State v. WoodState v. Wood
For Plaintiff-Appellee:
JOHN D. FERRERO 0018590
Stark County Prosecutor
110 Central Plaza, South, Ste. 510
Canton, Ohio 44702
KATHLEEN O. TATARSKY 0017115
Assistant Prosecuting Attorney
(Counsel of Record)
For Defendant-Appellant:
AARON KOVALCHIK 0077045
111 Second St., N.W.
Suite 302
Canton, Ohio 44702
O P I N I O N
{¶1} Defendant-Appellant, Daniel W. Wood, appeals from the judgment of the Stark County Court of Common Pleas, convicting him of one count of kidnapping of a child under thirteen years of age, a felony of the first degree, in violation of
{¶2} Aрpellant initially pled not guilty to the charges. On April 1, 2009, Appellant changed his plea of not guilty to guilty of all charges in the indictment. Appellant was sentenced to six years in prison based on a joint recommendation of the рrosecution and the defense.
{¶3} Subsequent to being conveyed to prison, the Ohio Department of Rehabilitation and Corrections noted that as a result of Appellant’s guilty plea to kidnapping pursuant to
{¶4} On June 24, 2009, the trial court held a hearing wherein it classified Appellant as a Tier III sex offender. Apрellant objected to the classification, arguing that
{¶5} The trial court rejected Appellant’s argument and imposed the Tiеr III sex offender classification, as required by law. The court then notified Appellant of his registration and notification duties upon his release from prison.
{¶6} It is from this judgment that Appellant now appeals and raises three Assignments of Error:
{¶7} I. THE TRIAL COURT ERRED IN RE-SENTENCING APPELLANT AFTER HIS SENTENCE HAD ALREADY BEEN IMPOSED.
{¶8} II. THE TRIAL COURT ERRED WHEN IT CLASSIFIED APPELLANT A TIER III OFFENDER AS DEFINED BY ORC 2950.01(G).
{¶9} III. THE TRIAL COURT ERRED WHEN IT APPLIED ORC 2950.01(G) TO APPELLANT AND VIOLATED HIS RIGHTS TO DUE PROCESS AS GUARANTTED [SIC] BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.
{¶10} Additionally, Appellant filed a supplemental brief, raising the following assignment of error for review:
{¶11} IV. THE TRIAL COURT ERRED WHEN IT FAILED TO CONDCUT [SIC] A HEARING TO CONSIDER WHETHER APPELLANT WAS SUBJECT TO THE NOTIFICATION PROVISIONS OF ORC 2950.11.
{¶12} In Appellant’s first assignment of error, he argues that the trial court erred by resentencing him by imposing his Tier III classification after the сourt had already imposed sentence.
{¶13} Classification of an offender under
{¶14} Accordingly, because a classification of an offender as a Tier I, II, or III sex offender status is not a sentence, the trial court did not err in classifying Appellant as a Tier III оffender after the trial court imposed sentence on Appellant’s criminal conviction.
{¶15} Appellant’s first assignment of error is overruled.
{¶16} In his second assignment of error, Appellant argues that the trial court erred in classifying him as a Tier III offender for the offense of kidnapping, under
{¶17}
{¶18} (G) Tier III sex offender/child-victim offender means any of the following:
{¶19} (1) A sex offender who is convicted of, pleads guilty to, has been convicted of, or has pleaded guilty to any of the following sexually oriented offenses:
{¶20} (f) A violation of division (B) of section 2905.01 of the Revised Code when the victim of the offense is under eighteen years of age and the offender is not a parent of the victim of the offense; * * *
{¶21}
{¶22}
{¶24}
{¶25} Moreover, in State v. Amanda Wood, 5th Dist. No. 2009-CA-00190, 2010-Ohio-884, this Court has already determined that the General Assembly has chosen not to expand the use of the word parent in
{¶26} Accordingly, Appellant’s second assignment of error is overruled.
{¶27} In Appellant’s third assignment of error, he asserts that the triаl court erred in classifying him as a Tier III offender because
{¶28} Appellant did not challenge the constitutionality of the Adam Walsh Act or of
{¶29} Because Appellant failed to raise this issue in the trial court, he has waived his right to raise it on appeal. We will, however, address his claim under a plain еrror standard of review. A reviewing court may review claims of defects affecting substantial rights even if they were not brought to the attention of the court. Ohio Crim. R. 52(B).
{¶30} This Court has previously rejected constitutional challenges to sexual offender classifications based on alleged Due Process violations. See In re Adrian R., supra. See also Williams, supra, at 527. No due process violation occurs where the law required an offender to be registered based on the fact of the conviction alone. Doe I v. Dann et al., (June 9, 2008), N.D. Ohio No. 1:08-CV-00220-PAG, Document 146, 2008 WL 2390778.
{¶31} Appellant’s third assignment of error is overruled.
IV.
{¶32} In Appellant’s fourth assignment of error, which he filed as a supplemental issue after oral argument was held, he claims that the trial court erred by failing to conduct a hearing to consider whether Appellant was subject to the community notification provisions of
{¶33} McConville addressed the issue of whether a Tier III offender who was notified of their Tier III status after January 1, 2008, is entitled to a hearing pursuant to
{¶34}
{¶35} The notification provisions of this sectiоn do not apply to a person described in division (F)(1)(a), (b), or (c) of this section if a court finds at a hearing after considering the factors described in this division that the person would not be subject to the notification provisions of this section that were in the version of this section that existed immediately prior to the effective date of this amendment. The statute sets forth the factors that the court shall consider, and these are the same as those factors that courts were required to consider under prior law in determining whether the offender is a sexual predator, see
{¶36}
{¶37} Moreover,
{¶38} Accordingly, it is within the trial court‘s discretion to dismiss the motion without a hearing or to hold a hearing pursuаnt to
{¶39} As Appellant failed to request a hearing, he cannot now argue that the trial court erred in failing to suspend the community notification provision pursuant to
{¶40} Appellant’s fourth assignment of error is overruled.
{¶41} For the foregoing reasons, the judgment of the Stark County Court of Common Pleas is affirmed.
By: Delaney, J.
Edwards, P.J. and
Hoffman, J. concur.
HON. PATRICIA A. DELANEY
HON. JULIE A. EDWARDS
HON. WILLIAM B. HOFFMAN
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. JULIE A. EDWARDS
HON. WILLIAM B. HOFFMAN