State v. SmithState v. Smith
Rendered on February 9, 2012
Ron O‘Brien, Prosecuting Attorney, and Steven L. Taylor, for appellee.
Yeura R. Venters, Public Defender, and Allen V. Adair, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, P.J.
{¶1} This is an appeal by defendant-appellant, Rodney Smith, Jr., from a judgment of sentence and conviction entered by the Franklin County Court of Common Pleas following an order by the court denying appellant‘s motion to withdraw his guilty plea to one count of failure to verify his address.
{¶2} On July 29, 1983, appellant was convicted of sexual battery, in violation of
{¶3} On July 13, 2010, appellant filed a motion to withdraw his guilty plea, asserting that the provisions of
{¶4} On July 19, 2010, the state filed a memorandum in opposition to appellant‘s motion to withdraw his guilty plea. On August 3, 2010, appellant filed a motion to dismiss the case. By decision and entry filed October 29, 2010, the trial court denied appellant‘s motion to withdraw his guilty plea. By judgment entry filed December 17, 2010, the trial court sentenced appellant to a two-year prison term for failure to verify his address, in violation of
{¶5} On appeal, appellant sets forth the following four assignments of error for this court‘s review:
First Assignment of Error: The trial court failed to comply with Criminal Rule 11 in taking appellant‘s guilty plea.
Second Assignment of Error: The court erroneously refused to allow appellant to withdraw his guilty plea.
Third Assignment of Error: Defense counsel rendered ineffective assistance, in violation of appellant‘s Sixth Amendment rights and the comparable protection of Article I, Section 10 of the Ohio Constitution.
Fourth Assignment of Error: The trial court erred by not sustaining appellant‘s motion to dismiss the indictment.
{¶6} We will initially address appellant‘s second assignment of error, in which he argues that the trial court erred in denying his motion to withdraw his guilty plea following the Supreme Court‘s decision in Bodyke. Appellant notes that his motion to withdraw was made before the trial court imposed sentence and, therefore, was not subject to the heightened “manifest injustice” standard applicable to a post-sentence motion to withdraw.
{¶8} As noted under the facts, in the motion to withdraw his guilty plea, appellant argued he was not required to register as a sex offender until the passage of S.B. No. 10, also known as Ohio‘s version of the Federal Adam Walsh Act (“AWA“), most of which became effective on January 1, 2008. Appellant further argued that, under the Supreme Court‘s holding in Champion,2 because his sex offense and prior incarceration ended prior to July 1, 1997 (the effective date of Ohio‘s version of the Federal “Megan‘s Law“), he had no duty to register under Megan‘s Law.
{¶9} In its memorandum in opposition to appellant‘s motion to withdraw, the state argued in part that only those offenders who received a prior judicial classification could benefit from the separation-of-powers ruling in Bodyke. In its decision denying appellant‘s motion to withdraw, the trial court found appellant‘s reliance upon Bodyke to be misplaced, agreeing with “the State‘s contention that it is clear from Bodyke that only
{¶10} Subsequent to the trial court‘s decision in this case, various decisions from this court have repeatedly rejected similar arguments by the state that relief under Bodyke is not available in the absence of a prior judicial classification. See, e.g., State v. Johnson, 10th Dist. No. 10AP-932, 2011-Ohio-2009, ¶ 15 (“even if appellee‘s classification as a sexually oriented offender did not arise from a specific judicial determination to which Bodyke would apply, we have nevertheless recognized that offenders whose pre-Adam Walsh Act classification arose purely as a matter of law still must receive the benefit of the Bodyke remedy returning those offenders to their pre-Adam Walsh Act classifications because of Bodyke‘s complete severance of the statutory provisions governing reclassification by the attorney general“); State v. Gardner, 10th Dist. No. 09AP-1192, 2011-Ohio-4360, ¶ 10 (rejecting state‘s argument that appellant was not entitled to relief under Bodyke because his original classification attached as a matter of law, and not as a result of a judicial classification); State v. Hazlett, 191 Ohio App.3d 105, 2010-Ohio-6119, ¶ 11 (10th Dist.), discretionary appeal not allowed, State v. Hazlett, 129 Ohio St.3d 1477, 2011-Ohio-4751 (the severance under Bodyke “makes no distinction between those classified judicially and those classified by operation of law“); Core v. Ohio, 191 Ohio App.3d 651, 2010-Ohio-6292, ¶ 28 (10th Dist.), discretionary appeal allowed by Core v. State, 128 Ohio St.3d 1556, 2011-Ohio-2905, appeal dismissed by In re Cases Held for the Decision in State v. Williams, 130 Ohio St.3d 254, 2011-Ohio-5348 (applying Bodyke relief to case where the defendant‘s conviction arose
{¶11} Further, shortly before briefing was due in this appeal, the Supreme Court released its decision in State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, a case involving a defendant‘s prosecution for failure to verify. Under the facts of that case, Gingell was convicted of three counts of rape in 1981. Following the enactment of S.B. No. 10, Gingell was reclassified from a sexually oriented offender to a Tier III offender. In 2008, Gingell, who had never challenged his reclassification by way of petition, was charged with failing to verify his address under the 90-day reporting requirement of S.B. No. 10, and he entered a plea of guilty. After sentencing, he appealed to the First District Court of Appeals, arguing that the trial court should have applied the law in place at the time of his original classification. The appellate court held that there was no retroactive application of the statute because Gingell‘s failure to register occurred after the statute‘s effective date (January 1, 2008).
{¶12} Gingell appealed to the Supreme Court, and while his appeal was pending the Supreme Court released its decision in Bodyke. In Gingell, the Supreme Court reversed, holding that, “pursuant to Bodyke, Gingell‘s original classification under Megan‘s Law and the associated community-notification and registration order were reinstated. Therefore, the current version of
{¶13} Subsequent to the time for filing briefs in the instant appeal, the Supreme Court released State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374. In Williams, the court held that “imposing the current registration requirements on a sex offender whose crime was committed prior to the enactment of S.B. No. 10 is punitive,” and the court thus concluded that “S.B. 10, as applied to defendants who committed sex offenses prior to its enactment, violates Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly from passing retroactive laws.” Id. at ¶ 21.
{¶14} Several appellate cases have addressed trial court rulings on motions to withdraw guilty pleas brought by defendants charged with violating the provisions of
{¶16} In State v. Mestre, 8th Dist. No. 96820, 2011-Ohio-5677, the defendant was convicted in 1988 of a sex offense in Pennsylvania. In 2010, he was charged in Ohio with failing to verify his address under the AWA, and he entered a guilty plea in May 2010. On March 29, 2011, the defendant moved to withdraw his guilty plea pursuant to
{¶17} Similarly, in State v. Beasley, 8th Dist. No. 96806, 2011-Ohio-6650, the appellate court reversed the trial court‘s denial of the defendant‘s motion to withdraw his guilty plea to one count of failure to verify. The court in Beasley held that, pursuant to the
{¶18} In the present case, as noted under the facts, the indictment charging appellant with failure to verify his address was predicated upon a 1983 conviction for sexual battery. As also noted, the trial court denied appellant‘s motion to withdraw on the basis that “only those offenders who received a prior judicial classification can benefit from the separation-of-powers ruling in [Bodyke].” We recognize that the trial court did not, at the time of the proceedings on the motion to withdraw, have the benefit of this court‘s later decisions construing the holding in Bodyke. Nevertheless, the trial court‘s interpretation of Bodyke, serving as the basis for its denial of the motion to withdraw, was erroneous. Further, appellant was charged with failure to verify, a felony of the third degree, based upon the provisions of the AWA. See Caldero, citing Gingell. Based upon the holdings in Bodyke, Gingell and, significantly, the Supreme Court‘s more recent decision in Williams (holding that the application of S.B. No. 10 to defendants who committed a sex offense prior to its enactment violates the constitutional prohibition against retroactive laws), we conclude that the trial court‘s denial of appellant‘s motion to withdraw his guilty plea to a charge of failure to verify, predicated upon the reporting requirements of S.B. No. 10, constitutes an abuse of discretion.
{¶19} Accordingly, we sustain appellant‘s second assignment of error. Based upon our disposition of the second assignment of error, we find the issues raised under the remaining assignments of error to be moot.
Judgment reversed; cause remanded.
SADLER and DORRIAN, JJ., concur.