State v. Grimes , 2013 Ohio 2569 ( 2013 )

[Cite as State v. Grimes, 2013-Ohio-2569.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 25375
v. : T.C. NO. 12CR1667
DAVID L. GRIMES : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 21st day of June , 2013.
..........
R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
J. ALLEN WILMES, Atty. Reg. No. 0012093, 4428 N. Dixie Drive, Dayton, Ohio 45414
Attorney for Defendant-Appellant
..........
DONOVAN, J.
{¶ 1} This matter is before the Court on the Notice of Appeal of David L.
Grimes,
[Cite as State v. Grimes, 2013-Ohio-2569.]
filed September 17, 2012. On August 23, 2012, Grimes pled guilty to one count of rape,
(substantially impaired victim), in violation of R.C. 2907.02(A)(1)(c), a felony of the first
degree, in exchange for the the dismissal of an identical count, and the parties agreed upon a
five-year sentence. Grimes committed his offense in 1994. At his September 6, 2012
sentencing hearing, the trial court designated Grimes a Tier III sex offender, pursuant to the
Adam Walsh Act (“AWA”), and Grimes appeals that designation. The State concedes that
Grimes was improperly designated as a Tier III offender and asserts that he is subject to
classification under Megan’s Law. We hereby remand the matter to the trial court so that
the appropriate classification may be made.
{¶ 2} Grimes’ sole assigned error is as follows:
“THE TRIAL COURT INCORRECTLY DESIGNATED APPELLANT AS A TIER
III SEXUAL OFFENDER FOR AN OFFENSE COMMITTED PRIOR TO THE
ENACTMENT OF THE STATUTE.”
{¶ 3} As this Court recently noted:
In 1996, the General Assembly enacted Megan's Law. The act
amended R.C. Chapter 2950 and established a new sex-offender classification
and registration scheme. State v. Williams, 129 Ohio St.3d 344,
2011-Ohio-3374, 952 N.E.2d 1108, at ¶ 7. Subsequently, in 2007, the General
Assembly enacted the AWA, which amended various sections of R.C.
Chapter 2950, to implement the federal Adam Walsh Child Protection and
Safety Act of 2006. Id.In 2011, the Supreme Court of Ohio held that the AWA, as applied to
defendants who committed sex offenses prior to its enactment, violates
3
Article II, Section 28 of the Ohio Constitution, which prohibits the General
Assembly from passing retroactive laws. Williams at syllabus. State v.
Turner, 2d Dist. Montgomery No. 25115, 2013-Ohio-806, ¶ 7-8.
{¶ 4} As the State asserts, Grimes is not subject to the classification and
registration duties imposed by the AWA, since he committed his offense prior to the
enactment thereof. He is, however, subject to sex offender classification and registration
under Megan’s Law, R.C. 2950.01 et seq., even though those duties arose after his offense;
the “Ohio Supreme Court consistently has held that pre-Adam Walsh Act versions of R.C.
Chapter 2950 are remedial, not punitive, and that retroactive application of them does not
violate the Ohio or United States Constitutions. See, e.g., State v. Cook, 83 Ohio St.3d 404,
1998-Ohio-291, 700 N.E.2d 570; * * * .” State v. Lay, 2d Dist. Champaign No.
2012-CA-7, 2012-Ohio-4447, ¶ 7.
{¶ 5} Grimes’ classification as a Tier III sex offender is vacated, and the matter is
remanded for the limited purpose of reclassification pursuant to Megan’s Law.
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FROELICH, J. and DONOFRIO, J., concur.
(Hon. Gene Donofrio, Seventh District Court of Appeals, sitting by assignment of the Chief
Justice of the Supreme Court of Ohio).
Copies mailed to:
R. Lynn Nothstine
J. Allen Wilmes
Hon. Mary L. Wiseman