Lead Opinion
{¶ 1} Billy L. Cook pled guilty in the Montgomery County Court of Common Pleas to failure to notify a sheriff of a change of address, in violation of R.C.
I
{¶ 2} In 1991, Billy L. Cook was convicted of rape, and in 1997, he was classified as a sexually oriented offender under Ohio’s version of Megan’s Law. While Cook was still in prison, the attorney general notified him that he would be reclassified as a Tier III sex offender. That reclassification was unconstitutional under State v. Bodyke,
{¶ 3} In January 2011, Cook was charged by complaint with failing to notify the sheriff of a change of address, in violation of R.C. 2950.05. Cook pled guilty to the offense with the understanding that the offense constituted a third-degree felony, pursuant to former R.C. 2950.99, 130 Ohio Laws 669, 671-672, and State v. Milby, 2d Dist. Montgomery No. 23798,
{¶ 4} The state timely appealed from Cook’s conviction.
II
{¶ 5} The state’s sole assignment of error states:
{¶ 6} “The felony sentencing statute R.C. 2950.99 is not applied retroactively when the conduct for which a defendant is convicted and sentenced occurred after the effective date of the statute or January 1, 2008.”
{¶ 7} The state claims that the trial court erred in treating Cook’s violation of R.C. 2950.05 as a third-degree felony under Megan’s Law and in accordance with Milby,
When Milby’s original sexual predator classification and registration requirements are applied to the facts of his case, his failure to notify conviction is not offended. Under former law, Milby was required to provide notice of an address change twenty days prior to the change. R.C. 2950.05(A). This requirement did not change with the enactment of S.B. 10. Therefore, because Milby had an ongoing duty since his release from prison to notify MCSO of any change of his registered address, neither S.B. 10 nor Bodyke changed this requirement or his duty. See State v. Huffman, Mont.App. No. 23610,2010-Ohio-4755 [2010 WL 3821707 ]. AWA did increase the penalty for failure to notify to a first-degree felony. That penalty may not be applied to Milby. Under the former law, violation of the reporting requirement was a felony of the third degree. See former R.C. 2950.99(A)(1)(a)(i). Since the trial court improperly treated Milby’s conviction as a first-degree felony, we will remand this matter to the trial court for resentencing as a third-degree felony conviction.
Milby,
{¶ 9} We have had several opportunities to reconsider Milby. See State v. Johnson, 2d Dist. No. 24029,
{¶ 10} In Alltop, we discussed the changes to the registration requirements occasioned by 2007 Am.Sub.S.B. No. 10, as well as the changes to the penalty structure for violations of R.C. 2950.05, which were enacted in 2007 Am.Sub.S.B. No. 97 without reference to the Adam Walsh Act. After setting forth the statutory changes in detail, we held that Alltop’s “reliance on Milby in the matter at bar is appropriate,” vacated his sentence, and “remanded to the trial court for resentencing as a third degree felony, consistent with the penalty for notification violations in force in Ohio at the time [Alltop] was convicted of the underlying offense.” AUtop at ¶ 14-15. Similarly, in Howard, we expressly rejected the
{¶ 11} In Pritchett,
{¶ 12} Addressing Pritchett’s sentence, however, we discussed our decisions in Milby, Johnson, and Alexander requiring resentencing under the former version of R.C. 2950.99. We further stated:
Very recently, in State v. Williams,129 Ohio St.3d 344 ,2011-Ohio-3374 ,952 N.E.2d 1108 , the Supreme Court of Ohio held that the provision of 2007 Am.Sub. S.B. 10, which imposes greater penalties on sexual offenders, such as Pritchett, for violations of notification and registration requirements than applied when they were convicted of their underlying sexual offense, violates the prohibition against retroactive laws in Section 28, Article II of the Ohio Constitution. That section provides, in pertinent part: “The general assembly shall have no power to pass retroactive laws.” Any law “passed” in violation of that section is therefore void. Further, because such a law purports to apply retroactively, a holding that the law violates Section 28, Article II likewise applies retroactively to any person to whom the law was retroactively applied.
Under Megan’s law (which had been applied to Pritchett in 2005), Pritchett with the 2005 prior failure to notify conviction was subject to sentencing for a felony of the third degree. As a result of a subsequent amendment of the law, Pritchett was instead sentenced for a second degree felony offense. That amendment of the law is void, per Williams. The sentence the court imposed pursuant to that law is likewise void. It would be a manifest injustice to continue Pritchett’s incarceration on a void sentence.
Pritchett at ¶ 26, 28. We vacated Pritchett’s sentence and remanded for a new sentencing hearing. We recently applied Pritchett to a defendant who appealed the denial of his petition for postconviction relief following his guilty plea to failure to register in violation of R.C. 2950.05(B)(F)(2). State v. Harrison, 2d Dist. No. 24471,
{¶ 13} We decline to depart from Milby and our cases following it and, instead, find Milby to be controlling in the circumstances before us. Cook was convicted of rape in 1991 and classified as a sexually oriented offender under Ohio’s version of Megan’s Law. The trial court did not err in following Milby and applying the prior version of R.C. 2950.99, rather than the version enacted under S.B. 97, in sentencing Cook for failure to notify in violation of R.C. 2950.05.
{¶ 14} The state’s assignment of error is overruled.
Ill
{¶ 15} The trial court’s judgment will be affirmed.
Judgment affirmed.
Concurrence Opinion
concurring.
{¶ 16} If this were a case of first impression, I would reverse, for the reason set forth in Judge Hall’s separate opinion in State v. Howard,
{¶ 17} But this is hardly a case of first impression. Therefore, I will follow stare decisis and join in the opinion and judgment of this court in this case.