STATE OF OHIO, Plaintiff-Appellee, vs. DAVID BOWLING, Defendant-Appellant.
APPEAL NO. C-100323
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
September 30, 2011
[Cite as State v. Bowling, 2011-Ohio-4946.]
TRIAL NO. B-0903357
Judgment Appealed From Is: Affirmed in Part and Cause Remanded
Date of Judgment Entry on Appeal: September 30, 2011
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Ravert J. Clark, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar.
{1} On May 22, 2009, defendant-appellant David Bowling, who was required to register as a sex offender on the basis of a July 14, 1997, conviction for rape, was indicted for failing to provide notice of an address change, a first-degree felony. Bowling had been classified on July 29, 1997, as a sexual predator under former
{2} Bowling initially pleaded not guilty by reason of insanity. After a court-clinic evaluation, Bowling pleaded guilty to failing to provide notice of an address change as a second-degree felony. He was sentenced to seven years’ incarceration. Bowling has appealed, raising three assignments of error for our review.
{3} We note that the indictment incorrectly referred to Bowling‘s failure-to-notify offense as a violation of
{5} Bowling‘s first assignment of error alleges that the trial court erred in accepting his guilty plea. Bowling argues that his plea was not made knowingly, intelligently, and voluntarily because he was under the influence of prescription medication.
{6} The record shows that in accepting Bowling‘s plea, the trial court conducted a thorough colloquy with Bowling, strictly complying with the provisions of
{8} “THE COURT: Today, are you under the influence of drugs, medication or alcohol?
{9} “THE DEFENDANT: Medication.
{10} “THE COURT: What medication?
{11} “THE DEFENDANT: Morphine, Oxycodone, Neurontin, for pain.
{12} “THE COURT: Okay. And do those affect your ability to understand and make intelligent choices?
{13} “THE DEFENDANT: I don‘t believe so, no.
{14} “THE COURT: Okay. All right. The Court has observed the defendant for a little while here now at this point and it is apparent to me that the defendant understands what‘s going on and appears to be competent to make decisions that he‘s making today.”
{15} The court specifically asked Bowling about his medications and their effects on him. Bowling indicated that his medications did not affect his ability to understand the plea proceedings. The trial court stated on the record that Bowling did not appear to be affected by the medications. The record shows that the trial court conducted a meaningful dialogue with Bowling to ensure that his plea was made knowingly, voluntarily, and intelligently. There is no indication in the record that Bowling was confused, or that he did not understand the nature of the proceedings or the consequences of his plea. The first assignment of error is overruled.
{17} Counsel‘s performance will not be deemed ineffective unless and until it is proved to have fallen below an objective standard of reasonable representation and to have prejudiced the defendant. See Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052. To show that a defendant has been prejudiced by counsel‘s deficient performance, the defendant must affirmatively demonstrate to a reasonable probability that were it not for counsel‘s errors, the result of the proceedings would have been different. See id.; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373.
{18} The record does not demonstrate Bowling‘s alleged error. When the trial court asked Bowling if he had been promised “anything * * * to plead guilty,” he answered, “No.” Bowling also stated that he was satisfied with counsel‘s representation. Further, during sentencing, Bowling‘s counsel stated, “If the court were to consider community control, he‘d be supervised by the probation department as well as his parole officer in addition to his duties to continue to report,” indicating that community control was a possibility, not a condition of the guilty plea.
{19} The record does not support Bowling‘s claim of ineffective assistance of counsel. The second assignment of error is overruled.
{20} Bowling‘s third assignment of error, raised in his supplemental brief, alleges that the trial court erred in accepting his guilty plea to the failure-to-notify offense because the offense was based upon an unconstitutional reclassification under Senate Bill 10.
{22} In State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, 946 N.E.2d 192, the Ohio Supreme Court held, citing Bodyke, that an offender who was judicially classified as a sexually oriented offender and ordered to register annually for ten years under Megan‘s Law could not be prosecuted for failing to comply with a more restrictive registration requirement imposed after reclassification as a Tier III sex offender under Senate Bill 10.
{23} Bowling was classified under Megan‘s Law as a sexual predator on July 29, 1997. He was subsequently reclassified under Senate Bill 10 as a Tier III sex offender. Pursuant to Bodyke, Bowling‘s Megan‘s Law classification, community-notification, and registration orders were reinstated. Bowling‘s classification under Megan‘s Law as a sexual predator required him to register for life and to verify his information every 90 days. He also had an ongoing duty to notify the sheriff of any change of address. That duty remained the same under both versions of
{25} “A statute is retroactive if it penalizes conduct that occurred before its enactment.” See State v. Williams, 103 Ohio St.3d 112, 2004-Ohio-4747, 814 N.E.2d 818, ¶ 7. 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. See State v. Clark (Aug. 5, 1992), 1st Dist. No. C-910541, citing Miller v. Florida (1987), 482 U.S. 423, 107 S.Ct. 2446.
{26} Current
{27} The Ohio Supreme Court‘s decision in State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, does not require a different result. In Williams, the court held that “2007 Am.Sub.S.B. No. 10, as applied to defendants who committed sex offenses prior to its enactment, violates Section 28, Article II of the Ohio
{28} As we pointed out in Freeman, ”Williams dealt with the imposition of Senate Bill 10‘s more stringent registration requirements upon an offender who had committed his sex offense prior to its enactment.” See Freeman, supra at ¶ 21. The instant case deals with the imposition of current
{29} Bowling had committed a sex offense and had been classified under Megan‘s Law as a sexual predator. Pursuant to that classification, he was required to register as a sex offender every 90 days for life and to notify the sheriff of any change in his address. Senate Bill 10 did not affect Bowling‘s duty to notify the sheriff of a change of address. Bowling committed his failure-to-notify offense on or about May 1, 2009, well after the effective date of current
{30} We, therefore, remand the cause for correction of the record to reflect a conviction under
Judgment affirmed in part, and cause remanded.
HILDEBRANDT, P.J., and CUNNINGHAM, J., concur.
Please Note:
The court has recorded its own entry this date.