State v. Kempson , 2012 Ohio 1954 ( 2012 )

[Cite as State v. Kempson, 2012-Ohio-1954.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 97409 and 97410
STATE OF OHIO
PLAINTIFF-APPELLANT
vs.
BYRON KEMPSON
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-545099 and CR-526019
BEFORE: S. Gallagher, J., Blackmon, A.J., and Kilbane, J.
RELEASED AND JOURNALIZED: May 3, 2012
ATTORNEYS FOR APPELLANT
William D. Mason
Cuyahoga County Prosecutor
By: Daniel T. Van
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
ATTORNEY FOR APPELLEE
Richard Agopian
The Hilliard Building
1415-1419 West Ninth Street
Second Floor
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:
{¶1} This is a consolidated action in which the state of Ohio is appealing the
rulings of the Cuyahoga County Court of Common Pleas that vacated the plea and
sentence in each of the underlying cases and dismissed the actions. For the reasons
stated herein, we affirm.
{¶2} Byron Kempson was convicted of a sex offense in Michigan in 1992 and
released from prison in 2003. He subsequently moved to Ohio.
{¶3} On July 1, 2009, he was indicted for failing to verify his address under the
Adam Walsh Act (“AWA”) on the anniversary date of his initial registration. Cuyahoga
C.P. No. CR-526019. He pleaded guilty to the charge of attempted verification of
current residence address in violation of R.C. 2950.06(F). The court sentenced him to
two years of community control.
{¶4} On December 20, 2010, Kempson was indicted for failing to provide notice
of change of address in violation of R.C. 2950.05(F)(1). Cuyahoga C.P. No. CR-545099.
He pleaded guilty to the charge, and the court sentenced him to two years of community
control.
{¶5} On August 22, 2011, Kempson filed a motion for withdrawal of guilty plea in
each case. A hearing was held at which an oral motion to dismiss also was made. The
trial court granted the motions, vacated the pleas and sentences, and dismissed the cases
on or about September 15, 2011.
{¶6} The state filed a timely appeal, raising three assignments of error for our
review. The first assignment of error provides as follows:
I. The trial court erred when it granted the motion to vacate plea and
sentence and the motion to dismiss because defendant, as an out-of-state
offender is subject to the Adam Walsh Act.
{¶7} In State v. Bodyke, the Ohio Supreme Court held that the reclassification
provisions of the AWA, which required the attorney general to reclassify sex offenders
who have already been classified by court order under Megan’s Law, were
unconstitutional. 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 67. The
court severed the reclassification provisions, R.C. 2950.031 and 2950.032, and reinstated
the classifications and community-notification and registration orders imposed
previously. Id. at ¶ 66. In State v. Williams, the Ohio Supreme Court declared that
S.B. 10, as applied to Williams and any other 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. 129 Ohio St.3d 344, 2011-Ohio-3374, 952
N.E.2d 1108, ¶ 22.
{¶8} This court has previously found that Bodyke and Williams apply to
out-of-state offenders. Nelson v. Ohio, 8th Dist. No. 96988, 2012-Ohio-364, ¶ 10-13;
State v. Ortega-Martinez, 8th Dist. No. 95656, 2011-Ohio-2540, ¶ 11. Accordingly, we
overrule the first assignment of error pursuant to the precedent in this jurisdiction.
{¶9} The state’s second and third assignments of error are as follows:
II. The trial court erred when it granted the motion to vacate plea and
sentence and motion to dismiss in CR-545099, because defendant’s duty to
provide a notice of change of address was the same under Megan’s Law;
therefore, his conviction was not based on an unlawful reclassification but
based on his continuing duty to register under Megan’s Law.
III. The trial court erred when it granted the motion to vacate plea and
sentence and motion to dismiss in CR-526019, because defendant had a
duty under Megan’s Law to verify his address on the anniversary date of his
initial registration. Defendant failed to verify his address on the
anniversary date of his initial registration; therefore, his conviction was not
based on an unlawful reclassification but based on his continuing duty to
register under Megan’s Law.
{¶10} The state concedes that it has raised these assignments of error in order to
preserve the issue pending the Ohio Supreme Court’s disposition in State v. Brunning,
Ohio Supreme Court No. 2011-1066; State v. Campbell, Ohio Supreme Court No.
2011-1061; and State v. Gilbert, Ohio Supreme Court No. 2011-1062.
{¶11} The state argues the trial court erred by vacating the convictions and
dismissing the cases because Kempson’s duty to provide notice of a change of address is
identical under the AWA and Megan’s Law, and his duty to verify his address is
essentially the same and still constituted a violation of Megan’s Law. The state contends
that because Kempson was indicted under the AWA and his improper reclassification was
the basis for his convictions, the trial court correctly vacated the convictions and
dismissed the actions. The state further notes that Megan’s Law had been repealed
during the period when Kempson was charged in CR-526019.
{¶12} In State v. Gingell, the Ohio Supreme Court vacated the conviction for a
violation of the 90-day address-verification requirement of R.C. 2950.06 where the
conviction was based upon an unlawful reclassification under the AWA. 128 Ohio St.3d
444, 2011-Ohio-1481, 946 N.E.2d 192, ¶ 8. In State v. Palmer, the Ohio Supreme Court
found that “[a] trial court may dismiss an indictment for violations of R.C. Chapter 2950
when it determines that the chapter’s regulations do not apply to the accused.” 131 Ohio
St.3d 278, 2012-Ohio-580, 964 N.E.2d 406, paragraph two of the syllabus. The court
recognized as follows: “Without a doubt, an indictment is defective if it alleges
violations of R.C. Chapter 2950 by a person who is not subject to that chapter. There is
no set of circumstances under which such a person may violate the law’s requirements.”
Id. at ¶ 23.
{¶13} Likewise, this court has previously held that where the reclassification under
the AWA is unlawful, “it cannot serve as the predicate for the crime for which [the
defendant] was indicted and convicted.” State v. Ogletree, 8th Dist. No. 96438,
2011-Ohio-5846, ¶ 8, quoting State v. Smith, 8th Dist. No. 92550, 2010-Ohio-2880, ¶ 29;
see also State v. Beasley, 8th Dist. No. 96806, 2011-Ohio-6650. This court also has
found that a conviction arising from an unlawfully imposed AWA reporting requirement
is invalid even if the requirements under the AWA and Megan’s Law are the same. State
v. Williams, 8th Dist. No. 97005, 2011-Ohio-6763, ¶ 8; State v. Gilbert, 8th Dist. Nos.
95083 and 95084, 2011-Ohio-1928, appeal allowed by 130 Ohio St.3d 1479,
2011-Ohio-6124, 957 N.E.2d 1170; State v. Grunden, 8th Dist. No. 95909,
2011-Ohio-3687.
{¶14} Accordingly, we overrule the second and third assignments of error pursuant
to the precedent in this jurisdiction.
{¶15} Judgment 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 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.
SEAN C. GALLAGHER, JUDGE
PATRICIA ANN BLACKMON, A.J., and
MARY EILEEN KILBANE, J., CONCUR