State v. Faranda , 2011 Ohio 6083 ( 2011 )

[Cite as State v. Faranda, 2011-Ohio-6083.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96807
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ANTONIO FARANDA
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-531036
BEFORE: Keough, J., Boyle, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: November 23, 2011
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Chief Public Defender
BY: Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue
Suite 400
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Daniel T. Van
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Defendant-appellant, Antonio Faranda (“Faranda”), appeals the trial court’s
decision denying his motion to withdraw his plea. For the reasons that follow, we
reverse his conviction and sentence.
{¶ 2} In 2004, Faranda was found delinquent of gross sexual imposition in
Cuyahoga County Juvenile Court. Based on the delinquency finding, Faranda was
classified as a juvenile sexually oriented offender under Megan’s Law. As a sexually
oriented offender, he was required to verify his address annually for ten years, a
requirement with which to date, he has complied.
{¶ 3} In July 2007, the Ohio General Assembly through S.B. 10 enacted a new
sex offender law, Ohio’s Adam Walsh Act (“AWA”). As a result of the AWA, Faranda
was reclassified by the Ohio attorney general as a Tier II juvenile sex offender. This new
classification required Faranda to verify his address every 180 days for 20 years.
{¶ 4} In 2009, Faranda was charged with violating a provision of the AWA, i.e.,
failure to verify his address pursuant to R.C. 2905.06(F). Faranda pled guilty to an
amended charge of attempted failure to verify his address pursuant to R.C.
2923.02/2950.06, which reduced the offense to a fourth degree felony. The trial court
imposed an 18 month prison term.
{¶ 5} Subsequently, the Ohio Supreme Court issued its decision in State v.
Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, declaring that the
retroactive reclassification of previously convicted sexual offenders under Ohio’s AWA
was unconstitutional.
{¶ 6} In June 2010, and two weeks after the Bodyke decision was rendered,
Faranda filed a pro se motion to withdraw his guilty plea pursuant to Crim.R. 32.1 based
on the authority of the Bodyke decision. The trial court took no action on Faranda’s pro
se motion. In April 2011, Faranda’s counsel filed another motion to withdraw the guilty
plea, which the trial court summarily denied without conducting a hearing as requested.
{¶ 7} In his sole assignment of error, Faranda contends that the trial court erred in
denying his motion to withdraw his guilty plea because his conviction is predicated on an
unlawful reclassification and he is actually innocent of the charge.
{¶ 8} The State contends that Faranda is not eligible to benefit from the Bodyke
remedy because the juvenile court retains jurisdiction and authority to classify a juvenile
under the AWA, and thus, there is no separation-of-powers violation. We disagree.
{¶ 9} In State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d
1108, the Ohio Supreme Court held that the AWA as applied to “any other sex offender
who committed an offense prior to the enactment of S.B. 10, violates Section 28, Article
II of the Ohio Constitution, which prohibits the General Assembly from enacting
retroactive laws.” (Emphasis added.) Id. at ¶22.
{¶ 10} This court recently addressed the same issue raised by Faranda in State v.
Mestre, Cuyahoga App. No. 96820, 2011-Ohio-5677, and determined that because an
unlawful reclassification under Ohio’s AWA cannot serve as the predicate for the crime
of failure to verify, the trial court erred by denying the defendant’s motion to withdraw
his guilty plea based on an indictment that was predicated on an unlawful reclassification.
Id. at ¶6. See, also, State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, 946 N.E.2d
192; State v. Ortega-Martinez, Cuyahoga App. No. 95656, 2011-Ohio-2540; State v.
Ogletree, Cuyahoga App. No. 96438, 2011-Ohio-5846.
{¶ 11} We find no distinction between adult and juvenile defendants with respect
to the Ohio Supreme Court’s holding in Williams. In In re Smith, Allen App. No.
1-07-58, 2008-Ohio-3234, the Third District held that the juvenile defendant’s
constitutional rights were not violated when it reclassified him under Ohio’s AWA.
However, the Ohio Supreme Court summarily reversed the Third District’s decision under
the authority and application of Williams. See In re D.J.S., 130 Ohio St.3d 257,
2011-Ohio-3374, 957 N.E.2d 291. This decision by the Ohio Supreme Court
demonstrates that its holding in Williams is not limited to adult defendants.
{¶ 12} Accordingly, Faranda’s assignment of error is sustained
Judgment reversed and remanded.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
MARY J. BOYLE, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR