Nelson v. State , 2012 Ohio 364 ( 2012 )

[Cite as Nelson v. State, 2012-Ohio-364.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96988
ANTHONY NELSON
PLAINTIFF-APPELLEE
vs.
STATE OF OHIO
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-648836
BEFORE: Rocco, J., Boyle, P.J., and Cooney, J.
RELEASED AND JOURNALIZED: February 2, 2012
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ATTORNEYS FOR APPELLANT
William D. Mason
Cuyahoga County Prosecutor
BY: Daniel T. Van
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Robert L. Tobik
Chief Public Defender
BY: Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶ 1} Defendant-appellant the state of Ohio appeals from the trial court order that
granted summary judgment to plaintiff-appellee Anthony Nelson on his petition for relief
from the application of “S.B. 10,” commonly referred to as Ohio’s version of the “Adam
Walsh Act” (the “AWA”).
{¶ 2} The state presents two assignments of error. The state argues that, as
applied to Nelson, whose original conviction occurred out-of-state, the AWA is
constitutional and does not violate either the separation of powers doctrine or the Ohio
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Constitution’s Retroactivity Clause. The state concedes as to the first argument that this
court has determined otherwise. Moreover, the state’s second argument is rejected on
the authority of State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d
1108. Consequently, the state’s assignments of error are overruled, and the trial court’s
order is affirmed.
{¶ 3} The record reflects Nelson filed his petition seeking relief from the
application of the AWA in January 2008. He alleged that in 1977, he was convicted in
North Carolina of an offense that the Ohio Attorney General (“OAG”) “determined to be
substantially equivalent to [the offense of] Rape in violation of R.C. 2907.02.”
{¶ 4} Nelson further alleged that he had been living in Cuyahoga County and had
been registering as a sexually oriented offender under R.C. 2950.01 et seq., but had
received a letter in December 2007 from the OAG that informed him that, as of January
2008, he would be reclassified and subject to new registration duties based upon the
AWA. Nelson asserted that his “reclassification” by the AWA was unconstitutional on
several grounds, and requested the court to declare that the AWA did not apply to him.
{¶ 5} In August 2008, the trial court granted Nelson a preliminary injunction,
ordering the state to refrain from enforcing the AWA against Nelson until further order of
the court. Nelson was ordered to continue to comply with the earlier version of the law.
{¶ 6} In July 2010, based upon State v. Bodyke, 126 Ohio St.3d 266,
2010-Ohio-2424, 933 N.E.2d 753, Nelson filed a motion for summary judgment with
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respect to his petition. Although the state filed a brief in opposition to Nelson’s motion,
the trial court nevertheless granted Nelson’s petition in an order issued on May 31, 2011.
{¶ 7} The state filed a timely appeal, challenging the trial court’s order with two
assignments of error. The state’s assignments of error assert:
{¶ 8} “I. The retroactive application of the Adam Walsh Act as applied to
Nelson does not violate the Separation of Powers doctrine.
{¶ 9} “II. The retroactive application of the Adam Walsh Act as applied
{¶ 10} to Nelson does not violate the Retroactivity Clause of the Ohio
Constitution.”
{¶ 11} In its first assignment of error, the state asserts that, because “Nelson’s duty
to register [as a sex offender] arose by operation of law due to an out-of-state conviction,
he is not subject to the relief provided for in State v. Bodyke * * * .”
{¶ 12} The state concedes that this court has already resolved this issue in Nelson’s
favor, citing State v. Ortega-Martinez, 8th Dist. No. 95656, 2011-Ohio-2540, 2011 WL
2112726; Hannah v. State, 8th Dist. Nos. 95883-95889, 2011-Ohio-2930, 2011 WL
2436619; Speight v. State, 8th Dist. Nos. 96041-96405, 2011-Ohio-2933, 2011 WL
2436606; see also State v. Mestre, 8th Dist. No. 96820, 2011-Ohio-5677, 2011 WL
5326145, ¶ 6. However, the state opposes the trial court’s judgment in this appeal in
order to preserve the issue for further review. Id. Accordingly, the state’s first
assignment of error is overruled pursuant to the precedent in this jurisdiction. Id.5
{¶ 13} The state argues in its second assignment of error that the Ohio Supreme
Court’s decision in Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108,
does not apply to out-of-state offenders. Although the trial court could not have applied
Williams since that case was not decided until July 13, 2011, the state anticipates this
court will look to Williams as authority in addressing the second assignment of error.
The state, therefore, counters by asserting out-of-state offenders “may not have an
expectation of finality” as to the registration duties required when they move to a
different state.
{¶ 14} However, this court declines to adopt the state’s position. The Ohio
Supreme Court’s decisions in Williams and Bodyke are stated broadly. Sheets v. State,
8th Dist. Nos. 95876-95880, 2011-Ohio-4098, 2011 WL 3612231, ¶ 9; State v. Henthorn,
5th Dist. No. 11-COA-011, 2011-Ohio-5579, 2011 WL 5143140, ¶ 19; see also Mestre, at
¶ 4; Goggans v. State, 8th Dist. Nos. 96857-96862, 2011-Ohio-5932, 2011 WL 5825915,
¶ 13.
{¶ 15} The Supreme Court held that the AWA “interferes with the judicial power
by requiring the reopening of final judgments.” Bodyke, 126 Ohio St.3d 266,
2010-Ohio-2424, 933 N.E.2d 753, at ¶ 55. Since “final judgments” include judgments
that arose by operation of law, they necessarily also include judgments rendered by
another state’s court. Mestre, 8th Dist. No. 96720, 2011-Ohio-5677, 2011 WL 5326145.
The Ohio Supreme Court declared that “S.B. 10, as applied to Williams and any other
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sex offender who committed an offense prior to the enactment of S.B. 10, violates Section
28, Article II of the Ohio Constitution, which prohibits the General Assembly from
enacting retroactive laws.” (Emphasis added.) Williams at ¶ 22.
{¶ 16} The foregoing language leaves no doubt that the AWA, as applied to
{¶ 17} Nelson, violates the Ohio Constitution’s Retroactivity Clause. While this
court recognized in Goggans that its view on this issue was in conflict with the First and
Twelfth Districts (see Sewell v. State, 181 Ohio App.3d 280, 2009-Ohio-872, 908 N.E.2d
995, ¶ 14 (1st Dist.), and Boswell v. State, 12th Dist. No. CA2010-01-006,
2010-Ohio-3134, 2010 WL 2653379, ¶ 6), this court still decided that this district
“continues to hold that it is the correct interpretation” on the issue. Goggans, 8th Dist.
Nos. 96857-96862, 2011-Ohio-5932, 2011 WL 5825915, at ¶ 13.
{¶ 18} Accordingly, the state’s second assignment of error also is overruled.
{¶ 19} The trial court’s order is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
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_____________________________
KENNETH A. ROCCO, JUDGE
MARY J. BOYLE, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR