State v. Cole ( 2011 )

[Cite as State v. Cole, 2011-Ohio-6283.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96687
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
KENNETH COLE
DEFENDANT-APPELLANT
JUDGMENT:
VACATED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-179837
BEFORE: Keough, J., Sweeney, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: December 8, 2011
ATTORNEY FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Daniel T. Van
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Defendant-appellant, Kenneth Cole, appeals from the trial court’s
judgment finding him to be a sexually oriented offender after a H.B. 180
sexual offender classification hearing in 2004. Cole contends that the trial
court did not have jurisdiction to conduct the hearing. We agree and,
therefore, vacate the trial court’s judgment.
I. Procedural History
{¶ 2} In 1979, Cole was convicted of sexual battery. State v. Cole (July
10, 1979), Cuyahoga C.P. No. CR-042396-C. He was sentenced to five to 15
years incarceration and placed on probation. There is no indication in the
record that Cole was ever found to be a probation violator or served a prison
sentence for this conviction. In 1983, Cole was convicted of murder and
sentenced to 15 years to life in prison. State v. Cole (Mar. 22, 1984),
Cuyahoga App. No. 46968. There was no sexual motivation for the murder;
it was precipitated by an argument between Cole and the victim over money
the victim owed to Cole.
{¶ 3} In February 2004, while Cole was incarcerated for the murder
conviction, the State, having received a recommendation from the department
of rehabilitation and correction that Cole be classified as a sexual predator,
requested that the trial court hold a H.B. 180 sexual offender classification
hearing. The trial court held the hearing in July 2004. The court
determined that Cole was neither a sexual predator nor a habitual sex
offender but, based on the 1979 sexual battery conviction, ruled that he was a
sexually oriented offender and ordered him to register and verify his address
annually for ten years.
{¶ 4} This court subsequently granted Cole’s motion for a delayed
appeal of the trial court’s judgment.
II. The Sexual Offender Classification Hearing
{¶ 5} Cole raises two issues regarding the sexual offender classification
hearing. He first contends that the trial court lacked jurisdiction to hold the
classification hearing because at the time of the hearing, he was not in prison
for a sexually oriented offense. Next, he argues that the trial court lacked
jurisdiction to hold the hearing because it was not the same court that
sentenced him for his sexually oriented offense.
{¶ 6} In 1996, the General Assembly enacted Megan’s Law, also known
as House Bill 180, which repealed prior versions of R.C. Chapter 2950 and
created a registration and classification system for sex offenders.1 “Under
Megan’s Law, offenders who had committed a sexually oriented offense that
was not registration-exempt were labeled a sexually oriented offender, a
habitual sexual offender, or a sexual predator based upon the crime
committed and the findings made by the trial court at a sexual offender
classification hearing.” Green v. State, Hamilton App. No. C-090650,
2010-Ohio-4371, ¶1.
In January 2008, Ohio’s Adam Walsh Act went into effect, repealing Megan’s Law and
1
replacing the classification system of Megan’s Law with a tier system consisting of three tiers
dependent solely on the offense of conviction. See R.C. Chapter 2950.
{¶ 7} The version of former R.C. 2950.09(C)(1) in effect in 2004,
concerning offenders who could retroactively be subject to sexual offender
classification hearings, stated in relevant part:
{¶ 8} “If a person was convicted of or pleaded guilty to a sexually
oriented offense * * * prior to January 1, 1997, if the person was not
sentenced for the offense on or after January 1, 1997, and if, on or after
January 1, 1997, the offender is serving a term of imprisonment in a state
correctional institution, the department of rehabilitation and correction shall
* * *:
{¶ 9} (b) * * * determine whether to recommend that the offender be
adjudicated a sexual predator. * * * If the department determines that it will
recommend that the offender be adjudicated a sexual predator, it immediately
shall send the recommendation to the court that sentenced the offender. * *
*.”
{¶ 10} In State v. Wilson (Oct. 26, 2000), Cuyahoga App. No. 77530,
affirmed State v. Taylor, 100 Ohio St. 3d 172, 2003-Ohio-5452, 797 N.E.2d
504, this court interpreted R.C. 2950.09(C)(1) and stated:
{¶ 11} “R.C. 2950.09(C)(1) applies to offenders who: (1) were convicted or
entered a plea of guilty to a sexually oriented offense prior to January 1,
1997; (2) were sentenced for the sexually oriented offense prior to January 1,
1997; and (3) were serving a term of imprisonment in a state correctional
facility on or after January 1, 1997.
{¶ 12} “Ohio courts have consistently rejected the argument that R.C.
2950.09(C)(1) requires that on or after January 1, 1997, the offender is
serving a term of imprisonment for a sexually oriented offense. * * *
{¶ 13} “As the Seventh Appellate District noted in State v. Berry (Dec.
13, 1999), Carroll App. No. 716, unreported:
{¶ 14} “‘* * * A review of R.C. 2950.09(C)(1) unequivocally reveals that
all [that] is required prior to a sexual predator determination hearing is that
“the offender is serving a term of imprisonment.” Absolutely no reference is
made that the imprisonment must arise as a result of a sexually oriented
offense conviction. Had the legislature intended such a requirement it easily
could have inserted such language in the statute. Due to the very fact that
this type of restriction has not been included in the statute, this court is
precluded from reading such into the statute as the statute is clear and
unambiguous on its face.’” (Internal citations omitted.) See, also, State v.
Taylor (Apr. 4, 2002), Cuyahoga App. No. 79475, 2002-Ohio-1554, affirmed
Taylor, supra, 2003-Ohio-5452 (“R.C. Chapter 2950 allows a judge to hold a
sexual predator hearing for any defendant previously convicted of a sexually
oriented offense and in prison for any offense as of January 1, 1997”); State v.
Childs (2001), 142 Ohio App. 3d 389, 755 N.E.2d 958 (plain and unambiguous
language of statute does not restrict “term of imprisonment” to one being
served for a sexual offense).
{¶ 15} Cole was convicted and sentenced prior to January 1, 1997, of a
sexually oriented offense, and was imprisoned in a state correctional facility
after January 1, 1997. Therefore, his argument that the trial court lacked
jurisdiction to conduct a sexual predator classification hearing because he
was not incarcerated in 2004 for a sexually oriented offense is without merit.
{¶ 16} Nevertheless, we find that the trial judge who conducted the
classification hearing lacked jurisdiction to do so because he was neither the
original nor successor judge who sentenced Cole for his sexually oriented
offense in 1979.
{¶ 17} Former 2950.09(C)(1)(b) specifically designated “the court that
sentenced the offender” for his sexually oriented offense as the court to hold
the sexual offender classification hearing and determine sexual offender
status. As the Ninth District recognized in State v. McIntire (1998), 130
Ohio App. 3d 463, 465, 720 N.E.2d 222, former “R.C. 2950.09(C)(1) specifically
states that the sexual predator recommendation ‘shall’ be sent to ‘the court
that sentenced the offender.’ This language is clear and the intent of the
legislature on this point cannot reasonably be doubted. Although it would
have been easier to draft a general statute allowing any court in Ohio to
proceed on a sexual-predator recommendation, the legislature took the extra
step of specifically designating ‘the court that sentenced the offender’ as the
court to determine sexual predator status. Thus, the court that sentenced
the offender is the only court with jurisdiction to proceed under R.C.
2950.09(C).” citing State v. Yoakam (Sept. 24, 1997), Union App. No.
14-97-09.
{¶ 18} Here, the judge who held the sexual predator hearing was neither
the original judge who sentenced Cole for his sexually oriented offense nor the
successor to that judge. Accordingly, the court did not have jurisdiction to
proceed under former R.C. 2950.09(C) and its judgment finding Cole to be a
sexually oriented offender is therefore void. See Stewart v. Zone Cav of
Cleveland (Jan. 31, 2002), Cuyahoga App. No. 79317 (where the trial court
enters an order without jurisdiction, its order is void and a nullity).
III. Duty to Register
{¶ 19} Moreover, even if the court had jurisdiction to conduct the
classification hearing and adjudicate Cole to be a sexually oriented offender,
Cole would still have had no duty to register.
{¶ 20} As the Ohio Supreme Court recognized in State v. Bellman, 86
Ohio St. 3d 208, 1999-Ohio-95, 714 N.E.2d 381, adjudication under Megan’s
Law as a sexually oriented offender did not necessarily trigger registration
requirements. Former R.C. 2950.04 explained which persons had a duty to
register. The version in effect in 2004 provided in relevant part as follows:
{¶ 21} “(A)(1) Each of the following types of offender who is convicted of
or pleads guilty to * * * a sexually oriented offense * * * shall register * * *:
{¶ 22} Regardless of when the sexually oriented offense was committed,
an offender who is sentenced for the sexually oriented offense to a prison
term, a term of imprisonment, or any other type of confinement and, on or
after July 1, 1997, is released in any manner from the prison term, term of
imprisonment, or confinement;
{¶ 23} Regardless of when the sexually oriented offense was committed,
an offender who is sentenced for a sexually oriented offense on or after July 1,
1997, and to whom division (A)(1)(a) of this section does not apply;
{¶ 24} If the sexually oriented offense was committed prior to July 1,
1997, and neither division (A)(1)(a) nor division (A)(1)(b) of this section
applies, an offender who, immediately prior to July 1, 1997, was a habitual
sex offender who was required to register under Chapter 2950 of the Revised
Code.”
{¶ 25} An offender had to fit within one of the categories of former R.C.
2950.04(A) before he could be required to register. Bellman, supra; State v.
Riley (2001), 142 Ohio App. 3d 580, 586, 756 N.E.2d 676. Cole did not fit any
of these categories.
{¶ 26} “R.C. 2950.04(A)(1)(a) include[d] only those who were convicted
and sentenced to prison for a sexually oriented offense and who were released
from prison on that sexually oriented offense on or after July 1, 1997.” State
v. Champion, 106 Ohio St. 3d 120, 2005-Ohio-4098, 832 N.E.2d 718, ¶11
(Emphasis sic). See, also, Riley, supra at 679; State v. Benson (Aug. 28,
2000), Butler App. No. CA99-11-194. Because Cole was neither serving a
prison sentence for a sexually oriented offense on July 1, 1997, nor released
from that prison term after July 1, 1997, R.C. 2950.04(A)(1) did not apply to
him.
{¶ 27} Likewise, former R.C. 2950.04(A)(1)(b) did not apply to Cole
because he was not sentenced for a sexually oriented offense on or after July
1, 1997. And former R.C. 2950.04(A)(1)(c) did not apply because Cole was
not, prior to July 1, 1997, a habitual sex offender who was required to register
under R.C. Chapter 2950. Accordingly, even if the trial court had
jurisdiction to adjudicate Cole to be a sexually oriented offender, Cole would
have had no duty to register because he did not fit within any of the
categories of compulsory registrants under former R.C. 2950.04(A)(1).
{¶ 28} In Bellman, supra, the Ohio Supreme Court recognized that
situations such as Cole’s fell within a “gap” in the coverage of former R.C.
2950.04. The Supreme Court noted, however, that although the gap created
by the statute might have been a legislative oversight, the court could only
interpret the legislation; it could not supply its omissions. Id., ¶4.
{¶ 29} Thus, consistent with Bellman, in Taylor, supra, 2003-Ohio-5452,
the Ohio Supreme Court held that the defendants, although adjudicated as
sexual predators, were not required to register because they did not fit into
any of the R.C. 2950.04(A)(1) categories. The court stated:
{¶ 30} “This conclusion is consistent with our decision in Bellman, where
we stated that ‘although Bellman is properly adjudicated a sexual predator
under the new law, he has no duty to register because he does not fit within
the plain language of R.C. 2950.04 describing categories of compulsory
registrants.’ Id., 86 Ohio St.3d at 212, 714 N.E.2d 381. The reasoning
behind Bellman applies with equal force in this case: adjudication as a sexual
predator is distinct from the duty to register.” Id. at ¶10.
{¶ 31} Because Cole did not fit any of the categories under former R.C.
2950.04(a), even if the trial court had jurisdiction to conduct the sexual
offender classification hearing and adjudicate him to be a sexually oriented
offender, Cole would have had no duty to register.
{¶ 32} Cole’s assignment of error is sustained and the trial court’s
judgment finding him to be a sexually oriented offender and ordering him to
register and verify his address annually for ten years is vacated.
It is ordered that appellant recover from appellee the 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
common pleas 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.
KATHLEEN ANN KEOUGH, JUDGE
JAMES J. SWEENEY, P.J., and
EILEEN A. GALLAGHER, J., CONCUR