State v. Ortega-Martinez , 2011 Ohio 2540 ( 2011 )

[Cite as State v. Ortega-Martinez, 2011-Ohio-2540.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95656
STATE OF OHIO
PLAINTIFF-APPELLANT
vs.
ANGEL ORTEGA-MARTINEZ
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-534907
BEFORE: Stewart, P.J., Sweeney, J., and Jones, J.
RELEASED AND JOURNALIZED: May 26, 2011
ATTORNEYS FOR APPELLANT
William D. Mason
Cuyahoga County Prosecutor
BY: Daniel T. Van
Katherine E. Mullin
Assistant County Prosecutors
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Robert L. Tobik
Cuyahoga County Public Defender
BY: Cullen Sweeney
Frank Cavallo
Assistant Public Defenders
310 Lakeside Avenue, Suite 400
Cleveland, OH 44113
MELODY J. STEWART, P.J.:
{¶ 1} In 2001, appellee Angel Ortega-Martinez was convicted of
statutory rape in Tennessee and classified under Tennessee law as a sexual
offender.1 After his release from prison, Ortega-Martinez moved to Ohio and
registered his address with the Cuyahoga County Sheriff’s Office. Pursuant
to the provisions of Chapter 2950 of the Ohio Revised Code in effect at that
time, as a sexually oriented offender, Ortega-Martinez was required to verify
his address annually for ten years. Beginning in August 2003,
Ortega-Martinez registered annually as required by law.
{¶ 2} In July 2007, the Ohio General Assembly repealed the existing
sexual offender registration statutes and replaced them with Ohio’s version of
the Adam Walsh Act (AWA) under which a sexual offender is classified using a
three-tiered system based solely upon the offense committed. Ortega-
Martinez was notified that, pursuant to R.C. 2950.031 and 2950.032, the Ohio
Attorney General had reclassified him as a Tier II sex offender.
Ortega-Martinez was informed that beginning in January 2008 he was
required to register every 180 days for 25 years.2
There were only two possible sexual offender classifications available under Tennessee law
1
at that time: sexual offender or violent sexual offender.
On March 5, 2008, Ortega-Martinez filed a civil petition contesting his reclassification under
2
the AWA. While this appeal was pending, the trial court granted Ortega-Martinez’s petition and found
that, pursuant to State v. Bodyke, 126 Ohio St.3d, 266, 2010-Ohio-2424, 933 N.E.2d 753,
Ortega-Martinez’s reclassification was unconstitutional. The state has appealed this decision.
{¶ 3} On June 3, 2010, the Supreme Court of Ohio decided Bodyke, in
which it concluded that 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, was an unconstitutional violation of the
separation-of-powers doctrine. As a remedy, the court held “that R.C.
2950.031 and 2950.032 are severed and, that after severance, they may not be
enforced.” Id. at ¶66.
{¶ 4} Ortega-Martinez was indicted for failing to verify his address on
January 9, 2010 in violation of R.C. 2950.06(F), a fourth degree felony.
Ortega-Martinez filed a motion to dismiss the indictment on the grounds that
it was based upon the attorney general’s unconstitutional reclassification of
his sexual offender status per Bodyke. The state opposed the motion and
argued that Bodyke applied only to offenders whose original sexual offender
classification was adjudicated by an Ohio court, not to out-of-state offenders
like Ortega- Martinez. The state also contested the use of a motion to dismiss
as a challenge to an indictment that they claimed was facially valid. The trial
court granted Ortega-Martinez’s motion to dismiss the indictment on August
27, 2010. The state timely appeals this judgment and raises two assignments
of error.
{¶ 5} “I. The trial court erred in finding that the defendant’s
indictment was based on the Attorney General’s unconstitutional
reclassification.”
{¶ 6} It is the state’s contention that Bodyke is limited to those cases in
which there was an adjudication of a sexual offender’s classification by an
Ohio court prior to the attorney general’s notice of reclassification. The state
maintains that with Ortega-Martinez, as with all out-of-state offenders, the
Ohio sexual offender classification arose by operation of law and not by court
order. The state argues that because there is no judicial order from an Ohio
court classifying out-of-state offenders, there can be no violation of the
separation of powers doctrine and, therefore, the attorney general is not
precluded from reclassifying the offender under the new Ohio classifications.
{¶ 7} Shortly after Bodyke was released, this court was called upon to
determine whether that holding also applied to an out-of-state offender whose
sexual offender status had been reclassified by the Ohio Attorney General. In
Majewski v. State, 8th Dist. Nos. 92372 and 92400, 2010-Ohio-3178, the
defendant had been convicted of sexual assault and attempted sexual assault
in Hawaii and was classified as a sexually oriented offender, the least
restrictive classification. After release from prison, he moved to Ohio and
registered with the sheriff’s office. In 2007, he was notified that, pursuant to
the passage of S.B. 10, the Ohio Attorney General had reclassified him as a
Tier III sex offender, the most restrictive classification, which required that he
register with the sheriff’s office every 90 days for life. Majewski contested his
reclassification arguing that the AWA was unconstitutional. The trial court
upheld the reclassification.
{¶ 8} On appeal, we reversed, stating:
{¶ 9} “In Bodyke, the Ohio Supreme Court recently determined that the
AWA violates the separation of power doctrine, stating the following: ‘The
AWA’s provisions governing the reclassification of sex offenders already
classified by judges under Megan’s Law violates the separation-of-powers
doctrine for two related reasons: the reclassification scheme vests the
executive branch with authority to review judicial decisions, and it interferes
with the judicial power by requiring the reopening of final judgments.’ Id. at
¶55.
{¶ 10} “Essentially, the AWA is a legislative mechanism to reopen the
judgments on countless sex offender classifications, and reclassify those
individuals, usurping the initial judgment of the trial court. Only appellate
courts have the power to affirm, reverse, or modify a final judgment. Bodyke
at ¶58; Section 3(B)(2), Article IV, Ohio Constitution.”
{¶ 11} The state appealed our decision in Majewski to the Ohio Supreme
Court upon the identical argument raised in this appeal. On December 15,
2010, the supreme court dismissed the appeal as not involving any substantial
constitutional question. Majewski v. State, 127 Ohio St.3d 1462,
2010-Ohio-6008, 938 N.E.2d 364 (Table). Accordingly, our holding that
Bodyke applies to out-of-state offenders remains controlling precedent in this
jurisdiction. The state’s first assignment of error is overruled.
{¶ 12} We note that the Fifth District Court of Appeals has also reached
the same conclusion. In Clager v. State, 5th Dist. No. 10-CA-49,
2010-Ohio-6074, Clager was convicted in Texas of possessing child
pornography. He then moved to Ohio in 2003. In 2007, he received notice
that he had been reclassified as a Tier II offender under the AWA. He
challenged the new classification, claiming that the Ohio Attorney General’s
reclassification was unconstitutional and barred by Bodyke. Clager argued
that in one of the cases reviewed by the Ohio Supreme Court, in In re
Sexual-Offender Reclassification Cases, 126 Ohio St.3d 322, 2010-Ohio-3753,
933 N.E.2d 801, ¶63, the court reversed the reclassification of an out-of-state
offender who had never been classified in Ohio under Megan’s Law on
separation of powers grounds. (“The judgments of the courts of appeals in the
following cases [including Robinson v. State, Hamilton App. No. C-090002] are
reversed as to those portions of the judgments that rejected constitutional
challenges to the Adam Walsh Act on separation-of-powers grounds, and the
causes are remanded to the trial courts for further proceedings, if any,
necessitated by State v. Bodyke.” Id. at ¶15. The appellate court agreed and
held, that “out-of-state offenders are not subject to the Ohio Attorney
General’s reclassification as it violates the separation of powers doctrine.”
Clager at ¶25.
{¶ 13} “II. The trial court erred in dismissing the indictment where the
indictment was valid on its face.”
{¶ 14} The state’s second assignment of error asserts that the trial court
erred in dismissing the indictment where the indictment was valid on its face.
The state argues that Ortega-Martinez’s motion questions the state’s ability
to prove the indictment, and therefore, dismissal is not proper.
{¶ 15} As a general rule, “[a] pretrial motion must not involve a
determination of the sufficiency of the evidence to support the indictment. If
the indictment is valid on its face, a motion to dismiss should not be granted.”
State v. Preztak, 181 Ohio App.3d 106, 2009-Ohio-62, 907 N.E.2d 1254, ¶12,
citing State v. Eppinger, 162 Ohio App.3d 795, 2005-Ohio-4155, 835 N.E.2d
746. However, the Supreme Court of Ohio has carved out an exception to the
general rule, noting that a court may consider material outside the face of the
indictment if the “motion did not embrace what would be the general issue at
trial.” State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671,
¶18; Crim.R. 12(C). The court may consider briefs, affidavits, testimony, and
other exhibits in deciding the motion. Id. However, a court may not
determine a pretrial motion to dismiss if it requires the trial court to also
determine the general issue for trial. Id.{¶ 16} In the instant case, the trial court did not impermissibly decide
the issue for trial in ruling on Ortega-Martinez’s motion to dismiss.
Ortega-Martinez’s motion did not address what would be the general factual
issue for trial (whether the evidence showed Ortega-Martinez failed to verify
his address on January 1, 2008); rather, it asserted that the question of
whether Ortega-Martinez’s indictment for failure to verify was predicated on
an unconstitutional reclassification by the Ohio Attorney General. Because
Ortega-Martinez’s motion did not require a determination of the factual issue
for trial, the trial court could properly consider the motion under Crim.R.
12(C).
{¶ 17} This court has held that an unlawful reclassification under Ohio’s
AWA cannot serve as the predicate for the crime of failure to verify. State v.
Smith, 8th Dist. No. 92550, 2010-Ohio-2880, ¶29; State v. Page, 8th Dist. No.
94369, 2011-Ohio-83. Because appellant’s indictment was predicated on an
unlawful reclassification, he cannot be convicted of the offense charged. The
trial court did not err by dismissing the indictment. The state’s second
assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant his 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 Cuyahoga
County Court of Common Pleas 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.
MELODY J. STEWART, PRESIDING JUDGE
JAMES J. SWEENEY, J., and
LARRY A. JONES, J., CONCUR