State v. Wood , 2013 Ohio 2724 ( 2013 )

[Cite as State v. Wood, 2013-Ohio-2724.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-120598
TRIAL NO. B-1106540
Plaintiff-Appellant, :
vs. : O P I N I O N.
JOHN WOOD, :
Defendant-Appellee. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: June 28, 2013
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellant,
Ravert J. Clark, for Defendant-Appellee.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} This is an appeal by the State of Ohio from a trial court decision
dismissing an indictment against a sex offender who was charged with failing to provide
notice of change of address. The trial court found that the defendant had no duties
under Ohio’s current sex offender registration scheme, the Adam Walsh Act (“AWA”),
because he had committed his crime prior to the effective date of the act. It also found
that he had no duties under the prior version of the registration scheme, Megan’s Law,
because Megan’s Law had been repealed by the time he was released from prison. We
conclude that the trial court was right about the AWA but wrong about the offender’s
duties under Megan’s Law. As a result, we reverse the judgment dismissing the
indictment and remand this case for further proceedings.
Background
{¶2} John Wood was convicted of rape in 1993 and sentenced to 8 to twenty-
five years in prison. In 1997, the state legislature enacted Megan’s Law, and in 2008, the
legislature repealed Megan’s Law and enacted the AWA, R.C. Chapter 2950. Mr. Wood
was released on parole on September 22, 2010. At that time, the Ohio Supreme Court
had not yet determined that the AWA could not be applied retroactively. Mr. Wood,
upon his release from prison, was provided with a form that notified him that he had
been classified as a Tier III sex offender under the AWA and that he had a duty to
provide notice at least 20 days prior to changing his address. Two days later, he
registered as a sex offender.
{¶3} He apparently did not keep up with his notification requirements,
however, and on October 15, 2011, he was indicted for a first-degree felony for failing to
provide notice of his change of address. Shortly thereafter, he moved to dismiss the
indictment. The trial court ruled that Ohio’s sex-offender regulations, as set forth in
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both the AWA and Megan’s Law versions of R.C. Chapter 2950, did not apply to Mr.
Wood, and granted his motion to dismiss the indictment.
Analysis
{¶4} In a single assignment of error, the state argues that the trial court
erred in dismissing the indictment against Mr. Wood based upon a mistaken
interpretation of the status of Ohio’s sex offender registration laws following the Ohio
Supreme Court’s decision in State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374,
952 N.E.2d 1108.
{¶5} In Williams, the Ohio Supreme Court declared that the AWA “as
applied to defendants who [had] committed sex offenses prior to its enactment,
violate[d] Section 28, Article II of the Ohio Constitution, which prohibits the General
Assembly from passing retroactive laws.” Id. at syllabus. In granting Mr. Wood’s
motion to dismiss, the trial court held that following the Ohio Supreme Court’s decision
in Williams, Mr. Wood was not under any statutory duty under the AWA version of R.C.
Chapter 2950 to verify his current address or to register. The trial court further held
that Mr. Wood had no duties under Megan’s Law because he was released from prison
after the repeal of Megan’s Law and thus never classified under the law. While the
State does not dispute the trial court’s conclusion that Mr. Wood had no duties under
the AWA, it does challenge the court’s conclusion that Mr. Wood was not subject to
Megan’s Law.
{¶6} The linchpin of the trial court’s analysis as to Megan’s Law was that Mr.
Wood never accrued any duties under Megan’s Law:
The Ohio Supreme Court has ruled that, ‘the repeal of a statute is the
abrogation or destruction of the act.’ Under Section 1.21 of the Revised
Code, the repeal of a statute does not affect any rights or liabilities which
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OHIO FIRST DISTRICT COURT OF APPEALS
exist, or relieve any person from punishment for an act committed in
violation of the repealed act. Therefore, while it is proper to continue to
apply Megan’s Law to offenders who were properly registered and had
obligations under Megan’s law prior to its repeal, it would not be proper
to apply Megan’s Law to Defendant. (Citations omitted.)
The flaw in this analysis is that Mr. Wood did accrue duties under Megan’s Law.
Because he was in prison when Megan’s law was enacted, his designation as a
sexually oriented offender attached as a matter of law based upon his conviction for a
sexually oriented offense. See State v. Hayden, 96 Ohio St.3d 211, 2002-Ohio-4169,
773 N.E.2d 502, ¶ 18; see also State v. Cooper, 1st Dist. No. C-030921, 2004-Ohio-
6428, ¶ 24; In re Abney, 1st Dist. No. C-080053, 2008-Ohio-4379, ¶ 6-7. And
unlike the AWA, Megan’s Law constitutionally may be applied to offenders who
committed their crimes prior to the statute’s effective date. See State v. Cook, 83 Ohio
St.3d 404, 410, 700 N.E.2d 570 (1998).
{¶7} In reaching our decision today, we have the benefit of several decisions
by the Ohio Supreme Court handed down after the trial court’s decision. In State v.
Brunning, the Ohio Supreme Court explained that “ ‘[w]hen a court strikes down a
statute as unconstitutional, and the offending statute replaced an existing law that had
been repealed in the same bill that enacted the offending statute, the repeal is also
invalid unless it clearly appears that the General Assembly meant the repeal to have
effect even if the offending statute had never been passed.’ ” 134 Ohio St.3d 438, 2012-
Ohio-5752, 983 N.E.2d 316, ¶ 21, quoting State v. Sullivan, 90 Ohio St.3d 502, 739
N.E.2d 788 (2001), paragraph two of the syllabus. Thus, “Ohio has, in effect, separate
statutory schemes governing sex offenders depending on when they committed their
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OHIO FIRST DISTRICT COURT OF APPEALS
underlying offense.” State v. Howard, 134 Ohio St.3d 467, 2012-Ohio-5738, 983
N.E.2d 341, ¶ 17.
{¶8} The Ohio Supreme Court, moreover, has rejected the theory that a gap
exists for certain sex offenders, reasoning that the “General Assembly certainly did not
intend for sex offenders to be relieved of obligations to notify authorities of a change of
address when it repealed Megan’s Law and enacted [the] AWA.” Brunning at ¶ 20-21.
As a result, we must agree with the state that once the Ohio Supreme Court determined
that the AWA could not be applied retroactively, Mr. Wood—by operation of law—
assumed the registration requirements of a “sexually oriented offender” under Megan’s
Law. See id. at ¶ 19.
{¶9} Mr. Wood was indicted for failure to provide a written notice of a
change of address at least 20 days prior to the change in violation of R.C.
2950.05(F)(1). His obligations in respect to such notice were the same under both
Megan’s Law and the AWA. As the Ohio Supreme Court has explained, “[al]though
styled differently, the AWA and the [Megan’s Law] versions are identical as to
persons required to submit a change of residence address * * *. Both mention R.C.
2950.05(A) and both the current and former versions of R.C. 2950.05(A) require
offenders to provide a 20-day notification of a change in their residence address.”
Brunning at ¶ 24. Thus, despite the fact that Mr. Wood is subject to Megan’s law
rather than the AWA, the indictment was still proper because it “set forth the
elements of the charge under either version of the statute.” Id. at ¶ 26.
{¶10} Mr. Wood’s “conviction was predicated on a requirement that has
never been declared unconstitutional and that [Mr. Wood] has never been released
from obeying: the requirement of notifying the sheriff of a change of address under
the Megan’s Law version of R.C. 2950.05.” See id. at ¶ 27. Because the indictment set
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OHIO FIRST DISTRICT COURT OF APPEALS
forth the charge of failure to notify, the trial court erred in granting Mr. Wood’s
motion to dismiss.
{¶11} We note, however, that in Howard, 134 Ohio St.3d 467, 2012-Ohio-
5738, 983 N.E.2d 341, at ¶ 21, the Ohio Supreme Court held that the version of
Megan’s Law in effect just prior to the adoption of the AWA governs the penalty for a
violation of R.C. 2950.05 for offenders who were originally classified under Megan’s
Law. Under that version of the statute, a violation of R.C. 2950.05 is a felony of the
third degree, not a felony of the first degree, as stated in the indictment. See State v.
Tye, 1st Dist. No. C-120562, 2013-Ohio-1571, ¶ 1-4.
{¶12} We sustain the state’s sole assignment of error, reverse the trial court's
judgment, and remand this cause for further proceedings consistent with this
opinion and law.
Judgment reversed and cause remanded.
HENDON, P.J., and DINKELACKER, J., concur.
Please note:
The court has recorded its own entry this date.
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