STATE OF OHIO v. JOSEPH MCMULLEN
Nos. 97475 and 97476
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
June 14, 2012
[Cite as State v. McMullen, 2012-Ohio-2629.]
S. Gallagher, J., Boyle, P.J., and Kilbane, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-542624
JUDGMENT: REVERSED AND REMANDED
William D. Mason
Cuyahoga County Prosecutor
By: Daniel T. Van
Oscar E. Albores
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Edward A. Heffernan
1660 West Second Street
Suite 410
Cleveland, OH 44113
Robert L. Tobik
Cuyahoga County Public Defender
By: Cullen Sweeney
Assistant Public Defender
Courthouse Square Suite 200
310 Lakeside Avenue
Cleveland, Ohio 44113
{1} Appellant, the state of Ohio, appeals the decision of the Cuyahoga County Court of Common Pleas that reclassified appellee, Joseph McMullen, as a sex offender with a ten-year registration requirement under Megan‘s Law. For the reasons stated herein, we reverse the decision of the trial court and remand the matter for further proceedings consistent herewith.
{2} On September 10, 1998, McMullen was convicted of attempted rape in Maryland. After serving his sentence in Maryland, McMullen was transferred to Pennsylvania to serve another sentence on an unrelated, non-sex offense. In 2004, while incarcerated in Pennsylvania, McMullen executed a document, provided by the state of Maryland, notifying him he had been classified as a sexually violent offender and was required to register for life.1
{3} Although at the time of McMullen‘s conviction the registration requirement in Maryland required a sexually violent offender to register annually for ten years after the last date of release, the law was later amended to a lifetime requirement. See
{4} The law being enforced upon McMullen was known as the Jacob Wetterling Act. In Young v. Maryland, 370 Md. 686, 690, 806 A.2d 233 (2002), the court struck down a constitutional challenge to the Jacob Wetterling Act and found that the statutory requirement that certain convicted defendants register as sex offenders was not regarded as “punishment” in the constitutional sense, but was a remedial requirement for the protection of the public. In Doe v. Dept. of Public Safety & Corr. Servs., 185 Md.App. 625, 971 A.2d 975 (2009), the court ruled in a case in which the Jacob Wetterling Act was being applied to the defendant retroactively that
(1) lifetime registration requirement for an individual classified as sexually violent offender did not violate procedural due process; (2) use of prior conviction for sexually violent offense as sole basis for lifetime registration had a rational basis and therefore did not violate equal protection; and (3) lifetime registration did not violate offender‘s constitutional right to privacy.
{5} Upon his release from prison, McMullen moved to Ohio. He registered his address with the Cuyahoga County sheriff‘s office on June 16, 2008. It is undisputed that the sheriff‘s office treated McMullen as a Tier III sex offender under the Adam Walsh Act (“AWA“).
{6} On October 18, 2010, McMullen was charged in a two-count indictment with failure to verify address (
{7} During the lower court proceedings, the trial court recognized uncertainty with McMullen‘s sex-offender classification. The court recognized that the AWA could not be retroactively applied to offenders such as McMullen. While the court found that McMullen should be classified under Megan‘s Law, the court struggled with whether he should be subject to a ten-year or a lifetime registration requirement. Ultimately, the court classified McMullen as a sex offender under Megan‘s Law with a ten-year registration requirement to end in 2014 and ordered the Cuyahoga County Sheriff and the Ohio Attorney General to remove any notation of McMullen‘s classification as a Tier III sex offender.
{8} The state has appealed the trial court‘s ruling, raising four assignments of error for our review. The state‘s first assignment of error challenges the jurisdiction of the trial court to remove McMullen‘s AWA classification and to reclassify McMullen.
{9} In State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 67. The court severed the reclassification provisions,
{10} In State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶ 22 declared that
S.B. 10, as applied to Williams and any other sex offender who committed an offense prior to the enactment of S.B. 10, violates Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly from enacting retroactive laws.
{11} In State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, 946 N.E.2d 192, ¶ 8. The court found that pursuant to Bodyke, Gingell‘s original classification under Megan‘s Law and the associated community-notification and registration order were reinstated and that Gingell remained accountable for the yearly registration requirement under Megan‘s Law. Id.
{12} In State v. Palmer, 131 Ohio St.3d 278, 2012-Ohio-580, 964 N.E.2d 406 recognized that sex offenders who have been reclassified under the AWA may still petition the court to contest their classification because Bodyke did not invalidate the petition process under
{13} Upon our review of the above decisions, we find that the trial court correctly invalidated McMullen‘s Tier III classification and recognized his original classification
{14} We further recognize that McMullen entered a plea of guilty and has not appealed his conviction for attempted failure to verify. Nonetheless, it appears that his conviction was contrary to law because it arose from his unlawful classification under the AWA. See State v. Caldero, 8th Dist. No. 96719, 2012-Ohio-11; State v. Grunden, 8th Dist. No. 95909, 2011-Ohio-3687. Indeed, the record shows that McMullen had been improperly classified as a Tier III offender and that the charges stemmed from the AWA registration requirements. Though the issue is not before us, McMullen may wish to pursue relief upon remand.3
{15} The state‘s first assignment of error is overruled.
{16} The state‘s second and third assignments of error challenge the trial court‘s removal of McMullen‘s AWA classification because it claims the AWA may be constitutionally applied to out-of-state offenders whose crimes were committed prior to the enactment of S.B. 10. While McMullen argues that the state failed to raise these
{17} The state acknowledges that this court has previously rejected its arguments and indicates that these arguments are raised to preserve the issue for further review. Indeed, this court has previously found that Bodyke and Williams apply to out-of-state offenders and has rejected similar arguments. See Nelson v. Ohio, 8th Dist. No. 96988, 2012-Ohio-364, ¶¶ 10-13; State v. Ortega-Martinez, 8th Dist. No. 95656, 2011-Ohio-2540, ¶ 11. Accordingly, we overrule the state‘s second and third assignments of error.
{18} The state‘s fourth assignment of error argues that the trial court incorrectly imposed a ten-year registration requirement. The state claims that because McMullen was subject to a lifetime registration requirement under Maryland law, he should have been deemed a sexual predator with a lifetime registration requirement pursuant to former
{19}
We conclude that in order to determine whether an out-of-state conviction is substantially equivalent 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 way 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 all 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.
{21} Upon coming to Ohio, McMullen registered his address with the Cuyahoga County sheriff‘s office on June 16, 2008. At that time, Ohio law automatically classified as a sexual predator an out-of-state sex offender convicted of a nonexempt, sexually oriented offense who is required to register as a sex offender for life as a result of that conviction. Former
{22} The state claims that the trial court should have deemed McMullen a sexual predator in accordance with former
{23} While the record reflects that McMullen was convicted of attempted rape and was subject to a lifetime registration requirement, the court never determined whether the Maryland offense is substantially equivalent to a listed Ohio offense. Further, even if McMullen is automatically deemed a sexual predator under former
{24} For the foregoing reasons, we find the trial court had jurisdiction to render McMullen‘s reclassification under the AWA invalid and to effectuate his original classification under Megan‘s Law. McMullen‘s conviction has not been challenged herein. However, the trial court erred in reclassifying McMullen contrary to the dictates of Lloyd and former
{25} Judgment reversed, case remanded.
This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and
MARY EILEEN KILBANE, J., CONCUR