State v. Montgomery , 2012 Ohio 391 ( 2012 )

[Cite as State v. Montgomery, 2012-Ohio-391.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO
Plaintiff-Appellee
v.
LAWRENCE MONTGOMERY
Defendant-Appellant
Appellate Case No. 24450
Trial Court Case No. 2009 CR 02328
(Criminal Appeal from
Common Pleas Court)
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OPINION
Rendered on the 3rd day of February , 2012.
...........
MATHIAS H. HECK, JR., by JOHNNA M. SHIA, Atty. Reg. #0067685, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
KATHERINE A. SZUDY, Atty. Reg. #0076729, Office of the Ohio Public Defender,
Assistant State Public Defender, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215
Attorney for Defendant-Appellant
.............
WAITE, J. (Sitting by Assignment)
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{¶ 1} Appellant Lawrence Montgomery appeals the judgment of the Montgomery
County Court of Common Pleas overruling the motion to vacate his sentence. Appellant
was convicted of rape in 1987 and was later adjudicated as a sexually oriented offender. He
was released from prison in 2004. As part of his designation as a sexually oriented
offender, he was required to register or verify his address with the county sheriff annually.
In 2007, he was reclassified as a Tier II Sex Offender under the new provisions of Ohio’s
version of the federal Adam Walsh Act (“AWA”). Starting in 2008, he was required to
register or verify his address every 90 days. Appellant subsequently failed to verify his
address as required by the AWA. He pleaded guilty to the charge and on August 19, 2009,
he was sentenced to three years in prison. He did not appeal the conviction or sentence.
{¶ 2} On June 3, 2010, in State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424,
933 N.E.2d 753, the Ohio Supreme Court decided that certain parts of the AWA were
unconstitutional. The Court held that the provisions allowing the Ohio Attorney General to
reclassify sexual offenders who had previously had their sexual offender classification
determined by a judge violated the constitutional rule of separation of powers. The
reclassification provisions of the AWA were severed from R.C. Chapter 2950. Thus, on
November 16, 2010, Appellant filed a motion to vacate his sentence based on the holding in
Bodyke. The trial court ruled on the motion on December 29, 2010 and determined that
Appellant could not rely on Bodyke because that case applied only to offenders whose
convictions were pending on appeal on the date Bodyke was announced. Since Appellant
did not file a direct appeal of his conviction, the trial court accurately concluded that his case
was not pending when Bodyke was announced. The motion to vacate was overruled.
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{¶ 3} Appellant argues on appeal that the trial court should have applied the Bodyke
holding and vacated his conviction and sentence because it was based on his 2008
reclassification as a Tier III sexual offender by the Ohio Attorney General. Appellant’s
argument is persuasive. Bodyke, as well as subsequent Ohio Supreme Court opinions,
prohibit the application of the AWA to all offenders who were previously adjudicated under
Megan’s Law due to a separation of powers violation. The Ohio Supreme Court has also
held that the AWA is punitive and violates the constitutional prohibition against retroactive
laws. State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374. Similar to Bodyke, the
Williams Court held that the AWA could not be applied to any offender who committed an
offense prior to the enactment of the law. Id. at ¶22. Based on Bodyke and Williams,
Appellant’s guilty plea, conviction and sentence are vacated and the case is remanded to the
trial court for further proceedings.
Background of the Case
{¶ 4} Appellant was originally convicted of rape in 1987, and was released from
prison on March 11, 2004. On August 16, 2000, while he was still incarcerated for the rape
conviction, he was adjudicated by the Montgomery County Court of Common Pleas as a
sexually oriented offender under Ohio’s version of the federal Jacob Wettling Act, also
known as Megan’s Law. Ohio’s version of Megan’s Law was passed as part of
Am.Sub.H.B. No. 180, 146 Ohio Laws, Part II, 2560, effective January 1, 1997, and codified
in R.C. Chapter 2950. As part of his designation as a sexually oriented offender, Appellant
was required to register annually with the Sheriff’s Office for ten years and to verify his
address annually for ten years. Appellant was released from prison on March 11, 2004.
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{¶ 5} In 2006, Congress replaced Megan’s Law with the AWA, codified at Section
16901 et seq., Title 42, U.S.Code. The AWA created a three-tiered system of sexual
offender classification and registration, and the act required states to comply with the new
law or risk losing their federal crime-control funding. In 2007, Ohio adopted the Sex
Offender Registration and Notification Act, R.C. Chapter 2950, as its version of the federal
AWA. Ohio’s AWA was passed as part of Sub. S.B. 10, 2007 Ohio Laws 10, effective
January 1, 2008. The classification scheme for sexual offenders changed significantly
under S.B. 10, subjecting the offender to longer and more burdensome reporting and
registration requirements than under Megan’s Law, and in many cases providing for more
severe penalties for violations of the statute. Appellant was automatically reclassified under
the AWA. He received a letter notifying him of the new classification on November 26,
2007, with the change to be effective on January 1, 2008. Under the new classification
system, Appellant was required to register or verify his address with the county sheriff every
90 days for life. Appellant subsequently failed to verify his address as a sex offender under
the new law and was charged with and convicted of a first degree felony for failure to report
pursuant to R.C. 2950.06. He was sentenced on August 19, 2009, to three years in prison.
He did not appeal the conviction or sentence.
{¶ 6} On June 3, 2010, the Ohio Supreme Court decided that certain parts of Ohio’s
version of the AWA were unconstitutional. State v. Bodyke, 126 Ohio St.3d 266,
2010-Ohio-2424, 933 N.E.2d 753. Pursuant to Bodyke, Appellant’s original classification
as a sexually oriented offender was reinstated, along with the former notification provisions.
{¶ 7} On November 16, 2010, Appellant filed a motion to vacate his sentence.
The state filed a response, and the court ruled on the motion on December 29, 2010. The
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court noted that Appellant did not appeal the final judgment issued on August 19, 2009.
The court held that Bodyke applied only to cases that remained pending when the decision
was rendered on June 3, 2010. As Appellant’s case was not on direct appeal when Bodyke
was released, the trial court did not apply Bodyke to Appellant’s situation. The court also
determined that if Appellant’s motion to vacate was actually intended to be a motion for
postconviction relief, it was filed beyond the time limit set by the postconviction relief
statute, R.C. 2953.21(A)(2). The court then overruled the motion to vacate.
{¶ 8} Appellant filed this timely appeal on January 26, 2011.
ASSIGNMENT OF ERROR
{¶ 9} “The trial court erred when it overruled Mr. Montgomery’s November 16,
2010 Motion to Vacate His Three-Year Prison Term. (December 29, 2010 Decision, Order,
and Entry Overruling Defendant’s Motion to Vacate His Three-Year Prison Term).”
{¶ 10} Appellant argues that he was not subject to the requirements of the AWA and
could not have been convicted of violating the 90-day verification requirements of the
statute. He contends that he was judicially designated as a sexually oriented offender under
Megan’s Law and is subject only to the annual registration and verification provision of that
statute. He relies on Bodyke to support his reasoning. Bodyke held that the AWA violates
the constitutional rule of separation of powers because it gave the Ohio Attorney General, an
officer of the executive branch of the government, the power to review and reclassify sexual
offenders after their sexual offender classification had already been determined by a judicial
proceeding. Id. at paragraph two of the syllabus. The AWA also violates the rule of
separation of powers because the state legislature, in effect, used its lawmaking power to
modify or overturn final judgments issued by judges. Id. at ¶55. The Ohio Supreme Court
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has held that “[t]he administration of justice by the judicial branch of the government cannot
be impeded by the other branches of the government in the exercise of their respective
powers.” State ex rel. Johnston v. Taulbee, 66 Ohio St.2d 417, 423 N.E.2d 80, (1981),
paragraph one of the syllabus. Based on the dual violations of the separation of powers, the
reclassification provisions of the AWA, R.C. 2950.031 and 2950.032, were severed from
R.C. Chapter 2950 and were rendered unenforceable. Id. at ¶66. Appellant argues on
appeal that the trial court should have applied the Bodyke holding and vacated his sentence
because it was based on his 2008 reclassification as a Tier III sexual offender by the Ohio
Attorney General, and was not based on a violation of the former Megan’s Law.
{¶ 11} Appellee argues that Bodyke may only be applied to cases that were still
pending on direct appeal on the date that Bodyke was announced. We have recently held
otherwise: “Following its expansive language, the supreme court has not limited its holding
in Bodyke to that case and to those sex offenders who had pending cases based on challenges
to their reclassifications. Rather, the supreme court has applied Bodyke to all sex offenders
who were reclassified by the Attorney General under R.C. 2950.031 and R.C. 2950.032.”
State v. Eads, 2d Dist. Montgomery No. 24696, 2011-Ohio-6307, ¶20. Failure to challenge
the reclassification provisions of the AWA on direct appeal is not a bar to raising a Bodyke
challenge through some other procedural mechanism. Id. at ¶23. We have also held that
sentences arising from an improper reclassification of an offender under the AWA are void.
State v. Pritchett, 2d Dist. Montgomery No. 24183, 2011-Ohio-5978, ¶28. A void sentence
may be reviewed at any time either on direct appeal or through a collateral attack of the
sentence. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶30.
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{¶ 12} The parties are aware that a motion to vacate a void sentence is not
specifically provided for in the Ohio Rules of Criminal Procedure. Appellant argues that
his motion should be treated as a Civ.R. 60(B) motion for relief from judgment. Civ.R.
60(B), a rule of civil procedure, is sometimes applied to criminal cases by reference to
Crim.R. 57(B), which allows a criminal court to look to the rules of civil procedure when no
appropriate criminal rule exists. Civ.R. 60(B)(4) allows for relief from judgment when a
prior determination upon which a judgment has been based has been reversed or otherwise
vacated. Civ.R. 60(B)(5) allows for relief from judgment for any other appropriate reason.
Appellant believes that the judgment entry of August 19, 2009, has essentially been reversed,
vacated, or nullified by Bodyke, and that he should be given relief from his judgment of
sentence through Civ.R. 60(B).
{¶ 13} Appellee, in keeping with the argument used by the trial court, contends that
Appellant is procedurally barred from relying on Civ.R. 60(B). Appellee submits that a
Civ.R. 60(B) motion cannot be used as a substitute for a direct appeal. It is a fundamental
principle of both civil and criminal procedure that a Civ.R. 60(B) motion is not a substitute
for a direct appeal. State v. Dunn, 2d Dist. Montgomery No. 21766, 2007-Ohio-4890; State
ex rel. Richard v. Cuyahoga Cty. Commrs., 89 Ohio St.3d 205, 729 N.E.2d 755 (2000).
Appellant did not file a direct appeal of his conviction and sentence. Appellee contends that
Appellant could have raised a constitutional separation of powers argument regarding his
sentence in a direct appeal, although he obviously could not have relied on Bodyke for
support as it had not been decided during the time that Appellant could have processed any
direct appeal. Appellee concludes that Appellant cannot use Civ.R. 60(B) to achieve relief
that may have been available through a direct appeal. As we have already noted, Bodyke
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has been applied to all offenders whose sexual offender status was reclassified under the
AWA, without regard to the manner in which the offender attempted to raise the issue with
the court. We have not limited relief only to cases that were on direct appeal when Bodyke
was announced.
{¶ 14} Appellee further argues that Appellant’s motion to vacate his sentence does
not meet the procedural requirements of a petition for postconviction relief under Crim.R. 35
and R.C. 2953.21. A petition for postconviction relief in many ways serves the same
purposes as a Civ.R. 60(B) motion. State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545,
882 N.E.2d 431, ¶11. A petition for postconviction relief filed under R.C. 2953.21(A) must
be filed within 210 days after the sentencing entry is journalized if no direct appeal is taken
of the conviction and sentence. State v. Carson, 2d Dist. Greene No. 2003-CA-76,
2004-Ohio-2741, ¶8. Appellant did not meet that deadline, nor did he attempt to satisfy the
exceptions for filing a late petition. See R.C. 2953.23(A). For this reason, Appellee
contends that there is an additional reason why we should not reach the merits of Appellant’s
motion to vacate.
{¶ 15} Ultimately, we need not determine whether Civ.R. 60(B) or R.C. 2953.21 was
properly invoked because Appellant’s motion to vacate can more correctly be characterized
as a Crim.R. 32.1 motion to withdraw his guilty plea. Crim.R. 32.1 allows an offender to
file a postsentence motion to withdraw or vacate a plea to correct a manifest injustice. We
have recently reviewed and granted relief pursuant to Bodyke arising from a postsentence
motion to withdraw a plea. Pritchett, supra. Given the expansive wording of Bodyke
directing us to apply its holding to all offenders reclassified under the AWA, and the fact
that a void sentence may be reviewed at any time, we review Appellant’s arguments under
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the law governing a postsentence motion to withdraw a plea rather under the more restrictive
rules governing Civ.R. 60(B) motions or petitions for postconviction relief. We are also
aware that Appellant could raise the arguments he raises in a delayed appeal pursuant to
App.R. 5. The manifest injustice that Appellant is attempting to correct would only be
magnified if we avoided reviewing the merits of his argument now, only to be compelled to
review them in a delayed appeal. Thus, fundamental fairness requires that we review the
merits of his appeal under the framework of a Crim.R. 32.1 motion to withdraw a plea.
{¶ 16} Crim.R. 32.1 states: “A motion to withdraw a plea of guilty or no contest
may be made only before sentence is imposed; but to correct manifest injustice the court
after sentence may set aside the judgment of conviction and permit the defendant to
withdraw his or her plea.”
{¶ 17} “Under Crim.R. 32.1, a defendant who files a post-sentence motion to
withdraw [his] guilty plea bears the burden of establishing a ‘manifest injustice.’ * * * A
manifest injustice has been defined as ‘a clear or openly unjust act’ that involves
‘extraordinary circumstances.’ We apply an abuse-of-discretion standard to a trial court's
decision on a motion to withdraw a guilty plea.” (Internal citations omitted). Xenia v.
Jones, 2d Dist. Greene No. 07-CA-104, 2008-Ohio-4733, ¶6. “A ‘manifest injustice’
comprehends a fundamental flaw in the path of justice so extraordinary that the defendant
could not have sought redress from the resulting prejudice through another form of
application reasonably available to him or her.” State v. Hartzell, 2d Dist. Montgomery
No. 17499, *2 (Aug. 20, 1999).
{¶ 18} Appellant was charged with failure to verify his address in violation of R.C.
2950.06, a first degree felony under the AWA. The 2008 amendments to R.C. 2950.06
10
significantly modified the registration and verification requirements for sexual offenders.
Appellant was required to verify his address annually for a period of ten years under
Megan’s Law, but pursuant to the AWA he was required to register and verify his address
every 90 days for life. Further, Appellant’s violation of the verification requirement would
have been a third-degree felony under Megan’s Law. It constituted a first-degree felony
under the AWA.
{¶ 19} Bodyke held that the 2008 AWA amendments to R.C. Chapter 2950 were
unconstitutional under the separation of powers doctrine. The specific statutory mechanism
for reclassifying offenders is found in R.C. 2950.031 and 2950.032. Bodyke declared R.C.
2950.031 and 2950.032 unconstitutional, and the statutes were severed from R.C. Chapter
2950. Bodyke further held that “R.C. 2950.031 and 2950.032 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. at ¶66.
{¶ 20} Appellant submits that the Ohio Supreme Court applied the Bodyke holding
to a case similar to his: State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, 946 N.E.2d
192. In Gingell, the defendant was convicted of rape in 1981 and was classified as a
sexually oriented offender under Megan's Law in 2003. To comply with Megan's Law,
Gingell was required to report once per year for ten years. A failure to register under this
requirement was a fifth-degree felony. Once the AWA was enacted, Gingell was
reclassified as a Tier III offender. Under the AWA, Gingell was required to report every 90
days for the rest of his life. Failure to register, under the AWA, was classified as an offense
of the same degree as the underlying offense. In Gingell's case, this was a first-degree
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felony. Gingell was indicted on and pleaded guilty to a charge of failure to verify his
address under the AWA. The trial court sentenced him to eight years in prison.
{¶ 21} Gingell appealed, arguing that the court had erred in retroactively applying
the requirements and penalties of the AWA to him. He argued that the AWA increased the
severity of his violation of R.C. 2950.06 to a first-degree felony. He contended that if the
court had applied the version of R.C. 2950.99 in place at the time of his original
classification, it would have made his failure to verify his address a fifth-degree felony. The
court of appeals upheld the sentence, and he appealed to the Ohio Supreme Court. During
the pendency of that appeal, the Ohio Supreme Court issued its decision in Bodyke. The
Ohio Supreme Court reversed Gingell’s conviction on the basis of the Bodyke holding
regarding the violation of the separation of powers doctrine, rather than on the retroactivity
argument raised by Gingell. Appellant contends that the trial court should have followed
Gingell and reversed his conviction even though he did not raise the legal theory used in
Bodyke at the time he was sentenced or on appeal.
{¶ 22} We agree with Appellant’s argument. We have been persuaded by a similar
argument in the recent Pritchett case, which was released after Appellant filed his brief in
this matter. In Pritchett, the offender was reclassified as a Tier III Sex Offender under the
AWA and was subsequently convicted and sentenced for violating R.C. 2950.05, failure to
notify of a change of address. Such a violation under Megan’s Law would have been a
third-degree felony, but under the new AWA provisions, it was a first degree felony with a
mandatory minimum three-year prison term. Pritchett was sentenced to a mandatory
three-year prison term. He did not file a direct appeal of his sentence. Almost a year after
he was sentenced, he filed a Crim.R. 32.1 postsentence motion to withdraw his plea. The
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trial court overruled the motion, and he filed an appeal to this Court. Based on the broad
holdings of both Bodyke and Williams, supra, we reviewed the merits of Pritchett’s appeal.
We agreed with the trial court that Pritchett’s violation of R.C. 2950.05 was valid both under
Megan’s Law and under the AWA, and was not a basis for reversing the underlying
judgment of the trial court. However, we held that his sentence was void, because it was
based on the increased penalty set forth in the AWA and not the penalty prescribed by
Megan’s Law. We determined that it would be a manifest injustice to continue Pritchett’s
incarceration based on a void statute and sentence. Id. at ¶28. We vacated the sentence
and remanded the case for a new sentencing hearing.
{¶ 23} In Pritchett, the ultimate error being corrected was the length of the
offender’s sentence and not the validity of the conviction itself. In this appeal, though, it is
unclear whether Appellant could have been charged at all under the 90-day notification
requirements of the AWA, since he was only required to register and verify his address
annually pursuant to the former Megan’s Law. The more appropriate remedy in this case is
to vacate the conviction itself as well as the guilty plea on which the conviction was based.
Conclusion
{¶ 24} In conclusion, Appellant is not procedurally barred from presenting the merits
of his appeal even though he failed to file a direct appeal of the sentence imposed on him on
August 19, 2009. The Ohio Supreme Court has held that AWA violates the constitutional
rule of separation of powers and constitutional prohibition against retroactive laws. The
judicial determination that the AWA is unconstitutional must be applied to all offenders who
were automatically reclassified under the AWA and were previously classified under
Megan’s Law. Appellant filed a motion to vacate his sentence that should more properly be
13
construed as a postsentence motion to withdraw his plea. Based on the record in this case,
the trial court should have granted the motion. Appellant’s assignment of error has merit,
and we hereby vacate Appellant’s guilty plea, conviction and sentence. The case is
remanded to the trial court for further proceedings according to law and consistent with this
Opinion.
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GRADY and DONOVAN, JJ., concur.
(Hon. Cheryl L. Waite, Seventh District Court of Appeals, sitting by assignment of
the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Mathias H. Heck
Johnna M. Shia
Katherine A. Szudy
Hon. Connie S. Price