State v. Omiecinski ( 2012 )

[Cite as State v. Omiecinski, 2012-Ohio-98.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 90510
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
PATRICK OMIECINSKI
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-492609
BEFORE: Boyle, P.J., Sweeney, J., and Celebrezze, J.
RELEASED AND JOURNALIZED: January 12, 2012
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ATTORNEY FOR APPELLANT
Susan J. Moran
55 Public Square
Suite 1616
Cleveland, Ohio 44113-1901
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Pamela Bolton
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:
{¶ 1} This appeal is before this court on remand from the Ohio Supreme Court for
application of State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108.
{¶ 2} Defendant-appellant, Patrick Omiecinski, pleaded guilty to three counts of sexual
battery in August 2007 for events that occurred in September 2006. In September 2007, the trial
court classified Omiecinski as a sexually oriented offender and sentenced him to four years in
prison. The trial court also informed Omiecinski that he would be subject to five years of
postrelease control and “advised” him that, as of January 2008, he would be classified as a Tier
III sex offender under the Adam Walsh Act (“AWA” or “S.B. 10”).
{¶ 3} Omiecinski appealed, challenging his consecutive sentence, his plea, and the
AWA as applied to him. See State v. Omiecinski, 8th Dist. No. 90510, 2009-Ohio-1066. This
court affirmed his consecutive sentence, holding that it was neither contrary to law nor an abuse
of discretion, upheld his plea, concluding that the trial court did not err when it failed to inform
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him at his plea hearing that he would be subject to the AWA in the future, and determined that
his constitutional challenge to the AWA was premature, finding that he had not yet been
classified under it. Id. at ¶19, 43, and 45, respectively.
{¶ 4} Omiecinski appealed to the Ohio Supreme Court, which held the appeal for its
decision in Williams, supra. See State v. Omiecinski, 126 Ohio St.3d 1533, 2010-Ohio-3825,
931 N.E.2d 1097.
{¶ 5} The Ohio Supreme Court released its decision in Williams in July 2011. It held
that “S.B. No. 10, as applied to defendants who committed sex offenses prior to its enactment,
violates Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly
from passing retroactive laws.” Id., 129 Ohio St.3d at the syllabus.
{¶ 6} Omiecinski committed his offenses prior to the enactment of S.B. 10. A review
of the record here, however, reveals that Omiecinski was never classified under S.B. 10. He was
sentenced in September 2007 and classified at that time as a sexually oriented offender under
Megan’s Law. Omiecinski filed his notice of appeal in October 2007. His case has been
pending appeal — in this court or the Ohio Supreme Court — since that time. Accordingly, we
conclude that Omiecinski’s classification as a sexually oriented offender under Megan’s Law
remains intact, and the Ohio Supreme Court’s decision in Williams established that he cannot be
reclassified under the AWA.
{¶ 7} Having concluded that Omiecinski is classified as a sexually oriented offender, his
second assignment of error dealing with his plea is moot (he argued that his plea was invalid
because the trial court did not inform him that he would be subject to the AWA in the future).
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As for his first assignment of error dealing with his consecutive sentence, our opinion in State v.
Omiecinski, 8th Dist. No. 90510, 2009-Ohio-1066, released on March 12, 2009, remains valid.
Judgment affirmed.
FRANK D. CELEBREZZE, JR., J., and
JAMES J. SWEENEY, J., CONCUR
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. The defendant’s conviction having been affirmed,
any bail pending appeal is terminated. Case remanded to the trial court for execution of
sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.