State v. Rucker , 108 N.E.3d 1275 ( 2018 )

[Cite as State v. Rucker, 2018-Ohio-3575.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-170488
TRIAL NO. B-0905355
Plaintiff-Appellee, :
vs. : O P I N I O N.
CLIFFORD RUCKER, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Appeal Dismissed
Date of Judgment Entry on Appeal: September 7, 2018
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ernest W. Lee, Jr.,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Bryan R. Perkins, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Judge.
{¶1} In 2011, defendant-appellant Clifford Rucker was convicted, after a
jury trial, of unlawful sexual conduct with a minor, in violation of R.C. 2907.04(A).
He was sentenced to five years in prison. We affirmed his conviction on appeal, but
noted that the trial court had incorrectly classified Rucker as a Tier III sex offender
under Ohio’s version of the Adam Walsh Act (“AWA”). We remanded the cause for
the trial court to correct its judgment entry to reflect that Rucker was a Tier II sex
offender. See State v. Rucker, 1st Dist. Hamilton No. C-110082, 2012-Ohio-185
(“Rucker I”). The trial court did not carry out our order on remand.
{¶2} On January 8, 2015, after Rucker was released from prison, he filed a
pro se “Motion for Re-Sentencing Based on Void Judgment/and or Motion to
Dismiss the Defendant’s Classification as Tier Sex Offender or Child-Victim Offender
* * *.” Rucker’s counsel filed an “Amended Motion for Relief from Sanctions
Imposed Pursuant to Sentence,” arguing that the trial court had failed to properly
notify Rucker of postrelease control, that Rucker’s release from prison had deprived
the court of authority to correct the postrelease-control notification, and that
therefore, Rucker could not be subject to postrelease control. Rucker also argued
that because he had been released from prison, the trial court was without authority
to classify him as a Tier II sex offender “pursuant to the principles applicable to”
postrelease control.
{¶3} The trial court overruled Rucker’s amended motion. The court found
that postrelease control had been properly imposed. The court also determined that
it was bound by our order of remand to modify Rucker’s sex-offender classification to
Tier II. The court stated in its entry overruling the motion that “Rucker’s
classification will be modified under a separate entry to Tier II.” The trial court did
not journalize a separate entry. Rucker appealed.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} In State v. Rucker, 1st Dist. Hamilton No. C-150434, 2016-Ohio-5111,
appeal not allowed, 148 Ohio St. 3d 1411, 2017-Ohio-573, 69 N.E.3d 751 (“Rucker
II”), we held that the postrelease-control notification was proper. We noted that
there was no order in place requiring him to register as a sex offender, and we
remanded the cause for the trial court to consider whether it had authority to carry
out our remand order in the first appeal and impose Tier II registration requirements
on Rucker after he had been released from prison.
{¶5} After a hearing on remand, the trial court entered an order stating,
“On remand from the First District Court of Appeals in the case No. C-110082, the
court vacates the defendant’s Tier III designation from the court’s sentencing entry
dated January 31, 2011. The defendant is a Tier II offender.” Rucker has appealed.
{¶6} Before reaching the merits of Rucker’s appeal, we must determine
whether we have jurisdiction over it. Our jurisdiction is limited to the review of final
orders. Ohio Constitution, Article IV, Section 3(B)(2); R.C. 2505.03; see State v.
Sims, 2017-Ohio-8379, 99 N.E.3d 1056, ¶ 5 (1st Dist.); State v. McLendon, 1st Dist.
Hamilton No. C-160267, 2017-Ohio-1399, ¶ 4. If the appeal is taken from an order
that is not a final appealable order, it must be dismissed. Sims at ¶ 5; McLendon at ¶
4.
{¶7} In State v. Hildebrand, 1st Dist. Hamilton No. C-150046, 2018-Ohio-
2962, ¶ 6, we stated,
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.
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OHIO FIRST DISTRICT COURT OF APPEALS
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.
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. 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.
{¶8} A sanction is imposed by the sentencing entry. State v. Halsey, 2016-
Ohio-7990, 74 N.E.3d 915, ¶ 26 (12th Dist.) (holding that the inclusion of the
defendant’s Tier III sex-offender classification in the sentencing entry was
mandatory and that its omission rendered the sex-offender classification void);
Bonnell at ¶ 299.
{¶9} We have 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. Rucker I at ¶ 31 and 48. We affirmed our
holding that the proper tier classification must be included in the judgment of
conviction in Rucker II at ¶ 11. Rucker’s tier classification is part of the sentence for
his offense, and therefore, it must be included in the entry of conviction and
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OHIO FIRST DISTRICT COURT OF APPEALS
sentence. See id; Hildebrand, 1st Dist. Hamilton No. C-150046, 2018-Ohio-2962;
State v. Arszman, 1st Dist. Hamilton No. C-160698, 2017-Ohio-7581.
{¶10} “A judgment of conviction is a final order subject to appeal under R.C.
2505.02 when it sets forth (1) the fact of the conviction, (2) the sentence, (3) the
judge’s signature, and (4) the time stamp indicating entry upon the journal by the
clerk. (Crim.R. 32(C), explained; State v. Baker, 119 Ohio St. 3d 197, 2008-Ohio-
3330, 893 N.E.2d 163, modified.)” State v. Lester, 130 Ohio St. 3d 303, 2011-Ohio-
5204, 958 N.E.2d 142, paragraph one of the syllabus. All of these requirements must
be contained in a single document. Sims, 2017-Ohio-8379, 99 N.E.3d 1056, at ¶ 6,
citing Baker at ¶ 17, and State v. Daniels, 1st Dist. Hamilton No. C-140242, 2014-
Ohio-5160, ¶ 7. The “defendant is entitled to an order that conforms to Crim.R.
32(C).” Lester at ¶ 15.
{¶11} The trial court’s order purporting to classify Rucker as a Tier II
offender is not final and appealable, because it does not meet the requirement
that the judgment of conviction must be a single document that includes the fact
of conviction, the sentence, the judge’s signature, and the time stamp. Therefore,
the appeal is dismissed.
Appeal dismissed.
CUNNINGHAM, P.J., and MYERS, J., concur.
Please note:
The court has recorded its own entry this date.
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