Stokar v. State , 2011 Ohio 3389 ( 2011 )

[Cite as Stokar v. State, 2011-Ohio-3389.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95865
WILLIAM STOKAR
PLAINTIFF-APPELLEE
vs.
STATE OF OHIO
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-648412
BEFORE: Keough, J., Sweeney, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: July 7, 2011
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
ATTORNEYS FOR APPELLEE
Robert L. Tobik
Chief Public Defender
BY: Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue, Ste 400
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Defendant-appellant, the state of Ohio (“the State”), appeals the
trial court’s judgments granting the petition of the plaintiff-appellee, William
Stokar (“Stokar”), contesting the application of Ohio’s Adam Walsh Act
(“AWA”). For the following reasons, we affirm.
{¶ 2} The Cuyahoga County Common Pleas Court convicted Stokar of
sexual imposition in 2001. When he was sentenced, the trial court did not
conduct a hearing to determine his sex offender classification or issue a
journal entry designating his classification. Accordingly, his sexually
oriented offender status arose by operation of law. Under Megan’s Law,
which was in effect when Stokar was sentenced, sexual imposition against an
adult is a presumptively registration-exempt offense, and unless the trial
court overcomes this presumption, the offender is not required to register.
The trial court did not issue an order removing the presumption and
subjecting Stokar to registration; thus he had no duty to register under
Megan’s Law.
{¶ 3} After the enactment of the AWA, Stokar received notification
from the Ohio Attorney General that he was being reclassified as a “Tier I”
sex offender and advising him of his new reporting and notification
requirements associated with that classification. In 2008, Stokar filed a
petition pursuant to R.C. 2950.031 and 2950.032 contesting his
reclassification and the application of the AWA.
{¶ 4} While his petition was pending, the Ohio Supreme Court issued
its decision in State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933
N.E.2d 753, reconsideration denied, 126 Ohio St.3d 1235, 2010-Ohio-3737,
933 N.E.2d 810, in which the Supreme Court held that, “R.C. 2950.031 and
2950.032, the reclassification provisions in the AWA, are unconstitutional
because they violate the separation-of-powers doctrine.” Bodyke at ¶2.
Because those sections were held unconstitutional, the Supreme Court chose
to sever the statutes. Specifically, the Supreme Court stated, “As a remedy,
we strike R.C. 2950.031 and 2950.032, hold that the reclassifications of sex
offenders by the attorney general are invalid, and reinstate prior judicial
classifications of sex offenders.” Id.{¶ 5} Accordingly, in 2010, the trial court granted Stokar’s petition
pursuant to Bodyke and restored him to his previous sex offender status
under Megan’s Law. The State appeals this judgment, contending that the
trial court erred in applying Bodyke to a petitioner who (1) was not classified
under Megan’s Law by an Ohio court, and (2) did not demonstrate by clear
and convincing evidence that they were previously classified by an Ohio court.
{¶ 6} This court has recently addressed and overruled the same
arguments and issues that the State raises in the instant appeal. See State
v. Speight, Cuyahoga App. Nos. 96041-96045, 2011-Ohio-2933, and State v.
Hannah, Cuyahoga App. Nos. 95883-95889, 2011-Ohio-2930.
{¶ 7} Moreover, we take judicial notice that the Ohio Attorney General
has removed Stokar from Ohio’s Sex Offender Registry because his conviction
for sexual imposition was not a sex offense at the time of his conviction in
2001.
{¶ 8} Accordingly, the trial court did not err in applying Bodyke and we
overrule the State’s assignments of error.
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 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.
KATHLEEN ANN KEOUGH, JUDGE
JAMES J. SWEENEY, P.J., and
EILEEN A. GALLAGHER, J., CONCUR