State v. Pritchett , 2011 Ohio 5978 ( 2011 )

[Cite as State v. Pritchett, 2011-Ohio-5978.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24183
v. : T.C. NO. 09CR1226
THOMAS PRITCHETT : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 18th day of November , 2011.
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KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
LORI R. CICERO, Atty. Reg. No. 0079508, 500 East Fifth Street, Dayton, Ohio 45402
Attorney for Defendant-Appellant
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DONOVAN, J.
{¶ 1} This matter is before the Court on the Notice of Appeal of Thomas Pritchett,
filed August 4, 2010. On April 29, 2009, Pritchett was indicted on one count of failure to
notify of a change of address, a felony of the second degree, in violation of R.C. 2950.05(A)
and (F)(1). On July 23, 2009, Pritchett pled no contest, and the trial court sentenced him to
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a mandatory three year sentence. Pritchett did not appeal. On June 17, 2010, Pritchett
filed a motion to withdraw his plea. Pritchett asserted that “he was no longer under an
obligation to report his address due to the holding” in State v. Bodyke, 126 Ohio St.3d 266,
2010-Ohio-2424, which was decided on June 3, 2010. The trial court held an evidentiary
hearing and overruled the motion on July 12, 2010.
{¶ 2} In its Decision, the trial court noted that Pritchett is a sexually oriented
offender, having been previously convicted of attempted rape in Franklin County. After
serving a prison term, Pritchett was released in 1999. While Pritchett testified at the
hearing that he was released from prison in early 1999, the trial court noted that “all the
written documentation before the court, and the Defendant’s own motion, indicate that the
Defendant was released in August 1999.” Accordingly, the court found as a matter of fact
that Pritchett was released from prison in August ,1999, and that “his first registration as a
Sexually Oriented Offender was August 18, 1999. According to the statutes in effect at the
time of the Defendant’s initial registration, commonly referred to as ‘Megan’s Law,’ the
defendant * * * was required to register his address with the county sheriff for a period of 10
years. That would have made his last annual registration in August 2008, and he would no
longer be required to keep his registration current after August 2009 (10 years). ORC §
2950.05, in the version that was in effect in 1999, and in the version under which the
Defendant was indicted in April 2009, required that the Defendant notify the sheriff if he
changed his address from the one where he last registered.
{¶ 3} “With the adoption of the new statutory scheme for sexually oriented
offenders which became effective in Ohio January 1, 2008, commonly known as ‘the Adam
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Walsh Act,’ Thomas Pritchett was re-classified as a Tier III sex offender requiring that he
register every 90 days (instead of annually). In State of Ohio v. Bodyke, 2010 Ohio 2424,
the Ohio Supreme Court found that the reclassification of offenders was unconstitutional and
that the three-tier registration scheme of the Adam Walsh Act ‘* * * 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.’
Undoubtedly, the recent Bodyke decision prompted the Defendant’s motion to withdraw his
plea.” The trial court noted in a footnote that there was no evidence that Pritchett had been
classified by a judge, but that he “would have been classified as a sexually oriented offender,
the lowest classification under ‘Megan’s Law,’ by statute, without the necessity of a hearing.
However, the Bodyke holding, that a defendant could not be reclassified by the Attorney
General, still applies and Thomas Pritchett remains a sexually oriented offender.”
{¶ 4} According to the trial court, Pritchett, “believing that he was required to
register every 90 days, registered on March 27, 2009 with an address of 50 Central Ave. Apt.
304 Dayton Ohio 45406. The Sheriff’s office attempted to confirm the Defendant’s address
on April 7th and 9th and it was determined that the apartment was vacant since [March] 30,
2009. The former named tenant, J.D. Knight was evicted and the move out date was
3-30-2009. [Pritchett] stated that he was unable to get back in the apartment to get his
property and clothing.
{¶ 5} “[Pritchett’s] indictment charged that the Defendant, as of March 30, 2009
(the date his reported residence became vacant) failed to provide the sheriff with a change of
address within the time required by statute.”
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{¶ 6} In the course of its analysis, the court noted that Pritchett was not charged
with a failure to register every 90 days under the Adam Walsh Act but rather a failure to
provide notice of a change of address. The court further noted that, regarding any defenses
Pritchett may have had to his indicted charge, he “had those same defenses available to him
at the time of his plea whether he was required to keep his address current under Megan’s
Law or the Adam Walsh Act.
{¶ 7} “* * *
{¶ 8} “In this case, if [Pritchett] had been charged with failure to follow the 90 day
registration requirement of the Adam Walsh Act, the Court would be inclined to grant his
request to withdraw his plea because the Ohio Supreme Court has determined that he should
not be reclassified. However, the Defendant was charged with a failure to provide notice of
his new address, which was a statutory requirement of his registration under Megan’s Law,
regardless of the inapplicable change in the registration requirements.” The court found no
manifest injustice and overruled Pritchett’s motion to withdraw his plea.
{¶ 9} Pritchett asserts one assignment of error as follows:
{¶ 10} “THE TRIAL COURT ERRED IN OVERRULING THOMAS
PRITCHETT’S MOTION TO WITHDRAW PLEA AND VOID CONVICTION.”
{¶ 11} According to Pritchett, a manifest injustice is demonstrated in that he is “an
innocent man” with many defenses to the indicted charge. Pritchett continues to dispute the
trial court’s finding that he was released from prison in August, 1999. According to
Pritchett, “if he had known that he was no longer under the 90 day requirement, he would
not have pled no contest to the indicted charge; he would have pled not guilty. As such, Mr.
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Pritchett’s reclassification under the Adam Walsh Act was a factor considered when
weighing his options to enter a plea or defend his case at trial. It goes without saying that
one cannot make a knowing, intelligent plea and waiver of rights under the facts of this
case.” Finally, Pritchett asserts that he received ineffective assistance of counsel in that
counsel failed to address his “viable defenses,” namely “lack of knowledge that he had to
move, impossibility of timely registration, and the fact that he was operating under an
inapplicable law, among others.”
{¶ 12} “A motion to withdraw a plea of guilty or no contest may be made only
before sentence is imposed; but to correct manifest injustice the court after sentence may set
aside the judgment of conviction and permit the defendant to withdraw his or her plea.”
Crim. R. 32.1.
{¶ 13} “Under Crim.R. 32.1, a defendant who files a post-sentence motion to
withdraw [his] guilty plea bears the burden of establishing a ‘manifest injustice.’ (Internal
citation omitted). * * * A manifest injustice has been defined as ‘a clear or openly unjust act’
that involves ‘extraordinary circumstances.’ (Internal citation omitted). We apply an
abuse-of-discretion standard to a trial court’s decision on a motion to withdraw a guilty
plea.” Xenia v. Jones, Greene App. No. 07-CA-104, 2008-Ohio-4733, ¶ 6.
{¶ 14} “‘Abuse of discretion’ has been defined as an attitude that is unreasonable,
arbitrary or unconscionable. (Internal citation omitted). It is to be expected that most
instances of abuse of discretion will result in decisions that are simply unreasonable, rather
than decisions that are unconscionable or arbitrary.
{¶ 15} “A decision is unreasonable if there is no sound reasoning process that would
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support that decision. It is not enough that the reviewing court, were it deciding the issue de
novo, would not have found that reasoning process to be persuasive, perhaps in view of
countervailing reasoning processes that would support a contrary result.” AAAA
Enterprises, Inc. v. River Place Community Redevelopment (1990), 50 Ohio St.3d 157, 161.
{¶ 16} “A trial court does not abuse its discretion in overruling a motion to
withdraw: (1) where the accused is represented by highly competent counsel, (2) where the
accused was afforded a full hearing, pursuant to Crim.R. 11, before he entered his plea, (3)
when, after the motion to withdraw is filed, the accused is given a complete and impartial
hearing on the motion, and (4) where the record reveals that the court gave full and fair
consideration to the plea withdrawal request.” State v. Peterseim (1980), 68 Ohio App.2d
211, 428 N.E.2d 863, syllabus.
{¶ 17} R.C. 2950.05(A) provides that if an offender is required to register under R.C.
2950.04, then he “ * * * shall provide written notice of any change of residence address * * *
to the sheriff * * * at least twenty days prior to changing the address of the residence.” R.C.
2950.05(F)(1) provides, “No person who is required to notify a sheriff of a change of
address pursuant to division (A) of this section * * * shall fail to notify the appropriate
sheriff in accordance with that division.”
{¶ 18} “We review the alleged instances of ineffective assistance of trial counsel
under the two prong analysis set forth in Strickland v. Washington (1984), 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674, and adopted by the Supreme Court of Ohio in State v. Bradley
(1989), 42 Ohio St.3d 136, * * * . Pursuant to those cases, trial counsel is entitled to a
strong presumption that his or her conduct falls within the wide range of reasonable
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assistance. Strickland, 466 U.S. at 688. To reverse a conviction based on ineffective
assistance of counsel, it must be demonstrated that trial counsel’s conduct fell below an
objective standard of reasonableness and that his errors were serious enough to create a
reasonable probability that, but for the errors, the result of the trial would have been
different. Id. Hindsight is not permitted to distort the assessment of what was reasonable
in light of counsel’s perspective at the time, and a debatable decision concerning trial
strategy cannot form the basis of a finding of ineffective assistance of counsel.” (Internal
citation omitted). State v. Mitchell, Montgomery App. No. 21957, 2008-Ohio-493, ¶ 31.
{¶ 19} Prior to analyzing the arguments Pritchett sets forth, we note that on June 17,
2011, we issued a Decision and Entry allowing the parties time to brief an issue not raised in
the lower court or in this appeal, namely the disparity in sentencing arising under the Adam
Walsh Act and Megan’s Law, including felony level and mandatory time. Under Megan’s
Law, failure to notify of a change of address was a felony of the third degree for an offender
like Pritchett, who was previously convicted, in 2005 CR 5053, for failure to register, in
violation of R.C. 2950.06(A) and (F). Former R.C. 2950.99. Under the Adam Walsh
Act, failure to notify of a change of address, subsequent to Pritchett’s prior R.C. 2950.06
conviction, is a felony of the same degree as Pritchett’s underlying sexually oriented offense
(attempted rape), namely a felony of the second degree, subject to a mandatory prison term
of no less than three years. R.C. 2950.99(A)(2)(b).
{¶ 20} Beginning with Pritchett’s assertion that he was released from prison early in
1999, we agree with the trial court that the record does not support that conclusion.
Pritchett’s motion to withdraw his plea provides that he “was released from CRC in August,
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1999, and was told to register no later than five days after his release, * * * and first
registered on August 18, 1999.” Pritchett attached to his motion a computer printout
identifying Pritchett as a sexually oriented offender and listing his characteristics, including
an “initial registration date” of August 18, 1999. In the course of the hearing on the motion
to withdraw, Pritchett identified a document that he signed regarding his reporting
requirements when he registered his address in 2002, and the document is dated August 18,
2002, a date consistent with his yearly registration requirements, which he asserted in his
motion had commenced on August 18, 1999. The court asked Pritchett when in 1999 he
was initially released from prison, and Pritchett stated, “Definitely the first of the year, sir,”
and he further testified that he had to register immediately after his release. As the trial
court noted in the course of the hearing, it “doesn’t make sense” that Pritchett’s initial
registration date would be months after his release and not immediately thereupon. Other
than Pritchett’s statements, which the trial court did not credit, there is no support in the
record to conclude that Pritchett was released in early 1999.
{¶ 21} Pursuant to Bodyke, the trial court found Pritchett’s reclassification as a Tier
III sex offender and the attendant community notification and registration requirements may
not be applied, and Pritchett’s original classification as a sexually oriented offender is
reinstated. The version of R.C. 2950.05 that was in effect in 1999, when Pritchett was
released from prison, as well as the version under which Pritchett was indicted in 2009,
required Pritchett to notify the sheriff if he changed his address of residence. In other
words, the requirement to notify of a change of address of residence does not originate from
any unlawful reclassification, and the application of the “Adam Walsh Act” herein is not
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based upon Pritchett’s previous, unlawful reclassification. Pritchett had an ongoing duty to
notify regarding a change of address of residence that was not altered by either the “Adam
Walsh Act” or Bodyke. State v. Milby, Montgomery App. No. 23798, 2010-Ohio-6344,
(holding that Milby “could be found criminally liable for his conduct in failing to notify,
based on the prior sexual offender classification to which the defendant was reinstated per
Bodyke”); State v. Johnson, Montgomery App. No. 24029, 2011-Ohio-2069 (holding, on the
authority of Milby, that the trial court did not err when it found Johnson guilty of violating
R.C. 2950.05(F)(1) for his failure to notify the sheriff prior to Johnson’s change of his
residence address); State v. Alexander, Montgomery App. No. 24119, 2011-Ohio-4015.
{¶ 22} We agree with the trial court, and the State, that any defenses that Pritchett
may have had to the indicted charge were available to him when he entered his no contest
plea. Any advice that his counsel provided when Pritchett entered his plea was based upon
the law in effect at that time; Bodyke did not declare the tiered reclassifications
unconstitutional until June 3, 2010, and Pritchett’s claim that the fact that Bodyke changed
the law renders his plea somehow involuntary fails. Most importantly, Bodyke did not
change the fact that Pritchett had a duty to notify the sheriff of a change in his address of
residence, and Pritchett’s defenses were the same, whether he were a Tier III sex offender or
a sexually oriented offender. As the State notes, Bodyke merely changed the period of time
during which Pritchett was required to register back to the original ten years for a sexually
oriented offender, as discussed by the trial court, such that Pritchett would no longer be
required to keep his registration current after August, 2009.
{¶ 23} The record reflects that Pritchett was represented by counsel at the complete
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and impartial hearing on his motion to withdraw, the trial court gave the motion full and fair
consideration, and an abuse of discretion is not demonstrated. Further, the record before us
does not establish deficient performance on the part of defense counsel at the time of
Pritchett’s plea, and prejudice is not shown.
{¶ 24} Regarding the issue of sentencing, Pritchett directs our attention to Milby and
Johnson in his supplemental brief, which were decided after his appellate brief was filed,
and he argues that he is entitled to re-sentencing. Milby was convicted, following a bench
trial, of failing to register at his new address subsequent to his conviction for rape, and he
appealed that judgment. We noted that the Adam Walsh Act “increased the penalty for
failure to notify to a first-degree felony. That penalty may not be applied to Milby. Under
the former law, violation of the reporting requirement was a felony of the third degree. * * *
Since the trial court improperly treated Milby’s conviction as a first-degree felony,” we
remanded the matter for re-sentencing as a third-degree felony conviction. Id., ¶ 31.
Similarly, Johnson was convicted on a no contest plea for failing to provide notice of his
change of residence, and on his appeal we determined that the trial court erred when it
convicted him of a first degree felony and sentenced him to a three year term, instead of
finding him guilty of a felony of the third degree. We reversed the matter for resentencing.
Johnson, ¶ 10.
{¶ 25} In Alexander, we determined, on Alexander’s appeal from his conviction for
failure to notify following a jury trial, that the trial court erred in sentencing him to a three
year term since, “under the former version [of R.C. 2950.05, Alexander] would have been
guilty of a third-degree felony instead of a first-degree felony under the current version.”
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Id., ¶ 38. We noted that Bodyke was decided in the middle of Alexander’s trial, and that
Alexander raised its application in the trial court below. We accordingly concluded that
Alexander did not waive the issue on appeal.
{¶ 26} Very recently, in State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, the
Supreme Court of Ohio held that the provision of 2007 Am.Sub. S.B. 10, which imposes
greater penalties on sexual offenders, such as Pritchett, for violations of notification and
registration requirements than applied when they were convicted of their underlying sexual
offense, violates the prohibition against retroactive laws in Section 28, Article II of the Ohio
Constitution. That section provides, in pertinent part: “The general assembly shall have no
power to pass retroactive laws.” Any law “passed” in violation of that section is therefore
void. Further, because such a law purports to apply retroactively, a holding that the law
violates Section 28, Article II likewise applies retroactively to any person to whom the law
was retroactively applied.
{¶ 27} Crim.R. 32.1 authorizes the court that entered a judgment of conviction to set
aside the judgment of conviction and permit the defendant to withdraw his plea after
sentence was imposed in order to correct a manifest injustice. A judgment of conviction
memorializes “the plea, the verdict or findings, upon which each conviction is based, and the
sentence.” Crim.R. 32(C). When the sentence that was imposed constitutes a manifest
injustice, Crim.R. 32.1 reasonably authorizes the court to correct that defect without
disturbing the other elements of a conviction. “A ‘manifest injustice’ comprehends a
fundamental flaw in the path of justice so extraordinary that the defendant could not have
sought redress from the resulting prejudice through another form of application reasonably
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available to him or her.” State v. Hartzell (Aug. 20, 1999), Montgomery App. No. 17499.
{¶ 28} Under Megan’s law (which had been applied to Pritchett in 2005), Pritchett
with the 2005 prior failure to notify conviction was subject to sentencing for a felony of the
third degree. As a result of a subsequent amendment of the law, Pritchett was instead
sentenced for a second degree felony offense. That amendment of the law is void, per
Williams. The sentence the court imposed pursuant to that law is likewise void. It would
be a manifest injustice to continue Pritchett’s incarceration on a void sentence.
{¶ 29} “[A] trial court is authorized to correct a void sentence.” State ex rel.
Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, ¶ 19. An appellate court has
inherent authority to vacate the void judgment and remand the case to the trial court to
conduct a new sentencing hearing. State v. Miller, Summit App. No. 24692,
2009-Ohio-6281, ¶ 6,7.
{¶ 30} Accordingly, we reverse Pritchett’s conviction, in part, by vacating the
sentence the court imposed, and we remand the matter for a new sentencing hearing.
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GRADY, P.J., and FROELICH, J., concur.
Copies mailed to:
Kirsten A. Brandt
Lori R. Cicero
Hon. Dennis Adkins