State v. Schulze

[Cite as State v. Schulze, 2016-Ohio-470.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-150272
TRIAL NO. B-1405512
Plaintiff-Appellee, :
vs. : O P I N I O N.
ZACHARY SCHULZE, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: February 10, 2016
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellant,
Raymond T. Faller, Hamilton County Public Defender, and Marguerite Slagle,
Assistant Public Defender, for Defendant-Appellee.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
Per Curiam.
{¶1} Plaintiff-appellant Zachary Schulze has appealed his conviction for
attempted failure to notify of an address change. Because we hold, under Ohio
Supreme Court precedent, that there is no valid order in place requiring Schulze to
register as a sex offender, we must reverse Schulze’s conviction.
Facts and Procedure
{¶2} In December 2002, Schulze, who was then 14 years old, was
adjudicated delinquent for committing an act that, had it been committed by an
adult, would have constituted gross sexual imposition. He was classified under
Megan’s Law as a juvenile-offender registrant, but not a predator or habitual sexual
offender. An end-of-disposition hearing was scheduled for April 23, 2008. Schulze
was classified as a Tier II juvenile-offender registrant under the Adam Walsh Act
(“AWA”).
{¶3} On October 2, 2014, Schulze, now an adult, was indicted for failing to
notify of an address change as a third-degree felony. He filed a motion to dismiss the
indictment, which the trial court overruled. He then pleaded guilty to attempted
failure to notify of an address change as a fifth-degree felony. He was found guilty
and sentenced as appears of record. Schulze has timely appealed.
Analysis
{¶4} Schulze’s sole assignment of error alleges that the trial court erred in
overruling his motion to dismiss the indictment. The question is whether there was a
valid order in place requiring Schulze to register as a sex offender.
{¶5} Under Ohio Supreme Court precedent and prior case law from this
court and other Ohio appellate courts, the end-of-disposition order classifying
Schulze as a Tier II offender under the AWA is void. See State v. Williams, 129 Ohio
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St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108 (applying the AWA to sex offenders
who committed their sex offenses prior to its enactment violates the Ohio
Constitution, Article IV, Section 28, which prohibits the General Assembly from
enacting retroactive laws); In re E.S., 1st Dist. Hamilton Nos. C-110163 and C-
110490, 2012-Ohio-1363, aff’d, 135 Ohio St.3d 135, 2012-Ohio-5911, 984 N.E.2d
1056 (juvenile court erred in holding end-of-disposition hearing and classifying the
juvenile under the AWA where the juvenile had committed his sex offense prior to
the enactment of the AWA and initially had been classified under Megan’s Law); In
re C.W., 2013-Ohio-2483, 991 N.E.2d 1167 (4th Dist.) (where the juvenile had
committed his sex offense prior to the enactment of the AWA the juvenile court’s
order classifying the juvenile under the AWA was void, because it violated the Ohio
Constitution’s prohibition against retroactive laws). Therefore, Schulze cannot be
required to register under it.
A. The Effect of the Void End-of-Classification Order
{¶6} The state argues that even though Schulze’s classification under the
AWA was void, he was still required to register pursuant to the initial order
classifying him under Megan’s Law because that order was revived or still in effect
once the end-of-disposition order was entered without jurisdiction.
{¶7} Because Schulze was 14 when he committed his sex offense, he was
initially classified under former R.C. 2152.83(B). Former R.C. 2152.83(D) required
the juvenile court to include in the classification order a statement that upon
completion of the disposition for the sex offense, a hearing would be held pursuant to
former R.C. 2152.84, at which the classification order was subject to modification or
termination. Former R.C. 2152.84(A)(1) provided that when the juvenile court
classified the juvenile under former R.C. 2152.83, “upon completion of the
disposition of that child made for the sexually oriented offense on which the juvenile
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OHIO FIRST DISTRICT COURT OF APPEALS
sex offender registrant order was based, the judge * * * shall conduct a hearing to
review the effectiveness of the disposition * * * and to determine whether the prior
classification * * * should be continued, modified or terminated * * *.”
{¶8} The end-of-disposition hearing under former R.C. 2152.84 was
statutorily mandatory. The original classification order was entered subject to
modification or termination after the former-R.C. 2152.84 hearing. See former R.C.
2152.83(F). The juvenile was entitled to have an end-of-disposition hearing to
determine his classification going forward. See former R.C. 2152.84. Every juvenile
classified after a former-R.C. 2152.83(B)(2) hearing was to receive a hearing at the
end of his or her disposition to determine if the classification continued to be
appropriate. In order to complete the process of classifying a juvenile as a sex-
offender registrant, the juvenile court was required to hold an end-of-disposition
hearing. See id.{¶9} That hearing, however, as a matter of law, had to be held under
Megan’s Law for the order to be valid. In In re E.S., 1st Dist. Hamilton Nos. C-
110163 and C-110490, 2012-Ohio-1363, we held that where the juvenile court had
initially properly classified E.S. under Megan’s Law, but had improperly held the
end-of-disposition hearing under the AWA, the remedy was to reverse the AWA
classification and remand the cause for a new end-of-disposition hearing under
Megan’s Law. E.S. at ¶ 8. We did not hold that the initial classification under
Megan’s Law was revived or still in effect. See Williams at ¶ 22 (where the offender
was unconstitutionally classified under the AWA, the classification was reversed and
the cause was remanded for a classification hearing under Megan’s Law, the law
applicable at the time the offender had committed the sex offense); In re J.P., 7th
Dist. Jefferson No. 10 JE 23, 2012-Ohio-3343, ¶ 8-9 (where the juvenile was
unconstitutionally classified under the AWA the classification was reversed and the
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OHIO FIRST DISTRICT COURT OF APPEALS
cause was remanded for a classification hearing under Megan’s Law, the law
applicable at the time the juvenile had committed the sex offense). We have found
no case law, and the state has not cited any, holding that the initial order was
automatically revived.
{¶10} Schulze was entitled to an end-of-disposition hearing under Megan’s
Law. His end-of-disposition hearing was held and Schulze was classified under the
AWA. That AWA classification order was void, and the juvenile court never properly
completed the required process for classifying Schulze as a juvenile-offender
registrant under Megan’s Law. Therefore, under these facts, there is no valid order
in place requiring Schulze to register as a sex offender.
B. The Initial Classification Order
{¶11} Schulze also argues that the initial order classifying him as a juvenile-
offender registrant under Megan’s Law was invalid because (1) the magistrate’s
decision classifying Schulze was not properly filed with the clerk of courts and (2) the
judge’s approval of the magistrate’s decision classifying Schulze was “not recorded on
the docket contained in the juvenile case management system.” We need not address
whether the initial order was valid. We have held that that order was not revived or
still in effect, and Schulze cannot be required to register under it. Whether it was
invalid on some other basis is moot.
Conclusion
{¶12} We sustain the assignment of error. The judgment of the trial court
convicting Schulze of attempted failure to notify of an address change is reversed,
and this cause is remanded with instructions to the trial court to dismiss the
indictment.
Judgment reversed and cause remanded.
FISCHER, P.J., MOCK and STAUTBERG, JJ.
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OHIO FIRST DISTRICT COURT OF APPEALS
Please note:
The court has recorded its own entry this date.
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