State v. Daniel , 2022 Ohio 1348 ( 2022 )

[Cite as State v. Daniel, 2022-Ohio-1348.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-21-1104
Appellee Trial Court No. CR0201902973
v.
Tyree K. Daniel DECISION AND JUDGMENT
Appellant Decided: April 22, 2022
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Edward J. Stechschulte, for appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} Appellant, Tyree K. Daniel, appeals the judgment entered by the Lucas
County Common Pleas court, sentencing him to three years of community control, with
60 days of incarceration at CCNO, and stating that he was given an “Explanation of
Duties to Register as an Arson Offender pursuant to O.R.C. 2950.032.” For the reasons
that follow, we affirm the trial court’s judgment and remand to the trial court for a nunc
pro tunc entry as described herein.
Statement of the Case and the Facts
{¶ 2} On or about October 10, 2019, appellant and others were involved in setting
fire to a studio structure at 3240 Lagrange Street, in Toledo, Ohio.
{¶ 3} On November 12, 2019, appellant was indicted on one count of aggravated
arson in violation of R.C. 2909.03(A)(1), (B)(1), and (B)(2), a felony of the first degree
(“Count 1”), and one count of aggravated arson in violation of R.C. 2909.03(A)(2),
(B)(1), and (B)(3), a felony of the second degree (“Count 2”).
{¶ 4} On January 16, 2020, appellant entered a guilty plea to Count 2 as amended,
which charged him with arson, in violation of R.C. 2909.03(B)(1) and (D)(1),(2), a
felony of the fourth degree. Pursuant to the plea agreement, the state of Ohio agreed to
dismiss Count 1 at the time of sentencing.
{¶ 5} Under R.C. 2909.15(D)(2)(b), appellant is required to register as an arson
offender upon sentencing. An initial sentencing hearing was held on March 31, 2021. At
that hearing, appellant’s counsel objected to R.C. 2909.15(D)(2)(b) as unconstitutional,
on the grounds that the statutory provision violates the separation of powers doctrine.
R.C. 2909.15(D)(2)(b) requires lifetime registration on the arson registry except that “the
judge may limit an arson offender’s duty to reregister at an arson offender’s sentencing
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hearing to not less than ten years if the judge receives a request from the prosecutor and
the investigating law enforcement agency to consider limiting the arson offender’s
registration period.” The trial court found appellant’s objection not well-taken and
denied the same, concluding that it did not appear beyond a reasonable doubt that the
statute was, in fact, unconstitutional.
{¶ 6} On April 28, 2021, the trial court sentenced appellant to three years of
community control, with 60 days of incarceration at CCNO. The state did not request a
reduced period of registration, and the trial court notified appellant of his duties to
register as an arson offender for a period of life.
Assignments of Error
{¶ 7} Appellant asserts the following assignments of error on appeal:
I. Ohio Revised Code § 2909.15(D)(2)(b) is Unconstitutional as it
Violates the Separation of Powers Doctrine.
II. The Trial Court erred in sentencing Appellant to register
pursuant to R.C. § 2950.032.
Analysis
{¶ 8} The Ohio General Assembly passed legislation requiring mandatory
registration for all arson offenders. Am.Sub.S.B. No. 70, R.C. 2909.14(A). Effective
July 1, 2013, an offender who meets the definition of an “arson offender” must register
annually for life. R.C. 2909.15(D)(2)(a). An “arson offender” is one who has been
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convicted of or pleaded guilty to an arson-related offense, as well as one who is serving a
term of imprisonment for an arson-related offense as of July 1, 2013. R.C.
2909.13(B)(1),(2). A limited exception to the mandatory lifetime registration
requirement permits a trial court to reduce the reporting period to a specified term not
less than ten years, but only upon the request of the prosecutor and the investigating law
enforcement agency. R.C. 2909(D)(2)(b).
{¶ 9} Appellant, in his first assignment of error, challenges the constitutionality of
R.C. 2909.15(D)(2)(b), claiming that statutory provision violates the separation of powers
doctrine. In conducting this analysis, we are mindful that “‘[t]he constitutionality of a
statute or regulation is a question of law to be reviewed de novo.’” State v. Towns, 6th
Dist. Williams No. WM-19-023, 2020-Ohio-5120, ¶ 38, appeal allowed, 161 Ohio St.3d
1449, 2021-Ohio-534, 163 N.E.3d 586, quoting State v. Whites Landing Fisheries, LLC,
2017-Ohio-4021, 91 N.E.3d 315, ¶ 15 (6th Dist.). (Additional citations omitted.) “When
considering the constitutionality of a statute, [a reviewing court] ‘presume[s] the
constitutionality of the legislation, and the party challenging the validity of the statute
bears the burden of establishing beyond a reasonable doubt that the statute is
unconstitutional’” Towns at ¶ 38, citing Dayton v. State, 151 Ohio St.3d 168, 2017-Ohio-
6909, 87 N.E.3d 176, ¶ 12. (Additional citations omitted.) “Parties have a ‘heavy
burden’ when attempting to rebut the presumption of constitutionality.” Towns at ¶ 38,
citing Dayton at ¶ 12. (Additional citations omitted.)
4.
Separation of Powers Doctrine
{¶ 10} The Supreme Court of Ohio has held that “[a]lthough the Ohio Constitution
does not contain explicit language establishing the doctrine of separation of powers, it is
inherent in the constitutional framework of government defining the scope of authority
conferred upon the three separate branches of government.” State v. Sterling, 113 Ohio
St.3d 255, 2007-Ohio-1790, 864 N.E.2d 630, ¶ 22. “It ‘represents the constitutional
diffusion of power within our tripartite government. The doctrine was a deliberate design
to secure liberty by simultaneously fostering autonomy and comity, as well as
interdependence and independence, among the three branches.’” State v. Bodyke, 126
Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 42, quoting Norwood v. Horney,
110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115, ¶ 114.
{¶ 11} “While no exact rule can be set forth for determining what powers of
government may or may not be assigned by law to each branch, * * * ‘[i]t is nevertheless
true, in the American theory of government, that each of the three grand divisions of the
government, must be protected from encroachment by the others, so far that its integrity
and independence may be preserved.’” S. Euclid v. Jemison, 28 Ohio St.3d 157, 159, 503
N.E.2d 136 (1986), quoting Fairview v. Giffee, 73 Ohio St. 183, 187, 76 N.E. 865 (1905)
(internal citation omitted). “The essential principle underlying the policy of the of the
division of powers of government into three departments is that powers properly
belonging to one of the departments ought not to be directly and completely administered
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by either of the other departments, and further that none of them ought to possess directly
or indirectly an overruling influence over the others.” Bodyke at ¶ 44. Stated otherwise,
“the separate powers of the government are not required to be kept entirely separate and
distinct, in the sense that there must be no common link of connection or dependence, but
rather that the ‘whole power of one of these departments should not be exercised by the
same hands which possess the whole power of either of the other departments.’” Stanton
v. State Tax Com., 114 Ohio St. 658, 664, 151 N.E. 760 (1926). Thus, for example, “an
act by the [executive branch] within [its] constitutional or statutory authority will not
breach the doctrine of the separation of powers unless such act is truly beyond [its]
authority [either constitutional or statutory] and encroaches on the authority of the
legislature or of the courts.” State ex rel. AFSCME v. Taft, 156 Ohio App.3d 37, 2004-
Ohio-493, 804 N.E.2d 88, ¶ 47 (3d Dist.)
Judicial Power
{¶ 12} Section 1, Article IV of the Ohio Constitution provides that judicial power
resides in the judicial branch. “The determination of guilt in a criminal matter and the
sentencing of a defendant convicted of a crime are solely the province of the judiciary.”
State ex rel. Bray v. Russell, 89 Ohio St.3d 132, 136, 729 N.E.2d 359 (2000). In addition,
the judicial branch is endowed with the inherent power of judicial review. See Derolph v.
State, 78 Ohio St.3d 193, 198, 677 N.E.2d 733 (1997), citing Marbury v. Madison, 5 U.S.
(1 Cranch) 137, 178, 2 L.Ed. 60 (1803) (holding that “[u]nder the long-standing doctrine
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of judicial review, it is our sworn duty to determine whether the General Assembly has
enacted legislation that is constitutional.”).
{¶ 13} Significantly, however:
Judges have no inherent power to create sentences. * * * Rather,
judges are duty-bound to apply sentencing laws as they are written. * * *
‘[T]he only sentence which a trial court may impose is that provided for by
statute. A court has no power to substitute a different sentence for that
provided for by statute or one that is either greater or lesser than that
provided for by law.’
State v. Taylor, 138 Ohio St.3d 194, 2014-Ohio-460, 5 N.E.3d 612, ¶ 18, quoting State v.
Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 22. “It has long been
recognized in this state that the General Assembly has the plenary power to prescribe
crimes and fix penalties.” State v. Morris, 55 Ohio St.2d 101, 112, 378 N.E.2d 708(1978). Thus, “[t]he discretionary power of judges to sentence is granted by the
legislature and can be circumscribed by the legislature.” State v. Dopart, 9th Dist. Lorain
No. 13CA010486, 2014-Ohio-2901, ¶ 7 (quotation omitted).
{¶ 14} In short, the General Assembly defines, classifies, and prescribes
punishment, and the judiciary imposes that punishment through its statutory authority.
See State v. Bates, 118 Ohio St.3d 174, 2008-Ohio1983, 887 N.E.2d 328, ¶ 12-13.
7.
{¶ 15} Appellant argues that R.C. 2909.15(D)(2)(b) violates the separation of
powers doctrine by violating the judiciary’s power to sentence a defendant in a criminal
matter, inasmuch as the statute allows the trial court to reduce an arson offender’s
mandatory lifetime registration period only upon the request of the prosecutor and the
investigating law enforcement agency. Specifically, appellant argues that R.C.
2909.15(D)(2)(b) implicates sentencing in two ways: (1) it strips the trial court of judicial
discretion at sentencing and gives that power to the prosecutor; and (2) imposing the
arson registration is part of a defendant’s sentence because mandatory registration is
“punitive.”
{¶ 16} In State v. Dingus, 2017-Ohio-2619, 81 N.E.3d 513 (4th Dist.), the Fourth
District Court of Appeals determined that R.C. 2909.15(D)(2)(b) violates the separation
of powers doctrine, holding as follows:
By depriving the trial court of the ability to act without the request of
the prosecutor and the investigating law enforcement agency, the trial
court’s independence is compromised. The prosecutor and the
investigating law enforcement agency effectively decide which registration
periods can be reviewed by the trial court; thus, the prosecutor and the
investigating law enforcement agency have an ‘overruling influence’ over
the trial court. Id. at ¶ 31.
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{¶ 17} In reaching this conclusion, the court in Dingus appears to rely in large part
on the Supreme Court of Ohio’s decision in State v. Sterling, 113 Ohio St.3d 255, 2007-
Ohio-1790, 864 N.E.,2d 630. Sterling involved a statute that authorized a prosecuting
attorney to disagree with an application for DNA testing that was presented by an inmate
who had pleaded guilty or no contest to a felony offense. The disagreement was final and
not appealable by any person to any court. The statute further provided that no court
would have authority, without the prosecutor’s agreement, to order DNA testing.
Reasoning as follows, the Supreme Court of Ohio concluded that the statute was
unconstitutional, as a violation of the separation of powers doctrine:
Insofar as the statute authorizes a prosecuting attorney to agree or
disagree with an inmate’s request for DNA testing, it comports with the
exercise of authority by the executive department of government because
the prosecutor is charged with the responsibility to prove guilt beyond a
reasonable doubt. However, those portions of the statute that make the
prosecuting attorney’s disagreement final, and not appealable to any court,
and that deprive the court of its ability to act without the prosecutor’s
agreement interfere with the court’s function in determining guilt, which is
solely the province of the judicial branch of government. * * *
Accordingly, [the statute] violates the doctrine of separation of
powers and is therefore unconstitutional. Id. at ¶ 35.
9.
{¶ 18} We disagree with the Fourth District’s analysis and conclusion in Dingus,
primarily because we do not find that the analysis set forth in Sterling is applicable to the
matter at hand. Sterling involved a wholly different statute and the implication of a
wholly different judicial power than those at issue in the instant case. The statute that
was at issue in Sterling implicated the judiciary’s power to determine guilt. See Sterling
at ¶ 35. R.C. 2909.15(D)(2)(b), on the other hand, potentially implicates the judiciary’s
power of sentencing. Thus, the relevant in inquiry herein is whether reducing an arson
offender’s registration period under R.C. 2909.15(D)(2)(b) involves the sentencing of a
defendant convicted of a crime.
{¶ 19} We begin by recognizing that because the arson registration statute is not
punitive, its registration requirements do not constitute an aspect of a criminal sentence.
Under R.C. 2929.01(E)(E), “sentence” is defined as “the sanction or combination of
sanctions imposed by the sentencing court on an offender who is convicted of or pleads
guilty to an offense.” Under R.C. 2929.01(D)(D), “sanction” is defined as “any penalty
imposed upon an offender who is convicted of or pleads guilty to an offense, as
punishment for the offense.” “Simply put, a sentence is a penalty or combination of
penalties imposed on a defendant as punishment for the offense he or she is found guilty
of committing.” State v. Harris, 132 Ohio St.3d 318, 2012-Ohio-1908, 972 N.E.2d 509,
¶ 28. This court has expressly held that “the statutory obligation to register as an arson
offender is [remedial and] not punitive.” State v. Jones, 6th Dist. Lucas No. L-16-1014,
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2017-Ohio-413, ¶ 27; see also State v. Wright, 2021-Ohio-364, 167 N.E.3d 1037, ¶ 15
(6th Dist.) (holding that classification as an arson offender is a collateral consequence of
the offender’s criminal acts rather than a form of punishment per se). Because the
statutory obligation to register as an arson offender is remedial and not punitive, it is not
punishment or part of any sentence imposed on the arson offender and, thus, does not
implicate the judiciary’s power of sentencing. See, e.g., Burbrink v. State, 185 Ohio
App.3d 130, 2009-Ohio-5346, 923 N.E.2d 626, ¶ 10 (1st Dist.) (holding that a prior
version of the sex-offender registration and notification statutes were remedial and not
punitive, and thus, were not punishment or part of any sentence imposed on the sex
offender).
{¶ 20} In an attempt to avoid this determination, appellant urges this court to
reconsider its earlier decision that the arson registry statute is not punitive by applying
certain factors that were considered by the Supreme Court of Ohio in its decision
determining that sex offender registration and notification requirements are punitive. See
State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 NE.2d 1108. In support of
his position, appellant claims that “[a]t least six factors discussed in Williams support a
finding that the arson offender registry is punitive: (1) it is placed within R.C. Title 29,
Ohio’s criminal code; (2) the failure to register subjects an offender to criminal
prosecution; (3) the registration requirements are automatic; (4) there is no entitlement to
a hearing prior to classification; (5) there is no opportunity for the court to review the
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appropriateness of the classification; and (6) reporting is a lifetime requirement, with the
limited exception set forth in R.C.2909.15(D)(2)(b).
{¶ 21} Applying the Williams analysis to the arson-offender registration
provisions, the First District Court of Appeals, in State v. Caldwell, 2014-Ohio-3566, 18
N.E.3d 467 (1st Dist.), concluded as follows:
The arson-offender registration statutes do bear similarities to those
pertaining to the sex-offender registry. Both the sex-offender and arson-
offender registration schemes have been placed within R.C. Title 29 –
Ohio’s criminal code. See Williams at ¶11. The failure to register under
either scheme subjects offenders to criminal prosecution. See id. Arson
offenders are automatically subject to registration requirements upon
conviction for any arson-related offense, ‘without regard to the
circumstances of the crime or [their] likelihood to reoffend.’ See id. at ¶
16. They are not entitled to a hearing prior to classification, nor is there
any opportunity for the court to review the appropriateness of the
classification. See id. at ¶ 19. Further, arson offenders are automatically
subject to a lifetime reporting requirement – with a limited exception that
permits the trial court to reduce their reporting requirement to no less than
ten years, upon the request of the prosecutor and investigating officer. R.C.
2909.15(D)(2)(b).
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Nonetheless, the arson-offender registration statutes differ from the
sex-offender provisions in significant ways. Sex offenders must register in
potentially three different counties – those in which they reside, work, and
attend school – and some must register as frequently as 90 days. Williams
at ¶ 13. In contrast, arson offenders need only register annually in the
county in which they reside. The Williams court emphasized the stigma
that follows from an offender’s placement on the public sex-offender
registry. Id. Conversely, the arson-offender registry is visible only to
certain law-enforcement personnel. The sex-offender statutes impose
stringent restrictions on where the offender is permitted to reside, whereas
arson offenders are not subject to any residential restrictions. Id. And
while arson-registry violations may subject the offender to later
prosecution, we think it notable that the failure to register is a low-level
felony that carries a presumption of probation. R.C. 2909.15(H). This is
markedly different from the failure of a sex offender to register, which
constitutes a felony of the same degree as that of the underlying conviction.
See R.C. 2950.99. For example, if a sex offender who committed a first-
degree felony sex offense fails to register, that failure to register constitutes
another first-degree felony with a potential punishment of up to 11 years in
prison. R.C. 2950.99(A)(1)(a) and 2929.14(A)(1). In view of these
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considerable differences, we cannot say that the arson-offender registration
requirements are so punitive that they impose a new burden in the
constitutional sense. Id. at ¶ 33-34.
We agree with the analysis set forth in Caldwell and, on that basis, decline to alter our
previous determination that the arson registry statute is not punitive.
{¶ 22} Even assuming, arguendo, that R.C. 2909.15(D)(2)(b) does involve the
judicial power of sentencing, we nevertheless conclude that the General Assembly’s
exercise of power in creating the arson registration statute did not result in an
impermissible intrusion upon the court’s function in imposing sentence. Appellant
argues that because lifetime registration is mandatory unless the executive branch
recommends otherwise, “the prosecutor and the agency hold a veto power over the trial
court’s discretion.” We are not persuaded, however, by appellant’s characterization of
the statute as encroaching upon judicial authority. Instead, we find that the General
Assembly, through its creation of R.C. 2909.15(D)(2)(b), establishes an aspect of judicial
discretion that is triggered by, and becomes available as a result of, the executive branch
recommendation. Thus, the statute puts into place, rather than infringes upon, the
judiciary’s authority to sentence a defendant to a reduced arson registration period.
Stated differently, the General Assembly, through its creation of R.C. 2909.15(D)(2)(b)
and the requirement for an executive branch recommendation, merely circumscribes the
discretionary power that it grants to judges to sentence a defendant to a reduced
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registration period. See Dopart, 9th Dist. Lorain No. 13CA010486, 2014-Ohio-2901, at ¶
7. In addition, although the executive branch recommendation is a precondition for
discretion, it does not interfere with or remove a court’s discretion, because the
recommendation does not bind the court to act in accordance with the recommendation.
As indicated above, the doctrine of separation of powers does not require that the three
branches of government “be kept entirely separate and distinct, in the sense that there
must be no common link of connection or dependence, but rather that the whole power of
one of these departments should not be exercised by the same hands which possess the
whole power of either of the other departments.” Stanton, 114 Ohio St. 658 at 664, 151
N.E. 760.
{¶ 23} Based on this analysis, we disagree with the court’s conclusion in Dingus
that R.C. 2909.15(D)(2)(b) both compromises the trial court’s independence and results
in the prosecutor and the investigating law enforcement agency having an overruling
influence over the judiciary. See Dingus at ¶ 31. Instead, it is our determination that --
whether or not the executive branch issues a recommendation under the statute -- in the
proper exercise of R.C. 2909.15(D)(2)(b), the integrity and independence of the judiciary
is fully preserved, without any constitutionally prohibited “overruling influence” by the
executive branch. See Jemison, 28 Ohio St.3d 157 at 159, 503 N.E.2d 136.
{¶ 24} In an attempt to avoid this conclusion, appellant argues that the state’s role
in making the R.C. 2909.15(D)(2)(b) recommendation cannot be attributed to any
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relevant executive power. To the contrary, the arson offender registry “allows law
enforcement officials to remain vigilant about possible recidivism by arson offenders”
and, thus, “objectively serves the remedial purpose of protecting the local community
from repeat arson offenders.” State v. Reed, 2014-Ohio-5463, 25 N.E.3d 480, ¶ 79 (11th
Dist.). It was therefore reasonable for the General Assembly to grant prosecutors and
police a measure of discretion to decide whether an arson offender ought to register for a
period of life or ten years. That the General Assembly conditioned judicial discretion to
reduce the registration period upon a request from law enforcement officials was also
reasonable, because law enforcement officials are in the best position to determine how
best to exercise their enforcement powers to protect the public from repeat offenders. See
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170, 2 L.Ed.60 (1803) (“The province of the
court is, solely, to decide on the rights of individuals, not to enquire how the executive, or
executive officers, perform duties in which they have a discretion.”).
{¶ 25} Appellant next argues that R.C. 2909.15(D)(2)(b) violates the doctrine of
separation of powers by violating the judicial power of appellate review, inasmuch as the
prosecutor’s and investigating law enforcement agency’s decision whether to recommend
a reduced arson registration period is final and non-appealable. As indicated above,
although the executive branch recommendation is a precondition for discretion, it does
not encroach upon a court’s discretion, because it does not bind the court to act in
accordance with the recommendation. Thus, where there is no recommendation, the
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court must impose a lifetime period of registration and there is no judicial discretion to
review on appeal. On the other hand, where there is a recommendation, the court has full
discretion to choose between a lifetime reporting period or a reduced reporting period of
not less than ten years, and the appellate court has subject matter jurisdiction to review
the exercise of that judicial discretion. It stands to reason that where an executive
decision made pursuant to statutory authority does not encroach upon an inherent power
of the judicial branch, the executive decision does not offend the doctrine of the
separation of powers simply because it is not subject to appellate review. See Marbury at
1105 (“The province of the court is, solely, to decide on the rights of individuals, not to
inquire how the executive, or executive officers, perform duties in which they have a
discretion.”).
{¶ 26} Presuming, as we must, the constitutionality of the legislation, we find that
appellant has failed to establish beyond a reasonable doubt that the statute is
unconstitutional. See Towns, 6th Dist. Williams No. WM-19-023 at ¶ 38, 2020-Ohio-
5120. Accordingly, appellant’s first assignment of error is found not well-taken.
{¶ 27} Appellant argues in his second assignment of error that the trial court erred
in sentencing appellant to register pursuant to R.C. 2950.032. The judgment entry from
which appellant appeals provides that appellant was given an explanation of duties to
register as an arson offender pursuant to “O.R.C.2950.032.” R.C. 2950.032, entitled
“Determination of sex offender classification tier for those serving prison term; juvenile
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offender; hearing; notice,” clearly is inapplicable to this case. The sentencing transcript
reveals, however, that the trial court, after confirming with the state that it would not be
asking for a lesser period of time, advised appellant that because he had been convicted
of an arson offense, appellant would be required to register in person with the sheriff of
the county in which he lives within ten days of being released from any incarceration or
within ten days of the date of sentencing with the following information:
Your Social Security Number along with your full name and any
alias. You have to provide your residence address, you have to give
information regarding this offense that you were convicted of, you have to
give any physical description of distinguishing marks on your person. You
have to give addresses of any place of employment or school. You have to
give your driver’s license number, if you have one, or any state
identification card number if one has been issued to you. The license plate
of any vehicle owned or operated by you along with a description of any
vehicle that you are known to drive.
{¶ 28} The court further advised:
They’re going to take your finger and palm print along with a
photograph. You have to submit a registration fee of $50 unless the sheriff
decides to waive that fee. You will have to re-register every year on a once
a year, annual basis for the rest of your life and you have to update or
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amend any of this information if it changes within 10 days of the
anniversary date of today’s date or actually date that you actually register.
Also have to pay $25 registration fee.
The trial court additionally noted that the registration requirement was for life.
{¶ 29} Crim.R. 36 provides that “[c]lerical mistakes in judgments, orders, or other
parts of the record and errors in the record arising from oversight or omission, may be
corrected by the court at any time.” A nunc pro tunc entry “is a vehicle used to correct an
order issued which fails to reflect the court’s true action.” State v. Hodges, 1st Dist.
Hamilton No. C-990516, 2001 WL 698135 (June 22, 2001). It is axiomatic that “a court
possesses authority to correct errors in judgment entries so that the record speaks the
truth.” State v. Chislton, 8th Dist. Cuyahoga No. 108840, 2021-Ohio-697, ¶ 15. Here,
there is no question but that the trial notified appellant at the sentencing hearing of his
duty to register pursuant to the arson registry statutes, set forth at R.C. 2909.14 and
2909.15, and not pursuant to the sex offender classification statute set forth at R.C.
2950.032. Appellant’s second assignment of error is therefore found well-taken.
{¶ 30} Because our conclusion and analysis with respect to appellant’s first
assignment of error is in direct conflict with the Fourth District’s opinion in Dingus,
supra, we sua sponte certify a conflict to the Supreme Court of Ohio on the following
question: “Does R.C. 2909.15(D)(2)(b) unconstitutionally violate the doctrine of
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separation of powers?” The parties are directed to S.Ct.Prac.R. 5.03 and S.Ct.Prac.R.
8.01 for guidance.
{¶ 31} For all of the foregoing reasons, the judgment of the Lucas County
Common Pleas Court is affirmed. We remand this matter to the trial court for the limited
purpose of issuing a nunc pro tunc entry to reflect that appellant is to register as an arson
offender, pursuant to R.C. 2909.14 and 2909.15. Appellant is ordered to pay the costs of
this appeal pursuant to App.R. 24.
Judgment affirmed
and remanded.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Myron C. Duhart, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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