State v. Gingell , 128 Ohio St. 3d 444 ( 2011 )

[Cite as State v. Gingell, 128 Ohio St. 3d 444, 2011-Ohio-1481.]
THE STATE OF OHIO, APPELLEE, v. GINGELL, APPELLANT.
[Cite as State v. Gingell, 128 Ohio St. 3d 444, 2011-Ohio-1481.]
Criminal law — Reclassification of sexual offenders — R.C. 2950.031 and
2950.032 unconstitutional — State v. Bodyke applied.
(Nos. 2010-0047 — Submitted January 19, 2011 — Decided April 5, 2011.)
APPEAL from the Court of Appeals for Hamilton County, No. C-081167.
__________________
PFEIFER, J.
Factual and Procedural Background
{¶ 1} There is no dispute between the parties that defendant-appellant,
Ronald Gingell, was convicted of three counts of rape in 1981, was incarcerated,
and was originally classified as a sexually oriented offender pursuant to the 2003
amendments to Megan’s Law. Am.Sub.S.B. No. 5, 150 Ohio Laws, Part IV,
6558, 6687-6702 (eff. July 31, 2003). To comply with Megan’s Law, Gingell had
to verify his address once each year for ten years. Former R.C. 2950.06(B)(2) and
2950.07(B). Under former R.C. 2950.99, Gingell’s failure to properly register as
a sexually oriented offender would have been a fifth-degree felony.
{¶ 2} As of January 1, 2008, the General Assembly repealed Megan’s
Law and replaced it with the Adam Walsh Act (“AWA”), 2007 Am.Sub.S.B. No.
10. The parties agree that pursuant to the AWA, specifically R.C. 2950.031 and
2950.032, Gingell was reclassified by the attorney general as a Tier III sexual
offender. R.C. 2950.06(B)(3) requires a Tier III offender to verify his address
every 90 days for the rest of his life. Pursuant to R.C. 2950.99(A)(1)(a), the
failure to verify an address is the same degree offense as the underlying sexual
offense. In Gingell’s case, that meant that a failure to verify his address would be
a first-degree felony.
SUPREME COURT OF OHIO
{¶ 3} On July 2, 2008, Gingell was indicted on two first-degree felony
counts of violating R.C. 2950.05 and 2950.06. The first count alleged that
Gingell had failed to verify an address on or about May 6, 2008; the second
alleged that Gingell had failed to provide notice of an address change on June 24,
2008. Gingell pleaded guilty to the first count; the second count was dismissed.
On November 19, 2008, the trial court sentenced Gingell to an eight-year prison
term and five years of postrelease control.
{¶ 4} Gingell appealed to the First District Court of Appeals. He argued
that the trial court had erred in retroactively applying R.C. 2950.99, which made
Gingell’s violation of R.C. 2950.06 a first-degree felony; he contended that the
court should have applied the version of R.C. 2950.99 in place at the time of his
original classification, which would have made his failure to verify his address a
fifth-degree felony. The court of appeals held that there was no retroactive
application of R.C. 2950.99 because Gingell’s failure to register occurred after the
January 1, 2008 effective date of the statute.
{¶ 5} This court accepted a discretionary appeal by Gingell, an appeal
that was based primarily upon the issue of the retroactivity of R.C. 2950.99.
However, during the pendency of Gingell’s appeal, this court decided State v.
Bodyke, 126 Ohio St. 3d 266, 2010-Ohio-2424, 933 N.E.2d 753, which addressed
the constitutionality of the reclassification under the AWA of sexual offenders
previously classified under Megan’s Law.
Law and Analysis
{¶ 6} In Bodyke, this court held that R.C. 2950.031 and 2950.032, the
reclassification provisions in the AWA, were unconstitutional and severed them
from the AWA. This court specifically addressed what that severance meant for
offenders like Gingell, who had originally been classified under Megan’s Law and
were then reclassified under the AWA:
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January Term, 2011
{¶ 7} “R.C. 2950.031 and 2950.032 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.” Bodyke at ¶ 66.
{¶ 8} Thus, pursuant to Bodyke, Gingell’s original classification under
Megan’s Law and the associated community-notification and registration order
were reinstated. Therefore, the current version of R.C. 2950.06, which requires
Tier III sexual offenders to register every 90 days, does not apply to Gingell.
Since Gingell was charged after his reclassification and before Bodyke, there is no
doubt that he was indicted for a first-degree felony for a violation of the reporting
requirements under the AWA. Because the application of the AWA was based
upon an unlawful reclassification, we reverse the judgment of the court of appeals
and vacate Gingell’s conviction for a violation of the 90-day address-verification
requirement of R.C. 2950.06. Gingell remained accountable for the yearly
reporting requirement under Megan’s Law; whether he met that requirement is
not a part of this case.
Judgment reversed.
O’CONNOR, C.J., and LUNDBERG STRATTON, O’DONNELL, LANZINGER,
CUPP, and MCGEE BROWN, JJ., concur.
__________________
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E.
Adams, Assistant Prosecuting Attorney, for appellee.
Ohio Justice & Policy Center, Margie Slagle, and David A. Singleton, for
appellant.
______________________
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