State v. HudsonState v. Hudson
Rendered on the 5th day of November , 2010.
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KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
RUSS B. COPE, Atty. Reg. No. 0083845, 7501 Paragon Road, Lower Level, Dayton, Ohio 45459 Attorney for Defendant-Appellant
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DONOVAN, P.J.
{¶ 1} This matter is before the Court on the Notice of Appeal of Clark Hudson, filed December 11, 2009. On December 30, 2003, Hudson was indicted on one count of attempted rape, in violation of
{¶ 2} On December 2, 2009, the trial court issued an Amended Termination Entry, following a new sentencing hearing, at which Hudson was advised that he was subject to a mandatory five-year period of post-release control upon his release and to additional sanctions should he violate the terms of post-release control. At the hearing, Hudson indicated that he had received notice from the Attorney General‘s office that he had been reclassified as a Tier II sex offender, pursuant to the reclassification scheme enacted by Senate Bill 10. The court re-sentenced Hudson to a term of six years and designated him a Tier II sex offender. On December 3, 2009, the trial court filed an Explanation of Duties to Register as a Sex Offender (“Explanation of Duties“), which provided that Hudson was a Tier II sex offender subject to registration requirements for 25 years.
{¶ 3} On December 4, 2009, the trial court issued another Amended Termination Entry, following another sentencing hearing, at which Hudson was again sentenced to a six year term and redesignated as a Tier III sex offender with attendant lifetime registration requirements. Hudson was also notified regarding post-release control, and the Amended Termination Entry provides, “as part of this sentence, the defendant will be supervised by
{¶ 4} Hudson asserts two assignments of error. His first assignment of error is as follows:
{¶ 5} “APPELLANT‘S RE-SENTENCING PROCEEDINGS ON DECEMBER 2, 2009 AND DECEMBER 3, 2009 ARE VOID, AS THE TRIAL COURT DID NOT UNDERGO A FULL DE NOVO HEARING WHEN IMPLEMENTING TERMS OF POSTRELEASE CONTROL.”
{¶ 6} While Hudson refers to both resentencing hearings in his assigned error, his Notice of Appeal indicates that he appeals from the judgment of December 4, 2009, which accordingly is the focus of our analysis.
{¶ 7} Each sentence to a prison term for a felony sex offense “shall include a requirement that the offender be subject to a term of post-release control imposed by the parole board after the offender‘s release from imprisonment.”
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{¶ 9} Crim.R. 32(A) governs the imposition of sentence and provides that the court shall: “(1) Afford counsel an opportunity to speak on behalf of the defendant and address the defendant personally and ask if he * * * wishes to make a statement in his or her own behalf or present any information in mitigation of punishment; (2) Afford the prosecuting attorney an opportunity to speak; (3) Afford the victim the rights provided by law; (4) In serious offenses, state its statutory findings and give reasons supporting those findings, if appropriate.”
{¶ 10} Hudson directs our attention initially to State v. Winston, 182 Ohio App.3d 306, 2009-Ohio-2171, ¶ 12, in which the trial court at resentencing informed Winston that he was subject to a mandatory term of post-release control following his release from prison and then reimposed the identical sentence imposed by the original sentencing court, without affording Winston “a full de novo sentencing hearing as if the original sentence had never been imposed.”
{¶ 11} Our review of the proceedings that occurred on December 3, 2009, reveals that Hudson, unlike Winston, received the de novo hearing to which he was entitled to correct his sentence. Defense counsel spoke on Hudson‘s behalf, the court addressed
{¶ 12} We note that Hudson also asserts in the body of his first assigned error that the trial court failed to inform him of his appellate rights, as required by Civ.R.32(B)(2). While the trial court did neglect to so advise Hudson, he has shown no prejudice. Hudson was appointed appellate counsel, he was allowed to proceed in forma pauperis, the transcript of proceedings was prepared at the State‘s expense, and he timely filed his appeal.
{¶ 13} There being no merit to Hudson‘s first assigned error, it is overruled.
{¶ 14} Hudson‘s second assigned error is as follows:
{¶ 15} “OHIO REVISED CODE § 2950, AS AMENDED BY SENATE BILL 10, CANNOT UNDER THE OHIO CONSTITUTION BE APPLIED RETROACTIVELY TO THE APPELLANT.”
{¶ 16} Hudson argues that retroactive application of S.B. 10 violates Article II, Section 28, of the Ohio Constitution. We have previously rejected this argument. State v. Haines, Montgomery App. No. 23222, 2010-Ohio-1123, ¶ 18.
{¶ 17} Regarding Hudson‘s designation as a Tier III sex offender, we note our decision in State v. Gibson, Champaign App. No. 2009 CA 47, 2010-Ohio-3447, in which
{¶ 18} In Poissant, the Fifth District determined that the trial court erred in reclassifying appellant as a Tier III offender where his sex offender classification was “intact when he appeared before the court for resentencing” based upon the trial court‘s failure to advise him of post-release control. The court further noted that, “pursuant to
{¶ 19} We note that since Poissant was decided, the Ohio Supreme Court determined that ”
{¶ 20} The trial court lacked jurisdiction at resentencing to classify Hudson as a Tier III sex offender, and that designation is vacated. Hudson‘s original designation as a sexually oriented offender is reinstated.
{¶ 21} The judgment of the trial court is affirmed in part and reversed in part consistent with this opinion.
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BROGAN, J. and FAIN, J., concur.
Copies mailed to:
Kirsten A. Brandt
Russ B. Cope
Hon. Barbara P. Gorman