State v. Caldero ( 2012 )


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  • [Cite as State v. Caldero, 
    2012-Ohio-11
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 96719
    STATE OF OHIO
    PLAINTIFF-APPELLANT
    vs.
    WILLIAM A. CALDERO
    DEFENDANT-APPELLEE
    JUDGMENT:
    AFFIRMED
    Criminal Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CR-522121
    BEFORE: Keough, J., Kilbane, P.J., and Blackmon, A.J.
    RELEASED AND JOURNALIZED: January 5, 2012
    ATTORNEYS FOR APPELLANT
    William D. Mason
    Cuyahoga County Prosecutor
    BY:    Daniel T. Van
    James M. Price
    Assistant Prosecuting Attorneys
    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
    Suite 200
    Cleveland, OH 44113
    KATHLEEN ANN KEOUGH, J.:
    {¶ 1} Plaintiff-appellant, the state of Ohio, appeals the trial court’s decision
    granting the motion to withdraw guilty plea filed by defendant-appellee, William A.
    Caldero (“Caldero”). For the reasons that follow, we affirm.
    {¶ 2} In 2003, Caldero pled guilty to sexual battery; the trial court sentenced him
    to three years in prison and classified him as a sexually oriented offender under Megan’s
    Law.   As a sexually oriented offender, Caldero was required to verify his address
    annually for ten years upon his release from prison. At the time of his classification and
    under former R.C. 2950.99, failure to properly register as a sexually oriented offender
    was a felony of the fifth-degree.
    {¶ 3} As of January 1, 2008, the Ohio General Assembly repealed Megan’s Law
    and through S.B. 10 enacted a new sex offender law, the Adam Walsh Act (“AWA”).
    As a result of the AWA, Caldero was reclassified by the Ohio attorney general as a Tier
    III sex offender. This new classification required Caldero to verify his address every 90
    days for life.
    {¶ 4} On April 10, 2008, Caldero registered with the Cuyahoga County Sheriff’s
    Office as ordered under the new AWA provisions. The “Notice of Registration,” which
    was presented as State’s exhibit 1 at the motion hearing, provided that Caldero’s next
    registration date was January 13, 2009, which was less than one year from his April 10,
    2008 registration, but was on the one-year anniversary of when he would have been
    required to register under Megan’s Law.
    {¶ 5} Caldero did not register on January 13, 2009, and was subsequently charged
    with violating a provision of the AWA, i.e., failure to verify his address pursuant to R.C.
    2905.06(F), a felony of the third degree. He pled guilty to the charge and the trial court
    imposed a four year prison term.
    {¶ 6} Subsequently, the Ohio Supreme Court issued its decision in State v.
    Bodyke, 
    126 Ohio St.3d 266
    , 
    2010-Ohio-2424
    , 
    933 N.E.2d 753
    , declaring that the
    retroactive reclassification of previously convicted sexual offenders under Ohio’s AWA
    was unconstitutional.
    {¶ 7} In March 2011, Caldero filed a motion to withdraw his guilty plea pursuant
    to Crim.R. 32.1 based on the authority of the Bodyke decision. Following a hearing, the
    trial court granted Caldero’s motion. The State appeals from this judgment.
    {¶ 8} A post-sentence motion to vacate a guilty plea is addressed to the sound
    discretion of the trial court and an appellate court’s review of a trial court’s denial of a
    post-sentence motion to withdraw a guilty plea is limited to a determination of whether
    the trial court abused its discretion. State v. Blatnik (1984), 
    17 Ohio App.3d 201
    , 202,
    
    478 N.E.2d 1016
    . The term “abuse of discretion” connotes more than an error of law or
    judgment; it implies that the court’s decision is unreasonable, arbitrary or unconscionable.
    Blakemore v. Blakemore (1983), 
    5 Ohio St.3d 217
    , 219, 
    450 N.E.2d 1140
    . Absent an
    abuse of discretion on the part of the trial court in making the ruling, its decision must be
    affirmed. State v. Xie (1992), 
    62 Ohio St.3d 521
    , 527, 
    584 N.E.2d 715
    .
    {¶ 9} In its sole assignment of error, the State contends that the trial court erred
    when it granted Caldero’s motion to withdraw his guilty plea. The State claims that
    Caldero was not prosecuted under the AWA, but argues that because Caldero did not
    register his address pursuant to Megan’s Law, his conviction was proper under Megan’s
    Law.
    {¶ 10} Although the State argues that the Caldero was prosecuted for violating
    Megan’s Law, we find the only law governing registration for sexual offenders in effect
    at the time of Caldero’s indictment was the AWA.1 Therefore, the AWA was the basis
    for his prosecution. In State v. Gingell, 
    128 Ohio St.3d 444
    , 
    2011-Ohio-1481
    , 
    946 N.E.2d 192
    , the Ohio Supreme Court held that a defendant “charged [with failing to
    register] after his reclassification and before Bodyke” was prosecuted under the AWA.
    Id. at ¶8.
    {¶ 11} In this case, Caldero was originally classified as a sexually oriented
    offender under Megan’s Law. He was then reclassified under the AWA as a Tier III
    offender. Before Bodyke was announced and his original classification was reinstated,
    he was charged with violating the reporting requirements of the AWA.                                 However,
    because Caldero was originally classified under Megan’s Law, any reporting
    requirements imposed on him under the AWA were unlawfully imposed, and therefore,
    cannot form the basis for a reporting violation.
    {¶ 12} Moreover, the penalty Caldero faced further evidences that he was charged
    with violating the AWA and not Megan’s Law. For Caldero, under the AWA, failure to
    verify is a felony of the third degree, whereas, under Megan’s Law, in effect at the time of
    Caldero’s original classification, failure to verify was a fifth degree felony. In State v.
    Page, 8th Dist. No. 94369, 
    2011-Ohio-83
    , this court interpreted Bodyke to mean that the
    AWA provisions, including the enhanced penalty provisions, cannot apply to Megan’s
    1
    The parties reference the preliminary injunction imposed in Cuyahoga County Court of Common Pleas
    Case Number CV-648938, which prohibited the State from applying the AWA to Caldero. The order further
    required Caldero to register under Megan’s Law “as if Megan’s Law was still in effect after January 1, 2008.”
    Irrespective of the order, Megan’s Law had been repealed and could not be revived by a court order to serve as the
    basis for prosecution for failure to verify.
    Law offenders.      Id. at ¶12; see, also, State v. Grunden, 8th Dist. No. 95909,
    
    2011-Ohio-3687
     (enhanced penalties under the AWA provides an additional reason for
    vacating an unlawful registration-related conviction). When Caldero entered his guilty
    plea, he pled guilty to a third degree felony and received a four-year sentence, in
    accordance with the penalty guidelines under the AWA. Accordingly, the AWA was the
    basis for Caldero’s prosecution.
    {¶ 13} The State’s final argument is that the trial court abused its discretion in
    granting Caldero’s motion to withdraw his guilty plea because he was not in compliance
    with the reporting requirements under Megan’s Law when he failed to register on his
    anniversary date pursuant to former R.C. 2950.06.
    {¶ 14} Whether Caldero was in compliance with Megan’s Law is a question of fact
    before the trial court, not this court. The only issue before us is whether the trial court
    abused its discretion in granting Caldero’s motion to withdraw his guilty plea. Our
    review of the trial court’s decision is for an abuse of discretion — whether it is
    unreasonable, arbitrary, or unconscionable. In light of the facts and circumstances of the
    case, we find that the trial court did not abuse its discretion in allowing the guilty plea to
    be withdrawn.
    {¶ 15} Accordingly, the State’s assignment of error is overruled.
    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 issue out of this court directing the common
    pleas 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
    MARY EILEEN KILBANE, P.J., and
    PATRICIA ANN BLACKMON, A.J., CONCUR