State v. WrightState v. Wright
Rendered on September 1, 2022
[Janet A. Grubb, First Assistant Prosecuting Attorney], and Seth L. Gilbert, for appellant.
The Tyack Law Firm Co., L.P.A., Jonathan T. Tyack, and Holly B. Cline, for appellee.
ON MOTION FOR LEAVE TO APPEAL
DORRIAN, J.
{1} Plaintiff-appellant, State of Ohio, has filed a motion seeking leave to appeal an order of the Franklin County Court of Common Pleas which exempted defendant-appellee, Brooke M. Wright, from community notification requirements. Wright opposes the state‘s motion and has filed a motion to dismiss the appeal. For the reasons which follow, we grant the state‘s motion for leave to appeal and deny Wright‘s motion to dismiss.
I. Facts and Procedural History
{2} On November 13, 2019, the state indicted Wright on two counts of sexual battery, in violation of
{3} At the February 4, 2021 sentencing hearing, the court informed Wright she would be a Tier III sex offender and “subject to community notification requirements.” (Mot. for Leave to Appeal, Ex. D, Sentencing Tr. at 12.) Wright signed a form titled “Explanation of Duties to Register as a Sex Offender” at the sentencing hearing, which informed Wright she was a Tier III sex offender subject to community notification pursuant to
{4} Wright filed a motion for judicial release pursuant to
{5} On March 2, 2022, Wright filed a motion for exemption from community notification pursuant to
{6} The court issued a decision granting Wright‘s motion for exemption on April 5, 2022. The court concluded that Wright timely sought exemption from community notification pursuant to
{7} On May 5, 2022, the state filed a notice of appeal in the common pleas court and the present motion seeking leave to appeal.1
II. Analysis
{8} The state initially contends that it may appeal the April 5, 2022 decision as of right pursuant to
{9}
{10}
(1) The sentence did not include a prison term despite a presumption favoring a prison term for the offense for which it was imposed, as set forth in section
2929.13 or Chapter2925. of the Revised Code.(2) The sentence is contrary to law.
(3) The sentence is a modification under section
2929.20 of the Revised Code of a sentence that was imposed for a felony of the first or second degree.
{11} The state contends that, because the trial court‘s decision unlawfully exempted Wright from community notification under
{12} In 1996, the General Assembly enacted Ohio‘s version of Megan‘s Law, codified in R.C. Chapter 2950, which “created Ohio‘s first comprehensive registration and
{13} In State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, the court held that “[f]ollowing the enactment of S.B. 10, all doubt has been removed: R.C. Chapter 2950 is punitive.” Williams at ¶ 16. The Williams court therefore concluded that S.B. 10, as applied to defendants who committed sex offenses prior to its enactment, violated the
{14} Even if we accept, without deciding, that community notification is part of an offender‘s sentence, the court‘s April 5, 2022 decision did not impose Wright‘s sentence. See
{15}
{16} The state also contends it may appeal the April 5, 2022 decision as of right pursuant to
{17} As the state does not have authority to appeal the April 5, 2022 decision as of right, the state must seek leave to appeal. ” ‘The decision to grant or deny a motion for leave to appeal by the state in a criminal case is solely within the discretion of the court of appeals.’ ” State v. Jama, 189 Ohio App.3d 687, 2010-Ohio-4739, ¶ 13 (10th Dist.), quoting State v. Fisher, 35 Ohio St.3d 22, 26 (1988).
{18} The state presents the following two claimed errors in its motion:
[I.] The trial court erred in granting Wright‘s “Motion for Exemption from Community Notification Requirement,” as Wright did not seek relief from community notification at or before sentencing as required by
R.C. 2950.11(F)(2) , and the 20-year period had not expired as required byR.C. 2950.11(H)(2) .[II.] The trial court erred in granting Wright‘s “Motion for Exemption from Community Notification Requirement” without making the statutory findings under
R.C. 2950.11(H)(1) .
{19} The state first contends the trial court erred by granting Wright‘s motion for exemption from community notification pursuant to
{20}
{21}
{22} In State v. McConville, 124 Ohio St.3d 556, 2010-Ohio-958, the court analyzed whether
{23} Relying on McConville2 and
{24} The state relies on State v. Thomas, 1st Dist. No. C-150294, 2016-Ohio-501, to support its contention that an offender may only seek exemption from community notification under
(c) The age of the victim of the sexually oriented offense for which sentence is to be imposed or the order of disposition is to be made;
(d) Whether the sexually oriented offense for which sentence is to be imposed or the order of disposition is to be made involved multiple victims;
* * *
(i) Whether the offender or delinquent child, during the commission of the sexually oriented offense for which sentence is to be imposed or the order of disposition is to be made, displayed cruelty or made one or more threats of cruelty[.]
{25} The Thomas court observed that the “in futuro language” of
{26} The trial court distinguished Thomas on its facts, noting the offender in Thomas moved for exemption under
{27} We acknowledge the factual differences between Thomas and the present case, and that Thomas is only persuasive, rather than controlling, authority in this court. However, we find that Thomas and the language of
{28} The state‘s second claimed error asserts the trial court erred by granting Wright‘s motion for exemption without making the statutory findings required under
III. Conclusion
{29} As the state has demonstrated a probability that its first claimed error occurred, we grant the state‘s motion for leave to appeal and deny Wright‘s motion to dismiss. This appeal shall proceed as an appeal as of right. The clerk shall note the docket.
Motion for leave to appeal granted; motion to dismiss appeal denied.
KLATT and SADLER, JJ., concur.