State v. Alsip ( 2013 )

[Cite as State v. Alsip, 2013-Ohio-1452.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98921
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ROBERT ALSIP
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-504804
BEFORE: E.A. Gallagher, J., Jones, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: April 11, 2013
ATTORNEY FOR APPELLANT
Robert A. Dixon
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Daniel T. Van
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶1} This cause came to be heard upon the accelerated calendar pursuant to
App.R. 11.1 and Loc.R. 11.1. Robert Alsip appeals from the denial of his motion to
vacate an unconstitutional sex offender classification by the Cuyahoga County Court of
Common Pleas. For the following reasons, we reverse the judgment of the trial court.
{¶2} Alsip was indicted on December 20, 2007, whereby he was charged with
four counts of rape, four counts of kidnapping and two counts of gross sexual imposition.
The indictment alleged that all of the violations occurred between April 2002 and
February 2004.
{¶3} Following a bench trial, the trial court found Alsip guilty of one count of
gross sexual imposition, imposed a prison term of four years and classified him as a Tier
III sex offender pursuant to the Adam Walsh Act (“S.B.10”).1
{¶4} Alsip filed a direct appeal from his conviction that this court affirmed in
State v. Alsip, 8th Dist. No. 93105, 2011-Ohio-303. Alsip did not raise the issue
presented herein in his direct appeal to this court.
{¶5} On March 12, 2012, Alsip filed a motion for correction of void judgment,
1
In 1996, the General Assembly enacted Am.Sub.H.B. 180 (“Megan’s Law”), which amended
the state’s sex offender registration process. State v. Cook, 83 Ohio St.3d 404, 406, 1998-Ohio-291,
700 N.E.2d 570. In 2007, the General Assembly enacted Am.Sub.S.B. 10, which repealed Megan’s
Law and replaced it with Ohio’s version of the Adam Walsh Act (“S.B.10”). State v. Bodyke, 126
Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 20. S.B. 10 eliminated the categories of
“sexually oriented offender,” “habitual sex offender,” and “sexual predator” under Megan’s Law and
replaced them with a three-tier classification system. Id. at ¶ 21.
arguing that the trial court improperly classified him pursuant to the Adam Walsh Act
because his offense was committed prior to the effective date of S.B. 10. Alsip sought
reclassification under Megan’s Law. The trial court denied Alsip’s motion on March 15,
2012.
{¶6} On August 7, 2012, Alsip filed a motion to vacate unconstitutional sex
offender classification, again asserting that he had been improperly classified under the
Adam Walsh Act as opposed to Megan’s Law. The trial court denied Alsip’s motion on
August 13, 2012. Appellant now appeals, advancing the following sole assignment of
error:
The lower court erred and denied the appellant due process of law pursuant
to the constitutions of the United States and the State of Ohio when it
refused to vacate his sex offender classification pursuant to the Adam
Walsh Act which was not effective until after the date of the appellant’s
offense and further abused its discretion in failing to enter findings of fact
and conclusions of law.
{¶7} In State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d
1108, the Ohio Supreme Court held that “2007 Am.Sub.S.B. No. 10, [the Adam Walsh
Act] as applied to defendants who committed sex offenses prior to its enactment, violates
Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly
from passing retroactive laws.” Id. at syllabus; State v. Palmer, 131 Ohio St.3d 278,
2012-Ohio-580, 964 N.E.2d 406, ¶ 25. Pursuant to Williams, defendants whose crimes
were committed prior to the Adam Walsh Act’s enactment should have been classified
according to the statutory scheme in place at the time they committed their crimes, even if
they were sentenced after the enactment of the Adam Walsh Act. Williams at ¶ 22; State
v. Bolton, 8th Dist. No. 96385, 2012-Ohio-169, ¶ 102-103; State v. Johnson, 3d Dist. Nos.
16-11-05 and 16-11-06, 2013-Ohio-136, ¶ 8; State v. Dillon, 5th Dist. No. CT11-0062,
2012-Ohio-773, ¶ 19.
{¶8} Where a defendant whose offenses were committed prior to the effective
date of the Adam Walsh Act is improperly classified under the Act in violation of
Williams, such classification is void. State v. Vertock, 8th Dist. No. 97888,
2012-Ohio-4283, ¶ 11, citing State v. Eads, 197 Ohio App.3d 493, 2011-Ohio-6307, 968
N.E.2d 18, ¶ 18 (2d Dist.); State v. Lawson, 1st Dist. Nos. C-120077 and C-120067,
2012-Ohio-5281, ¶ 8. The state concedes that Alsip’s crimes occurred prior to the
enactment of the Adam Walsh Act.
{¶9} A reviewing court has an obligation to recognize void sentences, vacate
them, and order resentencing despite procedural irregularities in the petition. State v.
Douse, 8th Dist. No. 98249, 2013-Ohio-254, ¶ 10, citing State v. Holcomb, 184 Ohio
App.3d 577, 2009-Ohio-3187, 921 N.E.2d 1077, ¶ 19 (9th Dist.).
{¶10} Because the trial court failed to conduct a hearing or issue an opinion as
to the denial of the motion to vacate, we have no record before us. Consistent with
Williams, the remedy for improper classification is to remand the matter to the trial court
for a classification hearing in accordance with the law in effect at the time the offense
was committed. State v. Bolton, 8th Dist. No. 96385, 2012-Ohio-169, ¶ 103; Johnson;
Dillon; and Lawson.
{¶11} Alsip’s sole assignment of error is sustained.
{¶12} The judgment of the trial court is reversed. We vacate Alsip’s
classification as a Tier III sex offender and remand this case to the common pleas court to
conduct a hearing consistent with this opinion.
It is ordered that appellant recover of said appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
lower court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
LARRY A. JONES, SR., P.J., and
SEAN C. GALLAGHER, J.,CONCUR