State v. Wheeler , 2016 Ohio 1069 ( 2016 )


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  • [Cite as State v. Wheeler, 2016-Ohio-1069.]
    STATE OF OHIO                     )                IN THE COURT OF APPEALS
    )ss:             NINTH JUDICIAL DISTRICT
    COUNTY OF SUMMIT                  )
    STATE OF OHIO                                      C.A. No.       27841
    Appellee
    v.                                         APPEAL FROM JUDGMENT
    ENTERED IN THE
    MARK STEVEN WHEELER                                COURT OF COMMON PLEAS
    COUNTY OF SUMMIT, OHIO
    Appellant                                  CASE No.   CR 2015 03 0902
    DECISION AND JOURNAL ENTRY
    Dated: March 16, 2016
    WHITMORE, Presiding Judge.
    {¶1} Appellant, Mark S. Wheeler, appeals from his convictions in the Summit County
    Court of Common Pleas. This Court affirms.
    I
    {¶2} Wheeler was convicted of attempted rape in 1996. In 2000, while he was still
    serving his prison sentence, the trial court held a hearing and determined that Wheeler was a
    sexual predator under Megan’s Law.
    {¶3} In 2013, Wheeler was charged with two counts of failing to provide notice of a
    change of address, in violation of R.C. 2950.05. Wheeler moved to dismiss arguing that he was
    unconstitutionally classified as a sexual predator. After his motion was denied, Wheeler pled no
    contest and appealed to this Court. This Court affirmed the trial court finding, “Wheeler could
    be prosecuted for violating the registration requirements that were imposed on him under
    2
    Megan’s Law, even though they were imposed on him retroactively.” State v. Wheeler, 9th Dist.
    Summit No. 27157, 2014-Ohio-3315, ¶ 8 (“Wheeler I”).
    {¶4}    In 2015, Wheeler was indicted for (1) failing to provide notice of a change of
    address and (2) failing to verify current address, in violation of R.C. 2950.05 and 2950.06
    respectively. Both charges are third-degree felonies. Defendant pled not guilty and moved to
    dismiss the indictments.
    {¶5} Wheeler argued that, at the time of his conviction, the only sex offender
    classification in Ohio was that of habitual sex offender, which did not apply to him as he had just
    the one conviction. He further contended that his subsequent classification violated the United
    States and the Ohio Constitutions’ prohibitions on ex post facto laws and double jeopardy. The
    trial court noted that this Court had previously addressed these arguments in Wheeler I. The trial
    court denied the motion to dismiss “[f]or the reasons stated in that decision.”
    {¶6} Thereafter, Wheeler pled no contest, and the trial court found him guilty as
    charged. The court sentenced Wheeler to 36 months in prison on each of the charges. The court
    ordered those sentences to run concurrent with each other and concurrent with a four-year
    sentence imposed in case number CR 2013 01 0113.
    {¶7} Wheeler appeals raising two assignments of error for review.
    Assignment of Error Number One
    APPELLANT’S INDICTMENT VIOLATES OHIO LAW AS DOUBLE
    JEOPARDY AND APPLICATION OF A LAW EX POST FACTO AGAINST
    HIM.
    {¶8} In his first assignment of error, Wheeler argues that Ohio’s sex offender laws, as
    applied to him, violate constitutional prohibitions on ex post facto laws and double jeopardy.
    The State contends that Wheeler “rehashes issues settled” in Wheeler I. We agree with the State.
    3
    {¶9} On appeal from a no contest plea, a defendant may assert that the trial court
    prejudicially erred in a ruling on a pretrial motion. Crim.R. 12(I). In the present case, Wheeler
    filed a pretrial motion to dismiss arguing that Ohio’s sex offender registration statutes could not
    be applied retroactively to him under State v. Williams, 
    129 Ohio St. 3d 344
    , 2011-Ohio-3374 and
    State v. Raber, 
    134 Ohio St. 3d 350
    , 2012-Ohio-5636. After that motion was denied, he pled no
    contest preserving his right to appeal these issues to this Court.
    {¶10} In Williams, the Ohio Supreme Court found that, following the passage of the
    Adam Walsh Act, R.C. Chapter 2950 is now punitive. 2011-Ohio-3374 at ¶ 16 (noting dramatic
    and marked changes to the statutory scheme). Consequently, the Court held that it violated the
    Ohio Constitution’s prohibition on retroactive laws when applied to defendants who committed
    offenses prior to its enactment. 
    Id. at syllabus.
    In Raber, the Court again analyzed the Adam
    Walsh Act and found “because sex-offender registration is now punitive in nature, double-
    jeopardy protections barred the court from subsequently classifying [defendant] as a * * * sex
    offender at a new proceeding held more than a year after its original sentence.” (Emphasis
    added.) 2012-Ohio-5636 at ¶ 4. The Court acknowledged its earlier cases finding that Megan’s
    Law was civil and remedial, but reiterated that changes made by the Adam Walsh Act were
    punitive. 
    Id. at ¶
    22-23.
    {¶11} Megan’s Law became effective in Ohio in 1997 and was amended in 2003. The
    Adam Walsh Act became effective in 2008. Wheeler was convicted in 1996 and classified under
    Megan’s Law in 2000. There is no indication that Wheeler was ever reclassified under the Adam
    Walsh Act. We find, as we did in Wheeler I, that the case law interpreting Megan’s Law, not the
    Adam Walsh Act, is applicable to Wheeler.
    4
    {¶12} In Wheeler I, we noted differences in the Ohio Supreme Court’s treatment of
    Megan’s Law and the Adam Walsh Act. 2014-Ohio-3315 at ¶ 6-7. We explained:
    Prior to Raber, the Ohio Supreme Court held in State v. Williams, 
    88 Ohio St. 3d 513
    , 528 (2000), and State v. Cook, 
    83 Ohio St. 3d 404
    , 413 (1998), that, since
    Megan’s Law is civil and remedial, it may be applied retroactively without
    violating the Double Jeopardy Clause or prohibition on retroactive laws. Unless
    the Supreme Court overrules those decisions regarding Megan’s Law, this Court
    is bound to follow them. State v. Dickens, 9th Dist. Lorain No. 07CA009218,
    2008-Ohio-4404, ¶ 25.
    
    Id. at ¶
    7. Wheeler has not pointed to any case law overruling Williams, 
    88 Ohio St. 3d 513
    , or
    Cook, 
    83 Ohio St. 3d 404
    , nor have we found any in our independent research.
    {¶13} In his current appeal, Wheeler also references changes made to Megan’s Law in
    2003, including his inability to petition to have his classification removed. We did not explicitly
    address the 2003 amendments in Wheeler I. The Ohio Supreme Court, however, addressed the
    2003 amendments in State v. Ferguson, 
    120 Ohio St. 3d 7
    , 2008-Ohio-4824. The Court found
    “the remedial nature of R.C. Chapter 2950 was not altered by the elimination of the provision
    that permitted a judge to remove the sexual-predator classification.” 
    Id. at ¶
    33. The Court
    concluded that the amended statute did not violate the retroactivity clause of the Ohio
    Constitution, nor was it unconstitutional on ex post facto grounds. 
    Id. at ¶
    40, 43. Following this
    Ohio Supreme Court precedent, we reject Wheeler’s argument that the “2003 amendments
    became punitive, rather than remedial.”
    {¶14} Wheeler’s first assignment of error is overruled.
    Assignment of Error Number Two
    THE TRIAL COURT WAS IN ERROR IN SENTENCING APPELLANT TO
    FOUR YEARS IN HIS PRIOR CASE.
    5
    {¶15} In his second assignment of error, Wheeler argues that he was improperly
    sentenced in his earlier 2013 case. We are without jurisdiction to address the merits of this
    assignment of error.
    {¶16} A notice of appeal shall designate the judgment or order appealed. App.R. 3(D).
    “An appellate court ‘is without jurisdiction to review a judgment or order that is not designated
    in the appellant’s notice of appeal.’” State v. Chavers, 9th Dist. Wayne No. 07CA0065, 2008-
    Ohio-3199, ¶ 14, quoting State v. Dixon, 9th Dist. Summit No. 21463, 2004-Ohio-1593, ¶ 7.
    {¶17} Wheeler filed a notice of appeal in case number CR 2015 03 0902 and designated
    that he was appealing from the guilty verdict and sentence entered therein on May 18, 2015.
    Wheeler’s notice of appeal does not designate any orders from his 2013 case.
    {¶18} As Wheeler’s second assignment of error concerns an order in a case that he did
    not appeal, we are without jurisdiction to review it.
    III
    {¶19} Wheeler’s first assignment of error is overruled. We lack jurisdiction to address
    his second assignment of error. The judgment of the Summit County Court of Common Pleas is
    affirmed.
    Judgment affirmed.
    There were reasonable grounds for this appeal.
    We order that a special mandate issue out of this Court, directing the Court of Common
    Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
    of this journal entry shall constitute the mandate, pursuant to App.R. 27.
    6
    Immediately upon the filing hereof, this document shall constitute the journal entry of
    judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
    period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
    instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
    mailing in the docket, pursuant to App.R. 30.
    Costs taxed to Appellant.
    BETH WHITMORE
    FOR THE COURT
    MOORE, J.
    CELEBREZZE, J.
    CONCUR.
    (Celebrezze, J., of the Eighth District Court of Appeals, sitting by assignment.)
    APPEARANCES:
    RYAN RAMAGE, Attorney at Law, for Appellant.
    SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
    Prosecuting Attorney, for Appellee.
    

Document Info

Docket Number: 27841

Citation Numbers: 2016 Ohio 1069

Judges: Whitmore

Filed Date: 3/16/2016

Precedential Status: Precedential

Modified Date: 3/17/2016