State v. Kimbrough , 2012 Ohio 1773 ( 2012 )

[Cite as State v. Kimbrough, 2012-Ohio-1773.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellant : C.A. CASE NO. 24746
vs. : T.C. CASE NO. 11CR409
ROBERT L. KIMBROUGH : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellee :
.........
OPINION
Rendered on the 20th day of April, 2012.
.........
Mathias H. Heck, Jr., Pros. Attorney; Johnna M. Shia, Asst. Pros. Attorney, Atty. Reg.
No. 0067685, P.O. Box 972, Dayton, OH 45422 Attorneys for Plaintiff-Appellant
Anthony W. Sullivan, 120 West Second Street, Suite 2050, Dayton OH 45402-1504
Attorney for Defendant-Appellee
.........
FISCHER, J. (sitting by assignment):
{¶ 1} The state of Ohio appeals from the termination entry ordering
defendant-appellee Robert Kimbrough to serve five years of community-control
sanctions for failing to notify the sheriff of Montgomery County that he had changed his
address as required by R.C. 2950.05(A).
2
{¶ 2} In December 2005, Kimbrough was convicted of gross sexual imposition
and two counts of rape. He, therefore, became subject to the notification requirements
of Ohio’s version of Megan’s Law. See former R.C. Chapter 2950. At the time, former
R.C. 2950.05(A) required those required to register under R.C. 2950.04 to notify the
sheriff “at least twenty days prior to changing the offender’s . . . residence address * * *
.” Former R.C. 2950.05(F)(1) provided: “No person who is required to notify a sheriff of
a change of address pursuant to division (A) of this section shall fail to notify the
appropriate sheriff in accordance with that division.” A violation of former R.C. 2950.05
was a third-degree felony. Former R.C. 2950.99(A)(1)(a)(i).
{¶ 3} In 2007, the General Assembly enacted the Ohio version of the federal
Adam Walsh Act, P.L. No. 109-248, 120 Stat. 587, codified at Section 16901 et seq.,
Title 42 U.S. Code.
The Ohio version included two parts: (1) 2007 Am.Sub.S.B.
No. 10, which adopted a three-tiered system of sex offender
classification that depended upon the identity of the sex
offense of which the offender was convicted, with different,
and generally more onerous, reporting, notification, and
registration requirements; and (2) 2007 S.B. 97, which
changed the penalties attached to conviction for failure to
comply with requirements, and, in many situations,
enhanced those penalties. Both parts of the Adam Walsh
Act became effective on January 1, 2008. State v. Buelow,
2d Dist. Montgomery No. 24570, 2012-Ohio-832, ¶ 6.
3
{¶ 4} R.C. 2950.05 continues to provide that those offenders required to
register under R.C. 2950.04 shall notify the sheriff of any change in residence address
“at least twenty days prior to changing the address * * * .” R.C. 2950.05(A). And as
before, R.C. 2950.05(F)(1) states that “[n]o person who is required to notify a sheriff of
a change of address pursuant to division (A) of this section * * * shall fail to notify the
appropriate sheriff in accordance with that division.” But now, under R.C. 2950.99,
If the most serious sexually oriented offense * * * that was the
basis of the * * * change of address notification * * * is a felony
of the first, second, third, or fourth degree if committed by an
adult * * * the offender is guilty of a felony of the same degree as the
most serious sexually oriented offense * * * that was the basis of the
notice of * * * change of address * * * requirement that was violated * *
* .” R.C. 2950.99(A)(1)(a)(ii).
{¶ 5} Nevertheless, this court has recognized that
application of the Adam Walsh Act classification scheme
and reporting, notification, and registration requirements
to someone who committed his or her offense before the
enactment of the Adam Walsh Act constitutes a
retroactive application of a punitive statute, in violation of
the Retroactive Laws prohibition in Article II, Section 28,
of the Ohio Constitution. Buelow at ¶ 7, citing State v.
Williams, 129 Ohio St. 3d 344, 2011-Ohio-3374, 952
N.E.2d 1108.
4
{¶ 6} In State v. Milby, 2d Dist. Montgomery No. 23798, 2010-Ohio-6344, this
court further held that the enhanced penalties set forth in the current version of R.C.
2950.99 may not be applied to those classified as sex offenders before January 1,
2008, the effective date of the Adam Walsh Act. Id. at ¶ 31. Following this precedent,
the trial court treated Kimbrough’s 2011 failure to notify as a third-degree felony.
{¶ 7} In its single assignment of error, the state argues that the trial court erred
in failing to sentence Kimbrough to prison because under the current version of R.C.
2950.99, his failure to notify is a first-degree felony, requiring incarceration in this case.
See R.C. 2929.13(F)(6) and 2929.14(A)(1). Consequently, the state urges this court to
overrule Milby. On several recent occasions, however, this court has declined to do
just that, citing the principle of stare decisis. See, e.g., State v. Muldrew, 2d Dist.
Montgomery No. 24721, 2012-Ohio-1573, ¶ 6; State v. Foster, 2d Dist. Montgomery No.
24637, 2012-Ohio-1431, ¶ 11; State v. Jones, 2d Dist. Montgomery No. 24610,
2012-Ohio-1231, ¶ 1; Buelow at ¶ 17.
{¶ 8} Following this precedent, we overrule the state’s single assignment of
error and affirm the judgment of the trial court.
FROELICH, J., and HALL, J., concur.
(Hon. Patrick F. Fischer, First District Court of Appeals, sitting by assignment of the
Chief Justice of the Supreme Court of Ohio.)
Copies mailed to:
Johnna M. Shia, Esq.
Anthony W. Sullivan, Esq.
Hon. Timothy N. O’Connell