STATE OF OHIO, PLAINTIFF-APPELLEE vs. KENNETH COLE, DEFENDANT-APPELLANT
No. 96687
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 8, 2011
2011-Ohio-6283
BEFORE: Keough, J., Sweeney, P.J., and E. Gallagher, J.
JOURNAL ENTRY AND OPINION; JUDGMENT: VACATED; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-179837
Robert L. Tobik
Cuyahoga County Public Defender
Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Daniel T. Van
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Defendant-appellant, Kenneth Cole, appeals from the trial court‘s judgment finding him to be a sexually oriented offender after a H.B. 180 sexual offender classification hearing in 2004. Cole contends that the trial
I. Procedural History
{¶ 2} In 1979, Cole was convicted of sexual battery. State v. Cole (July 10, 1979), Cuyahoga C.P. No. CR-042396-C. He was sentenced to five to 15 years incarceration and placed on probation. There is no indication in the record that Cole was ever found to be a probation violator or served a prison sentence for this conviction. In 1983, Cole was convicted of murder and sentenced to 15 years to life in prison. State v. Cole (Mar. 22, 1984), Cuyahoga App. No. 46968. There was no sexual motivation for the murder; it was precipitated by an argument between Cole and the victim over money the victim owed to Cole.
{¶ 3} In February 2004, while Cole was incarcerated for the murder conviction, the State, having received a recommendation from the department of rehabilitation and correction that Cole be classified as a sexual predator, requested that the trial court hold a H.B. 180 sexual offender classification hearing. The trial court held the hearing in July 2004. The court determined that Cole was neither a sexual predator nor a habitual sex offender but, based on the 1979 sexual battery conviction, ruled that he was a sexually oriented offender and ordered him to register and verify his address annually for ten years.
{¶ 4} This court subsequently granted Cole‘s motion for a delayed appeal of the trial court‘s judgment.
II. The Sexual Offender Classification Hearing
{¶ 5} Cole raises two issues regarding the sexual offender classification hearing. He first contends that the trial court lacked jurisdiction to hold the classification hearing because at the time of the hearing, he was not in prison for a sexually oriented offense. Next, he argues that the trial court lacked jurisdiction to hold the hearing because it was not the same court that sentenced him for his sexually oriented offense.
{¶ 6} In 1996, the General Assembly enacted Megan‘s Law, also known as House Bill 180, which repealed prior versions of
{¶ 8} “If a person was convicted of or pleaded guilty to a sexually oriented offense * * * prior to January 1, 1997, if the person was not sentenced for the offense on or after January 1, 1997, and if, on or after January 1, 1997, the offender is serving a term of imprisonment in a state correctional institution, the department of rehabilitation and correction shall * * *:
{¶ 9} (b) * * * determine whether to recommend that the offender be adjudicated a sexual predator. * * * If the department determines that it will recommend that the offender be adjudicated a sexual predator, it immediately shall send the recommendation to the court that sentenced the offender. * * *.”
{¶ 10} In State v. Wilson (Oct. 26, 2000), Cuyahoga App. No. 77530, affirmed State v. Taylor, 100 Ohio St.3d 172, 2003-Ohio-5452, 797 N.E.2d 504, this court interpreted
{¶ 11} ”
{¶ 12} “Ohio courts have consistently rejected the argument that
{¶ 13} “As the Seventh Appellate District noted in State v. Berry (Dec. 13, 1999), Carroll App. No. 716, unreported:
{¶ 14} “‘* * * A review of
{¶ 15} Cole was convicted and sentenced prior to January 1, 1997, of a sexually oriented offense, and was imprisoned in a state correctional facility after January 1, 1997. Therefore, his argument that the trial court lacked jurisdiction to conduct a sexual predator classification hearing because he was not incarcerated in 2004 for a sexually oriented offense is without merit.
{¶ 16} Nevertheless, we find that the trial judge who conducted the classification hearing lacked jurisdiction to do so because he was neither the original nor successor judge who sentenced Cole for his sexually oriented offense in 1979.
{¶ 17} Former
{¶ 18} Here, the judge who held the sexual predator hearing was neither the original judge who sentenced Cole for his sexually oriented offense nor the successor to that judge. Accordingly, the court did not have jurisdiction to proceed under former
III. Duty to Register
{¶ 19} Moreover, even if the court had jurisdiction to conduct the classification hearing and adjudicate Cole to be a sexually oriented offender, Cole would still have had no duty to register.
{¶ 20} As the Ohio Supreme Court recognized in State v. Bellman, 86 Ohio St.3d 208, 1999-Ohio-95, 714 N.E.2d 381, adjudication under Megan‘s Law as a sexually oriented offender did not necessarily trigger registration requirements. Former
{¶ 21} “(A)(1) Each of the following types of offender who is convicted of or pleads guilty to * * * a sexually oriented offense * * * shall register * * *:
{¶ 22} Regardless of when the sexually oriented offense was committed, an offender who is sentenced for the sexually oriented offense to a prison term, a term of imprisonment, or any other type of confinement and, on or after July 1, 1997, is released in any manner from the prison term, term of imprisonment, or confinement;
{¶ 23} Regardless of when the sexually oriented offense was committed, an offender who is sentenced for a sexually oriented offense on or after July 1, 1997, and to whom division (A)(1)(a) of this section does not apply;
{¶ 24} If the sexually oriented offense was committed prior to July 1, 1997, and neither division (A)(1)(a) nor division (A)(1)(b) of this section applies, an offender who, immediately prior to July 1, 1997, was a habitual sex offender who was required to register under
{¶ 25} An offender had to fit within one of the categories of former
{¶ 26} ”
{¶ 27} Likewise, former
{¶ 28} In Bellman, supra, the Ohio Supreme Court recognized that situations such as Cole‘s fell within a “gap” in the coverage of former
{¶ 29} Thus, consistent with Bellman, in Taylor, supra, 2003-Ohio-5452, the Ohio Supreme Court held that the defendants, although adjudicated as sexual predators, were not required to register because they did not fit into any of the
{¶ 30} “This conclusion is consistent with our decision in Bellman, where we stated that ‘although Bellman is properly adjudicated a sexual predator under the new law, he has no duty to register because he does not fit within the plain language of
{¶ 31} Because Cole did not fit any of the categories under former
{¶ 32} Cole‘s assignment of error is sustained and the trial court‘s judgment finding him to be a sexually oriented offender and ordering him to register and verify his address annually for ten years is vacated.
It is ordered that appellant recover from appellee the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
JAMES J. SWEENEY, P.J., and
EILEEN A. GALLAGHER, J., CONCUR