Case Information
*1
[Cite as
State v. Williams
,
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 24452 Plaintiff-Appellee :
: Trial Court Case No. 09-CR-1093 v. :
: SHAWN W. WILLIAMS : (Criminal Appeal from
: (Common Pleas Court) Defendant-Appellant :
:
. . . . . . . . . . .
O P I N I O N
Rendered on the 13 th day of January, 2012.
. . . . . . . . .
MATHIAS H. HECK, JR., by JOHNNA M. SHIA, Atty. Reg. #0067685, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorneys for Plaintiff-Appellee WILLIAM O. CASS, JR., Atty. Reg. #0034517, 3946 Kettering Boulevard, Suite 202, Kettering, Ohio 45439
Attorney for Defendant-Appellant
. . . . . . . . .
HALL, J. Ohio’s sex offender registration and notification law (SORN) requires a
subject offender to notify the sheriff of any change in his residence address at least 20 days before the change occurs. R.C. 2950.05(A). Importantly, a “‘change in address’ includes any circumstance in which the old address for the person in question no longer is accurate, regardless of whether the person in question has a 2 new address.” R.C. 2950.05(I). It is an affirmative defense to a charge of violating the notification requirement if timely notice was impossible to give because, on the date by which notice should have been given under the statute, the offender did not know that his residence address was going to change. R.C. 2950.05(G)(1). But the offender must notify the sheriff of the change on the first business day after the offender learned of it. Id.
{¶ 2}
Defendant-Appellant Shawn Williams’s 2006 rape conviction subjects
him to SORN’s notification requirement. In April 2009, shortly after his release from
prison, Williams was charged with violating this requirement. He pleaded no contest
and was convicted. Williams appealed. Holding that Williams did not knowingly and
intelligently enter his plea, this Court vacated it, reversed his conviction, and
remanded the case. See State v. Williams ,
{¶ 4} Based on these facts, the trial court found that March 17 was the latest that Williams knew that the Edgar Avenue address was no longer accurate. Williams should have notified the sheriff of the change, said the court, but he did not. The court concluded that Williams failed to establish the impossibility defense. Williams argued at trial that it was impossible for him to give timely notice because parole officer Langer never approved any homes. To establish that defense, said the court, Williams had to notify the sheriff that the Edgar Avenue address was no longer accurate on the first business day that followed March 17. But, the court found, Williams did not do so on that day–or ever. Furthermore, the trial court concluded that whether or not a residence is “approved” is irrelevant because the statue does not make an offender’s notification duty contingent on approval.
{¶ 5} The trial court found Williams guilty, sentenced him, and Williams appealed.
I. In the first assignment of error, Williams presents a claim of ineffective assistance of counsel. To establish this claim, a defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. To show prejudice, the defendant must show that there is a reasonable probability that, but for counsel’s deficient performance, the outcome would have been different. See Id. at 694.
{¶ 7} Williams contends that counsel failed to present evidence that was critical to establishing the impossibility defense. If the evidence had been presented and believed, Williams says, a reasonable probability exists that the court would have found him not guilty. Williams identifies three pieces of critical evidence that he asserts counsel failed to present. First counsel did not ask Langer about certain facts set forth in the appellate brief he filed in his first appeal. These facts all suggest that parole officer Langer did not do everything she could to find Williams a place to live after his release from prison, which Langer conceded at trial. Williams claims, in his present brief, that as a result of Langer’s lack of help, he was homeless when he got out of prison. Second, counsel did not allow him to testify in his own defense. Williams asserts that he is the only person who can establish why it was impossible for him to register the Kirkham Street or Kipling Avenue addresses. Finally, counsel did not elicit testimony about whether or not Williams knew that he could register more than one residence address. Had any of this evidence been presented the trial court’s verdict would
have been the same. To establish the affirmative defense, Williams needed to notify the sheriff of the change in his residence address on the first business day after he learned of the change. As the trial court found, Williams never notified the sheriff of this. Therefore Williams simply could not establish the impossibility defense. None of the above-cited evidence would have helped. The first assignment of error is overruled.
II.
In the third and second assignments of error, taking them in logical
order, Williams contends that his conviction is not supported by legally sufficient
evidence and is against the manifest weight of the evidence. Evidentiary sufficiency
and evidentiary weight are different legal concepts that ask the evidence different
questions. State v. Thompkins , 78 Ohio St.3d 380, 386,
{¶ 11}
In his sufficiency argument, Williams contends that, for the same
reasons he set forth in the first assignment of error, a preponderance of the evidence
proves that it was impossible for him to notify the sheriff of his intent to move to the
Kirkham Street home. This contention, though, is irrelevant to whether the state
presented enough evidence to support Williams’s conviction for failure to notify. An
affirmative defense is a “justification[] for admitted conduct.” State v. Poole (1973),
{¶ 12} The third assignment of error is overruled. Williams argues that the weight of the evidence shows that he did not commit this offense. Williams asserts that he did not know if he could move. Therefore, he contends, it was impossible for him to notify the sheriff 20 days before he moved. Williams alternatively contends that his lack of knowledge tolled the 20-day pre-change-of-residence-address period. The evidence shows that Williams did change his residence address, and there is no evidence that Williams ever voluntarily notified the sheriff of the change. Two conclusions follow: Williams cannot establish the impossibility defense, and the evidence does not weigh heavily against his conviction.
{¶ 14} The second assignment of error is overruled.
III. {¶ 15}
While the trial court properly found Williams guilty, this Court’s holding
in State v. Milby , Montgomery App. No. 23798,
(SORN) was based on the federal Megan’s Law. After Congress replaced Megan’s Law, Senate Bill 10 was enacted “to revise Ohio’s Sex Offender Registration and Notification Law and conform it to recently enacted requirements of federal law contained in the Adam Walsh Child Protection and Safety Act of 2006.” Am.Sub.S.B. No. 10, Preamble. Known as Ohio’s Adam Walsh Act (AWA), S.B. 10 went into effect on January 1, 2008, and made subject offenders’ registration and notification duties generally more onerous.
{¶ 17}
Like Williams, the defendant in Milby had been classified under
Megan’s Law and was reclassified under the AWA. In 2009, the defendant was
convicted for violating the AWA’s change-in-residence-address notification duty. This
Court’s decision noted that in State v. Bodyke ,
2950.99 contains the penalties for violations. While S.B. 10 amended those sections
in Chapter 2950 describing the registration and notification duties, it was separate
legislation that amended section 2950.99. Senate Bill 97 “modified the penalties for
violations of the Sexual Offender Registration and Notification Law.” Am.Sub.S.B.
No. 97, Preamble. Although it went into effect on the same day as S.B. 10, S.B. 97
cannot properly be considered part of that legislation. Furthermore, Bodyke never
cited section 2950.99, saying nothing about penalties. Williams has always had the
notification duty. Because his sentence is for a 2009 offense–well after S.B. 97's
amendments to the penalty provision went into effect–it appears that the current
penalty provision should apply to Williams. Indeed, other districts would hold that it
applies to him. See State v. Dunwoody , Muskingum App. No. CT11-0029,
Judgment affirmed in part and reversed in part, and cause remanded.
. . . . . . . . . . . . . .
GRADY, P.J., concurring:
I would overrule Defendant-Appellant’s first assignment of error, claiming ineffective assistance of counsel on the authority of State v. Cooperrider , 4 Ohio St.3d 226, 448 N.E.2d 452 (1983) because Defendant-Appellant’s contentions in support of his claim are based on facts not appearing of record. The proper procedure to present such claims is an R.C. 2953.21 petition for postconviction relief. Id .
I do not subscribe to Judge Hall’s critique of our holding in State v. Milby , 2 nd Dist. Montgomery No. 23798,
That is not to say that the General Assembly cannot impose more onerous penalties for crimes not yet committed. Instead, per Bodyke , Williams’ Megan’s Law adjudication, being a final order, governs the penalties available for Williams’ violation of Megan’s Law, and the penalties prescribed by the Adam Walsh Act provisions are available only for those properly classified pursuant to that legislation, and Williams was not.
. . . . . . . . . . . . . .
DONOVAN, J., concurs in judgment only.
Copies mailed to:
Mathias H. Heck, Jr.
Johnna M. Shia
William O. Cass, Jr.
Hon. Dennis J. Langer
Notes
[1] No relation, the trial judge noted for the record.