Mitchell v. State , 2011 Ohio 3256 ( 2011 )

[Cite as Mitchell v. State, 2011-Ohio-3256.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95617
JAMES MITCHELL
PLAINTIFF-APPELLANT
vs.
STATE OF OHIO
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-649960
BEFORE: Kilbane, A.J., Jones, J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: June 30, 2011
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Chief Public Defender
Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue
Suite 400
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Daniel T. Van
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, A.J.:
{¶ 1} Plaintiff-appellant, James Mitchell, appeals from the order of the trial court that
rejected his request to be reclassified as a Tier I offender under the Adam Walsh Act
(“AWA”), reclassified him as a Tier II sex offender, then sua sponte restored his original
sexual predator classification under Megan’s Law. For the reasons set forth below, we
affirm.
{¶ 2} On October 3, 1988, Mitchell pled guilty in Case No. CR-219878 to one count
of attempted gross sexual imposition in violation of R.C. 2907.05 and was sentenced to six
months of incarceration.
{¶ 3} On October 14, 2004, Mitchell pled guilty in Case No. CR-452531 to one count
of drug trafficking, in violation of R.C. 2925.03, and one count of gross sexual imposition, in
violation of R.C. 2907.05, and was sentenced to a total of two years of imprisonment. On the
same day, following a sexual predator hearing, the parties stipulated that Mitchell is a sexual
predator under Megan’s Law, R.C. Chapter 2950. Under this classification, he was required
to register every 90 days for life. State v. Cook, 83 Ohio St.3d 404, 1998-Ohio-291, 700
N.E.2d 570, citing former R.C. 2950.06 and 2950.07.
{¶ 4} In 2006, Mitchell completed his prison term in Case No. CR-452531, then
began registering as a sexual predator in accordance with the various mandates of Megan’s
Law, R.C. Chapter 2950.
{¶ 5} In 2006, Congress passed the AWA, which established Tier I, Tier II, or Tier III
sex offender classifications based solely on the offender’s offense. State v. Bodyke, 126
Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753. Thereafter, the Ohio General Assembly
enacted the 2007 Am.Sub.S.B. No. 10, which replaced the Megan’s Law categories of the
offender and established the tier system in conformance with the AWA. Under the tier
system, sexual offenders are assigned to a particular tier based upon the offense for which they
were convicted. Id.{¶ 6} Pursuant to R.C. 2950.031 and R.C. 2950.032, the attorney general was
required to reclassify all sexual offenders under Tier I, Tier II, or Tier III, and to notify the
offenders accordingly by December 1, 2007.
{¶ 7} In a letter dated November 26, 2007, the Ohio Attorney General’s office
advised Mitchell that, beginning January 1, 2008, he would be reclassified as a Tier III sex
offender under the AWA, the most restrictive classification, and would therefore be required to
register with the sheriff’s office every 90 days for life. Community notification is also
required.
{¶ 8} On February 5, 2008, Mitchell filed a petition to contest application of the
AWA. He asserted that the AWA violates prohibitions against ex post facto and retroactive
laws and violates due process. He further asserted that he should be reclassified as a Tier I
offender — in light of his offenses and the ages of the victims (adult women, rather than
children under the age of 13) — and not a Tier III offender that was derived from the 2004
stipulation that he is a sexual predator. On April 6, 2008, the trial court stayed the
proceedings.
{¶ 9} On February 11, 2009, Mitchell filed a motion for a reclassification hearing
under R.C. 2950.01(G) and to have this issue determined apart from his constitutional
challenges that he asked to have stayed, “pending the decision of a higher court.”
{¶ 10} The trial court held a reclassification hearing on June 19, 2009. Mitchell
argued that a sexual predator hearing had not been held in Case No. CR-452531 and that the
sexual predator determination was based upon a stipulation rather than a judicial
determination. Therefore, Mitchell argued that the trial court had discretion to determine the
proper tier classification for his offenses and, under R.C. 2950.01(E)(1), he should be
classified as a Tier I offender since his victim was over 13 years old. Counsel additionally
asserted that Mitchell is a Tier I offender because he is 63 years old, he has resolved his
substance abuse issues, and he presented numerous reference letters.
{¶ 11} In opposition, the State presented information about Mitchell’s offenses. The
State presented the victim’s statement in Case No. CR-291878. According to this statement,
Mitchell met the woman at a bar and gave her a ride home. He gave her a marijuana
cigarette that she smoked in the car. After she smoked it, Mitchell drove her to a motel and
struck her in the face when she refused to go inside. He then dragged her into the room,
threatened to kill her, and inserted his penis into her. The victim reported that she felt
paralyzed after smoking the marijuana he had given her.
{¶ 12} The State also presented the victim’s statement in the second matter, Case No.
CR-452531. According to that statement, Mitchell met the victim at a bar. They went to
his apartment, and he got her a glass of water. The victim indicated that the water had a
funny taste. She next remembered waking up in his bedroom, naked from the waist down.
At this time, he was taking pictures of her. She felt ill and repeatedly passed out and woke
up.
{¶ 13} The State then asserted that although the offenses Mitchell committed were not
Tier III offenses, he was in fact a Tier III offender based upon the record and his prior sexual
predator stipulation in Case No. CR-452531.
{¶ 14} On July 1, 2009, the trial court reclassified Mitchell as a Tier II offender under
the AWA. The court’s journal entry provided in relevant part as follows:
“Petitioner has been convicted of gross sexual imposition October 14, 2004
and of attempted gross sexual imposition on October 3, 1988. As petitioner
has been convicted of two Tier I offenses on two different occasions,
petitioner is reclassified as a Tier II sex offender.
Pursuant to Civ.R. 54(B), there is no just cause for delay.”
{¶ 15} Neither party appealed the July 1, 2009 ruling. Thereafter, on July 26, 2010,
following the Ohio Supreme Court’s June 3, 2010 decision in Bodyke, the trial court issued a
sua sponte order that provided in relevant part as follows:
“[P]laintiff is hereby restored to his previous registration status under the
terms and conditions of the final decision in [Mitchell’s] criminal case. The
within order is a final judgment pursuant to R.C. 2505.02.”
{¶ 16} Mitchell now appeals and assigns three errors for our review:
ASSIGNMENT OF ERROR ONE
“The trial court lacked jurisdiction to reconsider its final judgment.”
ASSIGNMENT OF ERROR TWO
“The trial court lacked authority to grant ‘relief’ that was not requested by
[Mitchell].”
ASSIGNMENT OF ERROR THREE
“The trial court erred in applying State v. Bodyke to disturb a judicial Adam
Walsh Act classification.”
{¶ 17} In these assignments of error, Mitchell maintains that because neither party
appealed the trial court’s July 1, 2009 order reclassifying him as a Tier II offender, this order
became final, and not subject to later modification. He also contends that once the trial
court issued its July 1, 2009 order reclassifying him as a Tier II offender, it “granted the relief
sought in the petition” so the court had no authority to restore Mitchell to his prior Megan’s
Law classification. Finally, Mitchell argues that Bodyke has no application to this matter
since it involved a judicial redetermination of Mitchell’s sex offender status so there was no
violation of the separation-of-powers doctrine. In Bodyke, the court held:
“1. The power to review and affirm, modify, or reverse other courts’
judgments is strictly limited to appellate courts. (Section 3(B)(2), Article IV,
Ohio Constitution, applied.)
“2. R.C. 2950.031 and 2950.032, which require the attorney general to
reclassify sex offenders who have already been classified by court order under
former law, impermissibly instruct the executive branch to review past
decisions of the judicial branch and thereby violate the separation-of-powers
doctrine.
“3. R.C. 2950.031 and 2950.032, which require the attorney general to
reclassify sex offenders whose classifications have already been adjudicated
by a court and made the subject of a final order, violate the
separation-of-powers doctrine by requiring the opening of final judgments.”
Id., at paragraphs one, two, and three of the syllabus.
{¶ 18} The Supreme Court severed R.C. 2950.031 and 2950.032 from the AWA, and
held that those sections “may not be applied to offenders previously adjudicated by judges
under Megan’s Law, and the classifications and community-notification and registration orders
imposed previously by judges are reinstated.” Id. The Supreme Court additionally noted
that “[c]ourts also condemn legislative encroachments that violate the separation of powers by
vesting officials in the executive branch with the power to review judicial decisions or by
commanding that the courts reopen final judgments.” Id. The court explained that
judgments cannot be deprived of their finality through statutes that were enacted after the court
gave its last word in the particular matter.
{¶ 19} Later, in Chojnacki v. Cordray, 126 Ohio St.3d 321, 2010-Ohio-3212, 933
N.E.2d 800, the Ohio Supreme Court held that after severance of R.C. 2950.031 and 2950.032
announced in Bodyke, R.C. 2950.031 and 2950.032 may not be enforced and may not be
applied to offenders previously adjudicated by judges under Megan’s Law.
{¶ 20} In this matter, following a sexual predator hearing, the State and Mitchell
stipulated in Case No. CR-452531 that Mitchell is a sexual predator under Megan’s Law, R.C.
Chapter 2950, and he began registering as a sexual predator under Megan’s Law in 2006.
Thereafter, in a letter dated November 26, 2007, the Ohio Attorney General’s office
reclassified Mitchell as a Tier III sex offender under the AWA, effective January 1, 2008, and
thereby reopened and modified a final judgment and replaced it with the Attorney General’s
classification of Mitchell under AWA.
{¶ 21} Mitchell challenged the reclassification and on July 1, 2009, the trial reclassified
Mitchell as a Tier II offender, following a hearing under R.C. 2950.031 and 2950.032. Later,
on July 26, 2010, the trial court issued a sua sponte order that restored Mitchell to his previous
registration in conformance with Bodyke.
{¶ 22} Mitchell maintains that the trial court disturbed a final order by vacating the
July 1, 2009 reclassification. Under Bodyke, however, the original classification under
Megan’s Law is deemed the final order. The Attorney General’s November 26, 2007 letter
reopened that final judgment, and the reclassification took place under the now-severed
provisions of R.C. 2950.031 and R.C. 2950.032. See Chojnacki.
{¶ 23} Mitchell additionally complains that the trial court was without authority to
issue the sua sponte order once the July 1, 2009 AWA reclassification occurred. In
accordance with Bodyke, however, the classifications made under Megan’s Law are
1
reinstated. Bodyke, at ¶66. See, also, State v. Lipscomb, Cuyahoga App. No. 92189,
2010-Ohio-4104; Majewski v. State, Cuyahoga App. No. 92372, 2010-Ohio-3178; State v.
Godfrey, Summit App. No. 25187, 2010-Ohio-6454; State v. Miliner, Franklin App. No.
09AP-643, 2010-Ohio-6771; State v. Robins, Montgomery App. No. 23437, 2010-Ohio-2842.
{¶ 24} Finally, Mitchell asserts the additional proposition, with which the State agrees,
that Bodyke is inapplicable to this matter since Mitchell sought judicial review of the AWA
classification under R.C. 2950.30 and R.C. 2950.31, so there is no separation-of-powers
violation. We note, however, that in this case, there was a 2004 judicial order finding
Mitchell to be a sexual predator, and this was a final judgment. The court’s reclassification
hearing followed the Attorney General’s improper 2007 reopening of a final determination and
improper reclassification of Mitchell under the AWA. Further, the reclassification was
conducted pursuant to R.C. 2950.031 and R.C. 2950.032, which have been severed in their
1
Various challenges to Megan’s Law were rejected by the courts. In State v. Cook, 83 Ohio
St.3d 404, 1998-Ohio-291, 700 N.E.2d 570, the Ohio Supreme Court ruled that the registration and
address verification portions of Megan’s law, i.e., R.C. 2950.09 do not violate retroactivity clause or
the ex post facto clause of the Ohio Constitution. In State v. Williams, 88 Ohio St.3d 513, 516,
2000-Ohio-428, 728 N.E.2d 342, the Ohio Supreme Court rejected additional claims that Megan’s
Law violates the prohibitions against double jeopardy, bills of attainder, and vagueness and also
rejected claims that it violates equal protection guarantees, an individual’s rights to maintain privacy,
to acquire property, to pursue an occupation, and to maintain a favorable reputation. In State v.
Thompson, 92 Ohio St.3d 584, 2001-Ohio-1288, 752 N.E.2d 276, the court rejected a
separation-of-powers challenge to Megan’s Law.
entirety. State v. Ogden, Franklin App. No. 09AP-640, 2011-Ohio-1589. In severing those
provisions, the Supreme court did not distinguish between individuals who were classified
judicially and those classified by operation of law. State v. Johnson, Franklin App. No.
10AP-932, 2011-Ohio-2009; State v. Page, Cuyahoga App. No. 94369, 2011-Ohio-83 (Bodyke
does not carve out exceptions where some reclassifications under the AWA remain lawful).
{¶ 25} In light of the foregoing, the trial court properly determined that Mitchell’s
reclassification under the severed statute must be vacated and his prior judicial classification
must be reinstated. The assignments of error are without merit.
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.
MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE
LARRY A. JONES, J., and
SEAN C. GALLAGHER, J., CONCUR