State v. Ortega-MartinezState v. Ortega-Martinez
- Reporters:
- ,
- Before:
- Melody J. Stewart, James J. Sweeney, Larry A. Jones
{¶ 1}
{¶ 2} In July 2007, the Ohio General Assembly repealed the existing sexual offender registration statutes and replaced them with Ohio‘s version of the Adam Walsh Act (AWA) under which a sexual offender is classified using a three-tiered system based solely upon thе offense committed. Ortega-Martinez was notified that, pursuant to
{¶ 3}
{¶ 4} Ortega-Mаrtinez was indicted for failing to verify his address on January 9, 2010 in violation of
{¶ 5}
{¶ 6} It is the state‘s contention that Bodyke is limited to those cases in which there was an adjudication of a sexual offender‘s classification by an Ohio court prior to the attorney general‘s notice of reclassification. The state maintains that with Ortega-Martinez, as with all out-of-state offenders, the Ohio sexual offender classification arose by operation of law and not by court order. The state argues that because there is no judicial order from an Ohio court classifying out-of-state offenders, there can bе no violation of the separation of powers doctrine and, therefore, the attorney general is not precluded from reclassifying the offender under the new Ohio classifications.
{¶ 7} Shortly after Bodyke was released, this court was called upon to determine whether that holding also applied to an out-of-state offender whose sexual offender status had been reclаssified by the Ohio Attorney General. In Majewski v. State, 8th Dist. Nos. 92372 and 92400, 2010-Ohio-3178, the defendant had been convicted of sexual assault and attempted sexual assault in Hawaii and was classified as a sexually oriented offender, the least restrictive classification. After release from prison, he moved to Ohio and registered with the sheriff‘s office. In 2007, he was notified that, pursuant to the passage of S.B. 10, the Ohio Attorney General had reclassified him as a
{¶ 8} On appeal, we reversed, stating:
{¶ 9} “In Bodyke, the Ohio Supreme Court recently determined that the AWA violates the separation of power dоctrine, stating the following: ‘The AWA‘s provisions governing the reclassification of sex offenders already classified by judges under Megan‘s Law violates the separation-of-powers doctrine for two related reasons: the reclassification scheme vests the executive branch with authority to review judicial decisions, and it interferes with the judicial power by requiring the reopening of final judgments.’ Id. at ¶55.
{¶ 10} “Essentially, the AWA is a legislative mechanism to reopen the judgments on countless sex offender classifications, and reclassify those individuals, usurping the initial judgment of the trial court. Only appellate courts have the power to affirm, reverse, or modify a final judgment. Bodyke at ¶58;
{¶ 11} The state appealed our decision in Majewski to the Ohio Supreme Court upon the identical argument raised in this appeal. On December 15, 2010, the suрreme court dismissed the appeal as not involving any substantial
{¶ 12} We note that the Fifth District Court of Appeals has also reached the same conclusion. In Clager v. State, 5th Dist. No. 10-CA-49, 2010-Ohio-6074, Clager was convicted in Texas of possessing child pornography. He then moved to Ohio in 2003. In 2007, he received notice that he had been reclassified as a Tier II offender under the AWA. He challenged the new classification, claiming that the Ohio Attorney General‘s reclassification was unconstitutional and barred by Bodyke. Clager argued that in one of the cases reviewed by the Ohio Supreme Court, in In re Sexual-Offender Reclassification Cases, 126 Ohio St.3d 322, 2010-Ohio-3753, 933 N.E.2d 801, ¶63, the court reversed the reclassification of an out-of-state offender who had never been classified in Ohio under Megan‘s Law on separation of powers grounds. (“The judgments of the courts of appeals in the following cases [including Robinson v. State, Hamilton App. No. C-090002] are reversed as to those portions of the judgments that rejected constitutional challenges to the Adam Walsh Act on separation-of-powers grounds, and the causes are remanded to the trial courts for further proceedings, if any, necessitated by State v. Bodyke.” Id. at ¶15. The appellate court agreed and
{¶ 13} “II. The trial court erred in dismissing the indictment where the indictment was valid on its face.”
{¶ 14} The state‘s second assignment of error asserts that the trial court erred in dismissing the indictment where the indictment was valid on its face. The state argues that Ortega-Martinez‘s motion questions the state‘s ability to prove the indictment, and therefore, dismissal is not рroper.
{¶ 15} As a general rule, “[a] pretrial motion must not involve a determination of the sufficiency of the evidence to support the indictment. If the indictment is valid on its face, a motion to dismiss should not be granted.” State v. Preztak, 181 Ohio App.3d 106, 2009-Ohio-62, 907 N.E.2d 1254, ¶12, citing State v. Eppinger, 162 Ohio App.3d 795, 2005-Ohio-4155, 835 N.E.2d 746. However, the Supreme Court of Ohio has carved out an exception to the general rule, noting that a court may consider material outside the facе of the indictment if the “motion did not embrace what would be the general issue at trial.” State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶18;
{¶ 16} In the instant case, the trial court did not impermissibly decide the issue for trial in ruling on Ortega-Martinez‘s motion to dismiss. Ortega-Mаrtinez‘s motion did not address what would be the general factual issue for trial (whether the evidence showed Ortega-Martinez failed to verify his address on January 1, 2008); rather, it asserted that the question оf whether Ortega-Martinez‘s indictment for failure to verify was predicated on an unconstitutional reclassification by the Ohio Attorney General. Because Ortega-Martinez‘s motion did not require a determination of the factual issue for trial, the trial court could properly consider the motion under
{¶ 17} This court has held that an unlawful reclassification under Ohio‘s AWA cannot serve as the predicate for the crime of failure to verify. State v. Smith, 8th Dist. No. 92550, 2010-Ohio-2880, ¶29; State v. Page, 8th Dist. No. 94369, 2011-Ohio-83. Because appellant‘s indictment was predicated on an unlawful reclassification, he cannot be convicted of the offense charged. The trial court did not err by dismissing the indictment. The state‘s second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant his сosts herein taxed.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas 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.
MELODY J. STEWART, PRESIDING JUDGE
JAMES J. SWEENEY, J., and
LARRY A. JONES, J., CONCUR