State v. Tye , 2013 Ohio 1571 ( 2013 )

[Cite as State v. Tye, 2013-Ohio-1571.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-120562
TRIAL NO. B-1201674
Plaintiff-Appellee, :
vs. : O P I N I O N.
KEITH TYE, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: April 19, 2013
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
William Gallagher, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} Keith Tye was convicted of failure to provide notice of a change of
address in violation of R.C. 2950.05, a first-degree felony. Shortly after he was
sentenced, the Ohio Supreme Court issued its decision in State v. Howard, 134 Ohio
St.3d 467, 2012-Ohio-5738, 983 N.E.2d 316, which made clear that Mr. Tye should
only have been found guilty of a third-degree felony. Accordingly, we reverse, and
remand this cause to the trial court.
{¶2} In October 1990, Mr. Tye was convicted of rape, a first-degree felony,
and sentenced to prison. While he was incarcerated, he was classified as a sexual
predator pursuant to Ohio’s Megan’s Law. In 2007, the Ohio General Assembly
repealed Megan’s law and replaced it with Ohio’s version of the federal Adam Walsh
Act (“AWA”), R.C. Chapter 2950. One effect of the AWA on someone in Mr. Tye’s
position was to increase the penalty for failure to provide notice of a change of
address from a third-degree felony to a first-degree felony. In March 2012, Mr. Tye
was, in fact, indicted for a first-degree felony for failing to provide notice of a change
of address. He entered a guilty plea and the trial court sentenced him to four years in
prison.
{¶3} In December 2012, while Mr. Tye’s appeal was pending, the Ohio
Supreme Court released its opinion in Howard. The Supreme Court acknowledged
that following its decision in State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424,
933 N.E.2d 753, “Ohio has, in effect, separate statutory schemes governing sex
offenders depending on when they committed their underlying offenses.” Howard at
¶ 17. “Pursuant to Bodyke, the classifications and community-notification and
registration orders imposed by judges before the Adam Walsh Act (“AWA”) were
reinstated.” Id. at ¶ 6. For “a defendant whose sex-offender classification was
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OHIO FIRST DISTRICT COURT OF APPEALS
determined under Megan’s Law, the penalty for a violation of the reporting
requirements of former R.C. 2950.05 that occurs after Megan’s Law was supplanted by
the AWA is the penalty set forth in the version of R.C. 2950.99 in place just before the
effective date of the AWA.” Id. at ¶ 21.
{¶4} Thus, Mr. Tye should not have been convicted and sentenced under the
current version of R.C. 2950.05 and R.C. 2950.99, but instead under the scheme in place
immediately before the AWA went into effect. Id. at ¶ 29; accord State v. Washington,
1st Dist. No. C-120583, 2013-Ohio-797, ¶ 5-6. We sustain Mr. Tye’s sole assignment of
error, reverse the trial court's judgment, and remand the case with instructions for
the trial court to vacate his first-degree felony conviction, to enter a finding of guilt
for a third-degree felony, and to resentence him accordingly.
Judgment reversed and cause remanded.
HENDON, P.J., and CUNNINGHAM, J., concur.
Please note:
The court has recorded its own entry this date.
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