State v. Hildebrand , 2018 Ohio 2962 ( 2018 )

[Cite as State v. Hildebrand, 2018-Ohio-2962.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-150046
TRIAL NO. B-1405941
Plaintiff-Appellee, :
vs. : O P I N I O N.
ROGER HILDEBRAND, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Appellant Discharged
Date of Judgment Entry on Appeal: July 27, 2018
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
The Law Office of John D. Hill, Jr., LLC, and John D. Hill, Jr., for Defendant-
Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Judge.
{¶1} On September 8, 2014, defendant-appellant Roger Hildebrand pleaded
no contest to and was convicted of misdemeanor sexual imposition in violation of
R.C. 2907.06, a Tier I offense under Ohio’s version of the Adam Walsh Act (“AWA”).
The trial court imposed, and then credited him with, 25 days’ confinement. The
municipal court’s sentencing entry did not include a Tier I sex-offender
classification. And no “Explanation of Duties to Register as a Sex Offender or Child
Victim Offender” form was journalized. Hildebrand did not appeal that conviction.
{¶2} Hildebrand registered with the Hamilton County Sheriff as a Tier I sex
offender on September 11, 2014. He was subsequently indicted for failing to notify
the sheriff of an address change in violation of R.C. 2950.05. At trial on the failure-
to-notify charge, the state introduced as exhibits the municipal court’s sheet
memorializing Hildebrand’s September 8, 2014 sexual-imposition conviction and an
“Explanation of Duties” form, signed by Hildebrand on September 8, 2014, but not
journalized, acknowledging his status as a “Tier I” sex offender.
{¶3} Hildebrand was found guilty of the failure-to-notify charge, and on
January 8, 2015, he was sentenced to three years’ community control. Hildebrand
appealed his failure-to-notify conviction, raising one assignment of error that
challenged the sufficiency of the evidence. We overruled the assignment of error and
affirmed his conviction. State v. Hildebrand, 1st Dist. Hamilton No. C-150046 (Jan.
22, 2016).
{¶4} On May 18, 2016, Hildebrand filed a motion to reopen his appeal,
arguing that his appellate counsel was ineffective for failing to raise an assignment of
error challenging the trial court’s authority to convict him of failing to notify the
sheriff of an address change where there was no order in place requiring him to
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OHIO FIRST DISTRICT COURT OF APPEALS
register as a sex offender. We granted Hildebrand’s motion, concluding that the
proposed assignment of error, had it been raised on appeal, would have presented a
reasonable probability of success, and therefore, he had demonstrated a genuine
issue as to whether he had a colorable claim of ineffective assistance of counsel on
appeal. Hildebrand has raised two assignments of error in his reopened appeal.
{¶5} Hildebrand’s first assignment of error alleges that his “conviction for
failing to provide notice of residence address change was contrary to law, as he was
under no legal duty to register as a Tier I sex offender.” Hildebrand argues that
because the trial court failed to include the Tier I sex-offender classification in its
sentencing entry for the sexual-imposition offense, it did not properly impose the
Tier I sex-offender classification as a part of his sentence; therefore, he is under no
legal obligation to register as a sex offender, and his conviction for failing to provide
notice of an address change was contrary to law.
{¶6} The registration and verification requirements of the AWA are
punitive. State v. Williams, 129 Ohio St. 3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶
16. They are part of the penalty imposed for the offense. State v. Thomas, 2016-
Ohio-501, 56 N.E.3d 432, ¶ 7 (1st Dist.); State v. Lawson, 1st Dist. Hamilton Nos. C-
120067 and C-120077, 2012-Ohio-5281, ¶ 12; State v. Jackson, 1st Dist. Hamilton
No. C-110645, 2012-Ohio-3348, ¶ 6. “[A] sentence is a sanction or combination of
sanctions imposed for an individual offense, and incarceration and postrelease
control are types of sanctions that may be imposed and combined to form a
sentence.” State v. Holdcroft, 137 Ohio St. 3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶
6. Tier classification under the AWA is a type of sanction that may be imposed for an
offense. See Williams.
{¶7} A trial court speaks through its journal entries. Hernandez v. Kelly,
108 Ohio St. 3d 395, 2006-Ohio-126, 844 N.E.2d 301, ¶ 30; State v. Lewis, 1st Dist.
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OHIO FIRST DISTRICT COURT OF APPEALS
Hamilton No. C-160909, 2018-Ohio-1380, ¶ 9; State v. Kirkpatrick, 2017-Ohio-
7629, 97 N.E.3d 871, ¶ 16 (1st Dist.), citing State v. Bonnell, 140 Ohio St. 3d 209,
2014-Ohio-3177, 16 N.E.3d 659, ¶ 29; State v. Hafford, 1st Dist. Hamilton No. C-
150578, 2016-Ohio-7282, ¶ 10. “A sanction is imposed by the sentencing entry, not
by what is said on the record during the sentencing hearing.” State v. Halsey, 2016-
Ohio-7990, 74 N.E.3d 915, ¶ 26 (12th Dist.), citing Bonnell at ¶ 299.
{¶8} In State v. Rucker, 1st Dist. Hamilton No. C-110082, 2012-Ohio-185, ¶
31 and 48 (“Rucker I”), we held that a judgment convicting the defendant of an
offense that subjects him to the AWA’s registration and notification requirements
must accurately reflect his tier classification. In Rucker, the trial court’s judgment of
conviction erroneously stated that Rucker was subject to Tier III registration
requirements, when his offense actually subjected him to Tier II requirements. We
remanded the cause for the trial court to amend the judgment of conviction to reflect
that Rucker was a Tier II sex offender. We reaffirmed that the proper tier
classification must be included in the judgment of conviction in State v. Rucker, 1st
Dist. Hamilton No. C-150434, 2016-Ohio-5111, ¶ 11, appeal not allowed, 148 Ohio
St.3d 141, 2017-Ohio-573, 69 N.E.3d 751 (“Rucker II”), holding that where the proper
tier classification is not included in the judgment of conviction “there is no order in
place requiring [the defendant] to register as a sex offender.”
{¶9} In State v. Arszman, 1st Dist. Hamilton No. C-160698, 2017-Ohio-
7581, ¶ 6 (“Arszman II”), we again affirmed that in the absence of a proper tier
classification in the judgment of conviction, “there is no order in place requiring [the
defendant] to register as a sex offender.” In Arszman’s first appeal, State v.
Arszman, 1st Dist. Hamilton No. C-130133, 2014-Ohio-2727 (“Arszman I”), the state
conceded that the trial court had improperly classified Arszman as a Tier II sex
offender. We remanded the cause for the trial court to classify Arszman as a Tier I
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OHIO FIRST DISTRICT COURT OF APPEALS
sex offender, but the trial court did not carry out our order on remand. Arszman
filed a motion to vacate his sex-offender classification, which the trial court
overruled. In Arszman II, we held that there was no classification to vacate because
there was no judgment of conviction in place classifying Arszman as a Tier I sex
offender. Arszman II at ¶ 3, 5-6.
{¶10} Because the trial court did not include Hildebrand’s tier classification
in the entry of conviction and sentence, that sanction was never imposed, and there
is no order in place requiring Hildebrand to register as a sex offender. Therefore,
Hildebrand has no duty to register as a Tier I sex offender. The first assignment of
error is sustained.
{¶11} Hildebrand’s second assignment of error, which alleges that he was
denied the effective assistance of counsel at trial and on appeal, is made moot by our
disposition of his first assignment of error, and therefore, we do not address it.
{¶12} Hildebrand’s conviction for failing to notify the sheriff of an address
change is reversed and he is discharged from further prosecution for that offense.
Judgment reversed and appellant discharged.
CUNNINGHAM, P.J., and DETERS, J., concur.
Please note:
The court has recorded its own entry this date.
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