Appellant argues his sentence is contrary to law because the original sentencing entry requires appellant to register pursuant to the AWA, the trial court wrongly considered a victim impact statement in its original sentencing entries, his indictment did not contain a chargeable offense, and his actions were protected speech as determined by the United States Supreme Court and thus there was no evidence to support his conviction. We disagree.
{¶31} As discussed above, the trial court properly classified appellant as a sexually oriented offender, notified him at the hearing of his registration duties, and the penalties for failing to register. The March 1, 2013 judgment entry signed by appellant and the trial court details appellant‘s registration requirements under Megan‘s Law and corrects his classification pursuant to the decision in State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108 (2011). Thus, there is a judgment entry containing the proper registration requirements for appellant and corrects the incorrect classification in the original sentencing entry. The original judgment entry of conviction and sentence is not invalid or incorrect simply because it contains the requirements imposed on appellant by the AWA, as the judgment entry complied with the law in effect at the time of sentencing. State v. Bates, 5th Dist. Nos. 2012-CA-06, 2012-CA-10, 2012-Ohio-4360.
{¶32} The balance of appellant‘s arguments regarding the sufficiency of the indictment, evidence considered at his original sentencing hearing, and the sufficiency
VI.
{¶33} Appellant finally argues the trial court erred in denying his motion prior to the classification hearing for an opportunity to review the pre-sentence investigation and victim impact statement because he was entitled to utilize these documents to make arguments regarding the statutory factors listed in
{¶34} As discussed supra, appellant‘s sexually oriented offender classification arose by operation of law. Thus, pursuant to State v. Hayden, the trial court did not err in not permitting appellant to utilize the pre-sentence investigation and victim impact statement at the classification hearing. State v. Hayden, 96 Ohio St.3d 211, 773 N.E.2d 502, 2002-Ohio-4169 (2000). Further, neither party objected to the trial court‘s proposed finding that appellant would not be classified as a sexual predator and thus no evidence was required pursuant to
{¶35} Any argument made by appellant that the trial court improperly considered the victim impact statement in its original sentencing entries of April 18, 2008 and
{¶36} Based on the foregoing, appellant‘s assignments of error are overruled and the March 1, 2013 judgment entries of the Guernsey County Court of Common Pleas are affirmed.
By Gwin, P.J.,
Hoffman, J., and
Farmer, J., concur
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
HON. SHEILA G. FARMER
WSG:clw 1010
For the reasons stated in our accompanying Memorandum-Opinion, the March 1, 2013 judgment entries of the Guernsey County Court of Common Pleas are affirmed.
Costs to appellant.
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
HON. SHEILA G. FARMER