State v. Mestre , 2011 Ohio 5677 ( 2011 )

[Cite as State v. Mestre, 2011-Ohio-5677.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96820
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RAMON MESTRE
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-535193
BEFORE: Sweeney, J., Kilbane, A.J., and Boyle, J.
RELEASED AND JOURNALIZED: November 3, 2011
ATTORNEY FOR APPELLANT
Nathaniel McDonald, Esq.
Assistant Public Defender
310 Lakeside Avenue, Suite 400
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Daniel T. Van, Esq.
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
JAMES J. SWEENEY, J.:
{¶ 1} Defendant-appellant Ramon Mestre appeals from the trial court’s denial of
his motion to withdraw his guilty plea for failure to verify his address predicate upon his
unlawful reclassification under Ohio’s Adam Walsh Act. For the reasons that follow, we
reverse and remand.
{¶ 2} In this case, appellant was charged with violating a provision of Ohio’s
Adam Walsh Act; failure to verify address pursuant to R.C. 2950.06(F). This violation
allegedly occurred on or about January 23, 2010. The indictment alleged that appellant
had been convicted of deviate sexual intercourse under Pennsylvania state law in 1988.
{¶ 3} On May 21, 2010, appellant pled guilty to attempted failure to verify address
pursuant to R.C. 2923.02/2950.06, which reduced the offense from a first degree felony, as
indicted, to a felony of the second degree. The court imposed a two year prison term.
{¶ 4} On March 29, 2011, appellant moved to withdraw his guilty plea pursuant to
Crim.R. 32.1 based on the authority of the Ohio Supreme Court’s decision in Bodyke,1
which declared that the retroactive reclassification of previously convicted sexual
offenders under Ohio’s Adam Walsh Act was unconstitutional. Appellant submitted an
affidavit in support maintaining that he was initially classified under Ohio’s Megan’s Law
as a sexually oriented offender. However, appellant was indicted under the more stringent
classification provisions of Ohio’s Adam Walsh Act. The state opposed the motion and the
trial court denied it. Appellant now appeals and presents a single assignment of error:
{¶ 5} “The trial court erred when it denied Mr. Mestre’s Motion to Withdraw
Guilty Plea because Mr. Mestre’s conviction is predicated on an unlawful reclassification
and he is actually innocent of the charges.”
{¶ 6} The state concedes that this Court has already resolved this issue in
appellant’s favor citing State v. Ortega-Martinez, Cuyahoga App. No. 95656,
2
2011-Ohio-2540, ¶17; Hannah v. State, Cuyahoga App. Nos. 95883-95889,
State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753.
1
“This court has held that an unlawful reclassification under Ohio’s AWA
2
cannot serve as the predicate for the crime of failure to verify. State v. Smith, 8th
Dist. No. 92550, 2010-Ohio-2880, ¶29; State v. Page, 8th Dist. No. 94369,
2011-Ohio-83. Because appellant’s indictment was predicated on an unlawful
reclassification, he cannot be convicted of the offense charged.”
2011-Ohio-2930; Speight v. State, Cuyahoga App. Nos. 96041-96405, 2011-Ohio-2933.
However, the state continues to defend the trial court’s judgment on appeal in order to
preserve the issue for further review. Accordingly, this assignment of error is sustained
pursuant to the precedent in this jurisdiction.
{¶ 7} Judgment reversed and remanded for further proceedings consistent with this
opinion.
It is, therefore, considered that said appellant recover of said appellee his costs
herein.
It is ordered that a special mandate be sent to said 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.
JAMES J. SWEENEY, JUDGE
MARY EILEEN KILBANE, A.J., and
MARY J. BOYLE, J., CONCUR