STATE OF OHIO, Plaintiff-Appellee, vs. DONTA CAMPBELL, Defendant-Appellant.
APPEAL NO. C-110627
TRIAL NO. B-1101716
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
April 19, 2013
[Cite as State v. Campbell, 2013-Ohio-1569.]
FISCHER, Judge.
Criminal Appeal From: Hamilton County Court of Common Pleas; Judgment Appealed From Is: Reversed and Cause Remanded
Ohio Justice & Policy Center and Marguerite Slagle, for Defendant-Appellant.
Please note: we have removed this case from the accelerated calendar.
O P I N I O N.
{¶1} On November 1, 2002, defendant-appellant Donta Campbell was convicted of rape. After a sex-offender-classification hearing under former
{¶2} Campbell was indicted on March 17, 2011, for failing to notify the sheriff of an address change, a felony of the first degree. On May 5, 2011, he pleaded guilty to failure to notify as a second-degree felony. The trial court accepted Campbell‘s plea and set sentencing for May 20, 2011. On May 19, Campbell filed a motion and a supplemental motion to withdraw his guilty plea, arguing that he had entered his plea in ignorance of the Ohio Supreme Court‘s decisions in State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, and State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, 946 N.E.2d 192. Campbell also argued that the indictment was facially invalid, that the state had not filed a bill of particulars even though Campbell had requested one, and that the facts did not support the charge. The trial court granted Campbell‘s motion to withdraw his plea.
{¶3} Campbell filed a motion to dismiss the indictment on June 24, 2011, arguing that the indictment was facially invalid because (1) it failed to state an
{¶4} After a hearing on July 13, 2011, the trial court orally overruled Campbell‘s motion to dismiss the indictment. Campbell filed a motion for reconsideration of the trial court‘s oral denial of the motion to dismiss the indictment, which the trial court overruled in a written entry. Campbell pleaded guilty to failing to provide notice of an address change. The court accepted Campbell‘s plea and found him guilty on September 20, 2011. Campbell filed a premature notice of appeal on October 5, 2011. Campbell was sentenced on October 13, 2011, to two years’ incarceration.
{¶5} We affirmed the trial court‘s judgment in State v. Campbell, 1st Dist. No. C-110627, 2012-Ohio-3332. The Ohio Supreme Court reversed our opinion, and remanded the cause “for application of the court‘s decisions in State v. Brunning, 134 Ohio St.3d 438, 2012-Ohio-5752, 983 N.E.2d 316, and State v. Howard, 134 Ohio St.3d 467, 2012-Ohio-5738, 983 N.E.2d 341.” State v. Campbell, Slip Op. No. 2012-1519, 2012-Ohio-6192. Accordingly, we vacate, and substitute this opinion for, our 2012 opinion.
Analysis
{¶6} Campbell‘s sole assignment of error alleges that the trial court erred in overruling his motion to dismiss the indictment because the application of
{¶7} The Ohio Supreme Court held in Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, that ”
{¶8} In State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, the Ohio Supreme 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 Constitution, which prohibits the General Assembly from passing retroactive laws.” Id. at syllabus. The court concluded that Senate Bill 10‘s more stringent classification, registration, and community-notification provisions imposed “new or additional burdens, duties, obligations, or liabilities as to a past transaction” and created “new burdens, new duties, new obligations, or new liabilities not existing at the time” upon sex offenders who had committed their crimes prior to Senate Bill 10‘s enactment. Id. at ¶ 19. The court held that Senate Bill 10‘s classification, registration, and community-notification provisions were punitive and could not constitutionally be
{¶9} The Supreme Court applied the holdings of Bodyke and Williams in State v. Palmer, 131 Ohio St.3d 278, 2012-Ohio-580, 964 N.E.2d 406. Palmer had pleaded guilty to sexual battery in 1995 and had served an 18-month sentence. He had no duty to register under Megan‘s Law because he had completed his sentence prior to July 1, 1997. After Senate Bill 10 became effective, Palmer was administratively classified as a Tier III sex offender. He was then indicted for failing to provide notice of an address change and for failing to verify his current address. The Supreme Court held that the indictment against Palmer should have been dismissed because Senate Bill 10‘s classification, registration, and community-notification provisions could not constitutionally be applied to him. Further, the court noted, Megan‘s Law did not apply to Palmer because he had been released from prison for his sex offense prior to July 1, 1997.
{¶10} Because Campbell committed his crime in 2002, Senate Bill 10‘s classification, registration, and community-notification provisions may not be applied to him. Campbell argues that he was unconstitutionally charged and convicted under Senate Bill 10. The indictment alleges that Campbell failed to provide written notice at least 20 days prior to an address change. Campbell argues that when he was convicted of his original sex offense, he was required, under Megan‘s law, to give written notice at least seven days prior to an address change. Therefore, Campbell asserts, the indictment unconstitutionally charges him with a Senate Bill 10 violation.
{¶11} Megan‘s Law was amended to provide for a 20-day notice requirement. Megan‘s Law and its amendments were upheld as constitutional by the
{¶12} The Supreme Court held in Brunning that Bodyke did not require the vacation of a conviction for failing to provide notice of a change of address where the failure was a violation of
{¶13} Campbell also argues that the indictment unconstitutionally charged him with a Senate Bill 10 violation because it charged him with a first-degree felony, and when he committed his sex offense, failure to notify of an address change was a fifth-degree felony. Campbell asserts that the “retroactive” application of
{¶15} Campbell‘s assignment of error is sustained in part and overruled in part. The judgment of the trial court finding Campbell guilty of and sentencing him for a second-degree felony is reversed, and this cause is remanded to the trial court with instructions to vacate Campbell‘s second-degree felony conviction, to enter a finding of guilt for a third-degree felony, and to sentence Campbell for a third-degree felony offense.
Judgment reversed and cause remanded.
HENDON, P.J., and HILDEBRANDT, J., concur.
Please note:
The court has recorded its own entry this date.