State v. SmithState v. Smith
RELEASED: June 24, 2010
JOURNALIZED:
Robert Tobik
Chief Public Defender
BY: Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue - Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Brian D. Kraft
Assistant Prosecuting Attorney
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Defendant-appellant Allen Smith appeals from his conviction after the trial court found him guilty of failure to verify his current residence, in viоlation of
{¶ 2} Smith presents six assignments of error, challenging his conviction on the grounds that it is based upon insufficient evidence, that it is against the manifest weight of the evidence, that it is based upon a fаulty indictment, and that the current version of the statutory scheme, commonly referred to as the Adam Walsh Act (“AWA“) is unconstitutional as applied to him.
{¶ 3} In light of the Ohio Supreme Court‘s decision in State v. Bodyke, Slip Op. No. 2010-Ohio-2424, Smith‘s last challenge is both persuasive and dispostiivе of his appeal. His conviction is reversed, and this case is remanded for further proceedings consistent with Bodyke.
{¶ 4} The record reflects that in 1988, Smith originally was convicted in CR-225337 of the crimes of raрe, kidnapping, and gross sexual imposition. In 2001, Smith completed his sentence in that case and was released from prison. Pursuant to the version of
{¶ 5} Smith‘s classification as a sexually oriented offender required him to register his current address annually in May with the Cuyahoga County Sheriff‘s office. Smith fully complied with his duties. On Mаy 7, 2007, he verified his address as “1772 Wheeler Avenue, East Cleveland, Ohio.” The sheriff‘s office notified him that his next “expected return date to the sex offender‘s unit to register” his address was “5-15-2008.”
{¶ 6} The AWA went into effect in January 2008. Pursuant to that legislation, specifically,
{¶ 7} According to the testimony presented at Smith‘s trial in this case by sheriff‘s Det. Susan DeChant, “beginning * * * sometime in November” 2007, the OAG sent a certified lettеr to each registered sex offender; these letters notified them of the new law and informed them “they were to contact the sheriff‘s
{¶ 8} DeChant indicated that the OAG‘s office sent the certified letter to the address Smith provided to the sheriff‘s department when he last had registered on May 7, 2007. She further indicated that she began investigating Smith because “[o]n the Stаte website that we work off of, there is what we call a dashboard. And, it lists all our offenders, when they were due in.” DeChant stated that when she became aware that Smith failed to report to her office on January 9, 2008, she obtained copies of both the certified letter and its envelope. In this way, she found the letter had been returned to the OAG unsigned.2
{¶ 9} DeChant testified that, upon becoming аware that Smith did not receive the OAG‘s certified letter, she sent one from her office to Smith‘s registered address. She stated, “It‘s a generic letter generated from the State website. But, it inputs the datе and the letter would state, you know, that he was supposed to register by January 9th [, 2008]. * * * . It would give him the next day
{¶ 10} DeChant further stated that the sheriff‘s office‘s letter to Smith “was returned by the post office” to the sheriff‘s department in April 2008; someone had written on it “moved,” and the pоst office stamp indicated “return to sender, attempted, not known, unable to forward.”
{¶ 11} Sheriff‘s deputy Martin Lutz testified he received an assignment from DeChant to proceed to the address Smith provided. On February 22, 2008, Lutz went to 1772 Wheeler Avenue in East Cleveland.
{¶ 12} Lutz “attempted to knock on the door and attempted to speak with occupants, maybe the subject or other people there that would vouch that that person lived there * * *.” Lutz testified he observed Smith‘s name did not appear on the mailbox. Lutz also indicated he neither spoke to nor found anyone who cоuld tell him Smith lived at that address; however, Lutz “was able to learn that the person no longer lived there.”
{¶ 13} On April 29, 2008, Smith was indicted in this case on two counts. Count 1 charged him with failure to verify his current address, in violatiоn of
{¶ 15} Smith eventually signed a waiver of his right to a jury trial in this case. After the prosecution presented its evidence, the trial court requested the parties to discuss whether the decision in State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917, applied to the indictment. The trial court subsequently determined the statute “imposes a strict liability standard” thаt did not require a specific mens rea.
{¶ 16} Ultimately, although the trial court denied Smith‘s motions for acquittal on the charges, the court found Smith not guilty on Count 2. Based upon its reasoning that
{¶ 17} The trial court sentenced Smith to a year of community control sanctions, in spite of the fact that his conviction is a first-degree felony.
{¶ 18} In this appeal of his conviction, Smith presents six assignments of error.
{¶ 20} “II. Appellant‘s conviction for failing to register is against the manifest weight of the evidence because he is not guilty by virtue of the defense of entrapment by estoppel.
{¶ 21} “III. Appellant‘s conviction for failure to register is not supported by sufficient evidence as required by the Due Process Clauses of the United States and Ohio Constitutions because no rational trier of fact could have found that appellant failed to prove the defense of entraрment by estoppel.
{¶ 22} “IV. Appellant‘s conviction for failure to register is not supported by sufficient evidence as required by the Due Process Clauses of the United States and Ohio Constitutions.
{¶ 23} “V. Appellant‘s conviction violates his constitutional rights to due process and a grand jury indictment because the mens rea was omitted from his indictment.
{¶ 24} “VI. Appellant‘s conviction must be vacated because the law on which it is based, Ohio‘s Adam Walsh Act, is unconstitutional as applied to appellant.”
{¶ 26} “2.
R.C. 2950.031 and2950.032 , which require the attorney general to reclassify sex оffenders who have already been classified by court order under former law, impermissibly instruct the executive branch to review past decisions of the judicial branch and thereby violate thе [constitutional] separation-of-powers doctrine.{¶ 27} “3.
R.C. 2950.031 and2950.032 , which require the attorney general to reclassify sex offenders whose classifications have already been adjudicatеd by a court and made the subject of a final order, violate the separation of powers doctrine by requiring the reopening of final judgment.”
{¶ 28} A review of the facts of this case reveаls the attorney general reclassified Smith based upon sections of the law that the Ohio Supreme Court has declared unconstitutional. The supreme court stated that these statutes “may not be applied to offenders previously adjudicated by judges under Megan‘s Law, and the classifications and community-notification and registration orders imposed previously by judges are reinstated.” Id., ¶ 66.
{¶ 29} Thus, Smith‘s reclassification was unlawful, and cannot serve as the predicate for the crime for which he was indicted and convicted.
{¶ 31} Smith‘s remaining assignments of error are, therefore, moot.
{¶ 32} Smith‘s conviction is reversed. This case is remanded for further proceedings consistent with Bodyke, supra.
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 сommon pleas court to carry this judgment into execution. Case remanded to the trial court for further proceedings.
A certified copy of this entry shall constitute the mandate pursuant tо Rule 27 of the Rules of Appellate Procedure.
KENNETH A. ROCCO, PRESIDING JUDGE
MARY EILEEN KILBANE, J., and
ANN DYKE, J., CONCUR