State v. Harris , 2014 Ohio 2203 ( 2014 )

[Cite as State v. Harris, 2014-Ohio-2203.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 25865
Plaintiff-Appellee :
: Trial Court Case No. 12-CR-2111
v. :
:
PHIL E. HARRIS, JR. : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 23rd day of May, 2014.
...........
MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
CHARLES W. MORRISON, Atty. Reg. No. 0084368, 1105 Wilmington Avenue, Dayton, Ohio
45420
Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} Phil E. Harris appeals from his conviction and sentence on one count of failure to
notify the sheriff’s office of a change of address in violation of R.C. 2950.05(A).
[Cite as State v. Harris, 2014-Ohio-2203.]
{¶ 2} In two related assignments of error, Harris contends the trial court erred in
convicting him where the duration of his notification obligation had expired.
{¶ 3} The facts underlying the present appeal are undisputed. Harris was convicted of
rape on September 21, 1998. As a result, he was required to comply with sex-offender registration
requirements for ten years. Those requirements included notifying the sheriff’s office of any
change of address. Harris completed his rape sentence on March 25, 2002 and was released. He
immediately was picked up on a detainer and began serving a federal prison sentence. He was
released from federal prison on March 13, 2003. In compliance with his sex-offender registration
obligation, Harris performed an initial address registration on March 19, 2003.
{¶ 4} On September 19, 2005, Harris received a nine-month prison sentence for
cocaine possession. He was released from prison for that conviction on April 6, 2006. Thereafter,
he apparently complied with his sex-offender registration obligations. On March 19, 2012, he
registered a Dayton-area address with the sheriff’s office. In June 2012, however, a detective
discovered that he had been arrested in Franklin County and had listed a Columbus-area address
as his residence. In December 2012, Harris was charged with failure to notify the sheriff’s office
of an address change in violation of R.C. 2950.05(A), a third-degree felony.
{¶ 5} In the proceedings below, Harris argued that his ten-year address registration
obligation had expired on September 21, 2008—ten years after his rape conviction. Alternatively,
he argued that the ten-year obligation had expired on March 25, 2012—ten years after his release
from prison on the rape conviction. Therefore, he asserted that he had no duty to notify the
sheriff’s office of a change of address between May 1, 2012 and June 14, 2012, the dates alleged in
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the indictment.1 The State opposed Harris’s argument, maintaining that R.C. 2950.07(D) tolled the
duration of his registration obligation while he was incarcerated on unrelated charges. As a result,
the State maintained that his duty to register remained in effect between May 1, 2012 and June 14,
2012. The trial court agreed with the State. Harris was convicted following a bench trial and
sentenced to community control.2 (Doc. #72). This appeal followed.
{¶ 6} In his first assignment of error, Harris contends “[t]he trial court erred in
overruling [his] motion to dismiss due to an erroneous interpretation of R.C. 2950.07(D).” His
second assignment of error asserts that “[t]he trial court erred in finding [him] guilty as it lacked
sufficient evidence to establish each element of the offense beyond a reasonable doubt.” Harris’s
legal argument under both assignments of error is the same. He claims R.C. 2950.07(D) tolled his
duty to register while incarcerated on unrelated charges, not the duration of that duty. In other
words, he argues that the statute, for obvious reasons, relieved him of the duty to visit the sheriff’s
office to register his address while incarcerated. He insists, however, that it did not toll the duration
of his registration obligation. Therefore, he maintains that his duty to register expired prior to his
alleged offense and that the charge against him should have been dismissed or he should have been
found not guilty.
1
Harris also filed motions to dismiss below raising an issue related to improper post-release control and a “void” sentence in
connection with his rape conviction. He argued that these defects invalidated his failure-to-notify conviction. The trial court rejected Harris’s
argument, and he has not raised that issue on appeal. (Appellant’s brief at 3 fn.2).
2
The trial court’s termination entry incorrectly states that Harris pled guilty to the offense. The record demonstrates, however, that
he was found guilty after a bench trial. (June 25, 2013 Tr. at 48). In his statement of the case, Harris agrees and notes that “[t]he termination
entry appears to be a scrivener’s error and should be corrected by a nunc pro tunc entry.” (Appellant’s brief at 4). Because Harris does not
raise the termination entry’s language as an issue on appeal, however, we will not reverse based upon it. In any event, we do agree that the
reference to a guilty plea appears to be a scrivener’s error subject to correction at any time with a nunc pro tunc entry.
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{¶ 7} Upon review, we find Harris’s argument to be unpersuasive. The statute at issue
provides:
The duty of an offender or delinquent child to register under this chapter is
tolled for any period during which the offender or delinquent child is returned to
confinement in a secure facility for any reason or imprisoned for an offense when
the confinement in a secure facility or imprisonment occurs subsequent to the date
determined pursuant to division (A) of this section. The offender’s or delinquent
child’s duty to register under this chapter resumes upon the offender’s or delinquent
child's release from confinement in a secure facility or imprisonment.
R.C. 2950.07(D).
{¶ 8} In State v. Hancock, 2d Dist. Montgomery No. 24653, 2012-Ohio-1435, this court
referred to R.C. 2950.07(D) as a tolling provision that extended the duration of an offender’s
registration obligation. Id. at ¶ 10. The only issue in that case, however, was whether R.C.
2950.07(D) could be applied retroactively because it was remedial. The issue now before us was
not raised, as the parties in Hancock presumed the statute tolled the duration of an offender’s
registration obligation. Likewise, in State v. Hudson, 2013-Ohio-647, 989 N.E.2d 1128 (3d Dist.),
the appellate court and the parties presumed that R.C. 2950.07(D) tolled the duration of a
registration obligation. Id. at ¶ 26. The only issue there was whether the statute could be applied
retroactively. Relying on Hancock, the Third District found the statute remedial and found
retroactive application permissible. Id. at ¶ 42-43. Finally, although not specifically addressing the
issue before us, the Tenth District has read R.C. 2950.07(D) as tolling the duration of an offender’s
registration obligation. In State v. Cundiff, 10th Dist. Franklin No. 10AP-672, 2011-Ohio-4919, the
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State challenged the terms of the trial court’s entry reinstating a defendant’s prior sex-offender
classification and registration obligations. The Tenth District’s opinion includes the following
analysis:
In its third assignment of error, the State argues the language used in the
entry implies that defendant's ten-year duty to register will run without interruption
beginning on July 23, 2004, and also fails to take into account the statutory tolling
provision set forth in R.C. 2950.07(D). * * * We disagree.
* * * The crux of the State's argument * * * seems to be that the manner in
which the court addressed the issue of defendant’s registration period is overbroad,
in that it does not specifically take into account the statutory tolling provision that
applies pursuant to R.C. 2950.07(D).
The pertinent language of the judgment entry reads as follows: “[Defendant]
was required to register for ten years, beginning July 23, 2004, and is ORDERED to
continue to register as a sexually oriented offender as originally required.”
Yet, “as originally required” in 2004, defendant’s duty to register for ten
years was always subject to the tolling provisions of R.C. 2950.07(D). That portion
of the statute reads, in relevant part, as follows:
The duty of an offender * * * to register under this chapter is
tolled for any period during which the offender * * * is returned to
confinement * * * when the confinement * * * occurs subsequent to
the date determined pursuant to division (A) of this section. The
offender’s * * * duty to register under this chapter resumes upon the
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offender’s * * * release from confinement in a secure facility or
imprisonment.
From the moment defendant was classified as a sexually oriented offender,
defendant was subject to the tolling provisions of R.C. 2950.07(D) in the event that
he was returned to confinement. He continues to be subject to that same tolling
provision now, just as he was when it was “originally required” at his initial
classification hearing.
The record reflects defendant was returned to confinement for a period of
time. Thus, there was a period of time that was tolled, and therefore, it logically
follows that his ten-year registration period does not run uninterrupted and will not
end ten years from the date it began. However, the entry does not definitively
provide a date on which his ten-year registration duties expire (i.e., it does not state
his duties expire on July 23, 2014, exactly ten years after his duties commenced);
rather, it simply sets forth the date on which his duties to register commenced.
Admittedly, the entry does not include language calculating the period of
time that his registration duties will be extended beyond an uninterrupted ten-year
period, and it does not include language stating that he is subject to the tolling
provisions of R.C. 2950.07(D). Nevertheless, the fact that the entry does not
specifically account for the application of a tolling period for the period of time
when defendant’s community control was revoked is not error. Such information is
not required to be specifically included in the entry here, but the tolling provision of
R.C. 2950.07(D) is still applicable. Furthermore, should defendant again be subject
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to confinement, the date of the expiration of his registration duties would again be
subject to change.
Id. at ¶ 17-23.
{¶ 9} Although the Tenth District’s language supports the State’s and the trial court’s
reading of R.C. 2950.07(D), we have not found, and the parties have not cited, any Ohio case law
specifically addressing the issue before us. After reviewing the statute and its apparent purpose,
however, we conclude that the duration of Harris’s ten-year registration obligation was tolled while
he was incarcerated on other charges. In reaching this conclusion, we note that an incarcerated sex
offender’s initial duty to register “commences on the date of the offender’s release from a prison
term[.]” R.C. 2950.07(A)(3). This makes good sense because “the primary remedial purpose
behind the sex offender registration law was to protect the public by providing notification of
potential sex offenders living in their neighborhood.” Hudson at ¶ 42. “[T]he General Assembly’s
intent of protecting the public is not served while the offender is imprisoned—the intent was to
protect the public upon the offender’s release from imprisonment when the offender is living in the
community.” Id.
{¶ 10} By the same token, we believe the intent of R.C. 2950.07(D) was to toll Harris’s
ten-year duty to register while he was incarcerated on other charges. Although the statute perhaps
could have been worded more precisely, we see no error in the trial court’s reading of it. We agree
with the Third District that R.C. 2950.07(D)’s tolling provision furthers the remedial purpose of
sex-offender registration “by providing notification to the public when it matters most—when the
sex-offender is released from prison and living in the community. Absent the tolling provision, the
public is deprived of the safety benefit of the full ten-year registration period for sex offenders * *
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* who are subsequently re-incarcerated.” Hudson at ¶ 42.
{¶ 11} Harris’s assignments of error are overruled, and the judgment of the Montgomery
County Common Pleas Court is affirmed.
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FAIN, J. and DONOVAN, J., concur.
Copies mailed to:
Mathias H. Heck, Jr.
Michele D. Phipps
Charles W. Morrison
Hon. Gregory F. Singer