State v. Brunning , 134 Ohio St. 3d 438 ( 2012 )

[Cite as State v. Brunning, 134 Ohio St. 3d 438, 2012-Ohio-5752.]
THE STATE OF OHIO, APPELLANT, v. BRUNNING, APPELLEE.
[Cite as State v. Brunning, 134 Ohio St. 3d 438, 2012-Ohio-5752.]
Criminal law—Sex offenders—Adam Walsh Act—Megan’s Law—State v. Bodyke
does not affect legitimacy of convictions of offenders who were originally
classified under Megan’s Law for violation of Adam Walsh Act version of
R.C. 2950.05 if indictment described conduct that also violates Megan’s
Law version of R.C. 2950.05—R.C. 2913.42—Defendant can be convicted
of tampering with records for filing of false record with purpose to
defraud even if defendant had no duty to file record.
(No. 2011-1066—Submitted April 25, 2012—Decided December 6, 2012.)
APPEAL from the Court of Appeals for Cuyahoga County,
No. 95376, 2011-Ohio-1936.
_________________
PFEIFER, J.
{¶ 1} In this case, we address the legitimacy of convictions of sex
offenders, originally classified under Megan’s Law, who were indicted for
violating the address-notification requirements of the Adam Walsh Act (“AWA”)
before State v. Bodyke, 126 Ohio St. 3d 266, 2010-Ohio-2424, 933 N.E.2d 753,
made the requirements of the AWA inapplicable to such offenders. Specifically
in this case, we address whether Bodyke requires the vacation of convictions when
the conduct at issue—a failure to provide notice of a change of residence
address—was a violation of R.C. 2950.05 both as it exists under the AWA and as
it existed under Megan’s Law. We hold that Bodyke does not require the vacation
of such convictions.
{¶ 2} Further, we address the issue whether an offender who files an
address-verification form with a sheriff under the mistaken belief that the form is
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required may be convicted of tampering with records pursuant to R.C. 2913.42 if
the form contains false information that was submitted with a purpose to defraud.
We hold that regardless of whether a person has a duty to file an address-
verification form, filing a form containing false information with the intent to
defraud can be a violation of R.C. 2913.42.
Factual and Procedural Background
{¶ 3} Defendant-appellee, Lindell W. Brunning Jr., is a registered sex
offender who has been convicted of failing to provide notice of a change of
address and tampering with records. In 1983, when he was 20 years old,
Brunning was convicted of raping a nine-year-old relative and was sentenced to a
prison term of ten to 25 years. In 1997, after the passage of Megan’s Law,
Am.Sub.H.B. No. 180, 146 Ohio Laws, Part II, 2560, 2601, the court classified
him as a sexually oriented offender, requiring advance notice of any address
change and annual address verification for ten years following his release.
Effective January 1, 2008, the Adam Walsh Act (“AWA”), 2007 Am.Sub.S.B.
No. 10, repealed Megan’s Law. Pursuant to the AWA’s retroactive
reclassification provisions, R.C. 2950.031 and 2950.032, Brunning was
reclassified as a Tier III sex offender by the Ohio Attorney General. Brunning
was released from prison on the underlying rape charge on November 7, 2008.
{¶ 4} On August 3, 2009, Brunning filled out and filed a periodic address-
verification form on which he stated that he primarily lived at 7914 Lorain
Avenue, Apartment 2, in Cleveland. On that same form, he listed a secondary
address in Parma Heights. In fact, detectives later learned that Brunning had left
the Cleveland house in June and was actually living at the Parma address with
another registered sex offender. While living at the Parma address, Brunning
engaged in sexual conduct with a male minor. Charged under a separate
indictment from the one at issue in this case, he pled guilty to one count of
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unlawful sexual conduct with a minor and two counts of sexual battery. Those
convictions are not part of this appeal.
{¶ 5} Under the January 2010 indictment that is the focus of this case,
Brunning was charged with three counts: (1) failure to verify his address every 90
days as required by R.C. 2950.06(B)(3), (2) failure to provide a notice of change
of residence address in violation of R.C. 2950.05(E)(1) (the statute was
misnumbered in the indictment—it should have read R.C. 2950.05(F)(1)), and (3)
tampering with records in violation of R.C. 2913.42(A) by providing false
information on his periodic address-verification form.
{¶ 6} In an April 20, 2010 hearing, Brunning agreed to plead guilty to all
three charges in the indictment at issue as well as certain counts in the other
indictment. The state agreed that all three counts in this case would merge for
sentencing purposes. The trial court approved the agreement on the record and
advised Brunning that because of the merging of the three counts, “the maximum
penalty you’re looking at on this case is between two to eight years.” Brunning
pled guilty to all three charges.
{¶ 7} Brunning’s sentencing hearing was on June 8, 2010, five days after
this court’s decision in State v. Bodyke, 126 Ohio St. 3d 266, 2010-Ohio-2424, 933
N.E.2d 753. In Bodyke, this court declared unconstitutional the reclassification
provisions of the AWA and held that the classifications and community-
notification and registration orders imposed previously by judges pursuant to
Megan’s Law were reinstated. Id. at ¶ 66. Based on Bodyke, Brunning argued that
his prosecution under the AWA was invalid and requested dismissal of the
charges. The trial court denied the motion and ignored its earlier representation
that Brunning would face a maximum total sentence of eight years, instead
imposing a 21-year sentence for the three registration-related offenses—eight
years each for failure to verify an address and failure to provide notice of change
of address, and five years for tampering with records, to run consecutively.
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{¶ 8} Brunning appealed to the Eighth District Court of Appeals. He
argued that his convictions should be vacated because the law upon which they
were based, the AWA, is unconstitutional as applied to him. Further, he argued
that his guilty plea had been “conditioned on false promises made by the state and
the trial court” and that the trial court should have merged the offenses for
sentencing.
{¶ 9} The court of appeals reversed all three of Brunning’s convictions,
reasoning that all of the charges against him were based upon violations of the
AWA, which, pursuant to Bodyke, did not apply to Brunning:
The violations for an offender's failure to verify or notify of a
change of address pursuant to R.C. 2950.06(F) and R.C.
2950.05(E)(1) [sic], or any tampering with evidence charge for
falsifying documents stemming from the reporting violation, were
based on the duty to register and verify unlawfully imposed upon
those already subject to reporting requirements through prior court
order.
* * * Brunning's reclassification under the AWA is
contrary to the law. Brunning's conviction arising from reporting
violations under the AWA is therefore also contrary to law.
State v. Brunning, 8th Dist. No. 95376, 2011-Ohio-1936, ¶ 10-11.
{¶ 10} The state appeals. Among its propositions of law, the state argues
that when a sex offender classified under Megan’s Law engages in conduct that
violates both the AWA and Megan’s Law, a conviction should not be vacated on
the basis that the offender was indicted under the AWA. Also, the state argues
that a person who does not have a legal obligation to file a government record
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may nevertheless be convicted of tampering with records pursuant to R.C.
2913.42 if the person files a false record with purpose to defraud.
{¶ 11} The cause is before this court upon the acceptance of a
discretionary appeal. State v. Brunning, 129 Ohio St. 3d 1488, 2011-Ohio-5129,
954 N.E.2d 661.
Law and Analysis
I
The Effect of Bodyke on Convictions for Failure to Provide
Notice of a Change of Residence Address by Offenders
Originally Classified Under Megan’s Law
{¶ 12} We address first whether this court’s holding in Bodyke requires
the vacation of a conviction of a sex offender who was originally classified under
Megan’s Law but was indicted for violating the AWA where the conduct
underlying the conviction constitutes a violation under both Megan’s Law and the
AWA. Specifically in this case, we address the defendant’s violation of the
requirement under both Megan’s Law and the AWA that he notify the sheriff of a
change of residence address.
{¶ 13} In Bodyke, this court held that the reclassification provisions in the
AWA, R.C. 2950.031 and 2950.032, were unconstitutional and severed them from
the AWA. Id., 126 Ohio St. 3d 266, 2010-Ohio-2424, 933 N.E.2d 753, paragraphs
two and three of the syllabus and ¶ 66. Bodyke reinstated the classifications and
community-notification and registration orders imposed previously by judges
upon sex offenders originally classified under Megan’s Law. Id. at ¶ 66.
{¶ 14} In State v. Gingell, 128 Ohio St. 3d 444, 2011-Ohio-1481, 946
N.E.2d 192, this court addressed the case of a defendant who was originally
classified as a sexually oriented offender under Megan’s Law and who, as a
reclassified Tier III sex offender, was charged with violating the AWA version of
R.C. 2950.06. The AWA version of R.C. 2950.06(B)(3) contains a 90–day
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address-verification requirement for Tier III offenders; the Megan’s Law version
contained a less onerous, annual address-verification requirement for sexually
oriented offenders. Former R.C. 2950.06(B)(2), 146 Ohio Laws, Part II, 2613.
This court held that pursuant to Bodyke, the current version of R.C. 2950.06 did
not apply to Gingell, because he was required to comply with Megan’s Law, not
the AWA. Simply put, Gingell had been indicted for violating a statutory
requirement that he was not obligated to meet. Instead, “Gingell remained
accountable for the yearly reporting requirement under Megan's Law * * *.” Id. at
¶ 8.
{¶ 15} The state does not contest that Brunning’s conviction for failing to
verify an address in violation of R.C. 2950.06 should be vacated, pursuant to
Gingell. Brunning was not bound by the AWA requirement to verify his address
every 90 days. But the issue remains regarding the significance of Bodyke and
Gingell to Brunning’s conviction for failing to provide notice of a change of
residence address pursuant to R.C. 2950.05.
{¶ 16} This case differs from Gingell because, unlike the differing
address-verification requirements under R.C. 2950.06 of the AWA and Megan’s
Law, the requirements for giving notice of a change of residence address are the
same under both versions of R.C. 2950.05. Under each, sex offenders such as
Brunning must notify the sheriff 20 days before a change of address. R.C.
2950.05(A) and former R.C. 2950.05(A), 150 Ohio Laws, Part IV, 5783.
{¶ 17} For the appellate court below, the fact that a sex offender’s
responsibilities are the same under either statutory scheme was insignificant. The
court relied on its earlier decision in State v. Page, 8th Dist. No. 94369, 2011-
Ohio-83:
The [Page] majority noted that Bodyke does not create “a fictitious
distinction between an unlawful reclassification ‘that imposes a
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more onerous verification requirement’ and a reclassification that
does not impose heightened verification requirements. Bodyke
deemed reclassifications under the AWA unlawful, the only
condition being that the offender has ‘already been classified by
court order under former law.’ ” Id. at ¶ 10, fn. 1.
Brunning, 2011-Ohio-1936, 2011 WL 1584479, at ¶ 9.
{¶ 18} We disagree with the appellate court’s characterization of “a
fictitious distinction” between a requirement that is onerous and one that is less
so. The overriding question in this case is whether the indictment describes a
violation of Megan’s Law, the requirements of which the defendant remained
obligated to meet. If the indictment describes the violation of a requirement more
onerous than is set forth in Megan’s Law, then the indictment is defective as to an
offender who is bound by Megan’s Law alone.
{¶ 19} Brunning argues that neither Megan’s Law nor the AWA applied to
him during the period in question, that there is a gap in the law for offenders who
were originally classified under Megan’s Law. That alleged gap runs from
January 1, 2008—when Megan’s Law was repealed and replaced by the AWA—
until June 3, 2010—when Bodyke reinstated the classifications and community-
notification and registration orders imposed pursuant to Megan’s Law. Brunning
argues that with Megan’s Law repealed, the only law purporting to govern sex
offenders’ registration and notification duties was the AWA, which was
unconstitutionally applied to offenders originally classified under Megan’s Law.
Thus, according to Brunning, the only law extant after January 1, 2008, regarding
registration and notification did not apply to him; he argues that Bodyke’s
reinstatement of the requirements of Megan’s Law to offenders originally
classified under Megan’s Law applied only prospectively.
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{¶ 20} We reject Brunning’s theory that there is a gap in the law for
certain sex offenders. Bodyke reinstated the classifications and community-
notification and registration orders imposed previously by judges. Once
reinstated, those orders operated prospectively from the time they were first
instituted. They related back to the time they were first imposed and continued in
effect as if they had never been changed. In Gingell, this court did not hold that
Megan’s Law requirements applied to the defendant only prospectively from
Bodyke; instead, this court stated, “Gingell remained accountable for the yearly
reporting requirement under Megan's Law * * *.” (Emphasis added.) Id., 128
Ohio St. 3d 444, 2011-Ohio-1481, 946 N.E.2d 192, ¶ 8.
{¶ 21} The General Assembly certainly did not intend for sex offenders to
be relieved of obligations to notify authorities of a change of address when it
repealed Megan’s Law and enacted the AWA. The clarity of the General
Assembly’s intention is meaningful:
When a court strikes down a statute as unconstitutional, and
the offending statute replaced an existing law that had been
repealed in the same bill that enacted the offending statute, the
repeal is also invalid unless it clearly appears that the General
Assembly meant the repeal to have effect even if the offending
statute had never been passed.
State v. Sullivan, 90 Ohio St. 3d 502, 739 N.E.2d 788 (2001), paragraph two of the
syllabus. Pursuant to Sullivan, if a bill repeals and replaces a law and the
enactment is deemed unconstitutional, then the repeal is invalid unless the
General Assembly intended to repeal the law regardless of its replacement.
{¶ 22} The AWA repealed and replaced Megan’s Law. The Bodyke court
struck R.C. 2950.031 and 2950.032, provisions of the AWA that required the
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Ohio Attorney General to reclassify sex offenders who had already been classified
by a judge under Megan’s Law. The question we must ask is whether the General
Assembly would have wanted the repeal of Megan’s Law to take effect even if the
AWA had never been passed. The answer is self-evident. The General Assembly
replaced Megan’s Law with a statutory scheme in the AWA that was in many
ways more onerous than its predecessor, signaling its intent to increase public
protection, not decrease it. It is unimaginable that the General Assembly would
have intended offenders originally classified under Megan’s Law to be free from
any reporting requirements if the AWA were to be struck down. Thus, the repeal
of Megan’s Law is invalid as it affects offenders originally classified under
Megan’s Law. Offenders like Brunning had a continuing duty to comply with
Megan’s Law requirements.
Brunning’s Indictment
{¶ 23} Did Brunning’s indictment describe a violation of Megan’s Law
requirements? “[T]he Ohio Constitution guarantees an accused that the essential
facts constituting the offense for which he is tried will be found in the indictment
by the grand jury.” State v. Pepka, 125 Ohio St. 3d 124, 2010-Ohio-1045, 926
N.E.2d 611, ¶ 14, citing Harris v. State, 125 Ohio St. 257, 264, 181 N.E. 104
(1932). We hold that the essential facts constituting Brunning’s alleged offense
of failure to provide notice of a change of residence address were contained in the
indictment.
{¶ 24} The second count of the indictment alleged that Brunning violated
the requirement to provide notice to the sheriff of a change of address; the
indictment set forth that Brunning’s duty to register a change of address was
based upon his 1983 first-degree-felony rape conviction. The heading of the
second count reads “Failure to Provide Notice Of Change Of Address”; the
statutory section listed in the heading was R.C. 2950.05(E)(1). As the court of
appeals noted, the relevant AWA statutory section is actually R.C. 2950.05(F)(1);
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the Megan’s Law version of the relevant statute was R.C. 2950.05(E)(1) as it
existed immediately before it was repealed. 150 Ohio Laws, Part IV, 5783.
Though styled differently, the AWA and the pre-AWA versions are identical as to
persons required to submit a change of residence address: “No person who is
required to notify a sheriff of a change of address pursuant to division (A) of this
section * * * shall fail to notify the appropriate sheriff in accordance with that
division.” Both mention R.C. 2950.05(A), and both the current and former
versions of R.C. 2950.05(A) require offenders to provide a 20-day notification of
a change in their residence address.
{¶ 25} The indictment lists the date of the offense as “[O]n or about
August 3, 2009.” The body of the indictment reads:
[Brunning] did fail to notify the Cuyahoga County Sheriff
of a change of address and the basis of the registration, notice of
intent to reside, change of address notification, or address
verification requirement that was violated under the prohibition
was a felony of the first degree if committed by an adult or a
comparable category of offense committed in another jurisdiction,
to wit: on or about December 23, 1983, in the Common Pleas
Court of Ohio, Cuyahoga County, Ohio, Case No. CR 187506,
having been convicted of the crime of Rape, in violation of
Revised Code Section 2907.02 of the State of Ohio.
{¶ 26} Although the state indicted Brunning for conduct that violated the
AWA version of R.C. 2950.05, the conduct described in the indictment also
constituted a violation under the Megan’s Law version of R.C. 2950.05, which
Brunning was bound to follow. The indictment set forth the elements of the
charge under either version of the statute.
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{¶ 27} As the defendant in Gingell remained accountable for the yearly
reporting requirement under Megan’s Law, so Brunning remained accountable for
the address-change-notification requirement in Megan’s Law. The indictment
properly set forth what Brunning was accused of—failing to notify the sheriff of
the move. Thus, we disagree with the judgment of the court of appeals that
“Brunning’s conviction was predicated upon the reporting requirements held to be
unconstitutional as applied to him.” Instead, Brunning’s conviction was
predicated on a requirement that has never been declared unconstitutional and that
Brunning has never been released from obeying: the requirement of notifying the
sheriff of a change of address under the Megan’s Law version of R.C. 2950.05.
Contrary to the holding of the court of appeals, the indictment did charge an
offense against Brunning. Further, it provided Brunning with notice of the
essential facts constituting his offense. See State v. Buehner, 110 Ohio St. 3d 403,
2006-Ohio-4707, 853 N.E.2d 1162, ¶ 8 (indictment is sufficient if it gives the
accused notice of all the elements of the charged offense).
II
Falsifying Records
{¶ 28} The state also appeals the judgment of the appellate court reversing
the defendant’s conviction for tampering with records pursuant to R.C. 2913.42.
This charge is based on false information in a document Brunning filed in the
mistaken belief that the AWA version of R.C. 2950.06 applied to him. While the
state does not quarrel with the appellate court’s reversal of Brunning’s conviction
for violating R.C. 2950.06, the state does contest the reversal of the tampering
conviction, arguing that even though Brunning was not by law required to file a
verification of address, he nonetheless filed a document that was false. The court
of appeals held that the indictment failed to state a crime by Brunning because the
charge of tampering with evidence for falsifying documents stemming from the
reporting violation “was based on the duty to register and verify unlawfully
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imposed upon those already subject to reporting requirements through prior court
order.” Brunning, 2011-Ohio-1936, at ¶ 10. The court vacated the conviction
because “Brunning's conviction was predicated upon the reporting requirements
held to be unconstitutional as applied to him.” Id. at ¶ 13.
{¶ 29} The fact is, however, that Brunning—though under no legal
obligation to do so—filed an address-verification form with the sheriff that
contained false information. R.C. 2913.42 states:
(A) No person, knowing the person has no privilege to do
so, and with purpose to defraud or knowing that the person is
facilitating a fraud, shall do any of the following:
(1) Falsify, destroy, remove, conceal, alter, deface, or
mutilate any writing, computer software, data, or record;
(2) Utter any writing or record, knowing it to have been
tampered with as provided in division (A)(1) of this section.
{¶ 30} The issue for Brunning is whether he, with a purpose to commit
fraud, falsified any writing or record. He pled guilty to having falsified a record
that would have led the sheriff to believe that Brunning’s primary address was in
Cleveland. Whether he was required to verify his address or not, he voluntarily
misled the person to whom he submitted the form. There is no requirement in
R.C. 2913.42 that the perpetrator has a duty to produce the writing in question.
Any number of voluntary registrations for government licenses, permits, or
benefits involve filling out forms. R.C. 2913.42 leaves no reason to believe that it
would not encompass falsifications of voluntarily produced writings or records.
Conclusion
{¶ 31} We hold today that offenders originally classified under Megan’s
Law have a continuing duty to abide by the requirements of Megan’s Law. Thus,
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this court’s holding in Bodyke does not require vacation of a conviction for
violating the AWA when the offender, originally classified under Megan’s Law,
was indicted for a violation of the AWA that also constitutes a violation under
Megan’s Law. We note that the applicable penalty provision for such convictions
is that contained in former R.C. 2950.99, as held in another decision of this court
announced today, State v. Howard, 134 Ohio St. 3d 467, 2012-Ohio-5738, 983
N.E.2d 341.
{¶ 32} Further, we hold that a sex offender originally classified under
Megan’s Law who is not required to file an address-verification form with a
sheriff may be convicted of tampering with records pursuant to R.C. 2913.42 if he
files a form containing false information with a purpose to defraud. Regardless of
whether the filer had a duty to file a form, filing a form containing false
information with the purpose to defraud is a violation of R.C. 2913.42.
{¶ 33} Accordingly, we reverse in part the judgment of the court of
appeals. We affirm the court in regard to its vacation of Brunning’s conviction
for a violation of R.C. 2950.06, but reverse the vacation of the convictions for
violations of former R.C. 2950.05 and R.C. 2913.42. We remand the cause to the
court of appeals for a consideration of issues rendered moot by its decision
vacating Brunning’s convictions.
Judgment affirmed in part
and reversed in part,
and cause remanded.
O’CONNOR, C.J., and LUNDBERG STRATTON, O’DONNELL, LANZINGER,
CUPP, and MCGEE BROWN, JJ., concur.
___________
William D. Mason, Cuyahoga County Prosecuting Attorney, and Daniel T.
Van, Assistant Prosecuting Attorney, for appellant.
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Robert L. Tobik, Cuyahoga County Public Defender, and Nathaniel J.
McDonald, Assistant Public Defender, for appellee.
______________________
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