STATE OF OHIO v. GABRIEL E. GILBERT
Nos. 95083 and 95084
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
April 21, 2011
[Cite as State v. Gilbert, 2011-Ohio-1928.]
JUDGMENT: REVERSED AND VACATED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-533895 and CR-529118
BEFORE: S. Gallagher, J., Kilbane, A.J., and E. Gallaghеr, J.
RELEASED AND JOURNALIZED: April 21, 2011
David J. Goodwin
P.O. Box 94033
Cleveland, OH 44101-6033
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: W. Mona Scott
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{1} Appellant Gabriel Gilbert appeals his convictions in Cuyahoga County Common Pleas Court Case Nos. CR-529118 and CR-533895. The state indicted Gilbert on one count for failure to verify his current address in violation of
{2} According to the state, on June 9, 2003, Gilbert pleaded guilty to two counts of unlawful sexual conduct with a minor. He was sentenced to three years of community control sanctions and classified as а sexually oriented offender under Megan‘s Law. Under that classification, Gilbert had to register and verify his address annually for ten years. That obligation expires June 9, 2013. In June 2008, in a separate case, Gilbert pleaded guilty to one count of failure to verify his address and was sentenced to one year of community control sanctions.
{3} Gilbert was indicted again in CR-529118 and CR-533895 for failure to verify his current address and failure to notify оf a change in address. Both cases subjected Gilbert to sentencing enhancements based on his 2008 failure-to-verify conviction. Gilbert plеaded no contest, and the trial court found him guilty in both cases. It sentenced him to an aggregate of four years in jail. It is from those convictions and sentence that Gilbert now appeals.
{4} Gilbert raises two assignments of errors for our review, as follows:
{6} “II. The trial court erred by impоsing upon appellant retroactively and enhanced, mandatory prison term penalty for violation of sexual offender notification and verification requirements pursuant to amended Revised Code 2950.99 even though appellant‘s underlying sexual offense, and оriginal sexual offender classification, preceded amendment of 2950.99, and reclassication [sic] of appellant‘s offender status has since been determined to be unconstitutional.”
{7} In light of State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753 and State v. Gingell, Slip Opinion No. 2011-Ohio-1481, we find that Gilbert‘s first assignment of error has merit and is fully dispositive of his appeal.
{8} Ohio‘s Adam Walsh Act (“AWA“) went into effect in January 2008. The legislature, through
{9} In State v. Page, Cuyahoga App. No. 94369, 2011-Ohio-83, this court held that reporting requirements originating from the unlawful reclassification cannot serve as the basis for a reporting violation. Id. at ¶ 11. The majority noted that Bodyke does not create “a fictitious distinction between an unlawful reclassification ‘that imposes a more onerous vеrification requirement’ and a reclassification that does not impose heightened verification requirements. Bodyke deemed reclаssifications under the AWA unlawful, the only condition being that the offender has ‘already been classified by court order under former law.‘” Id. at ¶ 10, fn.1.
{10} This distinction is important. Once an offender was reclassified through
{11} In the instаnt case, we first note that neither the trial court nor Gilbert had the benefit of the Bodyke decision during the pendency of proceedings. The state concedes that Gilbert‘s conviction must be vacated in CR-533895 based on his reclassification under AWA and the rationale in Bodyke. We agreе, despite the fact that the record from the trial court does not establish his reclassification. We must presume that Gilbert was originally subject to a reporting requirement by prior court order under Megan‘s Law and reclassified when AWA went into effect in January 2008 based on the stаte‘s representation. Nothing in the record indicates otherwise.
{12} Gilbert‘s reclassification under the AWA is contrary to the law. Adhering to prеcedent in this district, convictions arising from reporting violations under the AWA for any individual reclassified under its provisions are also contrary to law. Page, Cuyahoga App. No. 94369, at ¶ 10; see, also, State v. Smith, Cuyahoga App. No. 92550, 2010-Ohio-2880, ¶ 29; State v. Patterson, Cuyahoga App. No. 93096, 2010-Ohio-3715; State v. Jones, Cuyahoga App. No. 93822, 2010-Ohio-5004.
{13} The state argues that Gilbert‘s conviction in CR-529118 is valid because his duty to notify the sheriff of a change in primary residency was the same under Mеgan‘s Law
{14} The state‘s attempt to implicate Gilbert‘s reporting requirements under Megan‘s Law by claiming that Gilbert‘s violation was a violation of
{15} Gilbert‘s reclassification was deemed unconstitutional and therefore cannot serve as the predicate for the violations charged in thе indictments in either case, even if the reporting requirements under the AWA and Megan‘s Law are identical. See, e.g., Gingell, 2011-Ohio-1481; State v. Godfrey, Summit App. No. 25187, 2010-Ohio-6454 (reversing the trial court‘s conviction for failure to register and failure to notify of a change of address based on the rationale from Bodyke). Gilbert‘s first assignment of error is sustained.
{16} Because of our resolution of Gilbert‘s first assignment of error, the second assignment of error is moot and we need not address the issues raised. See
Judgment reversed, and the sentences imposed are vacated.
It is orderеd that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to
SEAN C. GALLAGHER, JUDGE
MARY EILEEN KILBANE, A.J., and EILEEN A. GALLAGHER, J., CONCUR