STATE OF OHIO v. THOMAS PRITCHETT
C.A. CASE NO. 24183
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
November 18, 2011
[Cite as State v. Pritchett, 2011-Ohio-5978.]
DONOVAN, J.
T.C. NO. 09CR1226; (Criminаl appeal from Common Pleas Court)
KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
LORI R. CICERO, Atty. Reg. No. 0079508, 500 East Fifth Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant
OPINION
DONOVAN, J.
{1} This matter is before the Court on the Notice of Appeal of Thomas Pritchett, filed August 4, 2010. On April 29, 2009, Pritchett was indicted on one count of failure to notify of a change of address, a felony of the second degree, in violation of
{2} In its Decision, the trial court noted that Pritchett is a sexually oriented offender, having been previously convicted of attempted rape in Franklin County. After serving a prison term, Pritchett was released in 1999. While Pritchett testified at the hearing that he was released from prison in early 1999, the trial court noted that “all the written documentation before the court, and the Defendant‘s own motion, indicate that the Defendant was released in August 1999.” Accordingly, the court found as a matter of fact that Pritchett was released from prison in August, 1999, and that “his first registration as a Sexually Oriented Offender was August 18, 1999. According to the statutes in effect at the time of the Defendаnt‘s initial registration, commonly referred to as ‘Megan‘s Law,’ the defendant * * * was required to register his address with the county sheriff for a period of 10 years. That would have made his last annual registration in August 2008, and he would no longer be required to keep his registration current after August 2009 (10 years).
{3} “With the adoption of the new statutory scheme for sexually oriented offenders which became effective in Ohio January 1, 2008, commonly known as ‘the Adam
{4} According to the trial court, Pritchett, “believing that he was required to register every 90 days, registered on March 27, 2009 with an address of 50 Central Ave. Apt. 304 Dayton Ohio 45406. The Sheriff‘s office attempted to confirm the Defendant‘s address on April 7th and 9th and it was determined that the apartment was vacant since [March] 30, 2009. The former named tenant, J.D. Knight was evicted and the move out date was 3-30-2009. [Pritchett] stated that he was unable to get back in the apartment to get his property and clothing.
{5} “[Pritchett‘s] indictment charged that the Defendant, as of March 30, 2009 (the date his reported residence became vacant) failed to provide the sheriff with a change of address within the time required by statute.”
{6} In the course of its analysis, the court noted that Pritchett was not charged with a failure to register every 90 days under the Adam Walsh Act but rather a failure to provide notice of a change of address. The court further noted that, regarding any defenses Pritchett may have had to his indicted charge, he “had those same defenses available to him at the time of his plea whether he was required to keep his address current under Megan‘s Law or the Adam Walsh Act.
{7} “* * *
{8} “In this case, if [Pritchett] had been charged with failure to follow the 90 day registration requirement of the Adam Walsh Act, the Court would be inclined to grant his request to withdraw his plea because the Ohio Supreme Court has determined that he should not be reclassified. However, the Defendant was charged with a failure to provide notice of his new address, which was a statutory requirement of his registration under Megan‘s Law, regardless of the inapplicable change in the registration requirements.” The court found no manifest injustice and overruled Pritchett‘s motiоn to withdraw his plea.
{9} Pritchett asserts one assignment of error as follows:
{10} “THE TRIAL COURT ERRED IN OVERRULING THOMAS PRITCHETT‘S MOTION TO WITHDRAW PLEA AND VOID CONVICTION.”
{11} According to Pritchett, a manifest injustice is demonstrated in that he is “an innocent man” with many defenses to the indicted charge. Pritchett continues to dispute the trial court‘s finding that he was released from prison in August, 1999. According to Pritchett, “if he had known that he was no longer under the 90 day requirement, he would not have pled no contest to the indicted chаrge; he would have pled not guilty. As such, Mr.
{12} “A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.”
{13} “Under
{14} “‘Abuse of discretion’ has been defined as an attitude that is unreasonable, arbitrary or unconscionable. (Internal citation omitted). It is to be expected that most instanсes of abuse of discretion will result in decisions that are simply unreasonable, rather than decisions that are unconscionable or arbitrary.
{15} “A decision is unreasonable if there is no sound reasoning process that would
{16} “A trial court does not abuse its discretion in overruling a motion to withdraw: (1) where the accused is represented by highly competent counsel, (2) where the accused was afforded a full heаring, pursuant to
{17}
{18} “We review the alleged instances of ineffective assistance of trial counsеl under the two prong analysis set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, and adopted by the Supreme Court of Ohio in State v. Bradley (1989), 42 Ohio St.3d 136, * * * . Pursuant to those cases, trial counsel is entitled to a strong presumption that his or her conduct falls within the wide range of reasonable
{19} Prior to analyzing the arguments Pritchett sets forth, we note that on June 17, 2011, we issued a Decision and Entry allowing the parties time to brief an issue not raised in the lower court or in this appeal, namely the disparity in sentencing arising under the Adam Walsh Act and Megan‘s Law, including felony level and mandatory time. Undеr Megan‘s Law, failure to notify of a change of address was a felony of the third degree for an offender like Pritchett, who was previously convicted, in 2005 CR 5053, for failure to register, in violation of
{20} Beginning with Pritchett‘s assertion that he was released from prison early in 1999, we agree with the trial court that the record does not support that conclusion. Pritchett‘s motion to withdraw his plea provides that he “was released from CRC in August,
{21} Pursuant to Bodyke, the trial court found Pritchett‘s reсlassification as a Tier III sex offender and the attendant community notification and registration requirements may not be applied, and Pritchett‘s original classification as a sexually oriented offender is reinstated. The version of
{22} We agree with the trial court, and the State, that any defenses that Pritchett may have had to the indicted charge were available to him when he entered his no contest plea. Any advice that his counsel provided when Pritchett entered his plea was based upon the law in effect at that time; Bodyke did not declare the tiered reclassificatiоns unconstitutional until June 3, 2010, and Pritchett‘s claim that the fact that Bodyke changed the law renders his plea somehow involuntary fails. Most importantly, Bodyke did not change the fact that Pritchett had a duty to notify the sheriff of a change in his address of residence, and Pritchett‘s defenses were the same, whether he were a Tier III sex offender or a sexually oriented offender. As the State notes, Bodyke merely changed the period of time during which Pritchett was required to register back to the original ten years for a sexually oriented offender, as discussed by the trial court, such that Pritchett would no longer be required to keep his registration current after August, 2009.
{23} The record reflects that Pritchett was represented by counsel at the complete
{24} Regarding the issue of sentencing, Pritchett directs our attention to Milby and Johnson in his supplemental brief, which were decided after his appellate brief was filed, and he argues that he is entitled to re-sentencing. Milby was convicted, following a bench trial, of failing to register at his new address subsequent to his conviction for rape, and he appealed that judgment. We noted that the Adam Walsh Act “increased the pеnalty for failure to notify to a first-degree felony. That penalty may not be applied to Milby. Under the former law, violation of the reporting requirement was a felony of the third degree. * * * Since the trial court improperly treated Milby‘s conviction as a first-degree felony,” we remanded the matter for re-sentencing as a third-degree felony conviction. Id., ¶ 31. Similarly, Johnson was convicted on a no contest plea for failing to provide notice of his change of residence, and on his appeal we determined that the trial court erred when it convicted him of a first degree felony and sentenced him to a three year term, instead of finding him guilty of a felony of the third degree. We reversed the matter for resentencing. Johnson, ¶ 10.
{25} In Alexander, we determined, on Alexander‘s appeal from his conviction for failure to notify following a jury trial, that the trial court erred in sentencing him to a three year term since, “under the former version [of
{26} Very recently, in State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, the Supreme Court of Ohio held that the provision of 2007 Am.Sub. S.B. 10, which imposes greater penalties on sexual offenders, such as Pritchett, for violations of notification and registration requirements than applied when they were convicted of their underlying sexual offense, violates the prohibition against retroactive laws in Section 28, Article II of the Ohio Constitution. That section provides, in pertinent part: “The general assembly shall have no power to pass retroactive laws.” Any law “passed” in violation of that section is therefore void. Further, because such a law purports to apply retroactively, a holding that the law violates Section 28, Article II likewise applies retroactively to any person to whom the law was retroactively applied.
{27}
{28} Under Megan‘s law (which had been applied to Pritchett in 2005), Pritchett with the 2005 prior failure to notify conviction was subject to sentencing for a felony of the third degree. As a result of a subsequent amendment of the law, Pritchett was instead sentenced for a second degree felony offense. That amendment of the law is void, per Williams. The sentence the court imposed pursuant to that law is likewise void. It would be a manifest injustice to continue Pritchett‘s incarceratiоn on a void sentence.
{29} “[A] trial court is authorized to correct a void sentence.” State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, ¶ 19. An appellate court has inherent authority to vacate the void judgment and remand the case to the trial court to conduct a new sentencing hearing. State v. Miller, Summit App. No. 24692, 2009-Ohio-6281, ¶ 6,7.
{30} Accordingly, we reverse Pritchett‘s conviction, in part, by vacating the sentence the court imposed, and we remand the matter for a new sentencing hearing.
GRADY, P.J., and FROELICH, J., concur.
Copies mailed to:
Kirsten A. Brandt
Lori R. Cicero
Hon. Dennis Adkins