State v. Spicer ( 2021 )

[Cite as State v. Spicer, 2021-Ohio-386.]
COURT OF APPEALS
PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. Craig R. Baldwin, P.J.
Plaintiff - Appellee : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, J.
-vs- :
:
RYAN SPICER, : Case No. 20CA00013
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Perry County Court
of Common Pleas, Case No.
10CR0078
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 10, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOSEPH A. FLAUTT KRISTOPHER K. HILL
Prosecuting Attorney Graham & Graham Co., LPA
Perry County 17 N. Fourth St
111 North High Street PO Box 340
New Lexington, Ohio 43764 Zanesville, Ohio 43702-0340
Perry County, Case No. 20CA00013 2
Baldwin, J.
{¶1} Appellant, Ryan Spicer, appeals the June 8, 2020 decision of the Perry
County Court of Common Pleas denying his Emergency/Expedited Motion to Vacate a
Void Sentence and Terminate Duties to Register as a Sex Offender. Appellee is the State
of Ohio.
STATEMENT OF FACTS AND THE CASE
{¶2} In November 2010, Spicer was accused of committing Sexual Battery, a
third-degree felony and a violation of R.C. 2907.03(A)(7). He elected to waive indictment
and enter a plea of guilty to a bill of information. He submitted a written plea on November
10, 2010, the plea was accepted and a pre-sentence investigation was ordered. His
written plea contains an acknowledgment that he will be required to register as a Tier III
sex offender.
{¶3} The pre-sentence investigation was completed and Spicer appeared before
the court on January 31, 2011 for sentencing. Presumably as part of the sentencing
hearing, Spicer executed a document captioned Explanation of Duties to Register as a
Sex Offender, the document was signed by the trial court judge and filed with the court
on the day of the sentencing. The trial court sentenced Spicer to a term of one year in
prison, post release control of five years and costs of the action, but the entry contains no
order compelling Spicer to register as a sex offender.
{¶4} On April 4, 2011, Spicer was granted judicial release, placed on community
control and ordered to complete a sex offender counseling program. The trial court
terminated Spicer’s community control on September 19, 2013 and ordered that “all rights
and privileges to which the Defendant is entitled are restored.”
Perry County, Case No. 20CA00013 3
{¶5} Despite not being ordered to register as a sex offender, Spicer filed a motion
on February 5, 2020 requesting that the trial court terminate “the Tier III classification and
registration portion of his sentence” supported by his argument that such requirement
was not properly imposed because it is not contained within the sentencing entry.
Appellee opposed the motion and argued that this was an oversight correctable by a nunc
pro tunc entry imposing the obligation to register and asked that the court issue such an
entry to correct the record.
{¶6} The trial court refused the request of both parties. First, the trial court noted
that the sentencing entry did not state that Spicer was a Tier III sex offender and that he
had completed his sentence. The trial court held that it had no authority to resentence
Spicer because he had completed his sentence, so the appellee’s request was denied.
The trial court denied Spicer’s request as well, noting that request sought termination of
the “tier III classification and registration portion of the sentence” but there was no such
requirement in the sentencing entry.
{¶7} Spicer filed a timely appeal and submitted one assignment of error:
{¶8} “I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO
TERMINATE DUTY TO REGISTER AS A SEX OFFENDER.”
ANALYSIS
{¶9} Spicer asks this court to find that the trial court erred by not terminating his
duty to register as a sex offender but claims that “[t]here is no order in place requiring
Appellant to register as a sex offender.” We agree that the trial court did not impose a
registration obligation, and that Spicer is not now and never was required by the order to
Perry County, Case No. 20CA00013 4
register as a sex offender. We find that the trial court correctly denied Spicer’s motion as
there is no duty to register subject to termination.
{¶10} When Spicer plead guilty to a violation of R.C. 2907.03(A)(7), sexual
battery, the trial court was obligated by R.C. 2950.01(G)(1)(a) and R.C.
2929.19(B)(3)(a)(ii) to “include in the offender's sentence a statement that the offender is
a tier III sex offender/child-victim offender” and to “comply with the requirements of section
2950.03 of the Revised Code.” R.C. 2929.19 (B)(3)(a). Revised Code Section 2950.03
describes the notice that the offender must be provided regarding the obligation to
register.
{¶11} The record contains a copy of the notice signed by Spicer at his sentencing
hearing, but the entry lacks any reference to Spicer as a Tier III sex offender. We have
no transcript of the hearing, but “[a] trial court speaks through its journal entries” as to
sanctions, and not through “‘what is said on the record during the sentencing hearing.’”
(Citations omitted.) State v. Hildebrand, 1st Dist. Hamilton No. C-150046, 2018-Ohio-
2962, ¶ 7, quoting State v. Halsey, 2016-Ohio-7990, 74 N.E.3d 915, ¶ 26 (12th Dist.).
State v. Fannon, 1st Dist. Hamilton No. C-180270, 2019-Ohio-1752, ¶ 4 appeal not
allowed,156 Ohio St.3d 1478, 2019-Ohio-3148, 128 N.E.3d 242, ¶ 4 (2019). The First
District has held, and we agree “proper tier classification must be included in the judgment
of conviction.” (Citations omitted.) State v. Fannon, 1st Dist. Hamilton No. C-180270,
2019-Ohio-1752, ¶ 4 appeal not allowed,156 Ohio St.3d 1478, 2019-Ohio-3148, 128
N.E.3d 242 (2019).
{¶12} The Twelfth District addressed similar facts when an appellant “moved the
trial court to vacate the sex offender classification portion of his sentence, arguing that
Perry County, Case No. 20CA00013 5
the absence of a sex offender classification in the sentencing entry rendered the
classification void. Halsey further argued that the termination of his case divested the trial
court of jurisdiction to impose any further sanction upon him.” State v. Halsey, 12th Dist.
No. CA2016-01-001, 2016-Ohio-7990, 74 N.E.3d 915, ¶ 4. The trial court denied the
motion and the Twelfth District affirmed the trial court finding that “the October 29, 2009
sentencing entry makes no mention of [Halsey's] Tier III sex offender classification. As a
result, the trial court did not err in denying [Halsey's] motion to vacate his Tier III sex
offender classification as there was nothing for the trial court to vacate.” State v. Halsey,
12th Dist. Butler No. CA2014–10–211, 2015-Ohio-3405, 2015 WL 5004894, ¶ 14. (Halsey
I).
{¶13} After the decision in Halsey I, the state requested the trial court add the Tier
III classification through a nunc pro tunc entry. The trial court denied the request, noticing
that the original “entry was silent with regard to Halsey's sex offender classification, as
opposed to being merely incorrect, and that Halsey's community control sanction had
been successfully terminated.” State v. Halsey, 12th Dist. No. CA2016-01-001, 2016-
Ohio-7990, 74 N.E.3d 915, ¶ 7 (Halsey II). On appeal, the Twelfth District found that:
Several Ohio appellate districts have held that R.C. 2929.19(B)(3)
requires inclusion of a Tier III sex offender classification in a sentencing
entry and that its omission renders the sentence deficient. See, e.g., State
v. Dalton, 8th Dist. Cuyahoga No. 99661, 2013-Ohio-5127, 2013 WL
6175124, ¶ 11 (“R.C. 2929.19[B][3][a] requires a trial court to include in an
offender's sentence a statement that the offender is a Tier III sex offender”);
Perry County, Case No. 20CA00013 6
and State v. Morgan, 7th Dist. Mahoning No. 13 MA 126, 2014-Ohio-2625,
2014 WL 2750124, ¶ 20 (“[T]the language of R.C. 2929.19[B][3] requires
the tier classification to be contained in the sentencing judgment entry”).
Additionally, a sentencing court's oral advisement of a Tier III sex offender
classification at the sentencing hearing does not satisfy R.C. 2929.19(B)(3).
See Morgan at ¶ 20; State v. Kase, 187 Ohio App.3d 590, 2010-Ohio-2688,
932 N.E.2d 990, ¶ 2 (7th Dist.); and State v. Straley, 4th Dist. Highland No.
12CA3, 2013-Ohio-3334, 2013 WL 3949160, ¶ 17.
State v. Halsey, 12th Dist. No. CA2016-01-001, 2016-Ohio-7990, 74 N.E.3d 915, ¶ 13.
{¶14} A Tier III classification is punitive and part of the sentence State v. Williams
Holdcroft., 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶ 16 (“Following the
enactment of S.B. 10, all doubt has been removed: R.C. Chapter 2950 is punitive”). State
v. Halsey, 12th Dist. No. CA2016-01-001, 2016-Ohio-7990, 74 N.E.3d 915, ¶ 18.
{¶15} Sexual offender classification requirements are analogous to post-release
control requirements in that both impose a duty on the trial court to include their imposition
in the sentencing entry. The Supreme Court of Ohio has noted that “unless a sentencing
entry that did not include notification of the imposition of postrelease control is corrected
before the defendant completed the prison term for the offense for which postrelease
control was to be imposed, postrelease control cannot be imposed.” State v. Qualls, 131
Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 16 as quoted in State v. Halsey, 12th
Dist. No. CA2016-01-001, 2016-Ohio-7990, 74 N.E.3d 915, ¶ 22. We find that the same
analysis should be applied to sexual offender classification. If the sentencing entry
Perry County, Case No. 20CA00013 7
contains no reference to sexual offender classification and is not corrected before
completion of the prison term for which the classification should have been imposed,
classification as a sex offender may not be imposed.
{¶16} The Supreme Court of Ohio’s recent analysis of the distinction between
“void” and “voidable” sentences is applicable in this context as well. The Court found that
“sentences based on an error, including sentences in which a trial court fails to impose a
statutorily mandated term, are voidable if the court imposing the sentence has jurisdiction
over the case and the defendant.” State v. Henderson, 2020-Ohio-4784 (Ohio) ¶1. In the
matter before us the trial court had jurisdiction but failed to include a statutorily mandated
term, the Tier III Sexual Offender Classification, rendering the judgment voidable. And,
unless corrected on appeal, the judgment has the force of a valid legal judgment and any
objection is forfeit. Id. at ¶17.
{¶17} The appellee in this matter did not pursue an appeal to correct the trial
court’s omission and the appellant had no incentive to do so. The order of the trial court
became a valid legal judgment despite the omission of the mandatory sexual offender
classification. Because that classification was not part of the sentence, Spicer was under
no obligation to register as a sex offender. Further, because Spicer’s sentence does not
include a duty to register as a sex offender, the trial court was correct in denying his
motion to terminate that duty. Spicer asked the trial court to terminate an obligation that
was never imposed, a vain, purposeless and meaningless act that the trial court was
correct to refuse. State ex rel, Marcolin v. Smith, 105 Ohio St. 570, 603, 138 N.E. 881,
891 (1922).
Perry County, Case No. 20CA00013 8
{¶18} While not clearly set out in the record, we assume that Spicer has been
registering as a Tier III sex offender under the mistaken assumption that he was required
to do so. The trial court’s sentencing entry contains no finding that he is a Tier III Sex
Offender and does not impose a duty to register. That judgment was not appealed and is
final and enforceable, so Spicer was not then and is not now subject to an order to register
as a Tier III Sex Offender. If he did register in the past, that act was purely voluntary and
not mandated by the trial court.
{¶19} Appellant’s assignment of error is denied and the decision of the Perry
County Court of Common Pleas is affirmed.
By: Baldwin, P.J.
Delaney, J. and
Wise, Earle, J. concur.