State v. Eads

should thus the convictions act of theft and involving of similar the same import merged sentencing.” insufficient us contains review, conclude that the record before we Upon theft convictions for whether Adams’s regarding facts to render determination and therefore import of similar and are allied offenses breaking entering and court to the trial matter remanded merger. Accordingly, this subject Adams’s convictions whether hearing make factual determination conduct merged. should be breaking entering for theft and remanded.

Cause JJ., concur. Hall, Froelich Ohio, Appellee,

The STATE of EADS, Appellant. Eads, App.3d 2011-Ohio-6307.]

[Cite as State Ohio, Appeals

Court of District, County. Montgomery Second

No.

Decided Dec. Heck, H. Montgomery County Mathias Attorney, Johnna Prosecuting M. Shia, Prosecuting Assistant Attorney, appellee. for Wehner,

D.K. Rudy Defender, Montgomery County Public and Tina M. McFall, Defender, Assistant Public appellant. for Judge.

Froelich, Justin T. Eads was after a convicted bench trial in Montgomery County residence, Court Common Pleas of failure to verify required by address, in violation of his 2950.06, notify failure to the sheriff R.C. of rape, were two counts sex offenses underlying Because the of R.C. 2950.05. under the felonies first-degree 2950 were Chapter under R.C. both offenses version of R.C. 2950.99. current the court to him Eads moved for guilty, trial court found After the does not that R.C. 2950.99 argued sanctions. Eads community-control

reinstate for failure to for first-time convictions mandatory prison term require The trial court degree. of the first they even if are felonies verify, and failure to years of three mandatory him to terms motion and sentenced overruled Eads’s ordered, further count, concurrently. The court to be served on each prison however, pending that he be released on bond stayed Eads’s sentence be appeal. sentence, raising assignments two from his conviction and appeals Eads

{¶ 3} of error.

I of error states: assignment Eads’s first

4}{¶ when guilty “It was error when the trial court found the defendant plain {¶ 5} 2950 is duty notify to and no to because current R.C. duty register he had no to him to State v. Williams.” pursuant unconstitutional as error, In of Eads claims that his classification as a assignment his first 6}{¶ (S.B.10) III Chapter Tier sex offender under the current version R.C. and, result, failing register a be found to guilty unconstitutional as he could not to under that statute. notify registration The version of Ohio’s sex offender classification and original {¶ 7} 2950, In was in former R.C. 130 Ohio Laws 669. Chapter law enacted 1963. See Law,” 1996, which Assembly “Megan’s the Ohio General enacted Ohio’sversion Chapter compre versions of R.C. 2950 and created Ohio’s first “repealed prior v. Bo system and classification for sex offenders.” State hensive ¶ 2010-Ohio-2424, 753, 7, 266, citing N.E.2d State v. Cook 126 Ohio St.3d dyke, (1998), 404, 407, Megan’s 700 N.E.2d 570. Under Ohio’s offenders, oriented hearing, sexually after a as either judges classified sex offender, offender, on the consider predator, judge’s habitual sex or sexual based classification, subject to registration, ation of various factors. Sex offenders were specific in with their community-notification requirements accordance and/or classification. 2006, the Adam Walsh Child Congress passed In the United States

{¶ 8} tiers Act, divided sex offenders into three based Safety Protection and which year, at that same while Bodyke the offense committed. 18. Later solely upon acts of Eads, committed Ohio, juvenile, then a in in effect Law was still Megan’s 10, No. Am.Sub.S.B. enacted 2007 Assembly 2007, General In rape. (“S.B. Act the Adam Walsh version of Law with Ohio’s replaced ¶ 20; 2950. Chapter R.C. 1, current Bodyke 10”), January effective for two counts juvenile in delinquent adjudicated Eads was In Eads court committed juvenile 2006 conduct. on his based rape, be required him that he would notified Youth Services Department a public-registry- offender, designated III sex but a Tier register community-notifica- subject to and was not registrant juvenile-offender qualified from the appealed that Eads no indication We find provisions. tion judgment. court’s occasions, which included on 11 office with the sheriffs registered Eads However, in November of address. change of a to the sheriff

four notifications the sheriffs he notified (although his address timely verify Eads failed located subsequently and he was Kentucky), that he was by telephone office Berea, Kentucky. residence verify his failing indicted for Eads was January In trial, After bench of address. the sheriff of failing 2011, the trial court In charges. May Eads of both

trial court convicted count, and this followed. appeal on each years him to three sentenced its decision of Ohio rendered July In case, 2011-Ohio-3374, Williams, 129 Ohio St.3d minor; contact with Williams for unlawful sexual indicted Williams was informed that he plea hearing, At his Williams charge. to the pled guilty request- subsequently requirements. Williams subject reporting would not be 10, which was rather than S.B. sentenced under ed that he be 10 and applied The court S.B. sentencing. at the time of Williams’s effect a Tier II sex offender. Williams designated that he would be informed Williams retroactively applied be constitutionally not that S.B. 10 could arguing appealed, date of that statute. to the effective prior offense occurred to a defendant whose initially The court with Williams. agreed of Ohio Supreme The Court 10 It made S.B. retroactive. expressly had legislature that the found Ohio 10 in by S.B. changes all the enacted we consider concluded: “When further on a requirements the current imposing conclude that we aggregate, 10 is to the enactment S.B. prior committed whose crime was sex offender 10, who to defendants applied that as we conclude S.B. Accordingly, punitive. 28, II of enactment, Article violates Section to its prior sex offenses committed Assembly passing from Constitution, the General prohibits which ¶ that “We conclude The court thus held: at 21. laws.” Williams retroactive an who committed other sex 10, any to Williams applied S.B. offender 497 10, 28, to the prior enactment S.B. violates Article II of the Section offense Constitution, Assembly Ohio from prohibits enacting General retroac- ¶ added.) (Emphasis tive laws.” Id. at 22. The judicata state asserts that res from reaping bars Eads the benefit

Williams, because to challenge Eads failed his as a III sex classification Tier through adjudication. offender direct from his appeal 2008 that argues state Eads cannot his collaterally challenge 2008 classification and that argument judicata. is barred res by In general, judicial new ruling may applied cases only “[a]

that pending (1972), are on the announcement date. State v. Evans 32 St.2d Ohio 185, 186, 422, 61 O.O.2d judicial 291 N.E.2d 466. The ruling may new not be final, applied retroactively i.e., to a conviction that has become where the accused Id.; all (1966), has exhausted of his appellate Lynn remedies. v. Ohio State 5 106, 108, 226, State, 328, St.2d 34 O.O.2d 214 N.E.2d 226.” Ali v. 104 Ohio St.3d 2004-Ohio-6592, 687, 819 N.E.2d rule, accordance this general with Ohio has

consistently judicial refused to apply pronouncements new retroactively to convic (State See, Comer, had 463, tions that become final. e.g., Ali v. 99 Ohio St.3d 2003-Ohio-4165, 473, 793 N.E.2d retroactively “should not be applied defen Colon, final”); dants whose convictions had become 119 State Ohio St.3d ¶ (“Our 2008-Ohio-3749, in Colon I holding only prospective nature, in general accordance with our policy newly that declared constitutional in criminal rules cases are prospectively, retrospectively”); Foster, 109 Ohio St.3d (applying N.E.2d 470 its ruling review”). it cases before and “those on pending direct We do not find that general applies rule this instance. Section II Article of the provides: general Ohio Constitution “The assembly * * shall no power have to pass retroactive laws *.” The Retroactivity Clause “nullifies those new ‘reach burdens, duties, laws that back and new create new new or obligations, new liabilities not existing the time statute [the becomes ” (Bracketed sic.) (2000), effective].’ material Bielat v. Bielat 352-353, (1901), 39, 51, N.E.2d Miller v. quoting Hixson St. “Any N.E. ‘passed’ law violation of section is therefore void. Further, because such a purports apply retroactively, law that the holding 28, law II violates Section likewise applies retroactively Article to to any person Pritchett, 24183, whom the law was applied.” 2d retroactively Dist. No. ¶26. 2011-Ohio-5978, 5825626, 2011 WL Williams, In Court that Supreme retroactively the concluded S.B. 10

{¶ 18} burdens, (such Eads) duties, new obligations created and on who persons 498 Williams, 129 that statute. the effective date of prior sex offenses to

committed ¶20. the 1108, Accordingly, 2011-Ohio-3374, N.E.2d 952 St.3d Ohio and Eads’s persons nullity, those of S.B. 10 to application retroactive is void. III sex offender classification as a Tier Court that, Supreme to respect note with S.B. We further 19}

{¶ 266, 2010- Bodyke, In State St.3d holdings broadly. has its applied and that 2950.031 Ohio-2424, the Court concluded “R.C. Supreme N.E.2d 933 who have 2950.032, reclassify to sex offenders attorney general the require law, impermissibly instruct under former already by been classified court order thereby judicial branch and to review decisions the past the executive branch addition, and doctrine. R.C. 2950.031 the separation-of-powers violate requiring opening the separation-of-powers by the doctrine 2950.032 violate from S.B. provisions The court the reclassification judgments.” final severed 2950.032 are hold R.C. 2950.031 and The court thus held: “We therefore and, severance, and may not enforced. 2950.031 they that after R.C. severed under may previously adjudicated by judges be applied 2950.032 not to offenders registra- community-notification the and and Megan’s and classifications added.) are previously by judges (Emphasis reinstated.” imposed tion orders Id. at 66 its its the Court has not limited Following expansive language, Supreme 20}

{¶ cases to that case to those sex offenders who had holding Bodyke pending and Rather, has Supreme on to their the Court challenges based reclassifications. the by attorney general all sex who were reclassified Bodyke to offenders and under R.C. 2950.031 2950.032. example, Gingell, For in State v. Ohio St.3d and was rape was of three counts of Gingell

N.E.2d convicted as a In accordance with S.B. originally sexually classified oriented offender. offender, III who by attorney general was as a Tier sex Gingell reclassified for life. was later for required register every days Gingell prosecuted to address; failing register pled to his address to he failing verify trial verify Gingell that the guilty failing appealed, claiming to address. (which of R.C. 2950.99 retroactively erred in the current version applying felony), than the version that was Gingell’s first-degree made offense rather original Bodyke during at the of his classification. was rendered effect time appeal. pendency Gingell’s III had as a Tier sex Although Gingell challenged his reclassification with the guilty verify his address accordance pled failing

offender had schedule, the benefit gave Gingell 10’s 90-day reporting S.B. Bodyke, original Bodyke. Gingell’s The court reasoned: “[P]ursuant community-notification Law and the associated classification under Therefore, order were reinstated. the current version of R.C. 2950.06, requires Tier III sexual offenders to register every days, does not apply Gingell. to Gingell Since was after charged his reclassification and Bodyke, before there is no doubt that he was indicted for a first-degree felony for a violation of the reporting requirements under the AWA Because the [S.B. 10]. application of reclassification, the AWA was upon based an unlawful we reverse the judgment of the court of appeals and vacate Gingell’s conviction for a violation of 90-day the requirement address-verification Gingell R.C. 2950.06. remained accountable for yearly Law; the reporting requirement under whether ¶ he met that requirement is not a part of this case.” Gingell Like the broad holding Bodyke, holding the expressly Williams applies to “any other sex offender who committed an prior offense Williams, enactment of S.B. 10.”

1108, at 22. Considering language this in Williams and the Supreme Court’s broad application of Bodyke Gingell, we conclude that Williams must be Eads, applied to despite his failure to challenge his classification under S.B. 10 a direct appeal of his delinquency adjudication. In summary, Eads’s classification as a III

{¶ Tier sex offender by 24} the juvenile court violated Ohio’s Retroactivity Clause and is void. prosecution for Eads’s failures to verify his address and notify the sheriffs office his new address was based on that unconstitutional result, classification. As a Eads cannot prosecuted for failing to verify his address and to notify the sheriffs office of his new address as a III Tier offender. Finally, we cannot conclude that Eads’s convictions for failing verify to

his address and faffing notify to the sheriff of a change address are proper on ground the that Eads would have been required verify to address and the sheriff of a address under Megan’s Law. At juncture, this Eads has never been designated a sexually offender, oriented habitual sexual offender, or sexual predator by a judge, and it is unclear what his designation would be.1 Absent a sex-offender by juvenile court, classification the Eads’s convictions for failing to verify his address faffing register change of address must be vacated. Eads’s first assignment of error is sustained. juvenile obligation A classify juvenile court's governed by portions sex offender is Chapter Chapter First, both R.C. 2152 and R.C. two-step process. 2950 and involves juvenile juvenile (“JOR”) juvenile must determine whether the registrant is a offender subject so, who is registration. to classification and juvenile If court must determine the appropriate juvenile. classification for the The record reflects that Eads when he rapes. Accordingly, committed the required classify court was Eads as a JOR. 2152.83(A)(1). See R.C.

II states: assignment of error Eads’s second motion it overruled the defendant’s when trial court erred “The required by is mandatory time and found control sanctions community reinstate statute.” error, Eads’s of assignment of Eads’s first our light disposition In

{¶ 29} moot. is overruled as of error assignment second

Ill vacated. will be judgment The trial court’s vacated.

Judgment JJ., concur. Donovan and Hall, concurring. Judge,

Hall, verify his current residence with separately charged Eads was failure address, both county sheriff of and address failure doubt, of the unique because on or after November Without occurring Eads should have been sentencing, conviction and underlying of his timing Law, Megan’s levels under available sexual-offender as one of the designated Act, but he was not. He did under the Adam Walsh rather than a tiered offender III designation. his incorrect Tier appeal not indictment, However, 3, 2010, dates in Eads’s before the offense on June Bodyke, v. 2010-Ohio- State released Ohio St.3d Supreme Court hold that R.C. 2950.031 and and announced: “We therefore 933 N.E.2d severance, and, may not enforced. R.C. they that after be

2950.032 are severed adjudicated by previously to offenders may applied and 2950.032 not be 2950.031 community-notification and the classifications Megan’s under judges This by judges are reinstated.” imposed previously orders registration should registration that Adam Walsh restrictions policy announced the decision Gingell, v. State case of Law offenders. the more recent Megan’s apply 444, 2011-Ohio-1481, 946 N.E.2d 128 Ohio St.3d though even Bodyke holding, making registration inapplicable, Tier III III reclassification the time challenged his Tier independently had not

Gingell Williams, with cases, coupled it was done. Those two that Adam Walsh (holding imposing act was before its enactment on offenders whose requirements registration unconstitutional) reversed. that Eads’s conviction be require I would can hold that a defendant raise the issue of the Law- Adam switch in for appeal Walsh the direct his conviction violation of requirements. Not before us is a final for whether conviction of registration collaterally violation can requirements attacked based on recent jurisprudence. Eads now has no it registration requirement, may be required apply

the state Ohio court for relief. Ohio, Appellant, STATE

GASTON,Appellee. Gaston, App.3d [Cite State v. 2011-Ohio-6317.] Ohio, of Appeals District, County. Second Clark

NO. 11CA0012.

Decided Dec.

Case Details

Case Name: State v. Eads

Court Name: Ohio Court of Appeals

Date Published: Dec 9, 2011

Citation: 968 N.E.2d 18

Docket Number: 24696

Court Abbreviation: Ohio Ct. App.