STATE OF OHIO, Plaintiff-Appellee, v. GREGORY S. STRALEY, Defendant-Appellant.
Case No. 12CA3
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY
Released: 07/24/2013
[Cite as State v. Straley, 2013-Ohio-3334.]
Hoover, J.
DECISION AND JUDGMENT ENTRY
Gregory S. Straley, Chillicothe, Ohio, pro se, Appellant.
Anneka P. Collins, Highland County Prosecuting Attorney, Hillsboro, Ohio, for Appellee.
Hoover, J.:
{1} This is an appeal from a judgment of the Highland County Court of Common Pleas. Appellant had filed a “Motion to Correct Registration and Classification Scheme.” In response to said motion, the trial court vacated the classification and registration reporting requirements of five of the eight counts to which the appellant pleaded guilty. The trial court overruled appellant‘s motion for the remaining three counts. The trial court also issued a nunc pro tunc judgment entry on March 22, 2012 that listed appellant as a Tier I sex offender, instead of his classification given at sentencing as a Tier III sex offender. For the following reasons, the judgment of the trial court is reversed and this cause is remanded for further proceedings in accordance with this opinion.
{2} Appellant, Gregory S. Straley, sets forth one assignment of error:
“THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING APPELLANT‘S MOTION TO CORRECT REGISTRATION AND CLASSIFICATION SENTENCING.”
{4} On January 30, 2012, appellant filed a “Motion to Correct Registration and Classification Scheme,” asking the court to resentence him under proper sentencing guidelines. Appellant relied upon the Ohio Supreme Court‘s ruling in State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, which found that S.B. 10, based on the federal Adam Walsh Act, violated the Ohio Constitution with respect to sex offenders who committed offenses prior to its enactment.
{5} The trial court vacated appellant‘s classification and registration reporting requirements as a Tier III sex offender as to counts one, two, five, six, and seven of the indictment to which he had pleaded guilty. The trial court overruled appellant‘s motion as to the remaining counts eight, nine, and twelve because it reasoned that the criminal conduct occurred between May 1, 2007 and February 10, 2008.1
{7} Appellant sets forth several arguments within his sole assignment of error. First, he argues that the trial court erred by classifying him under S.B. 10, Ohio‘s Adam Walsh Act. He also contends the court failed to inform him under Crim.R.11 about the two different classification schemes set forth in Ohio‘s Adam Walsh Act and Ohio‘s Megan‘s Law. Appellant contends that he would not have pleaded guilty if he had been advised of the additional burdens of Ohio‘s Adam Walsh Act. Lastly, appellant claims that the nunc pro tunc judgment entry issued by the trial court invalidly changed his sentencing from a Tier III offender to a Tier I offender.
{8} This appeal raises constitutional issues regarding the retroactive application of S.B. 10, codified in
{9} Ohio‘s current sex offender registration requirements are codified in
{10} The Supreme Court of Ohio has held that S.B.10 or Ohio‘s Adam Walsh Act, “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.” State v. Williams, 129 Ohio St.3d at 344, 2011-Ohio-3374, 952 N.E.2d 1108, at syllabus.
{11} After the Williams decision, appellant filed a motion to correct his sex-offender registration requirements. In his motion, appellant argued that he should be resentenced under the appropriate sentencing guidelines. The trial court vacated his registration requirements for all counts except eight, nine, and twelve because appellant committed those offenses after January 1, 2008.
{12} The time frame during which the criminal conduct was alleged to take place for counts eight, nine, and twelve was “beginning on May 1, 2007 and continuing through February 10, 2008.” Since the criminal acts are alleged to have occurred during the time prior to the enactment of S.B. 10 and also during the time after the enactment of S.B. 10, appellant argues the trial court had a choice between classifying him under the S.B. 10 or Megan‘s Law. Appellant contends that by choosing the punitive Ohio‘s Adam Walsh Act, the trial court violated Crim.R.11 and State v. Williams, 129 Ohio St.3d at 344, 2011-Ohio-3374, 952 N.E.2d 1108. We find this argument to be without merit.
{14} Next, appellant argues that he never would have pleaded guilty to the offenses had he known he was subject to the registration requirements under Ohio‘s Adam Walsh Act. We decline to address this argument, as it should have been raised on direct appeal. The sentencing hearing transcript reveals the court informed appellant of his classification requirements as a Tier III sex offender. Therefore, this argument could have been raised on direct appeal and is barred by the doctrine of res judicata. State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967).
{15} Appellant‘s third argument is that the nunc pro tunc sentencing judgment erroneously lists him as a Tier I sex offender. The trial court‘s original judgment entry of confinement did not state appellant‘s classification. At sentencing, the court did inform him that he was a Tier III sex offender; but the nunc pro tunc entry lists appellant as a Tier I sex offender.
{16} Straley should have been classified as a Tier III sex offender for count twelve, sexual battery, a violation of
{17} A sentencing judgment must state a defendant‘s sex offender classification.
{19} Therefore, we reverse the trial court‘s decision and remand this cause for a new sentencing hearing on counts 8, 9, and 12 to be followed by a proper journal entry.
JUDGMENT REVERSED AND CAUSE REMANDED.
It is ordered that the trial court‘s JUDGMENT IS REVERSED and the CAUSE REMANDED for proceedings consistent with this decision. Appellee shall pay the 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 Highland County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty (60) days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty (60) day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five (45) day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to the expiration of sixty (60) days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, J. and Abele, J.: Concur in Judgment and Opinion.
For the Court
By: ____________________
Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.