State v. Howard , 195 Ohio App. 3d 802 ( 2011 )

[Cite as State v. Howard, 195 Ohio App.3d 802, 2011-Ohio-5693.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
THE STATE OF OHIO, :
Appellee, : C.A. CASE NO. 24680
v. : T.C. NO. 10CR1682
HOWARD, : (Criminal appeal from
Common Pleas Court)
Appellant. :
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OPINION
Rendered on the 3rd day of November, 2011.
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Mathias Heck Jr., Montomery County Prosecuting Attorney, and
Johnna M. Shia, Assistant Prosecuting Attorney, for appellee.
Marshall G. Lachman, for appellant.
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DONOVAN, Judge.
{¶ 1} This matter is before the court on the notice of appeal of
Donny A. Howard. Howard appeals from his conviction and sentence for
failure to notify, in violation of R.C. 2950.05(A) and (F)(1).
{¶ 2} In September 2000, Howard was convicted of rape, a felony
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of the first degree, and he received a four-year sentence. The trial court
designated Howard a habitual sex offender,1 pursuant to Ohio’s version
of the federal Megan’s Law, which was adopted by Ohio in 1996, and
codified by Am.Sub.H.B. No 180, 146 Ohio Laws, Part II, 2560, 2601.
See State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, ¶ 6. The
trial court also ordered community notification for a period of 20 years.
{¶ 3} In 2006, the Adam Walsh Child Protection and Safety Act was
passed by Congress, which divided sex offenders into three tiers based
solely upon the offense committed. Bodyke, ¶ 18. In 2007, the Ohio
General Assembly enacted 2007 Am.Sub.S.B. No. 10, which replaced
Megan’s Law with the Adam Walsh Act (“AWA”). Bodyke, ¶ 20. The
law required the Ohio Attorney General to reclassify existing offenders
based on the tier system and to notify them of the reclassification.
Bodyke, ¶ 22. Pursuant to the AWA, Howard was reclassified a Tier III
sex offender.
{¶ 4} On June 3, 2010, Howard was charged by indictment with
failure to notify, a felony of the first degree, for failing to provide notice
of his change of residence address to the sheriff at least 20 days prior to
that change, a requirement imposed upon Howard as a Tier III sex
offender. Howard pleaded no contest, and at the time, the trial court
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We note that Howard and the state erroneously assert that Howard was originally
classified as a sexually oriented offender.
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advised him that it must impose a mandatory sentence, since Howard
had a previous conviction for a felony of the first degree (rape). The
state noted that it did not oppose the minimum sentence for Howard.
The trial court sentenced Howard to a mandatory minimum three-year
term on October 28, 2010.
{¶ 5} Along with his notice of appeal, Howard filed a motion for
leave to file a delayed appeal, based upon this court’s recent decision in
State v. Milby, Montgomery App. No. 23798, 2010-Ohio-6344, and we
granted leave for his untimely appeal over the state’s objection.
{¶ 6} Howard asserts one assignment of error as follows:
{¶ 7} “The trial court erred in convicting appellant of a first-degree
felony and sentencing him accordingly.”
{¶ 8} In Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, the Ohio
Supreme Court struck down as unconstitutional the reclassification
provisions in the AWA, namely R.C. 2950.031 and 2950.032, which
required the attorney general to reclassify sex offenders pursuant to the
tiered scheme. Id., ¶ 60-61. The court severed those provisions from
the AWA, and the provisions “may not be applied to offenders previously
adjudicated by judges under Megan’s Law, and the classifications and
community-notification and registration orders imposed previously by
judges are reinstated.” Id. at ¶ 66.
{¶ 9} Pursuant to Bodyke, as the state concedes, Howard’s
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reclassification as a Tier III sex offender and the community-notification
and registration orders attending that reclassification may not be applied,
and his original classification as a habitual sex offender and the
community-notification and registration orders attending that
classification are reinstated.
{¶ 10} Under the former R.C. 2950.05(A), Howard was required to
provide written notice to the sheriff of a change of address at least 20
days prior to changing his address. Under the former R.C. 2950.99, the
penalty for failure to notify was a felony of the fifth degree. R.C.
2950.05 was amended by S.B. 10, which became effective on January 1,
2008, and the new version at issue also required Howard to provide
written notification to the sheriff at least 20 days prior to changing his
address of residence. After the related amendment of R.C. 2950.99
(2007 Am.Sub.S.B. 97), the penalty for failure to notify was a felony of
the first degree. R.C. 2950.99(A)(1)(a)(i).
{¶ 11} In State v. Milby, which the state asks us to reconsider, this
court on similar facts held that because the prohibited conduct in failing
to give the required prior notification did not change when R.C. 2950.05
was amended, the defendant had an ongoing duty that neither the
amendment of that section nor the holding in Bodyke had changed.
Accordingly, Milby could be found guilty for failure to notify, based upon
the original classification to which he was reinstated. However, since the
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related amendment of R.C. 2950.99(A)(1)(a) changed the violation from
a felony of the third degree to a first-degree felony, of which Milby was
convicted, this court reversed Milby’s conviction and remanded the case
for resentencing.
{¶ 12} As in Milby, when Howard’s original classification and
registration requirements are applied, his conviction for failure to notify is
not offended. There is no dispute that under former law, Howard was
required to provide written notice of a change of address at least 20 days
prior to changing his address of residence. See former R.C. 2950.05(A).
However, the amendment of R.C. 2950.99 changed the penalty for
failure to notify from a felony of the fifth degree to a felony of the first
degree, based upon the penalty for the underlying offense of rape, and
Howard was subject to a mandatory term of incarceration. As in Milby,
the fact that Howard had committed his offense of failure to notify after
the effective date of S.B. 97 does not affect the outcome herein as the
state asserts. Pursuant to Milby, we find that the trial court erred when
it convicted Howard of a first-degree felony and sentenced him
accordingly, instead of finding him guilty of a fifth-degree felony. See
also State v. Johnson, Montgomery App. No. 24029, 2011-Ohio-2069;
State v. Alexander, Montgomery App. No. 24119, 2011-Ohio-4015.
{¶ 13} Because Howard’s sole assigned error has merit, his sentence
will be reversed and the matter remanded to the trial court for
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resentencing.
Judgment affirmed.
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FROELICH, J., concurs.
HALL, J., concurs in part and dissents in part.
HALL, J., concurring in part and dissenting in part.
{¶ 14} I agree that this case should be remanded to the trial court
for resentencing, but conclude that the defendant should be sentenced
for a felony of the third degree and not a fifth degree as determined by
the majority. For clarity, I will refer to the various felony levels as F(5)
through F(1)
{¶ 15} Donny Howard’s conviction for rape, F(1), was in September
2000, and he was classified as a habitual sex offender under Ohio’s
version of Megan’s Law. Sometime after Ohio’s version of the Adam
Walsh Act (“AWA”) went into effect on January 1, 2008, Howard was
reclassified as a Tier III offender. The instant case stems from the June
3, 2010 charge of failure to notify the sheriff of a change of address.
{¶ 16} Failure to notify was an F(5) when Howard was originally
convicted of rape in 2000. R.C. 2950.99. This level had been in effect
since January 1, 1997, with adoption of Ohio’s Megan’s law. Before that,
the first offense of failure to comply with pre-Megan’s Law registration
requirements was a misdemeanor, and a subsequent offense was an
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F(4). Effective January 1, 2004, failure to notify, when the basis for
registration was for murder or an F(1), (2) or (3) was modified to an
F(3). R.C. 2950.99 (A)(1)(b)(i). As part of the adoption of Ohio’s AWA,
R.C. 2950.99 was amended, effective January 1, 2008. When the
underlying felony that was the basis for the registration was an F(1)
through F(4), failure to notify became a felony of the same degree as the
basis for registration. Thus, in Howard’s case, the underlying felony was
an F(1), so the new offense was an F(1).
{¶ 17} In State v. Bodyke, 126 Ohio St. 3d 266, 2010-Ohio-2424,
the Ohio Supreme Court struck down the reclassification provisions of the
AWA, R.C. 2950.031 and 2950.032, and severed them from the
remainder of the act. Registration requirements under Megan’s Law
were reinstated. Nothing in Bodyke had addressed or vacated the
amended penalty provisions of R.C. 2950.99. Nevertheless, this court
has held that the penalty section applicable for violation of reinstated
Megan’s law registration violations is the penalty that existed prior to
adoption of the AWA. This court has held, in three cases, that where
defendants have been improperly reclassified, a failure-to-notify
conviction would still be upheld when the reinstated Megan’s Law
registration requirements were essentially the same as the improperly
reclassified AWA requirements, but the violation is a pre-AWA F(3).
{¶ 18} In State v. Milby, Montgomery App. No. 23798,
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2010–Ohio–6344, the defendant had been convicted of rape in 1983.
While still incarcerated in 2003, Milby was designated as a sexual
predator. He was reclassified as a Tier III offender under the AWA.
Eventually he was charged and convicted of failing to register at his new
address during July 2009. This court said, “AWA did increase the
penalty for failure to notify to a first-degree felony. That penalty may not
be applied to Milby. Under the former law, violation of the reporting
requirement was a felony of the third degree.” Id, ¶ 31. The case was
remanded for resentencing as an F(3). I believe this conclusion was
wrong. As stated, nothing in Bodyke had addressed or vacated the
amended penalty provisions of R.C. 2950.99. But Milby is part of the
jurisprudence of this court, and stare decisis precludes simply ignoring it.
{¶ 19} In State v. Johnson, Montgomery App. No. 24029,
2011–Ohio–2069, Johnson had been designated a sexually oriented
offender in 1994. His classification was changed to a Tier III under
AWA. In 2009, he was charged with an F(1) failure to provide notice of
his change-of-residence address. Johnson’s case was also remanded for
resentencing. This court said, “[P]er Milby, we find that the trial court
erred when it convicted Defendant of a first degree felony and sentenced
him accordingly, instead of finding Defendant guilty of a third degree
felony.” Again, I believe this result is incorrect, but it follows Milby.
{¶ 20} Finally, on similar facts, in State v. Alexander, Montgomery
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App. No. 24119, 2011-Ohio-4015, Alexander had been convicted of rape,
an F(1), and designated a sexually oriented offender in 2004. He was
reclassified under AWA in 2008 as a Tier III offender. He was charged
with failing to notify the sheriff of his new address in 2010, an F(1). This
court’s decision, in which the undersigned concurred, stated, “[L]ike in
Johnson [and Milby], appellant should have been found guilty of a
third-degree felony and not a first-degree felony.”
{¶ 21} Based on Milby, as followed in Johnson and Alexander, this
court has held that when a failure-to-notify case is reversed after an
improper AWA reclassification, the penalty for violation of failure to notify
reverts to that penalty that was in effect before the “offending” AWA
legislation, which was effective January 1, 2008. Prior to enactment of
AWA, the penalty for failure to notify for underlying F(1) through F(3)’s
was a felony of the third degree. Consequently, I would remand this
case for resentencing of the defendant for a conviction of an F(3).
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