State v. Hartman ( 2012 )

[Cite as State v. Hartman, 2012-Ohio-153.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 91040
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MICHAEL HARTMAN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART;
VACATED IN PART AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-485377
BEFORE: Blackmon, A.J., Kilbane, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: January 19, 2012
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ATTORNEYS FOR APPELLANT
Robert A. Dixon
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103
Timothy J. Potts
Standard Building, Suite 330
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
James D. May
Assistant County Prosecutor
The Justice Center 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
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PATRICIA ANN BLACKMON, A.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 461,
2011-Ohio-3374, 952 N.E.2d 1108. State v. Hartman, 130 Ohio St.3d 254,
2011-Ohio-5348, 957 N.E.2d 289.
{¶ 2} In State v. Hartman, 8th Dist. No. 91040, 2009-Ohio-1069, this
court affirmed Hartman’s convictions for importuning, compelling
prostitution, and public indecency. We also affirmed Hartman’s
classification as a Tier II offender under the Adam Walsh Act (“the AWA”).
The Ohio Supreme Court accepted review on propositions of law II and III.
{¶ 3} On direct appeal, Hartman argued in his third assigned error
that his classification under the Adam Walsh Act (“the AWA”) was
unconstitutional because it violated the Retroactivity Clause of the Ohio
Constitution and the Ex Post Fact Clause of the United States Constitution.
{¶ 4} In Williams, the Ohio Supreme Court held that the AWA as
applied to “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.” Id. at
¶ 22. S.B. 10, a.k.a AWA, was enacted on June 27, 2007, and made effective
on January 1, 2008.
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{¶ 5} Here, the subject offenses took place on August 17, 2006, prior to
the enactment of the AWA. Consistent with the holding in Williams, we find
that Hartman’s classification under the AWA was unconstitutional because
the offenses took place prior to the “enactment” of S.B. 10 in June 2007.
Consequently, we sustain the third assigned error, and vacate Hartman’s
classification as a Tier II Offender under the AWA, and remand the matter
for reclassification under the law that was in effect at the time he committed
the offenses.
{¶ 6} Judgment affirmed in part, vacated in part, and remanded for
proceedings consistent with this opinion.
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It is ordered that appellee and appellant share the 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. 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.
PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE
MARY EILEEN KILBANE, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR