STATE OF OHIO v. WILLIAM SMITH
APPEAL NOS. C-150445, C-150446; TRIAL NOS. 04CRB-6826A, 04CRB-6826B
IN THE COURT OF APPEALS, FIRST APPELLATE DISTRICT OF OHIO, HAMILTON COUNTY, OHIO
June 22, 2016
[Cite as State v. Smith, 2016-Ohio-3521.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-150445
C-150446
Plaintiff-Appellee, : TRIAL NOS. 04CRB-6826A
04CRB-6826B
vs. :
WILLIAM SMITH, : O P I N I O N.
Defendant-Appellant. :
Judgments Appealed From Are: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: June 22, 2016
Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and
Christopher Liu, Assistant City Prosecutor, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David Hoffmann,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
STAUTBERG, Judge.
{¶1} Defendant-appellant William Smith presents on appeal a single assignment of error challenging the Hamilton County Municipal Court’s judgments overruling his postconviction motions to vacate his 2004 convictions for criminal child enticement in violation of
The Appeals are Not Moot
{¶2} We reject at the outset the state’s argument that Smith’s appeals from the overruling of his motions must be dismissed as moot because he had, in August 2007, completed the sentences imposed for his convictions and failed to demonstrate a collateral disability or loss of civil rights arising from his convictions.
{¶3} The doctrine of mootness is founded upon the “long and well established” principle that courts have a “duty * * * to decide actual controversies between parties legitimately affected by specific facts and to render judgments which can be carried into effect.” Fortner v. Thomas, 22 Ohio St.2d 13, 14, 257 N.E.2d 371 (1970). Thus, a court has no duty to decide a matter that is “moot in the sense that the court cannot provide the appellant with any meaningful relief.” State v. Carr, 1st Dist. Hamilton No. C-140172, 2015-Ohio-2529, ¶ 9, citing Miner v. Witt, 82 Ohio St. 237, 92 N.E. 21 (1910), syllabus.
{¶4} Smith’s child-enticement offenses were first-degree misdemeanors.
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suffer some collateral disability or loss of civil rights.” State v. Wilson, 41 Ohio St.2d 236, 237, 325 N.E.2d 236 (1975), syllabus. Accord Cleveland Hts. v. Lewis, 129 Ohio St.3d 389, 2011-Ohio-2673, 953 N.E.2d 278, ¶ 17-19.
{¶5} A collateral disability is “an adverse legal consequence of a conviction or judgment that survives despite the court’s sentence having been satisfied or served.” In re S.J.K., 114 Ohio St.3d 23, 2007-Ohio-2621, 867 N.E.2d 408, ¶ 10. An offender suffers under a collateral disability when he “may be subject to further penalties or disabilities under state or federal law even after a judgment has been satisfied.” Id. at ¶ 14. A collateral disability “need not have an immediate impact or impairment but may be something
{¶6} In 1996, the General Assembly enacted
{¶7} Under the version of Megan’s Law in effect in 2004, when Smith was convicted, his child-enticement convictions were, by definition, “child-victim oriented offense[s].” See
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registration requirements of then-effective
{¶8} The registration and reporting requirements imposed under Megan’s Law are not part of an offender’s sentence. State v. Cook, 83 Ohio St.3d 404, 417, 700 N.E.2d 570 (1998). Therefore, Smith completed his sentences in August 2007, when he was released from confinement. But his duty to register as child-victim-oriented offender, with the accompanying risk of sanctions for violating that duty, constitutes a collateral disability that survives his completion of the sentences imposed upon his child-enticement convictions. Accordingly, his appeals from the overruling of his motions to vacate those convictions are not moot.
The Child-Enticement Statute and Romage
{¶9} We also hold that the municipal court erred in not granting Smith the relief sought in his motions. Smith was convicted in 2004 on two counts of criminal child enticement in violation of the 2001 version of
(A) No person, by any means and without privilege to do so, shall knowingly solicit, coax, entice, or lure any child under fourteen years of age to accompany the person in any manner, including entering into
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any vehicle or onto any vessel, whether or not the offender knows the age of the child, if both of the following apply:
(1) The actor does not have express or implied permission of the parent, guardian, or other legal custodian of the child in undertaking the activity.
(2) The actor is not a law enforcement officer, medic, firefighter, or other person who regularly provides emergency services, and is not an employee or agent of, or a volunteer acting under the direction of, any board of education, or the actor is any of such persons, but, at the time the actor undertakes the activity, the actor is not acting within the scope of the actor’s lawful duties in that capacity.
{¶11} The 2001 amendment broadened the statute’s proscription, prohibiting a person from knowingly soliciting, coaxing, enticing, or luring a child under 14 “to accompany the person in any manner, including entering into any vehicle.” (Emphasis added.) S.B. No. 312, 148 Ohio Laws, Part V, 11668. In 2005, in State v. Clark, 1st Dist. Hamilton No. C-040329, 2005-Ohio-1324, ¶ 8, we followed
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our decisions in Long and Kroner to hold that the 2001 version of the statute was not overbroad.
{¶12} In 2008,
{¶13} Thereafter,
{¶14} In 2014, the conflict between those appellate court decisions and our decision in Clark was resolved when the Ohio Supreme Court in State v. Romage, 138 Ohio St.3d 390, 2014-Ohio-783, 7 N.E.3d 1156, held that
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‘merely asking’.” Id. at ¶ 10-11, 18. The court further determined that the statute’s unconstitutional overbreadth could not be cured by severing or narrowly construing the term “solicit.” Id. at ¶ 15-16. Thus, the court “invalidated”
Jurisdiction to Grant Relief
{¶15} In cases on direct appeal, we have followed the Supreme Court’s decision in Romage to reverse child-enticement convictions and order the defendants discharged. See State v. Cobia, 1st Dist. Hamilton No. C-140058, 2015-Ohio-331, ¶ 12; State v. Rebholz, 1st Dist. Hamilton No. C-130636, 2014-Ohio-2429, ¶ 3-4. But Smith did not appeal his convictions. Instead,
{¶16} In his motions, Smith did not designate a statute or rule under which relief could be granted. A court confronted with such a motion may “recast” the motion “in whatever category necessary to identify and establish the criteria by which the motion should be judged.” State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12.
{¶17} No jurisdiction to grant habeas corpus, postconviction, or Civ.R. 56(B) relief. But Smith’s motions were not reviewable under
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2001 Ohio App. LEXIS 2092 (May 11, 2001), citing Tomkalski v. Maxwell, 175 Ohio St. 377, 378, 194 N.E.2d 845 (1963). And Smith had, by August 2007, been released from confinement.
{¶18} Nor were Smith’s motions reviewable under
{¶19}
{¶20} Jurisdiction to vacate void convictions. But a court always has jurisdiction to correct a void judgment. State ex rel. Cruzado v. Zaleski, 111 Ohio
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St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 18-19. And Smith’s convictions were void.
{¶21} In Romage, the Ohio Supreme Court “invalidated” the 2008 version of the
{¶22} The United States Supreme Court has long held,
An unconstitutional law is void, and is as no law. An offence created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void * * *. It is true, if no writ of error lies, the judgment may be final, in the sense that there may be no means of reversing it. But * * * if, the laws are unconstitutional and void, the [trial] Court acquired no jurisdiction of the causes [because] [i]ts authority to indict and try the [defendants] arose solely upon these laws.
Ex parte Siebold, 100 U.S. 371, 376-377, 25 L.Ed. 717 (1880), quoted in Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718, 730-731, 193 L.Ed.2d 599 (2016). Accord Middletown v. Ferguson, 25 Ohio St.3d 71, 80, 495 N.E.2d 380 (1986); Cincinnati, Wilmington and Zanesville RR. Co. v. Clinton Cty., 1 Ohio St. 77, 86 (1852); Hogg v. Zanesville Canal & Mfg. Co., 5 Ohio 410, 417 (1832); Spier v. Am. Univ. of
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Caribbean, 3 Ohio App.3d 28, 30, 443 N.E.2d 1021 (1st Dist.1981) (holding that an unconstitutional statute is void ab initio). Nevertheless, the state insists that Smith was not entitled to relief from his convictions based on Romage, because Romage applied only to cases on direct review, and Smith’s convictions had become final well before Romage was decided. We conclude, to the contrary, that the rule of Romage applied retroactively and required Smith’s child-enticement convictions to be vacated.
{¶23} Smith’s convictions became final in April 2004, when the time for him to perfect a direct appeal had expired. See Teague v. Lane, 489 U.S. 288, 295, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); Agee v. Russell, 92 Ohio St.3d 540, 2001-Ohio-1279, 751 N.E.2d 1043 (holding that a conviction becomes final when all appellate remedies have been exhausted). The rule of Romage—that
{¶24} A new rule of law applies to criminal cases still pending on direct appeal, but generally does not apply to a conviction that was final when the new rule was announced. Teague at 311; Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). But “courts must give retroactive effect to new substantive rules of constitutional law.” Montgomery at 728, citing Teague at 307, and Schriro v. Summerlin, 542 U.S. 348, 352, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), fn. 4.
{¶25} “[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Teague at 301. A holding is not dictated by then existing precedent unless it would have been “apparent to all reasonable jurists.” Lambrix v. Singletary, 520 U.S. 518, 527-528,
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117 S.Ct. 1517, 137 L.Ed.2d 771 (1997). Applying this standard, we conclude that the rule of Romage constituted a “new rule.”
{¶26} When, in 2004, Smith’s convictions became final, Romage’s holding that
{¶27} A new rule of constitutional law is “substantive,” and thus not subject to the bar on retroactive application, if it “place[s], as a matter of constitutional interpretation, certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.” Montgomery, 136 S.Ct. at
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729, 193 L.Ed.2d 599, quoting Mackey v. United States, 401 U.S. 667, 692, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (opinion concurring in judgments in part and dissenting in part), and citing Teague, 489 U.S. at 292, 312, 109 S.Ct. 1060, 103 L.Ed.2d 334, and Schriro, 542 U.S. at 352, 124 S.Ct. 2519, 159 L.Ed.2d 442 (recognizing that substantive rules are more accurately characterized as not subject to, rather than an exception to, the retroactivity bar). The effect of the rule in Romage was to place beyond the General Assembly’s power to punish those acts proscribed under the
{¶28} A new substantive rule of constitutional law applies retroactively to a criminal case because such rules “necessarily carry a significant risk that a defendant stands convicted of ‘an act that the law does not make criminal.’ ” Bousley v. United States, 523 U.S. 614, 620, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998), quoting Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). Accord Montgomery, 136 S.Ct. at 734, 193 L.Ed.2d 599; Schriro, 542 U.S. at 352, 124 S.Ct. 2519, 159 L.Ed.2d 442. Therefore, when a new substantive rule of constitutional law controls the outcome of a case, that rule must be given retroactive effect, regardless of whether the conviction has become final. Montgomery, 136 S.Ct. at 729, 193 L.Ed.2d 599.
{¶29} The new substantive rule of constitutional law announced in Romage—that the version of
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statute were void. Because Smith’s convictions were void, the municipal court had jurisdiction to vacate his convictions and discharge him. We, therefore, hold that the rule of Romage applies retroactively to afford Smith the relief from his 2004 child-enticement convictions sought in his 2015 motions to vacate those convictions.
{¶30} Accordingly, we reverse the municipal court’s judgments overruling Smith’s motions and remand to the court with instructions to vacate his convictions and to order that he be discharged from further prosecution for those offenses.
FISCHER, P.J., and MOCK, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.