State v. Neal

[Cite as State v. Neal, 2013-Ohio-2291.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, : Case No. 12CA3512
:
Plaintiff-Appellee, :
:
v. : DECISION AND
: JUDGMENT ENTRY
:
JAMES MITCHELL NEAL, :
: RELEASED: 05/28/2013
Defendant-Appellant. :
APPEARANCES:
James Mitchell Neal, Chillicothe, Ohio, pro se, Appellant.
Mark E. Kuhn, Scioto County Prosecutor, and Matthew A. Wisecup, Scioto County Assistant
Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
Hoover, J.
{¶ 1} This is an appeal from a judgment of the Common Pleas Court of Scioto County.
Appellant James Mitchell Neal appeals the trial court’s denial of his “Motion to Enforce Plea
Agreement.” Appellant filed the motion requesting the trial court to enforce his plea agreement.
Appellant requested the trial court to dismiss and/or void his life sentence “due to lack of
jurisdiction to enforce.” Appellant further requested the trial court to discharge him. This Court
disagrees with the appellant’s arguments. For the following reasons, the judgment of the trial
court is affirmed.
{¶ 2} Appellant, James Mitchell Neal, sets forth the following assignment of error:
THE TRIAL COURT’S LOGIC, AND USE OF LAW, IN IT’S DECISION, IS
WRONG.
Scioto App. No. 12CA3512 2
I
FACTS
{¶ 3} The record reveals the following facts. On July 30, 1997, appellant was indicted on
twelve counts of Rape, first degree felonies, in violation of R.C. 2907.02. Ten of the counts each
included a Sexually Violent Predator specification. Appellant was also indicted on two counts of
Corruption of a Minor, fourth degree felonies, in violation of R.C. 2907.04. On October 23,
1997, appellant pleaded guilty to one count of Rape, a felony of the first degree, in violation of
R.C. 2907.02, with a Sexually Violent Predator specification.
{¶4} The trial court sentenced appellant to eight (8) years to life in prison and also
determined him to be a Habitual Sex Offender . The trial court also subjected appellant to
address registration and verification requirements annually for twenty (20) years as well as
community notification provisions.
{¶ 5} Almost fifteen years later, on July 11, 2012, appellant filed a “Motion to Enforce
Plea Agreement” asking the trial court to dismiss appellant’s life sentence due to lack of
jurisdiction. Appellant alleged that the trial court “lacked the statutory law to enforce, or to re-
impose former ‘Megan’s Law’ upon appellant.” Appellant also alleged that the trial court had no
“Constitutional law to impose notification and registration requirements upon Appellant.” The
trial court denied the “Motion to Enforce Plea Agreement.” Appellant timely filed this appeal on
September 13, 2012.
II
ANALYSIS
A.
Scioto App. No. 12CA3512 3
{¶6} Appellant is approaching this case with a creative argument wherein he begins with
the premise that he was sentenced under Ohio’s Megan’s Law. Ohio’s version of Megan’s Law
was enacted by the General Assembly in 1996. Am.Sub.H.B. No. 180, 146 Ohio Laws, Part II,
2560, 2601. Appellant then relies upon another premise that Ohio’s Megan’s Law was then
repealed in 2007 when the General Assembly enacted 2007 Am.Sub.S.B. No. 10 (hereinafter
referred to as “Ohio’s Adam Walsh Act.”) In 2010, the Ohio Supreme Court then held in State v.
Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, that some of the provisions of
Ohio’s Adam Walsh Act were violative of the separation-of-powers doctrine.1 The Ohio
Supreme Court, however, also held that the provisions were severable.
{¶ 7} Appellant contends that if the trial court would grant his “Motion to Enforce Plea
Agreement,” then there would be no statute to rely upon when enforcing the plea agreement
since Ohio’s Megan’s Law has been repealed. Appellant argues that since Ohio’s Megan’s Law
has been repealed, his life sentence should be void.
{¶ 8} Appellant’s arguments are flawed in that the plea agreement from 1997 was in fact
never breached. There is no need to enforce the plea agreement. The plea agreement was that if
appellant pleaded guilty to Count 1: Rape with a Sexually Violent Predator Specification, then
all other counts of the indictment and their respective specifications, if any, would be dismissed.
The plea agreement was effectuated. The appellant was indeed sentenced in 1997 pursuant to the
plea agreement. At no time has the plea agreement been breached.
1
The provisions of Ohio’s Adam Walsh Act that the Supreme Court held were unconstitutional
were R.C. 2950.031 and 2950.032. These sections required the attorney general to reclassify sex
offenders whose classifications had already been adjudicated by a court and made the subject of
a final order. The Supreme Court found this to be violative of the separation-of-powers doctrine
by requiring the opening of final judgments. Bodyke at ¶61.
Scioto App. No. 12CA3512 4
{¶ 9} Appellant states that he was reclassified as a Tier III offender; however, the record
is silent with respect to information regarding any reclassification of the appellant. The appellant
did not provide the trial court with any information or documents regarding any reclassification.
The appellant did not file a petition to challenge his classification as provided by R.C.
2950.031(E).
{¶10} Although the appellant cites State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-
3374, 952 N.E.2d 1108, in support of his motion, the case actually refutes appellant’s argument.
In Williams, the Ohio Supreme Court held that the amendments to sex offender registration
statutes violated state constitutional prohibition on retroactive statutes. Williams was sentenced
by the trial court under Ohio’s Adam Walsh Act even though he committed the offense prior to
the enactment of Ohio’s Adam Walsh Act. The Ohio Supreme Court reversed the trial court and
remanded the cause for resentencing under the law in effect at the time Williams committed the
offense. The law that was in effect at the time Williams committed the offense was Ohio’s
Megan’s Law. Even though Megan’s Law had already been repealed, the Ohio Supreme Court
still, in effect, ordered Williams to be sentenced under Ohio’s Megan’s Law as it was the law
that was in effect at the time the offense was committed.
{¶11} The law that was in effect at the time of the commission of the appellant’s crimes
was Ohio’s Megan’s Law. The General Assembly enacted Ohio’s version of Megan’s Law in
1996. Am.Sub.H.B. 180, 146 Ohio Laws, Part II, 2560, 2601. State v. Bodyke, 126 Ohio St.3d
266, 2010-Ohio-2424, 933 N.E.753. The sentence and the registration, notification, and
verification requirements under Ohio’s Megan’s Law shall continue to be applied to the
appellant. Appellant’s argument is without merit.
B.
Scioto App. No. 12CA3512 5
{¶ 12} Appellant further claims that he was never “indicted, plead, or convicted of a R.C.
2941.147 of sexual motivation specification, so appellant does not qualify under the color of law
and statute as a ‘sexually violent offense,’ so the specification of ‘sexually violent predator’
cannot apply.” Appellant claims that this renders his life sentence a nullity and void under the
statutes.
{¶ 13} Appellant’s argument is incorrect in that appellant did plead guilty to rape with a
sexually violent predator specification. R.C. 2971.03 allows for appellant’s sentence of 8 years
to life. R.C. 2941.148 allows for the application of Chapter 2971 if the offender was charged
with a violent sex offense and the indictment charging the violent sex offense also includes a
specification that the offender is a sexually violent predator.
{¶14} In his “Motion to Enforce Plea Agreement” at the trial court level and here on
appeal, appellant mistakenly intertwines his classification as a sex offender with the “Sexually
Violent Predator” specification. A “Sexual Violent Predator” specification is a prison sentence
enhancement for specified crimes, including Rape. The specification is wholly separate from
sexual offender classification and registration requirements.
{¶ 15} At the time of his conviction R.C. 2941.148 stated:
(A) The application of Chapter 2971 of the Revised Code to an offender is
precluded unless the indictment, count in the indictment, or information charging
the sexually violent offense or charging the designated homicide, assault, or
kidnapping offense also includes a specification that the offender is a sexually
violent predator * * *
In count one of the indictment, to which appellant pleaded guilty, a sexual violent predator
specification was included. “Rape is a ‘sexually violent offense,’ as is kidnapping where the
Scioto App. No. 12CA3512 6
offender is also convicted of a sexual motivation specification, and as is murder with a similar
specification.” State v. Haynes, 10th Dist. No. 01AP–430 2002-Ohio-4389, ¶82, citing R.C.
2971.01(G); R.C. 2971.01(L). Appellant pleaded guilty to one count of Rape with a Sexual
Violent Predator specification; and his argument that the specification does not apply now is
without merit.
{¶ 16} For the aforementioned reasons, the judgment of the trial court is affirmed.
Pursuant to App.R. 24, costs of the appeal are assessed to appellant.
JUDGMENT AFFIRMED.
Scioto App. No. 12CA3512 7
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the 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 Scioto County
Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty (60) days upon the bail previously posted.
The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of proceedings in that court. If a stay is continued by
this entry, it will terminate at the earlier of the expiration of the sixty (60) day period, or the
failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-
five (45) day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to the
expiration of sixty (60) days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
McFarland, P.J. & Harsha, J.: Concur in Judgment and Opinion.
For the Court
By:
Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time
period for further appeal commences from the date of filing with the clerk.