State v. Dillon , 2012 Ohio 773 ( 2012 )

[Cite as State v. Dillon, 2012-Ohio-773.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. CT11-0062
RANDY L. DILLON
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court
of Common Pleas, Case No. CR 2007-0114
JUDGMENT: Reversed and Remanded for Limited
Proceedings
DATE OF JUDGMENT ENTRY: February 23, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RON WELCH RANDY L. DILLON
Assistant Prosecuting Attorney Ross Correctional Institution
Muskingum County, Ohio P.O. Box 7010
27 North Fifth Street Chillicothe, Ohio 45601
Zanesville, Ohio 43701
Muskingum County, Case No. CT11-0062 2
Hoffman, J.
{¶ 1} Defendant-appellant Randy L. Dillon appeals the November 1, 2011
Judgment Entry entered by the Muskingum County Court of Common Pleas denying his
motion for resentencing. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE
{¶ 2} Following a jury trial, Appellant was found guilty of burglary, a felony of the
second degree; kidnapping, a felony of the first degree; attempted murder, a first degree
felony; and rape, a first degree felony. On March 13, 2007, Appellant burglarized the
home of Tonya Alexander, kidnapping her 14 month-old daughter, raping her, and
leaving her on the side of the road where she was later discovered and taken for
medical care.
{¶ 3} Via Judgment Entry of May 30, 2008, the trial court sentenced Appellant to
a collective sentence of life without the possibility of parole plus twenty-eight years. The
Court further classified Appellant a Tier III sex offender, subject to a lifetime of reporting,
pursuant to S.B. 10 and the Adam Walsh Act.
{¶ 4} On April 10, 2008, Appellant filed a “Common Law Motion to Vacate: Void
Judgement [SIC] for Lack of Subject-Matter Jurisdiction.” Via Journal Entry of April 12,
2010, the trial court denied the motion.
{¶ 5} On October 31, 2011, Appellant moved the trial court for resentencing.
Appellant’s motion cites the Ohio Supreme Court decision in State v. Williams 2011-
Ohio-3374. Appellant argued the offenses for which he was convicted occurred prior to
July 1, 2007; therefore, S.B. 10 could not be applied retrospectively in violation of the Ex
Muskingum County, Case No. CT11-0062 3
Post Fact Laws of the Ohio and United States’ Constitutions. Appellant maintains
Ohio’s version of Megan’s Law is applicable sub judice.
{¶ 6} Via Journal Entry of November 1, 2011, the trial court denied the motion
for resentencing. Appellant now appeals, assigning as error:
{¶ 7} “THE ADAM WALSH ACT DOES NOT APPLY TO APPELLANT’S
SENTENCE WHEN IT VIOLATES THE EX POST FACTO CLAUSE.”1
{¶ 8} Initially, we note, Appellant filed a direct appeal from his May 30, 2008
sentence, but did not raise the issue presented herein in his direct appeal to this Court.
This Court affirmed Appellant’s conviction via Opinion and Judgment Entry of June 24,
2009, Muskingum App. No.2008-CA-37.
{¶ 9} Appellant argues his offenses occurred prior to July 1, 2007; therefore, the
trial court erred in retroactively applying the provisions of the Adam Walsh Act, S.B. 10,
in classifying him a Tier III sex offender.
{¶ 10} In State v. Williams, 2011-Ohio-3374, the Ohio Supreme Court held the
statutory changes of S.B. 10 and the Adam Walsh Act violate the prohibition against Ex
Post Facto laws or retroactive laws when applied to a person whose crime was
committed prior the enactment of S.B. 10.
{¶ 11} In State v. Eads 2011-Ohio-6307, the Second District Court of Appeals,
analyzed the issue presented herein:
{¶ 12} “In Williams, the supreme court concluded that S.B. 10 retroactively
created new burdens, duties and obligations on persons (such as Eads) who committed
sex offenses prior to the effective date of that statute. Williams at ¶ 20. Accordingly, the
1
We note Appellant’s assignment of error states a proposition of law rather than a claim
of trial court error.
Muskingum County, Case No. CT11-0062 4
retroactive application of S.B. 10 to those persons is a nullity, and Eads's classification
as a Tier III sex offender is void.
{¶ 13} “We further note that, with respect to S.B. 10, the Ohio Supreme Court
has applied its holdings broadly. In State v. Bodyke, 126 Ohio St.3d 266, 2010–Ohio–
2424, the supreme court concluded that ‘R.C. 2950.031 and 2950.032, which require
the attorney general to reclassify sex offenders who have already been classified by
court order under former law, impermissibly instruct the executive branch to review past
decisions of the judicial branch and thereby violate the separation-of-powers doctrine. In
addition, R.C. 2950.031 and 2950.032 violate the separation-of-powers doctrine by
requiring the opening of final judgments.’ The court severed the reclassification
provisions from S.B. 10. The court thus held: ‘We therefore hold that R.C. 2950.031 and
2950.032 are severed and, that after severance, they may not be enforced. 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.’ (Emphasis added in
original.) Id. at ¶ 66
{¶ 14} “Following its expansive language, the supreme court has not limited its
holding in Bodyke to that case and to those sex offenders who had pending cases
based on challenges to their reclassifications. Rather, the Supreme Court has applied
Bodyke to all sex offenders who were reclassified by the Attorney General under R.C.
2950.031 and R.C. 2950.032.
{¶ 15} “For example, in State v. Gingell, 128 Ohio St.3d 444, 2011–Ohio–1481,
Gingell was convicted of three counts of rape in 2000 and was originally classified as a
Muskingum County, Case No. CT11-0062 5
sexually oriented offender. In accordance with S.B. 10, Gingell was reclassified by the
Attorney General as a Tier III sex offender, who was required to register every 90 days
for life. Gingell was later prosecuted for failing to verify his address and failing to register
a change of address; he pled guilty to failing to verify his address. Gingell appealed,
claiming that the trial court erred in retroactively applying the current version of R.C.
2950.99 (which made Gingell's offense a first degree felony), rather than the version
that was in effect at the time of his original classification. Bodyke was rendered during
the pendency of Gingell's appeal.
{¶ 16} “Although Gingell had not challenged his reclassification as a Tier III sex
offender and had pled guilty to failing to verify his address in accordance with the S.B.
10's 90–day reporting schedule, the supreme court gave Gingell the benefit of Bodyke.
The court reasoned: ‘* * * [P]ursuant 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 [S.B. 10]. 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.’ Gingell at ¶ 8.
Muskingum County, Case No. CT11-0062 6
{¶ 17} “Like the broad holding in Bodyke, the holding in Williams expressly
applies to ‘any other sex offender who committed an offense prior to the enactment of
S.B. 10.’ Williams at ¶ 22. Considering this language in Williams and the supreme
court's broad application of Bodyke in Gingell, we conclude that Williams must be
applied to Eads, despite his failure to challenge his classification under S.B. 10 in a
direct appeal of his delinquency adjudication.
{¶ 18} “In summary, Eads's classification as a Tier III sex offender by the juvenile
court violated Ohio's Retroactivity Clause and is void.”
{¶ 19} Based upon the Ohio Supreme Court holding in Williams and the analysis
set forth in Eads, supra, we find the trial court erred in classifying Appellant a Tier III sex
offender under the provisions of S.B. 10 and the Adam Walsh Act where the offenses
for which Appellant was convicted occurred prior to the enactment of the legislation.
Accordingly, we reverse the November 1, 2011 Judgment Entry of the trial court and
remand the matter to the trial court for a classification hearing in accordance with the
law in effect at the time the offenses were committed.
By: Hoffman, P.J.
Farmer, J. and
Delaney, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer___________________
HON. SHEILA G. FARMER
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
Muskingum County, Case No. CT11-0062 7
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
RANDY L. DILLON :
:
Defendant-Appellant : Case No. CT11-0062
For the reason stated in our accompanying Opinion, we reverse and remand the
matter to the trial court for the limited purpose of classifying Appellant in accordance
with the law in effect at the time the offenses were committed. Costs to Appellee.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer___________________
HON. SHEILA G. FARMER
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY