Sheets v. State , 2011 Ohio 4098 ( 2011 )

[Cite as Sheets v. State, 2011-Ohio-4098.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 95876, 95877, 95878, 95879, and 95880
WILLIAM SHEETS, ET AL.
PLAINTIFFS-APPELLEES
vs.
STATE OF OHIO
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Common Pleas Court
Case Nos. CV-649958, CV-663683, CV-655323,
CV-656992, and CV-649862
BEFORE: E. Gallagher, J., Sweeney, P.J., and Keough, J.
RELEASED AND JOURNALIZED: August 18, 2011
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ATTORNEYS FOR APPELLANT
William D. Mason
Cuyahoga County Prosecutor
By: Daniel T. Van
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEES
For William Sheets
Stuart H. Lippe
940 Leader Building
526 Superior Ave.
Cleveland, Ohio 44114
For Richard Ogletree
Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue
Suite 400
Cleveland, Ohio 44113
Karnell Johnson, pro se
464 Eddy Road
Cleveland, Ohio 44108
Fred Andrew Farley, Jr., pro se
10914 Nelson, Down
Cleveland, Ohio 44103
Otis Lockett, pro se
4681 Country Lane, Apt. 157
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Warrensville Heights, Ohio 44128
EILEEN A. GALLAGHER, J.:
{¶ 1} In this consolidated appeal, the appellant, the state of Ohio,
appeals the trial court’s judgments granting the petitions contesting the
application of Ohio’s Adam Walsh Act (“AWA”) filed by the appellees,
William Sheets, Karnell Johnson, Fred Andrew Farley, Jr., Otis Lockett, and
Richard Ogletree, in the Cuyahoga County Court of Common Pleas. For the
following reasons, we affirm.
{¶ 2} The Cuyahoga County Common Pleas Court convicted Sheets of
rape in 1984; Johnson of sexual battery in 1991; Farley of sexual battery in
1996; Lockett of kidnapping with the purpose to engage in sexual activity in
1986; and Ogletree of rape in 1983. At the time of the filing of the petitions
in these cases each appellee was residing in Cuyahoga County and
registering with the county sheriff pursuant to R.C. chapter 2950. The
dockets for each of the appellees’ criminal cases reveal that the trial court in
each instance never conducted a hearing to determine the appellees’ sex
offender classification or issued a journal entry designating their
classification.1
1
The docket for appellee Farley’s sexual battery conviction, CR-321484-ZA,
reflects that the state requested a sexual predator adjudication and that the trial
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{¶ 3} After the enactment of the AWA, appellees each received
notification from the Ohio Attorney General indicating their sex offender
reclassification with new reporting and notification requirements associated
with that classification. Ogletree was reclassified as a “Tier III” sex
offender under the AWA. Johnson was reclassified as a “Tier II” offender.
The record is unclear as to the remaining appellees’ reclassifications. In
2008, each of the appellees filed petitions pursuant to R.C. 2950.031 and R.C.
2950.032, contesting their reclassification and the application of the AWA.
{¶ 4} While appellees’ petitions were pending, the Ohio Supreme
Court issued its decision in State v. Bodyke, 126 Ohio St.3d 266,
2010-Ohio-2424, 933 N.E.2d 753, reconsideration denied, 126 Ohio St.3d
1235, 2010-Ohio-3737, 933 N.E.2d 810, in which the Supreme Court held
that, “R.C. 2950.031 and 2950.032, the reclassification provisions in the
AWA, are unconstitutional because they violate the separation-of-powers
doctrine.” Bodyke at ¶2. Because those sections were held
unconstitutional, the Supreme Court chose to sever the statutes.
court ordered appellee to appear for a hearing on the matter. However the
hearing was never held. The court further stated that “Notice of this hearing does
not negate [appellee’s] responsibility to register as a sexually oriented offender
within 7 days of release with the Sheriff’s Department.” In the case of appellee
Sheets, the docket reflects that the State declined proceedings under H.B. 180 on
July 3, 2000.
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Specifically, the Supreme Court stated, “As a remedy, we strike R.C.
2950.031 and 2950.032, hold that the reclassifications of sex offenders by the
attorney general are invalid, and reinstate prior judicial classifications of sex
offenders.” Id.{¶ 5} Thereafter, the trial court granted each appellee’s petition
pursuant to Bodyke and in each case stated, “Petitioner is restored to his
previous registration status under the terms and conditions of the final
decision in his criminal case.” It is from these orders that the state appeals.
{¶ 6} The state first argues that the trial court erred in applying
Bodyke to the appellees because they were classified under Megan’s Law by
operation of law rather than by an Ohio court. The state contends that
where there is no prior judicial order classifying a sex offender,
reclassification by the attorney general under the AWA does not violate the
separation-of-powers doctrine under Bodyke because it does not require the
opening of a final court order or a review by the executive branch of a past
decision of the judicial branch. The state argues in its second assignment of
error that the trial court erred by applying Bodyke to the appellees because
the appellees did not demonstrate by clear and convincing evidence that they
were previously classified by an Ohio court.
{¶ 7} This court recently addressed these precise arguments in Speight
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v. State of Ohio, 2011-Ohio-2933, Cuyahoga App. Nos. 96041, 96042, 96043,
96044, 96405 and Hannah v. Ohio, 2011-Ohio-2930, Cuyahoga App. Nos.
95883, 95884, 95885, 95886, 95887, 95888, 95889.
{¶ 8} In Hannah we stated, “[w]e recognize that the state raises a
conceivably correct interpretation of Bodyke and that the language in Bodyke
appears to limit its separation-of-powers holding to judicially classified sex
offenders and not those sex offenders classified by operation of law.
However, the remedy of Bodyke was complete and included total severance of
the provisions providing for the attorney general’s authority to reclassify sex
offenders. The severance makes no distinction between those classified
judicially and those classified by operation of law.” We concluded that
“offenders whose pre-AWA classification arose purely as a matter of law still
must receive the benefit of the Bodyke remedy returning those offenders to
their pre-AWA classifications because of Bodyke’s complete severance of the
statutory provisions governing reclassification by the attorney general.” Id.{¶ 9} Until the Ohio Supreme Court renders a decision expressly
limiting the holding in Bodyke, we will continue to apply the precedents
made by this court. In further support of this conclusion, we note the Ohio
Supreme Court’s recent decision in State v. Williams, ____ Ohio St.3d ____,
2011-Ohio-3374, wherein the Court held:
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“When we consider all of the changes enacted by S.B. 10 in aggregate,
we conclude that imposing the current registration requirements on a
sex offender whose crime was committed prior to the enactment of S.B.
10 is punitive. Accordingly, we conclude that S.B. 10, as applied to
defendants who committed sex offenses prior to its enactment, violates
Section 28, Article II of the Ohio Constitution, which prohibits the
General Assembly from passing retroactive laws.” Id. at ¶20.
{¶ 10} Accordingly, we hold that the trial court did not err in applying
Bodyke and we overrule the State’s assignments of error.
{¶ 11} The judgment of the trial court is affirmed.
It is ordered that appellant recover of 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 lower 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.
EILEEN A. GALLAGHER, JUDGE
JAMES J. SWEENEY, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR