State of Ohio, Plaintiff-Appellee, v. Charles R. Reed, Defendant-Appellant.
No. 14AP-201 (C.P.C. No. 10CR-01-79)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
November 4, 2014
[Cite as State v. Reed, 2014-Ohio-5996.]
(REGULAR CALENDAR)
Rendered on November 4, 2014
Ron O‘Brien, Prosecuting Attorney, and Steven L. Taylor, for appellee.
Charles R. Reed, pro se.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, J.
{¶ 1} This is an appeal by defendant-appellant, Charles R. Reed, from a judgment of the Franklin County Court of Common Pleas denying his “motion to vacate registration and classification scheme.”
{¶ 2} On January 7, 2010, appellant was indicted on two counts of rape, in violation of
{¶ 4} On May 30, 2012, appellant filed a “motion to vacаte registration and classification scheme,” asserting that his classification as a Tier III offender was improрer under the Supreme Court of Ohio‘s recent decision in State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374. On May 31, 2012, plaintiff-appellee, State of Ohio, filed a memorandum in opposition to the motion. By decision and entry filed February 14, 2014, the trial court denied appellant‘s motion.
{¶ 5} On appeal, appellant sets forth the following assignment of error for this court‘s review:
Whether the trial court abused its discretion in ignoring the mandates of the General Assembly and holdings of the Ohio Supreme Court.
{¶ 6} Under his single assignment of error, appellant contends the trial court erred in failing to grant his motion to vacate registration. Apрellant contends that, because the offenses at issue were committed prior to the effective date of Am.Sub.S.B. No. 10 (“S.B. 10“), Ohio‘s version of the Adam Walsh Act (“AWA“), the court should have granted his motion seeking reclassification under the law in effect at the time the offenses were committed based on the Supreme Court‘s holding in Williams. We agree.
{¶ 7} In 2011, the Supreme Court held in Williams that “S.B. 10, as applied to * * * any * * * 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.” Id. at ¶ 22. Subsequent to Williams, the Supreme Court “clarified thаt only persons who commit their underlying crime on or after the effective date of the AWA—January 1, 2008—are subject tо the requirements of the AWA.”
{¶ 8} Notwithstanding the Supreme Court‘s pronouncement in Williams, the state argues that the trial court properly deniеd appellant‘s motion as barred by the doctrines of waiver and res judicata. The state relies in part on State v. Awan, 22 Ohio St.3d 120 (1986), syllаbus, for the general proposition that the failure to raise the issue of a statute‘s constitutionality at the trial level, which issue is apparent at the time of trial, constitutes a waiver of such issue and, therefore, need not be heard for the first time on appeal. This court, however, in applying Williams, has previously considered and rejeсted these same arguments in State v. Salser, 10th Dist. No. 12AP-792, 2014-Ohio-87, ¶ 10, discretionary appeal not allowed, 140 Ohio St.3d 1453, 2014-Ohio-4414 (rejecting the “state‘s contention that waiver and/or res judicata bar appellant‘s attempt to benefit from Williams because of his failure to directly appeal his classification“).
{¶ 9} We note that other Ohio appellate courts have similarly found unpersuasive such arguments in light of the Williams holding. See, e.g., State v. Simmons, 7th Dist. No. 12 MA 138, 2014-Ohio-582, ¶ 31-32 (observing that “waiver doctrine announced in Awan is discretionary,” and that the Supreme Court has reversed and remanded for application of Williams cases “in which the defendant had failed to raise their constitutional challenge below“); State v. Watkins, 6th Dist. No. L-11-1085, 2013-Ohio-2030, ¶ 11 (declining to apply waiver doctrine of Awan, noting that “the Supreme Court of Ohio did not recognize the S.B. 10 version of
{¶ 10} In the instant case, the record indicates, and the state does not dispute, that the trial court sentenced appellant as a Tier III offender for acts alleged to have occurred in 1997, 1998, and 2002, respectively (i.e., prior to the effective date of S.B. No. 10). Pursuant to Williams, appellant‘s classification as a Tier III offender for offenses committed prior to the enactment of S.B. No. 10 “was in violation of Ohio‘s Retroactivity Clаuse.” Salser at ¶ 9.
{¶ 11} Under Williams, ” ‘the remedy for improper classification is to remand the matter to the trial court for a classificаtion hearing in accordance with the law in effect at the time the offense was committed.’ ” Salser at ¶ 13, quoting State v. Alsip, 8th Dist. No. 98921, 2013-Ohio-1452, ¶ 10. Accordingly, appellant‘s classification as a Tier III offender under S.B. No. 10 is vacated, and we remand this matter to the trial cоurt for the limited purpose of holding a hearing to classify him pursuant to the law that existed at the time he committed his offenses. Id.
{¶ 12} Based on the foregoing, we sustain appellant‘s single assignment of error, the judgment of the Franklin County Court of Common Pleas is reversed, and this matter is remanded to the trial court for further proceedings in accordance with law, consistent with this decision.
Judgment reversed; cause remanded.
KLATT and DORRIAN, JJ., concur.
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