State v. Hartley , 2016 Ohio 2854 ( 2016 )

[Cite as State v. Hartley, 2016-Ohio-2854.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellant, :
No. 15AP-192
v. : (C.P.C. No. 10CR-3067)
Calin L. Hartley, : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on May 5, 2016
On brief: Ron O'Brien, Prosecuting Attorney, and Steven L.
Taylor, for appellant. Argued: Steven L. Taylor.
On brief: Timothy Young, Ohio Public Defender, and
Brooke M. Burns, for appellee. Argued: Brooke M. Burns.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, P.J.
{¶ 1} Plaintiff-appellant, State of Ohio, appeals from a judgment of the Franklin
County Court of Common Pleas granting a motion filed by defendant-appellee, Calin L.
Hartley, to vacate his conviction for failure to provide notice of change of address, in
violation of R.C. 2950.05. Because we conclude that the trial court did not abuse its
discretion by granting the motion to vacate, we affirm.
I. Facts and Procedural History
{¶ 2} On May 21, 2010, a Franklin County Grand Jury indicted appellee on one
count of failure to provide notice of change of address, a fourth-degree felony, in violation
of R.C. 2950.05. The indictment asserted that appellee was subject to a change of address
notification requirement pursuant to a conviction for importuning entered by the Vinton
County Court of Common Pleas, Juvenile Division ("Vinton County juvenile court"), on
No. 15AP-192 2
July 8, 2009. On July 13, 2010, appellee entered a plea of guilty to the charge of failure to
provide notice of change of address, and the trial court subsequently issued a judgment
entry convicting appellee of that charge and imposing a 5-year period of community
control under intensive supervision, including a requirement that appellee undergo sex
offender and mental health counseling. Appellee's probation officer filed a request for
revocation of probation on May 23, 2011, asserting that appellee violated the terms of his
community control. The trial court issued a judgment entry on July 1, 2011, revoking
appellee's community control and imposing a sentence of 17 months of imprisonment.
The judgment entry further indicated that, on release, appellee would be subject to an
optional period of 3 years of postrelease control and that he would be subject to
imprisonment for up to 9 months if he violated postrelease control.
{¶ 3} On November 22, 2013, appellee filed a motion to vacate his conviction or,
in the alternative, for relief from judgment under Civ.R. 60(B). Appellee asserted that the
Ohio Attorney General had removed him from Ohio's sex offender registration database
pursuant to the Supreme Court of Ohio's decision in State v. Williams, 129 Ohio St.3d
344, 2011-Ohio-3374. Appellee claimed that his sex offender classification was void and,
therefore, that his conviction for failure to notify must be vacated. The state filed a
memorandum contra asserting that appellee's motion should be denied. On
December 12, 2013, the trial court issued a judgment entry granting the motion to vacate
and terminated appellee's community control. The state requested leave to appeal the
trial court's decision to this court, which we granted. We concluded that the trial court's
judgment entry, which indicated that it granted the motion to vacate based on the motion
"and the reasons outlined therein" failed to establish whether the trial court considered
the arguments asserted in the state's memorandum contra the motion to vacate. State v.
Hartley, 10th Dist. No. 14AP-29, 2014-Ohio-5300, ¶ 9. We declined to address the state's
arguments in the first instance and remanded the case to the trial court to consider the
arguments contained in the state's memorandum contra. Id. at ¶ 10. On remand, the trial
court issued a decision granting appellee's motion to vacate and setting forth its reasons
for granting the motion.
No. 15AP-192 3
II. Assignments of Error
{¶ 4} The state appeals from the trial court's judgment, assigning five errors for
this court's review:
[I.] THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION IN ADOPTING DEFENDANT'S CONTENTION
THAT HIS UNTIMELY RETROACTIVE-LAW CHALLENGE
TO HIS TIER I CLASSIFICATION RENDERED THE
CLASSIFICATION AND RESULTING CHANGE-OF-
ADDRESS CONVICTION "VOID."
[II.] THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION IN FAILING TO APPLY RES JUDICATA TO
BAR DEFENDANT'S UNTIMELY RETROACTIVE-LAW
CHALLENGE.
[III.] THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION IN FINDING THAT THE DECISION IN
STATE v. WILLIAMS, 129 Ohio St.3d 344, 2011-Ohio-3374,
952 N.E.2d 1108, APPLIED TO DEFENDANT'S LONG-
FINAL CONVICTION.
[IV.] THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION IN FAILING TO FIND THAT DEFENDANT'S
GUILTY PLEA BARRED HIS UNTIMELY RETROACTIVE-
LAW CHALLENGE.
[V.] THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION IN FAILING TO TREAT DEFENDANT'S
"MOTION" AS A TIME-BARRED POST-CONVICTION
PETITION.
III. Discussion
A. Standard of Review
{¶ 5} We begin our review of this appeal by considering the proper standard of
review for the trial court's decision. Appellee's motion was captioned as a motion to
vacate his conviction or, in the alternative, for relief from judgment pursuant to Civ.R.
60(B). The Ohio Rules of Criminal Procedure do not expressly provide for a motion to
vacate a conviction; however, "[c]ourts may recast irregular motions into whatever
category necessary to identify and establish the criteria by which the motion should be
judged." State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, ¶ 12. Pursuant to R.C.
No. 15AP-192 4
2953.21, a person who has been convicted of a criminal offense or adjudicated a
delinquent child and who claims that there was such a denial or infringement of his rights
as to render the judgment void or voidable under the state or federal constitution may file
a petition asking the court to vacate or set aside the judgment or sentence. R.C.
2953.21(A)(1)(a). In this case, appellee's motion asserted that the trial court was required
to vacate his failure to notify conviction because the underlying sex offender classification
that formed the basis for that conviction was unconstitutional and void. Accordingly, we
will construe appellee's motion to vacate his conviction as a petition for postconviction
relief. See State v. Reynolds, 79 Ohio St.3d 158, 160 (1997) ("[W]here a criminal
defendant, subsequent to his or her direct appeal, files a motion seeking vacation or
correction of his or her sentence on the basis that his or her constitutional rights have
been violated, such a motion is a petition for postconviction relief as defined in R.C.
2953.21.").
{¶ 6} We review a trial court's decision on a petition for postconviction relief for
abuse of discretion. State v. Sidibeh, 10th Dist. No. 12AP-498, 2013-Ohio-2309, ¶ 7. An
abuse of discretion occurs where the trial court's determination is "unreasonable,
arbitrary or unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). As
discussed more fully herein, appellee's petition required the trial court to determine
whether appellee's sex offender classification and subsequent failure to notify conviction
were void. The determination of whether a judgment is void is a question of law. See
Blaine v. Blaine, 4th Dist. No. 10CA15, 2011-Ohio-1654, ¶ 19 ("The determination of
whether a judgment is void presents a question of law."); State v. Jones, 9th Dist. No.
26854, 2013-Ohio-3710, ¶ 6 (quoting Blaine). We review questions of law under the de
novo standard of review. See State v. Blake, 10th Dist. No. 10AP-992, 2011-Ohio-3318,
¶ 17.
B. Determination that Failure to Notify Conviction was Void
{¶ 7} The state's main argument is that the trial court erred in concluding that
appellee's failure to notify conviction was void and, therefore, abused its discretion by
granting appellee's motion. Appellee argued that both the failure to notify conviction and
the underlying Tier I sex offender classification that formed the basis for that conviction
were void. Although the Vinton County juvenile court's judgment was not subject to
No. 15AP-192 5
direct review by the trial court, the arguments set forth in appellee's motion required the
trial court to consider the validity of appellee's classification. "Any court in any
jurisdiction certainly has the right to decline to recognize the validity of a void judgment
of any other court." Lingo v. State, 138 Ohio St.3d 427, 2014-Ohio-1052, ¶ 46.
Ultimately, the trial court concluded that appellee's classification as a Tier I sex offender
was void pursuant to the Williams decision. Therefore, before considering whether the
trial court abused its discretion in granting the motion to vacate appellee's failure to notify
conviction, we must address whether the trial court erred in determining that appellee's
sex offender classification was void.
1. Validity of Underlying Sex Offender Classification
{¶ 8} In the first assignment of error, the state asserts the trial court erred by
holding that appellee's Tier I sex offender classification and his conviction for failure to
notify were void. In the third assignment of error, the state asserts the trial court erred by
concluding that Williams applied to appellee's Tier I sex offender classification. To the
extent that the first and third assignments of error both address the trial court's
conclusion that appellee's classification as a Tier I sex offender was void, we will address
them together.
{¶ 9} Sex offender registration laws are not a recent development in Ohio—in
1963, the General Assembly created a designation of "habitual sexual offender" for
individuals convicted two or more times of specified crimes and imposed registration and
change of address notification duties on those individuals. Am.S.B. No. 160, 130 Ohio
Laws 669-71. In 1996, the General Assembly enacted Ohio's version of the federal
"Megan's Law" legislation, which created a comprehensive registration and classification
system for sex offenders. State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, ¶ 6-7.
Under Megan's Law, a sentencing court was required to determine whether a sex offender
fell into one of three classifications: (1) sexually oriented offender, (2) habitual sex
offender, or (3) sexual predator. State v. Cook, 83 Ohio St.3d 404, 407 (1998). Megan's
Law also included registration and address verification provisions, as well as community
notification provisions. Id. at 408-09. In 2007, the General Assembly further amended
the law, enacting Senate Bill No. 10 ("S.B. No. 10"), the Ohio version of the federal "Adam
Walsh Act." Bodyke at ¶ 20. S.B. No. 10, which went into effect on January 1, 2008,
No. 15AP-192 6
imposed a three-tiered sex offender classification system, based solely on the offense
committed. Id. at ¶ 21. It also modified the registration, address verification, and
community notification provisions related to each type of sex offender. Id. at ¶ 23-28.
{¶ 10} The Supreme Court of Ohio subsequently found several portions of the sex
offender classification system under S.B. No. 10 to be unconstitutional, either on their
face or as applied to certain defendants. In Bodyke, the court held unconstitutional
provisions requiring the attorney general to reclassify sex offenders under S.B. No. 10
whose classifications had already been adjudicated by a court and made the subject of a
final order under Megan's Law. Id. at ¶ 60. In July 2011, the Supreme Court released its
decision in Williams, which held that applying the sex offender classification system
under S.B. No. 10 to individuals who committed their crimes prior to enactment of that
law violated the constitutional prohibition against retroactive laws. Williams at ¶ 20. It is
within this context of the development and evolution of sex offender classification laws
that we consider the particular details of appellee's classification.
{¶ 11} In this case, appellee's motion to vacate included a copy of an order issued
by the Vinton County juvenile court on July 8, 2009 adjudicating appellee a delinquent
child and classifying him as a Tier I sex offender. The order indicated that the court
conducted a review hearing on July 6, 2009, shortly before appellee's 21st birthday, for
the purpose of determining whether appellee should be classified as a sexual offender
subject to reporting requirements. The order further indicated that appellee had
previously admitted to one charge against him on May 1, 2006. At the July 6, 2009
hearing, appellee's counsel, the prosecuting attorney, and the juvenile court judge
reviewed recordings of the 2006 adjudicatory and dispositional hearings. Following that
review, the court permitted appellee to withdraw his 2006 admission based on the court's
conclusion that appellee may not have been fully advised of his rights during the prior
proceedings. After the court vacated appellee's prior pleas, appellee denied the count of
gross sexual imposition and admitted to the count of importuning. Pursuant to the state's
request, the court dismissed the gross sexual imposition charge; the court then accepted
appellee's admission to the importuning charge. The court adjudicated appellee a
delinquent child and classified him as a Tier I sex offender with a ten-year registration
requirement. The order indicated that appellee would be released from custody of the
No. 15AP-192 7
Department of Youth Services on his 21st birthday, July 28, 2009. Appellee also attached
to his motion a copy of a letter he received from the Attorney General dated August 14,
2013, informing him that he no longer had a duty to register as a sex offender in Ohio.
{¶ 12} The Williams decision held that "S.B. 10, as applied to Williams and 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 ¶ 21. As we have previously noted,
"[i]n applying Williams, Ohio appellate courts have held that a retroactive classification of
a sex offender under S.B. 10 for an offense committed before the effective date of that act
is 'void.' " State v. Salser, 10th Dist. No. 12AP-792, 2014-Ohio-87, ¶ 8, citing State v.
Lawson, 1st Dist. No. C-120077, 2012-Ohio-5281, ¶ 18. See also In re C.W., 4th Dist. No.
11CA918, 2013-Ohio-2483, ¶ 8 ("[B]ecause the juvenile court classified C.W. as a sex
offender using a retroactive application of law, its sex offender classification is
unconstitutional and, therefore, void."); State v. Alsip, 8th Dist. No. 98921, 2013-Ohio-
1452, ¶ 8 ("Where a defendant whose offenses were committed prior to the effective date
of the Adam Walsh Act is improperly classified under the Act in violation of Williams,
such classification is void."); State v. Carr, 4th Dist. No. 11CA3256, 2012-Ohio-5425, ¶ 11
("Because Carr committed his sex offense prior to S.B. 10's enactment, his Tier III sex
offender classification under S.B. 10 violates Ohio's Retroactivity Clause and is void.");
State v. Dillon, 5th Dist. No. CT11-0062, 2012-Ohio-773, ¶ 19 ("Based upon the Ohio
Supreme Court holding in Williams and the analysis set forth in [State v. Eads, 197 Ohio
App.3d 493, 2011-Ohio-6307 (2d Dist.)], 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."); State v. Eads, 197 Ohio App.3d 493, 2011-Ohio-6307, ¶ 18 (2d Dist.)
("[T]he retroactive application of S.B. 10 to [persons who committed sex offenses prior to
the effective date of the statute] is a nullity, and Eads's classification as a Tier III sex
offender is void.").
{¶ 13} Although the record before us does not reflect precisely when appellee
committed the act or acts that led to the importuning charge, they necessarily must have
been committed before May 1, 2006, when the Vinton County juvenile court accepted
No. 15AP-192 8
appellee's initial admission. Thus, his offense was committed prior to the effective date of
S.B. No. 10. However, as outlined above, the Vinton County juvenile court did not
conduct a sex offender determination and impose a classification until July 6, 2009,
which was after the effective date of S.B. No. 10. Appellee was similarly situated to the
defendant in Williams, as well as those in Salser and other cases applying Williams,
because he committed the offense prior to the enactment of S.B. No. 10, but was classified
as a Tier I sex offender after that law went into effect. Pursuant to Williams and Salser,
the trial court did not err by concluding that appellee's Tier I sex offender classification
was void.
{¶ 14} Accordingly, we overrule appellant's first assignment of error to the extent it
challenges the trial court's determination that appellee's classification as a Tier I sex
offender was void. We also overrule appellant's third assignment of error.
2. Validity of Failure to Notify Conviction
{¶ 15} The state further argues in the first assignment of error that the trial court
erred by concluding that appellee's failure to notify conviction was void, citing this court's
decision in Salser. In that decision, this court observed that "Ohio appellate courts have
distinguished between cases in which a defendant challenges his 'sex offender
classification, which was void because of retroactivity, and his conviction for violating sex
offender reporting and registration requirements, which was merely voidable, not void.' "
(Emphasis sic.) Salser at ¶ 11, quoting State v. Knowles, 2d Dist. No. 2011-CA-17, 2012-
Ohio-2543, ¶ 11. The state argues that Salser recognized that a challenge to a failure to
notify conviction, such as the one raised in this case, is voidable rather than void.
However, Salser involved a motion to correct the defendant's sex offender classification,
not a challenge to a conviction for failure to notify pursuant to a sex offender
classification. Id. at ¶ 5. The question of whether a failure to notify conviction was void or
voidable was not directly at issue in Salser. Accordingly, the portion of Salser cited by the
state is not determinative of the issue before us in the present appeal.
{¶ 16} "A void judgment is one rendered by a court lacking subject-matter
jurisdiction or the authority to act." State v. Peeks, 10th Dist. No. 05AP-1370, 2006-Ohio-
6256, ¶ 10. "A voidable judgment, on the other hand, is a judgment rendered by a court
having jurisdiction/authority and, although seemingly valid, is irregular and erroneous."
No. 15AP-192 9
Id. "[I]f a trial court imposes a sentence that is unauthorized by law, the sentence is void."
State v. Billiter, 134 Ohio St.3d 103, 2012-Ohio-5144, ¶ 10. The Supreme Court's
reasoning in Billiter is instructive to our consideration of this appeal.
{¶ 17} The defendant in Billiter pled guilty to aggravated burglary, a first-degree
felony, and domestic violence, a fifth-degree felony, and was sentenced to 3 years in
prison. Id. at ¶ 2. The sentencing entry imposed a mandatory term of up to a maximum
term of 3 years of postrelease control; however, by statute, a first-degree felony conviction
required 5 years of postrelease control. Id. Billiter did not appeal his conviction or
sentence. Id. Following his release from prison, Billiter failed to comply with the terms of
his postrelease control and was charged with escape. He pled guilty to the charge of
escape and was sentenced to 3 years of community control. Once again, he did not appeal
the sentence. Id. at ¶ 3. Later, after Billiter violated the terms of his community control
sentence, the trial court revoked his probation and sentenced him to 6 years of
imprisonment on the escape conviction. Again, he did not file a direct appeal of the
judgment. Id. at ¶ 4. Ultimately, 12 years after the original sentence for aggravated
burglary and domestic violence, and 6 years after pleading guilty to the escape charge,
Billiter moved to withdraw his guilty plea to the escape charge asserting that he had never
been legally placed on postrelease control and, therefore, could not be found guilty for
escape. Id. at ¶ 6. The Supreme Court accepted the case on a certified conflict to
determine whether res judicata bars a defendant from arguing that a plea was void due to
a postrelease control sentencing violation when the defendant pled guilty to escape. Id.
{¶ 18} The Supreme Court concluded that because the trial court failed to sentence
Billiter to a correct term of postrelease control following the original conviction for
aggravated burglary and domestic violence, the sentence was void. Id. at ¶ 12. That void
sentence, therefore, was insufficient to confer authority on the Ohio Adult Parole
Authority to impose three years of postrelease control on Billiter. The subsequent escape
charge that arose from the failure to comply with the terms of postrelease control was
based on an invalid sentence. Accordingly, the court concluded the trial court lacked
jurisdiction to convict Billiter on a charge of escape. Id.
{¶ 19} Similar to Billiter, in this case appellee's failure to notify conviction was
based on violating an obligation that arose as a result of a void classification. As discussed
No. 15AP-192 10
more fully below, appellee was not subject to any valid classification and, therefore, the
trial court lacked authority to convict him of the charge of failure to notify, just as the trial
court in Billiter lacked authority to convict Billiter on an escape charge. Accordingly, we
overrule the state's first assignment of error to the extent that it asserts the trial court
erred by concluding that appellee's failure to notify conviction was void.
C. Determination that Res Judicata did not bar Appellee's Motion to
Vacate
{¶ 20} The state argues in its second assignment of error that appellee's motion
was to vacate his conviction was barred by res judicata. Res judicata bars a defendant
who was represented by counsel from raising an issue in a petition for postconviction
relief if the defendant raised or could have raised the issue at trial or on direct appeal.
State v. Szefcyk, 77 Ohio St.3d 93 (1996), syllabus. Although appellee did not file a direct
appeal from his juvenile adjudication or his failure to notify conviction, the state claims he
could have asserted the constitutional arguments that are set forth in his motion to vacate
through direct appeals. The Supreme Court has held that "void sentences are not
precluded from appellate review by principles of res judicata and may be reviewed at any
time, on direct appeal or by collateral attack." State v. Fischer, 128 Ohio St.3d 92, 2010-
Ohio-6238, ¶ 40. See also State v. Boone, 10th Dist. No. 11AP-1054, 2012-Ohio-3653,
¶ 10, quoting State v. McGee, 8th Dist. No. 91638, 2009-Ohio-3374, ¶ 8 ("Res judicata,
however, does 'not apply to void sentences because, by definition, a void sentence means
that no final judgment of conviction has been announced.' "). Because the trial court
properly concluded that appellee's failure to notify conviction was void, it did not abuse its
discretion by holding that his motion was not barred by res judicata.
{¶ 21} Accordingly, we overrule the second assignment of error.
D. Determination that Guilty Plea did not bar Appellee's Motion to
Vacate
{¶ 22} In its fourth assignment of error, the state argues that appellee's guilty plea
to the failure to notify charge bars his motion to vacate. In effect, the state argues that the
guilty plea constitutes a waiver of any challenge to appellee's conviction. As noted above,
however, a void sentence "may be reviewed at any time, on direct appeal or by collateral
attack." (Emphasis added.) Fischer at ¶ 40.
No. 15AP-192 11
{¶ 23} The state also argues that appellee would have been classified as a sex
offender under Megan's Law and that the sex offender classification should be deemed to
have attached as a matter of law, citing State v. Hayden, 96 Ohio St.3d 211, 2002-Ohio-
4169. Consequently, the state argues, appellee would have been subject to a ten-year
registration period and his failure to provide notice of change of address in Franklin
County would have supported a conviction under the applicable provisions of Megan's
Law.
{¶ 24} The Supreme Court held in Hayden that "if a defendant has been convicted
of a sexually oriented offense * * * and is neither a habitual sex offender nor a sexual
predator, the sexually oriented offender designation attaches as a matter of law." Id. at
¶ 18. See also State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 16 ("If a defendant
has been convicted of a sexually oriented offense and the trial court determines that the
offender is not a habitual sex offender or a sexual predator, then the designation of
'sexually oriented offender' attaches as a matter of law."). The defendant in Hayden pled
guilty to attempted rape in 1984. In 1999, without conducting a hearing, the trial court
classified him as a sexually oriented offender and notified him of his duty to register. Id.
at ¶ 1. Hayden appealed the classification order, arguing that it violated his right to due
process because the trial court had not conducted a hearing before issuing the
classification order. Id. The Supreme Court held that Hayden was not statutorily entitled
to a classification hearing, noting that the statutes only required a hearing to determine
whether an offender was a sexual predator when certain criteria applied, which were not
present in Hayden's case. Id. at ¶ 12. The court then further concluded that Hayden failed
to establish that he was deprived of a protected liberty or property interest that would
sustain a constitutional claim. Id. at ¶ 14.
{¶ 25} While the Hayden court found that the defendant in that case was not
statutorily entitled to a classification hearing because certain criteria were not met, the
record in this case is not sufficiently developed for us to determine whether appellee was
statutorily entitled to a classification hearing under Megan's Law to determine whether he
should have been classified as a sexual predator. Moreover, we note the unique facts of
this case in which appellee's initial admission was withdrawn and a new admission was
entered at the July 6, 2009 Vinton County juvenile court hearing. Therefore, it is unclear
No. 15AP-192 12
whether a classification under Megan's Law could have attached by law. The Supreme
Court has held that "for a defendant whose sex-offender classification was determined
under Megan's Law, the penalty for a violation of the reporting requirements of former
R.C. 2950.05 that occurs after Megan's Law was supplanted by [S.B. No. 10] is the penalty
set forth in the version of R.C. 2950.99 in place just before the effective date of [S.B. No.
10]." State v. Howard, 134 Ohio St.3d 467, 2012-Ohio-5738, ¶ 29. The court has further
explained that "Bodyke reinstated the classifications and community-notification and
registration orders imposed previously by judges." State v. Brunning, 134 Ohio St.3d 438,
2012-Ohio-5752, ¶ 20. In Brunning, the court concluded that although Brunning was
indicted for violating the notification provisions of S.B. No. 10, the conduct described in
the indictment also constituted a violation of the notification provisions of Megan's Law.
Id. at ¶ 26. Accordingly, the court reversed the decision of the court of appeals vacating
Brunning's conviction for violating the notification statute. Id. at ¶ 33. The court
emphasized that "offenders originally classified under Megan's Law have a continuing
duty to abide by the requirements of Megan's Law." Id. at ¶ 31.
{¶ 26} Unlike the defendants in Howard and Brunning, however, in this particular
case there is no evidence that appellee was ever subject to a valid classification order
pursuant to Megan's Law. Moreover, in this case the juvenile court vacated appellee's
2006 plea at the July 2009 hearing and permitted him to enter a new plea on the second
count of the indictment. Thus, the only valid admission in appellee's juvenile proceeding
was entered under S.B. No. 10, which had repealed Megan's Law. See Bodyke at ¶ 20
("S.B. 10 repealed Megan's Law and replaced it with a new, retroactive scheme that
includes the tier system required by Congress."). Under these circumstances, we cannot
conclude that appellee was subject to the reporting requirements of Megan's Law as a
matter of law without having been classified by the Vinton County juvenile court pursuant
to Megan's Law and when appellee's 2006 admission was withdrawn and he was re-
adjudicated in 2009 after S.B. No. 10 had gone into effect. See State v. Alredge, 2d Dist.
No. 24755, 2012-Ohio-414, ¶ 14, discretionary appeal not allowed, 131 Ohio St.3d 1541,
2012-Ohio-2025 (holding that because a juvenile offender had never been classified by
any court as a sexually oriented offender, habitual sex offender, or sexual predator under
No. 15AP-192 13
Megan's Law, the registration and reporting requirements under Megan's Law did not
apply to him and he could not be convicted of failing to comply with those requirements).
{¶ 27} Accordingly, on the facts of this case, we overrule the fourth assignment of
error.
E. Determination that Appellee's Motion to Vacate was not Time
Barred
{¶ 28} In the fifth assignment of error, the state asserts that appellee's motion to
vacate should have been rejected as an untimely petition for postconviction relief. At the
time appellee filed his motion, a petition for postconviction relief was required to be filed
no later than 180 days after the date the trial transcript was filed in the court of appeals in
the direct appeal or, if no appeal was taken, no later than 180 days after the expiration of
the time for filing the appeal. R.C. 2953.21(A)(2) (2013).1 The trial court issued its
judgment entry on appellee's failure to notify conviction on September 9, 2010. Appellee
did not file a direct appeal of the judgment, and his time for filing an appeal expired after
30 days passed following the trial court's judgment. App.R. 4(A) (appeal must be filed
within 30 days of judgment entry); State v. Berry, 10th Dist. No. 11AP-35, 2011-Ohio-
3931, ¶ 8 ("To vest this court with jurisdiction over his appeal, defendant was required
under App.R. 4(A) to file a notice of appeal within 30 days of the trial court's judgment.").
Appellee did not file his motion to vacate until November 22, 2013, well beyond the
statutory time requirements for a postconviction relief petition. However, this court has
previously held that "if a trial court receives an untimely or successive petition for
postconviction relief that challenges a void sentence, it must ignore the procedural
irregularities, vacate the void sentence, and resentence the offender." State v. Bankston,
10th Dist. No. 13AP-250, 2013-Ohio-4346, ¶ 8, citing State v. Cunningham, 10th Dist. No.
10AP-452, 2011-Ohio-2045, ¶ 19. Because appellee's failure to notify conviction was void,
the trial court did not err by not dismissing the motion as an untimely petition for
postconviction relief.
{¶ 29} Accordingly, we overrule the fifth assignment of error.
1 The time limit provided in R.C. 2953.21(A)(2) has subsequently been amended to 365 days after the
relevant triggering event. 2014 H.B. No. 663.
No. 15AP-192 14
IV. Conclusion
{¶ 30} For the foregoing reasons, we overrule the state's five assignments of error
and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK and BROWN, JJ., concur.