Speight v. State ( 2011 )

[Cite as Speight v. State, 2011-Ohio-2933.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 96041, 96042, 96043,
96044 and 96405
WILLIE SPEIGHT, III, ET AL.
PLAINTIFFS-APPELLEES
vs.
STATE OF OHIO
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CV-654590, CV-648679, CV-668227
CV-647002, and CV-648873
BEFORE: Keough, J., Boyle, P.J., and Jones, J.
RELEASED AND JOURNALIZED: June 16, 2011
ATTORNEYS FOR APPELLANT
William D. Mason
Cuyahoga County Prosecutor
BY: Daniel T. Van
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
ATTORNEYS FOR APPELLEES
For Daniel Terzin Read
James W. Burke
Burke, Vannucci & Gallagher
22649 Lorain Road
Fairview Park, OH 44126
For Juan Wyley
Robert L. Tobik
Chief Public Defender
BY: Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue, Ste 400
Cleveland, OH 44113
Tavon Dickerson, Pro Se
805 Alhambra Street
Cleveland, OH 44110
Willie Speight III, Pro Se
2100 Lakeside Avenue
Cleveland, OH 44114
Robert Umstead, Pro Se
3101 Chelsea Drive
Cleveland, OH 44118
KATHLEEN ANN KEOUGH, J.:
{¶ 1} In this consolidated appeal, defendant-appellant, the state of
Ohio (“the State”), appeals the trial court’s judgments granting the petitions
contesting the application of Ohio’s Adam Walsh Act (“AWA”) of the
plaintiffs-appellees, Willie Speight, III, Robert Umstead, Tavon Dickerson,
Daniel Terzin Read, and Juan Wyley (collectively “appellees”). For the
following reasons, we affirm.
{¶ 2} The Cuyahoga County Common Pleas Court convicted Speight of
sexual battery in 2007, Dickerson of unlawful sexual contact with a minor in
2004, and Umstead of sexual battery in 1995. When they were each
sentenced, the trial court did not conduct a hearing to determine their sex
offender classification or issue a journal entry designating their classification.
Accordingly, their sexually oriented offender status arose by operation of
law.
{¶ 3} Read was convicted of sexual battery in 2007 in the state of
Virginia. Wyley was convicted in 1997 of aggravated criminal sexual assault
in the state of Illinois. Upon moving to Ohio, both Read and Wyley were
classified and began registering as sexually oriented offenders under Megan’s
Law. Their classification arose by operation of law.
{¶ 4} 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. Speight, Umstead, Read, and Wyley were all
reclassified as “Tier III” sex offenders. 1 In 2008, appellees filed separate
petitions pursuant to R.C. 2950.031 and 2950.032, contesting their
reclassification and the application of the AWA.
{¶ 5} 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. 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.{¶ 6} Accordingly, in 2010, the trial court granted appellees’ individual
petitions on the authority of Bodyke and restored each appellee to his
previous sex offender status under Megan’s Law.
The record is unclear as to Dickerson’s reclassification.
1
{¶ 7} The State appeals these judgments, contending that the trial
court erred in applying Bodyke to petitioners who (1) were not classified
under Megan’s Law by an Ohio court, and (2) did not demonstrate by clear
and convincing evidence that they were previously classified by an Ohio court.
Because these arguments are related, we address them together.
{¶ 8} The State argues that Bodyke is limited to only those individuals
who were classified under Megan’s Law by an Ohio court. The State
maintains 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. See Bodyke at 60-61. In support
of their argument, the State cites to Green v. State, 1st Dist. No. C-090650,
2010-Ohio-4371, appeal allowed in part, 127 Ohio St.3d 1531, 2011-Ohio-376,
940 N.E.2d 985, and Boswell v. State, 12th Dist. No. CA2010–01–006,
2010-Ohio-3134. Therefore, according to the State, because appellees’
original classifications under Megan’s Law arose by operation of law and were
not court-ordered, Bodyke does not apply and appellees are subject to the
AWA. We disagree.
{¶ 9} This court has consistently and repeatedly held that pursuant to
the holding in Bodyke, reclassification under the AWA is unconstitutional
because it violates the separation-of-powers doctrine. See e.g., Pierson v.
State of Ohio, 8th Dist. Nos. 92173-92175, 92177, 92179, 92182-92185,
92187-92188, 92199-92206, 92240, 92248-92251, 92255-92257, 92277, 92312,
92328, 2010-Ohio-3060, and State v. Means, 8th Dist. Nos. 92936-92939,
92941-92945, 2010-Ohio-3082.
{¶ 10} In State v. Majewski, 8th Dist. No. 92372, 92400, 2010-Ohio-3178,
appeal not allowed, 127 Ohio St.3d 1462, 2010-Ohio-6008, 938 N.E.2d 364,
this court considered whether an individual who was convicted of sexual
assault and attempted sexual assault outside the state of Ohio was bound by
the reclassification scheme under the AWA. This court, in applying Bodyke,
concluded that the reclassification of an offender whose underlying conviction
occurred in Hawaii violated the separation-of-powers doctrine. Id. at 13.
See, also, State v. Ortega-Martinez, 8th Dist. No. 95656, 2011-Ohio-2540(recognizing that Majewski remains the controlling precedent and that
Bodyke applies to out-of-state offenders); Clager v. State, 5th Dist. No.
10-CA-49, 2010-Ohio-6074, 25 (Bodyke applies to out-of-state offenders).
{¶ 11} The State contends that Majewski is not controlling because the
“arguments raised in the instant appeal were not explicitly argued by the
State in the Majewski case.” However, the Tenth District has previously
addressed and rejected the very arguments raised by the State in this appeal,
holding that Bodyke applies to individuals whose sex offender classifications
under Megan’s Law arose by operation of law. See State v. Hazlett, 191 Ohio
App.3d 105, 2010-Ohio-6119, 944 N.E.2d 1220; Core v. State, 10th Dist. No.
09AP-192, 2010-Ohio-6292; State v. Johnson, 10th Dist. No. 10AP-932,
2011-Ohio-2009.
{¶ 12} The Hazlett court analyzed the Bodyke holding in light of
Chojnacki v. Cordray, 126 Ohio St.3d 321, 2010-Ohio-3212, 933 N.E.2d 800,
which was decided shortly after Bodyke.
{¶ 13} “The Supreme Court of Ohio in Chojnacki reiterated, ‘In Bodyke,
we severed R.C. 2950.031 and 2950.032, the reclassification provisions of the
Adam Walsh Act, and held that after severance, those provisions could not be
enforced.’ Noting that the reclassification hearing that resulted in the
appeal and the related certified question ‘arose under the now-severed
provisions of R.C. 2950.031 and 2950.032,’ the Supreme Court dismissed the
appeal. Hazlett at 9, quoting Chojnacki at 5-6.
{¶ 14} “[T]he remedy of Bodyke, as later clarified and reaffirmed in
Chojnacki, was complete and 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. Moreover, after Bodyke was rendered, the Supreme Court
was asked for clarification on this very issue, but declined to offer either
reconsideration or clarification, which suggests the effect of severance is
applicable to all sex offenders whether classified judicially or by operation of
law.” Hazlett at 11.
{¶ 15} “Given that the statutory provisions authorizing the attorney
general to reclassify sex offenders have been severed and excised from the
Ohio Revised Code, we find the action taken by the Supreme Court in Bodyke,
i.e., reinstating sex offenders to their sex-offender classifications as they
existed prior to the implementation of the AWA, to be equally applicable
here.” Id. at 12.
{¶ 16} We find the decision of the Tenth District addressing this issue
well-reasoned and persuasive. Additionally, we note that one of the Bodyke
petitioners did not have a court-ordered classification; rather, his sex offender
classification arose by operation of law. We presume the Ohio Supreme
Court rendered its decision in Bodyke recognizing the distinctions among the
petitioners involved. This recognition is reflected by the remedy established
in Bodyke that the reclassification provisions of the AWA were severed. The
Court would not have selected severance as a remedy had it intended to
declare the AWA reclassification provisions unconstitutional only “as
applied,” rather than facially, to those offenders who had classified by a court
order. See Core at 26.
{¶ 17} Moreover, if we adopted the State’s reasoning, we would have to
conclude that Bodyke applies only to those individuals who were classified as
sexual predators or habitual sex offenders under Megan’s Law, but not
necessarily to sexually oriented offenders, because all individuals convicted of
a sex offense are automatically classified as a “sexually oriented offender”
under the statute. Under Megan’s Law, the duty to register as a sexually
oriented offender arises automatically if the offender pled guilty to or was
convicted of a sex offense and the trial court does not make a determination
that the offender was a sexual predator or habitual sex offender. State v.
Hayden, 96 Ohio St.3d 211, 2002-Ohio-4169, 773 N.E.2d 502.
{¶ 18} In Hayden, the Supreme Court, in holding that due process does
not require a trial court to conduct a hearing to determine if a defendant is a
sexually oriented offender, made the following observation:
{¶ 19} “In fact, affording [the defendant] a hearing under these facts
would be nothing more than an empty exercise. The point of such a hearing
would be to determine whether [the defendant] committed a sexually oriented
offense. * * * When he was convicted of [ attempted rape], which is a sexually
oriented offense under R.C. 2950(D)(1)(g), [the defendant] was automatically
classified as a sexually oriented offender * * *.” Id. at 15.
{¶ 20} Therefore, adopting the State’s reasoning, “the point of such a
hearing,” would be to preserve the rights of individuals who are challenging
the application of the AWA. If this court applied the State’s reasoning, the
least serious offenders under Megan’s Law, i.e. sexually oriented offenders,
would be subject to the more stringent Tier system of classification under the
AWA, because their classifications arose by operation of law, whereas
individuals classified as sexual predators and habitual sex offenders, the
more serious offenders under Megan’s Law, would get the benefit of the
application of Bodyke and maintain their original classification under
Megan’s Law. This reasoning is nonsensical. To limit the holding in Bodyke
to only those offenders who were classified by a court and not those whose
classifications arose by operation of law would render unfair and unjust
results.
{¶ 21} We recognize that our decision is in conflict with those of other
districts regarding this issue. See Green, supra (First District) and Boswell,
supra, (Twelfth District) (both holding that Bodyke is limited only to those
offenders whose received court order classifications under Megan’s Law).
The Supreme Court has accepted jurisdiction to consider Green, but has
stayed briefing pending its resolution of State v. Williams, Supreme Court
Case No. 2009-0088. See Green v. State, Supreme Court Case No. 2010-1882.
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.
{¶ 22} This appeal involved individuals whose sex-offender status under
Megan’s Law arose not by judicial determination but instead by operation of
law. Therefore, we hold that if an offender’s classification under Megan’s
Law arose by operation of law, the holdings in Bodyke and Chojnacki apply
and dictate that reclassifications made under the AWA are to be vacated and
the prior sex-offender classification be reinstated.
{¶ 23} Accordingly, we hold that the trial court did not err in applying
Bodyke and we overrule the State’s assignments of error.
Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
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.
KATHLEEN ANN KEOUGH, JUDGE
MARY J. BOYLE, P.J., and
LARRY A. JONES, J., CONCUR