State v. Sheriff ( 2012 )

[Cite as State v. Sheriff, 2012-Ohio-656.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-11-14
v.
JAMES A. SHERIFF, OPINION
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court
Trial Court No. CR 07 06 0122
Judgment Affirmed
Date of Decision: February 21, 2012
APPEARANCES:
James A. Sheriff, Appellant
William T. Goslee and Daniel J. LaRoche for Appellee
Case No. 8-11-14
SHAW, P.J.
{¶1} Defendant-appellant James A. Sheriff (“Sheriff”) appeals the August
3, 2011 judgment of the Logan County Court of Common Pleas resentencing and
reclassifying him as a sexually oriented offender under the law in effect at the time
he committed his offenses of sexual battery pursuant to the holding in State v.
Williams, 129 Ohio St. 3d 344, 2011-Ohio-3374.
{¶2} On September 11, 2007, Sheriff was indicted on two counts of
unlawful sexual conduct with a minor, in violation of R.C. 2907.04, felonies of the
third degree, and three counts of sexual battery, in violation of R.C.
2907.03(A)(5), also felonies of the third degree. On September 21, 2007, Sheriff
was arraigned and pled not guilty to all five counts.
{¶3} On January 10, 2008, a jury trial commenced. On January 11, 2008,
the jury returned a verdict of not guilty on both counts of unlawful sexual conduct
with a minor and one count of sexual battery. However, the jury found Sheriff
guilty on the remaining two counts of sexual battery.
{¶4} On February 25, 2008, Sheriff was sentenced to three years in prison
on each count of sexual battery, to be served concurrently. The trial court also
classified Sheriff as a Tier III sexual offender.
{¶5} Sheriff appealed and on October 6, 2008, this Court affirmed Sheriff’s
conviction and sentence. At the time, Sheriff was released on bond pending the
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outcome of his appeal. However, after the release of this Court’s opinion, the trial
court revoked Sheriff’s bond and remanded him into the care and custody of the
Ohio Department of Rehabilitation for the execution of his sentence.
{¶6} On June 24, 2011, Sheriff filed a “Request to Remove Classification,”
arguing that the trial court erred in classifying him as Tier III sexual offender.
Specifically, Sheriff asserted that S.B. 10, Ohio’s version of the Adam Walsh Act
(“AWA”), is unconstitutional and that the trial court lacked jurisdiction to classify
him as a Tier III sexual offender under that law.
{¶7} On July 11, 2011, the trial court held a hearing on Sheriff’s “Request
to Remove Classification.”
{¶8} On July 13, 2011, the Supreme Court of Ohio issued its decision in
State v. Williams, 129 Ohio St. 3d 344, 2011-Ohio-3374, in which it concluded
that S.B. 10 cannot be applied retroactively to offenders who committed their
offense prior to the enactment of the law on January 1, 2008. Accordingly, the
Court in Williams held that those offenders must be resentenced under the law in
effect at the time the offense for which they were convicted was committed.
{¶9} On July 14, 2011, the trial court issued its decision on Sheriff’s
“Request to Remove Classification.” Based on the holding of the Supreme Court
in Williams, the trial court concluded that Sheriff must be resentenced under S.B.
5, Ohio’s version of “Megan’s Law,” which was the law in effect at the time
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Sheriff committed his sexual battery offenses. Therefore, the trial court granted
Sheriff’s “Request to Remove Classification” and ordered that he be resentenced
under S.B. 5.
{¶10} On August 1, 2011, the trial court held a hearing on the matter. On
August 3, 2011, the trial court issued its Judgment Entry resentencing Sheriff
under S.B. 5 and reclassifying him as a “sexually oriented offender.”
{¶11} Sheriff subsequently filed this appeal pro se, asserting the following
assignment of error.
THE TRIAL COURT ABUSED IT’S [SIC] DISCRETION
WHEN IT DID NOT REMOVE FULLY DEFENDANT’S [SIC]
JAMES SHERIFF [SIC] CLASSIFICATION AND
REGISTRATIONAL [SIC] REQUIREMENTS AS REQUIRED
BY LAW AND IN DOING SO CREATED PREJUDICE TO
THE DEFENDANT.
{¶12} In his sole assignment of error, Sheriff contends that the trial court
erred when it failed to completely remove his classification and registration
requirements for his conviction on two counts of sexual battery. In particular,
Sheriff argues that he “is entitled to the benefit of no classification or
categorization of any sort due to not being placed on the proper classification in
the first place.” (Appt. Brief at 6). Notably, Sheriff cites no authority that
supports his contention, but rather, he completely overlooks the holding in State v.
Williams, 129 Ohio St. 3d 344, 2011-Ohio-3374, which is dispositive to this issue.
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{¶13} The facts in Sheriff’s case are similar to the ones in Williams. In that
case, Williams was indicted in 2007 for one count of unlawful sexual conduct with
a minor. Williams at ¶1. At the time Williams committed the offenses S.B. 5
(“Megan’s Law”) was the sentencing law in effect for sex offenses. Williams
eventually pled guilty to the charge and was sentenced under S.B. 10 (“AWA”),
which repealed and superseded S.B. 5, and was the new law in effect at the time of
his sentencing.1 Id. at ¶¶ 1-2. As a result, the trial court classified Williams as a
Tier II sexual offender under the provisions of S.B. 10. Id. at ¶ 3.
{¶14} Williams appealed, asserting that the provisions of S.B. 10 cannot
constitutionally be applied retroactively to a defendant whose offense occurred
prior to the effective date of that statute. Williams at ¶4. The Supreme Court
agreed, concluding “that S.B. 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. ¶ 21. The Supreme Court then reversed the prior judgment sentencing
and classifying Williams as a Tier II sexual offender under S.B. 10, “and
remand[ed] the cause for resentencing under the law in effect at the time Williams
committed the offense.” Id. at ¶ 23 (emphasis added).
1
Revised Code Section 2950.03, a component of S.B. 10, imposes registration requirements for offenders
sentenced on or after January 1, 2008, regardless of when the offense was committed.
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{¶15} We believe that the Supreme Court in Williams squarely addressed
the issue raised by Sheriff on appeal. Because Sheriff committed the offenses for
which he was convicted prior to January 1, 2008, the effective date of S.B. 10, he
must be sentenced under the law in effect at the time the offenses were
committed—i.e., S.B. 5. Consequently, the trial court properly determined that
Sheriff is not subject to the Tier III sexual offender classification under S.B. 10,
and that he had to be resentenced and reclassified under the provisions of S.B. 5.
After conducting a hearing pursuant to the procedures set forth in S.B. 5, the trial
court determined that it was appropriate to classify Sheriff as a “sexually oriented
offender,” which requires him to register with the Sheriff in the county in which
he resides for a period of ten years.
{¶16} We note that Sheriff’s reclassification subjects him to the much less
restrictive requirements of S.B. 5. Under that statutory scheme, the offender is
entitled to a hearing where the trial court determines whether he should be
classified as a sexual predator, a habitual sex offender or a habitual child-victim
offender, or a sexually oriented offender. In making this determination, the trial
court considers various factors and exercises its discretion in classifying the
offender. See former R.C. 2950.09.
{¶17} Under S.B. 10, the offender is classified according to a three tiered
system based solely on the offense committed by the offender. As a result, the
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trial court no longer has any discretion to consider factors like the circumstances
of the crime or the offender’s likelihood to reoffend when imposing the
classification on the offender. See R.C. 2950.01(E), (F), and (G). In addition, the
registration and community notification requirements for offenders under S.B. 10
are now far more restrictive and demanding than those under S.B. 5. Accordingly,
we fail to see how Sheriff is prejudiced by being reclassified under the less
stringent statutory scheme of S.B. 5.
{¶18} For all these reasons, we find no error in the trial court’s decision to
reclassify Sheriff as a sexually oriented offender under S.B. 5. Sheriff’s
assignment of error is therefore overruled and the judgment of the trial court is
affirmed.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
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