STATE OF OHIO v. JAMES FORSYTHE
Case No. 2012CA00225
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
July 15, 2013
2013-Ohio-3301
Hоn. John W. Wise, P.J.; Hon. Patricia A. Delaney, J.; Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2008CR0615; JUDGMENT: REVERSED AND REMANDED
JOHN D. FERRERO
STARK COUNTY PROSECUTOR
KATHLEEN O. TATARSKY
110 Central Plaza, South – Suite 510
Canton, OH 44702-1413
For Defendant-Appellant:
TAMMI R. JOHNSON
Stark County Public Defender Office
201 Cleveland Ave. SW, Suite 104
Canton, OH 44702
{1} Defendant/Petitioner-Appellant James Forsythe appeals the November 5, 2012 judgment entry (December 5, 2012 nunc pro tunc judgment entry) of the Stark County Court of Common Pleas. Plaintiff/Respondent-Appellee is the State of Ohio.
FACTS AND PROCEDURAL HISTORY
{2} In 1995, Forsythe was convicted of one count of a lewd act upon a child in violation of California penal code section 288(a) and one count of oral copulation of a person under age 14 in violation of California penal code section 288(a)(c). The California court sentenced Forsythe to five years in prison. Forsythe was released from prison and placed on parole for three years. Under California law, Forsythe had a lifetime requirement to register his residence and an annual duty, within five working days of his birthday, to update his registration information.
{3} Forsythe moved to Ohio in 2002. He first registered his address with the Stark Cоunty Sheriff on January 23, 2003. The Stark County Sheriff‘s Department classified Forsythe as a sexually oriented offender. The H.B. No. 393 version of Megan‘s Law in effect on January 23, 2003 stated as follows:
(A) * * * If a person is convicted of, pleads guilty to, or is adjudicated a delinquent child for committing, a sexually oriented offense in another state, or in a federal court, military court, or an Indian tribal court and if, as a result of that conviction, plea of guilty, or adjudication, the person is required, under the law of the jurisdiction in which the person was
convicted, pleaded guilty, or was adjudicated, to register as a sex offender until the person‘s death and is required to verify the person‘s address on at least a quarterly basis each year, that conviction, plea of guilty, or adjudication automatically classifies the person as a sexual predator for thе purposes of this chapter, but the person may challenge that classification pursuant to division (F) of this section. In all other cases, a person who is convicted of or pleads guilty to, has been convicted of or pleaded guilty to, or is adjudicated a delinquent сhild for committing, a sexually oriented offense may be classified as a sexual predator for purposes of this chapter only in accordance with division (B) or (C) of this section or, regarding delinquent children, divisions (B) and (C) of section 2152.83 of the Revised Code.
{4} On May 29, 2007, Forsythe was indicted for failure to provide written notice of a change of address, a felony of the third degree in violation of
{5} On November 27, 2007, the Ohio Attorney General reclassified Forsythe as a Tier II Sex Offender pursuant to the Adam Walsh Act,
{6} On August 30, 2012, Forsythe filed a “Motion to Exempt Petitioner from Sexual Predator Classification.” In his motion, he stated the version of Megan‘s Law in effect at the time of Forsythe‘s initial registration in Ohio had a lifetime registration requirement and quarterly verification of address. At the time of Forsythe‘s conviction in California, California law required a lifetime registration with annual address verification. Forsythe argued in his petition to the trial court that after the repeal of the reclassification provisions of the AWA, the State of Ohio lacked legal authority to classify Forsythe as a sexual predator under the S.B. 5 vеrsion of
{7} Forsythe next argued in his motion that if the trial court determined Megan‘s Law applied to Forsythe, he requested the trial court to make a determination under
(A) If a person is convicted, pleads guilty, or adjudicated a delinquent child, in a court in another state, in a federal court, military court, or Indian tribal court, or in a court of any nation other than the United States for committing a sexually oriented offense that is not a registration-exempt sexually oriented offense, and if, as a result of that conviction, plea of guilty, or adjudication, the person is required, under the law of the jurisdiction in which the person was convicted, pleaded guilty, or was adjudicated, to register as a sex offender until the person‘s death, that conviction, plea of guilty, or adjudication automatically classifies the person as а sexual predator for the purposes of this chapter, but the person may challenge that classification pursuant to division (F) of this section. In all other cases, a person who is convicted of or pleads guilty to, has been convicted of or pleaded guilty to, or is adjudicated a delinquent child for committing, a sexually oriented offense may be classified as a sexual predator for purposes of this chapter only in accordance with division (B) or (C) of this section or, regarding delinquent children, divisions (B) and (C) of section 2152.83 of the Revised Codе.
{9} The State further argued the California offenses for which Forsythe was conviсted were substantially equivalent to the offense of rape under Ohio law and therefore sexual predator was the proper classification.
{10} The trial court originally ruled on the motion on November 5, 2012 and issued a nunc pro tunc judgment entry on December 5, 2012. The judgment entry held that for the reasons stated in the State‘s response to Forsythe‘s motion, the trial court overruled the motion. It further stated, “As articulated in the response of the State of Ohio, the criminal conduct of the defendant in California was substantially equivalent to the offense of rapе under Ohio law and the lifetime registration requirement placed by the state of California leads to the conclusion that the sexual predator designation in the State of Ohio is appropriate.”
{11} It is from this decision Forsythe now appeals.
ASSIGNMENT OF ERROR
{12} Forsythe raises one Assignment of Error:
{13} “THE TRIAL COURT ERRED IN FINDING APPELLANT A SEXUAL PREDATOR WITHOUT HOLDING A HEARING IN VIOLATION OF THE FOURTH, FIFTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.”
{14} Forsythe argues in his Assignment of Error the trial court erred in finding he was a sexual predator without holding a hearing. After the Attorney General‘s reclassification of Forsythe as a sexual predator after the repeal of the AWA, Forsythe filed a petition in the trial court to challenge his automatic classification under
{15} In Bodyke, supra, the Ohio Supreme Court held that the reclassification provisions in the AWA,
{16} In the present case, Forsythe was originally classified pursuant to court order by the State of California. When Forsythe came to Ohio, Forsythe wаs subject to automatic classification under
(F)(1) An offender or delinquent child classified as a sexual predator may petition the court of common pleas * * * of the county in which the offender * * * resides or temporarily is domiciled to enter a determination that the offender * * * is not an adjudicated sexual predator in this state for purposes of the registration and other requirements of this chapter or the community notification provisions contained in sections 2950.10 and 2950.11 of the Revised Code if all of the following apply:
(a) The offender * * * was convicted of, pleaded guilty to, or was adjudicated a delinquent child for committing, a sexually oriented offense that is not а registration-exempt sexually oriented offense in another state, in a federal court, military court, or Indian tribal court, or in a court of any nation other than the United States.
(b) As a result of the conviction, plea of guilty, or adjudication described in division (F)(1)(a) of this section, the оffender * * * is required under the law of the jurisdiction under which the offender * * * was convicted, pleaded guilty, or was adjudicated to register as a sex offender until the offender‘s * * * death.
(c) The offender * * * was automatically classified a sexual predator under division (A) of this section in relation to the conviction, guilty plea, or adjudication described in division (F)(1)(a) of this section.
(2) The court may enter a determination that the offender * * * filing the petition described in division (F)(1) of this section is not an adjudicated sexual predator in this state for purposes of the registratiоn and other requirements of this chapter or the community notification provisions contained in sections 2950.10 and 2950.11 of the Revised Code only if the offender * * * proves by clear and convincing evidence that the requirement of the other jurisdiction that the offender * * * register as a sеx offender until the offender‘s or * * * death is not substantially similar to a classification as a sexual predator for purposes of this chapter. If the court enters a determination that the offender * * * is not an adjudicated sexual predator in this state for those purposes, the court shall include in the determination a statement of the reason or reasons why it so determined.
{18} If an out-of-state offender challenges his or her classification under
We conclude that in order to determine whether an out-of-state conviction is substantially equivalеnt to a listed Ohio offense, a court must initially look only to the fact of conviction and the elements of the relevant criminal statutes, without considering the particular facts disclosed by the record of conviction. If the out-of-state statute defines the offense in such a wаy that the court cannot discern from a comparison of the statutes whether the offenses are substantially equivalent, a court may go beyond the statutes and rely on a limited portion of the record in a narrow class of cases where the factfinder was required to find аll the elements essential to a conviction under the listed Ohio statute. To do so, courts are permitted to consult a limited range of material contained in the record, including charging documents, plea agreements, transcripts of plea colloquies, presentence reports, findings of fact and conclusions of law from a bench trial, jury instructions and verdict forms, or some comparable part of the record.
{19} The First District Court of Appeals in State v. Pasqua, 157 Ohio App.3d 427, 2004-Ohio-2992, 811 N.E.2d 601, ¶ 22 (1st.Dist.) found that under a
{20} In the present case, the trial court found the offenses for which Forsythe was convicted of in California to be similar to Ohio offenses. The trial сourt made its decision based on the motions and did not hold a hearing. Pursuant to the persuasive authority of Pasqua and McMullen, once the trial court found the offenses to be similar, the trial court must hold an evidentiary hearing for Forsythe to prove by clear and convincing evidence that he is not likely to commit a sexually oriented offense in the future.
{21} We sustain Forsythe‘s Assignment of Error and reverse the November 5, 2012 judgment entry (December 5, 2012 nunc pro tunc judgment entry) of the trial court. The trial court shall hold a hearing on Forsythe‘s
{22} The sole Assignment of Error of Defendant-Petitioner/Appellant James Forsythe is sustained.
{23} The judgment of the Stark County Court of Common Pleas is reversed and the matter remanded for further proceedings consistent with this opinion and law.
By: Delaney, J.,
Wise, P.J. and
Baldwin, J., concur.
HON. PATRICIA A. DELANEY
HON. JOHN W. WISE
HON. CRAIG R. BALDWIN