State v. Scott

[Cite as State v. Scott, 2023-Ohio-370.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111461
v. :
JOSEPH T. SCOTT, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND VACATED
RELEASED AND JOURNALIZED: February 9, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-626072-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Fallon Kilbane McNally, Assistant
Prosecuting Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender,
Robert Blanshard McCaleb, Assistant Public Defendant,
for appellant.
ANITA LASTER MAYS, A.J.:
In this delayed appeal, defendant-appellant Joseph T. Scott (“Scott”),
appeals his conviction for failure to verify address in violation of R.C. 2950.06(F), a
third-degree felony. We reverse and vacate the trial court’s judgment.
I. Facts and Procedural History
On July 8, 2008, in State v. Scott, Cuyahoga C.P. No. CR-08-505742,
Scott was convicted of gross sexual imposition under R.C. 2907.05(A)(4) with a
sexually violent predatory specification, and attempted rape under R.C. 2923.02
and 2907.02(A)(1)(B) of a victim under the age of thirteen.1 The offenses were
committed on September 27, 2007. On July 8, 2008, Scott was sentenced to six
years on each count to run concurrently and advised of his duties to register as a
Tier II and Tier III sex offender under R.C. Chapter 2950 (2007 Am.Sub.S.B. No. 10)
known as the Adam Walsh Act (“AWA”) that took effect on January 1, 2008.
Scott’s convictions were affirmed on direct appeal. State v. Scott, 8th
Dist. Cuyahoga No. 91890, 2010-Ohio-3057 (“Scott I”). The Ohio Supreme Court
accepted the case on the following propositions: (1) “Gross sexual imposition
against a child under 13 is not a strict liability offense. The act of sexual contact must
be recklessly performed.” (2) “The Adam Walsh Act does not apply to persons whose
offenses were committed prior to the AWAs effective date.” State v. Scott, 127 Ohio
St.3d 1444, 2010-Ohio-5762, 937 N.E.2d 1035. The case was held until decisions
were rendered in two pending appeals.
1 Scott was initially charged with a 17-count indictment. Seven counts related to
victim 1 and ten to victim 2. Scott testified in his defense. The jury returned not guilty
verdicts in two counts, acquitted in three counts, and declared a mistrial due to a hung
jury on ten counts.
In the meantime, this court denied Scott’s application for reopening
pursuant to App.R. 26 based on ineffective assistance of counsel. State v. Scott, 8th
Dist. Cuyahoga No. 91890, 2011-Ohio-587 (“Scott II”).
The Ohio Supreme Court remanded the case for review based on the
court’s resolution of State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952
N.E.2d 1108, and State v. Dunlap, 129 Ohio St.3d 461, 2011-Ohio-4111, 953 N.E.2d
816. State v. Scott, 130 Ohio St.3d 260, 2011-Ohio-5343, 957 N.E.2d 292, ¶ 1
(“Scott III”).
Williams held that retroactive application of AWA “to defendants
who committed sex offenses prior to its enactment, violates Section 28, Article II of
the Ohio Constitution, which prohibits the General Assembly from passing
retroactive laws.” Id. at paragraph one of the syllabus. However, this court rejected
Scott’s argument that Scott was not subject to sex offender registration laws since
his offense occurred between the repeal of Megan’s Law and the effective date of the
AWA. State v. Scott, 8th Dist. Cuyahoga No. 91890, 2011-Ohio-6255, ¶ 5
(“Scott IV”).
Dunlap determined that the mens rea for gross sexual imposition
involving victims under the age of 13, R.C. 2907.05(A)(4) is “strict liability as to the
defendant’s knowledge of the age of the victim and a mens rea of purpose in regard
to the sexual contact between the defendant and the victim.” Dunlap at ¶ 1. This
court determined that Scott’s indictment for gross sexual imposition was not
defective, and the jury was properly instructed. Scott IV at ¶ 6.
The sex offender classification issue in Scott IV was accepted for
appeal. In a December 18, 2012 decision, the Ohio Supreme Court reversed this
court’s opinion “on the authority of In re Bruce S., 134 Ohio St.3d 477, 2012-Ohio-
5696, 983 N.E.2d 350.” State v. Scott, 135 Ohio St.3d 134, 2012-Ohio-5910, 984
N.E.2d 1055, ¶ 1 (“Scott V”). “[T]he cause is remanded to the trial court for the
limited purpose of holding a classification hearing consistent with In re Bruce S.”
Id.Scott was not reclassified as mandated by the court, which gave rise
to the instant case. According to the record, upon his release from prison in
February 2014, Scott registered with the Cuyahoga County Sheriff and was advised
of reporting requirements. At the time, the journal entry of conviction still
contained the AWA classification of Tier II sex offender for the GSI and a Tier III sex
offender for the attempted rape conviction. The parties advised at oral argument
that Scott was finally reclassified as a sexually oriented offender under Megan’s Law
at a hearing held September 22, 2022, in response to Scott’s motion, and ten years
after the Ohio Supreme Court’s mandate.
Six years after the remand directing Scott’s reclassification, in an
indictment filed February 20, 2018, Scott was charged with failure to verify address,
a third-degree felony, under R.C. 2950.06(F). On October 6, 2019, Scott moved to
dismiss the indictment as violative of Amendments V and XIV to the United States
Constitutional, Article II, Sections 8, 10, and 16 of the Ohio Constitution, Crim.R. 1,
and R.C. 2921.12.2 Scott argued that registration under AWA did not apply by law,
and he had not been reclassified as the Ohio Supreme Court directed. The state
countered that Scott was automatically classified as a sexually oriented offender
under Megan’s Law by operation of law and thus was properly indicted.
The issue was briefed, and a hearing ensued on October 9, 2019. The
parties stipulated for the record that: (1) Scott was sentenced on July 7, 2008, and
classified as a Tier II and Tier III sex offender under AWA; (2) Scott was released
from prison in February 2014; and (3) Scott is not subject to AWA that took effect
on January 1, 2008. (Tr. 7.)
The state declared that Scott was advised to complete his periodic
address notification on November 29, 2017, and a letter was reportedly sent to Scott
regarding his failure to report on that date. The defense confirmed that Scott
registered upon his release from prison, but Scott stated he was subsequently
informed that he did not have to report.3 Scott said he has resided at the residence
of his sister-in-law, a retired nurse, both prior to and after his prison release and did
not receive notice.
2 R.C. 2921.12 governs tampering with evidence and provides in pertinent part that
“[n]o person, knowing that an official proceeding or investigation is in progress, or is
about to be or likely to be instituted, shall * * * [m]ake or present or use any record,
document, or thing, knowing it to be false and with purpose to mislead a public official
who is or may be engaged in such proceeding or investigation, or with purpose to corrupt
the outcome of any such proceeding or investigation.” R.C. 2921.12(A)(2).
3 On June 4, 2015, this court ordered that Scott be released from postrelease
control (“PRC”) because the imposition was void. State v. Scott, 8th Dist. Cuyahoga
No. 102301, 2015-Ohio-2161 (“Scott VI”). Thus, Scott would have at least been advised
that he no longer had to report though for PRC.
Scott argued that the indictment was invalid because he was never
advised of the reporting obligations under Megan’s law. The state admitted Scott
“was never instructed under Megan’s Law regarding Megan’s Law requirements.”
(Tr. 13.) However, the state claimed the failure to advise Scott of the Megan’s Law
reporting requirements “is not dispositive of this issue.” Id. As to the impact of the
remand classification directive pursuant to In re Bruce S., 134 Ohio St.3d 477, 2012-
Ohio-5696, 983 N.E.2d 350, the state responded that “In re Bruce is not dispositive
of this issue, but whether Mr. Scott was informed under Megan’s Law of notification
requirements is also not dispositive of this issue.” (Tr. 14.)
The trial court inquired about the issue of notice to the defendant
[b]ecause when I have people before me, even back in 2003 when I
started, before there was all of this and I would hold those sex-offender
classification hearings. I still had a form and told them their
obligations and told them that they were subject to potential criminal
liability. They had to sign the form, and the judge had to sign the form,
and that continued under Megan’s Law and continued under Adam
Walsh.
And I guess the State feels — the legislature feels that it is a very
important thing to do because we’re required to do it and file it.
So, how would a person that never received that — this is not a common
thing — that people are aware that you report as a sex offender unless
somebody tells you.
(Tr. 17-18.)
The state responded that the real issue before the trial court was
whether the indictment described a violation of Megan’s Law and whether the
defendant remained obligated to meet it under State v. Brunning, 134 Ohio St.3d
438, 2012-Ohio-5752, 983 N.E.2d 316. The state also advised that the language of
R.C. 2950.06(F) has remained unchanged through Megan’s Law and AWA.
After supplemental briefing on the matter, the trial court accepted the
state’s position that reclassification was automatic and held that
[d]efendant is not subject to sex offender registration under the Adam
Walsh Act for the sex offenses he committed in 2007, but is subject to
registration under Megan’s Law for these offenses. This determination
is consistent with the holding in Cox v. Ohio Department of
Transportation, 67 Ohio St.2d 501, 508, 424 N.E. 2d 597 (1981), that
there be no hiatus between the enactment of a new statute and its
effective date in the future. Accord, In re Bruce S., 134 Ohio St.3d 477,
2012-Ohio-5696, ¶ 8-9, and State ex rel Grant v. Collins, 155 Ohio St.3d
242, 2018-Ohio-4281, ¶ 9-14. This matter will proceed to trial.
Journal entry No. 110827509 (Oct. 16, 2019). Reconsideration was denied. Scott’s
motion to terminate registration obligations filed November 29, 2020, was denied
on August 25, 2021.
On January 27, 2022, Scott entered a no contest plea and was found
guilty of failure to verify address R.C. 2950.06(F), a third-degree felony, as charged
in the indictment. On March 2, 2022, Scott was sentenced to one and one-half years
of community control on each count under the supervision of the adult probation
department.
On April 22, 2022, Scott filed this delayed appeal and assigned a
single error for review:
The trial court erred when it found Mr. Scott guilty of failure to register,
because Mr. Scott has not been classified under Megan’s Law and his
Adam Walsh Act classification was reversed in 2012.
Scott maintains that because his AWA classification was reversed in
2012 and he was never reclassified under Megan’s Law or notified of the reporting
requirements under Megan’s Law, he cannot be guilty of committing a failure to
report under Megan’s Law. The state insists that case law supports the Megan’s Law
classification was automatic and the charge applies to Megan’s Law and the AWA.
R.C. 2905.06(F) provides:
(F) No person who is required to verify a current residence, school,
institution of higher education, or place of employment address, as
applicable, pursuant to divisions (A) to (C) of this section shall fail to
verify a current residence, school, institution of higher education, or
place of employment address, as applicable, in accordance with those
divisions by the date required for the verification as set forth in division
(B) of this section, provided that no person shall be prosecuted or
subjected to a delinquent child proceeding for a violation of this
division, and that no parent, guardian, or custodian of a delinquent
child shall be prosecuted for a violation of section 2919.24 of the
Revised Code based on the delinquent child’s violation of this division,
prior to the expiration of the period of time specified in division (G) of
this section.
Scott’s indictment, filed February 20, 2018, lists “Count One, Failure
to Verify Address — F3 R.C. 2950.06(F)” and alleges that “on or about January 10,
2018, Scott
did fail to verify a current residence, school, institution of higher
education, or place of employment address and the basis of the
registration, notice of intent to reside, change of address notification,
or address verification requirement that was violated under the
prohibition was a felony of the second degree if committed by an adult
or a comparable category of offense committed in another jurisdiction,
to wit: on or about July 8, 2008, in the Court of Common Pleas,
Cuyahoga County, Ohio, Case No. CR-08-505742, having been
convicted of the crime of Attempted Rape, in violation of Revised Code
Section 2923.02/2907.02 of the State of Ohio.
It is undisputed that Scott was sentenced on July 7, 2008, and
classified as a Tier II and Tier III sex offender under AWA; Scott was released from
prison in February 2014 and registered as an offender; Scott was classified as an
AWA offender according to the sentencing court’s journal entry at the time of his
registration and at the time of the instant indictment; Scott “was never instructed
under Megan’s Law regarding — Megan’s Law requirements” per the state. (Tr. 13.);
Scott was not reclassified as mandated by the Ohio Supreme Court in a December
2012 decision until a decade after the mandate was issued.
As the parties stipulated, the AWA does not apply. State v. Williams,
129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, clearly determined that
retroactive application of the AWA to offenses that occurred before the January 1,
2008 effective date was unconstitutional. Id. at paragraph one of the syllabus. The
court observed that the AWA provisions were punitive instead of remedial as with
Megan’s Law.
The court also pointed out that the AWA imposed “‘new or additional
burdens, duties, obligations, or liabilities as to a past transaction’” and created “‘new
burdens, new duties, new obligations, or new liabilities not existing at the time.’”
Williams at ¶ 20, quoting State v. Pratte, 125 Ohio St.3d 473, 2010-Ohio-1860, 929
N.E.2d 415, ¶ 37, and Miller v. Hixson, 64 Ohio St.39, 51, 59 N.E. 749 (1901),
respectively. Williams emphasized that the AWA “subjected an offender ‘to
additional reporting and registration requirements * * * for a longer time’” than
Megan’s Law. Id. at ¶ 7, citing State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-
2424, 933 N.E.2d 753, ¶ 24-28.
In re Bruce S., 134 Ohio St.3d 477, 2012-Ohio-5696, 983 N.E.2d 350,
held that the AWA’s “classification, registration, and community-notification
provisions” could not “be constitutionally applied to a sex offender who had
committed his sex offense between the July 1, 2007, repeal of Megan’s Law and the
January 1, 2008, effective date of [the AWA’s] classification, registration.” Id. at ¶ 1.
The court based its reasoning on Cox v. Ohio Dept. of Transp., 67 Ohio St.2d 501,
508, 424 N.E.2d 597 (1981), cited by the state and the trial court in the instant case.
Distilled, Cox held there cannot be a gap between the repeal of the existing form of
a statute and the effective date of the amendment of that statute. In re Bruce S. at
¶ 8, citing Cox at 509.
The court did not announce that misclassified offenders were
automatically reclassified. Instead, the court directed the trial court in Scott V to
hold a classification hearing under Megan’s Law. When Scott registered with the
Cuyahoga County Sheriff in 2014, he was still classified as a Tier II and Tier III
offender under AWA. When Scott was indicted in the instant case, he was still
classified under the AWA.
The state argues that reclassification under Megan’s Law is
automatic under State ex rel. Grant v. Collins, 155 Ohio St.3d 242, 2018-Ohio-4281,
120 N.E.3d 804, and Hayden, 96 Ohio St.3d 211, 2002-Ohio-4169, 773 N.E.2d 252.
Grant was indicted in September 1985 for aggravated murder, kidnapping, and rape
of a 17-year-old female and convicted of kidnapping and involuntary manslaughter
after dismissal of the rape charge.
The hearing was scheduled under the former version of
R.C. 2950.09(C) that has since been repealed. Former R.C. 2950.09(C) applied to
offenders who were convicted or pleaded guilty to a sexually oriented offense prior
to the January 1, 1997 enactment date and sentenced after January 1, 1997, and
serving a term of imprisonment for that conviction. The statute allowed the Ohio
Department of Rehabilitation and Correction to recommend to the court that a
hearing be conducted for a sexual predator designation.
When Megan’s Law became effective, the court decided Megan’s Law
could be applied retroactively to offenders who committed their offenses prior to the
law’s enactment because the law was remedial and not punitive. Collins, 155 Ohio
St.3d 242, 2018-Ohio-4281, 120 N.E.3d 804, ¶ 7, citing State v. Cook, 83 Ohio St.3d
404, 412, 700 N.E.2d 570 (1998); State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-
4824, 896 N.E.2d 110, ¶ 40. Collins petitioned for a writ of prohibition. The issue
was whether the trial court had jurisdiction to hold a Megan’s Law sexual predator
designation hearing during Grant’s incarceration. Collins at ¶ 1.
The court held that the lower court did not “patently and
unambiguously lack jurisdiction” to decide the “existing factual question regarding
whether Grant committed a sexually oriented offense.” Collins at ¶ 16. “Grant has
an adequate remedy by way of appeal from any erroneous exercise of that
jurisdiction.” Id., citing State v. Clayborn, 125 Ohio St.3d 450, 2010-Ohio-2123,
928 N.E.2d 1093, ¶ 16. The petition was dismissed.
The court reiterated its holding in Brunning, 134 Ohio St.3d 438,
2012-Ohio-5752, 983 N.E.2d 316, an opinion issued December 5, 2012, almost two
weeks before In re Bruce, that “the registration and notification provisions of
Megan’s Law continued to apply to offenders subject to that law.” Collins, 155 Ohio
St.3d 242, 2018-Ohio-4281, 120 N.E.3d 804, at ¶ 11, citing Brunning at ¶ 22. The
court added that Grant’s “assertion misunderstands the statute, because as we
[previously] explained * * * an offender is ‘automatically classified as a sexually
oriented offender’ upon conviction for a sexually oriented offense.” Id. at ¶ 14,
quoting State v. Hayden, 96 Ohio St.3d 211, 2002-Ohio-4169, 773 N.E.2d 502, ¶ 15.
In Hayden, the court held that the “Confrontation Clauses of the
Sixth Amendment to the United States Constitution and of Section 10, Article I of
the Ohio Constitution do not apply to R.C. Chapter 2950.” Hayden, 96 Ohio St.3d
211, 2002-Ohio-4169, 773 N.E.2d 502, paragraph one of the syllabus. The court also
stated that a trial court is not required to conduct a hearing to determine whether a
defendant is a sexually oriented offender “under the Due Process Clauses of the
Fourteenth Amendment to the United States Constitution and of Section 16, Article
I of the Ohio Constitution.” Id. at paragraph two of the syllabus. “Instead, according
to R.C. Chapter 2950, if a defendant has been convicted of a sexually oriented
offense as defined in R.C. 2950.01(D), and is neither a habitual sex offender nor a
sexual predator, the sexually oriented offender designation attaches as a matter of
law.” Id.After a guilty plea to attempted rape, Hayden received a five-to-
fifteen-year sentence. The trial court determined Hayden was a sexually oriented
offender in 1999 based solely on the conviction and he was notified of his
registration duties. The court held the constitution did not apply because
R.C. Chapter 2950 under Megan’s Law was civil, not punitive. Id. at ¶ 4, citing
State v. Cook, 83 Ohio St.3d 404, 700 N.E.2d 570 (1998), and State v. Williams, 88
Ohio St.3d 513, 728 N.E.2d 342 (2000).
In addition, Hayden was sentenced before January 1, 1997, for a
nonviolent offense and the applicable statutory scheme provided that “the trial court
‘shall’ hold a hearing to determine whether the offender is a sexual predator only if
certain criteria apply.” Hayden did “not meet these criteria because he was
sentenced before January 1, 1997, and his offense was not violent.
R.C. 2950.11(B)(1) and (2).” Id. at ¶ 12. For that reason, Hayden was not “statutorily
entitled to a classification hearing.” Id.
As Scott points out, Hayden is distinguishable because the trial court
in Hayden journalized a sexually oriented offender classification under Megan’s
Law. Scott was sentenced and classified under the AWA and was not reclassified
until ten years after the Ohio Supreme Court mandate. In the meantime, the AWA
judgment entry remained on the docket. When Scott registered in February 2014,
his registration was under AWA. It is axiomatic that “[a] court speaks through its
docket and journal entries.” State v. Deal, 8th Dist. Cuyahoga No. 88669, 2007-
Ohio-5943, ¶ 54, citing State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863
N.E.2d 1024, ¶ 47.4
The state also relies on Brunning, 134 Ohio St.3d 438, 2012-Ohio-
5752, 983 N.E.2d 316. Brunning was convicted for: (1) failure to verify his
addresses, R.C. 2950.06; (2) failure to notify of address change, R.C. 2950.05, and
(3) tampering with records, R.C. 2913.42(A).
The court determined:
[T]he legitimacy of convictions of sex offenders, originally classified
under Megan’s Law, who were indicted for violating the address-
notification requirements of the Adam Walsh Act (“AWA”) before
State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753,
made the requirements of the AWA inapplicable to such offenders.
Specifically in this case, we address whether Bodyke requires the
vacation of convictions when the conduct at issue — a failure to provide
notice of a change of residence address — was a violation of
R.C. 2950.05 both as it exists under the AWA and as it existed under
Megan’s Law. We hold that Bodyke does not require the vacation of
such convictions.
Id. at ¶ 1.5 The court concluded that since the violation of R.C. 2950.05 was the same
for Megan’s Law and AWA, the convictions were valid. The court also stated that
4 See, e.g., In re Von, 146 Ohio St.3d 448, 2016-Ohio-3020, 57 N.E.3d 1158, where
the court determined that the registration termination procedure under AWA
R.C. 2950.15 did not apply to offenders that committed their acts prior to January 1,
2008. Von committed the offense in Colorado in 1997 and moved to Ohio in August 2011.
The court remanded the matter to the trial court to determine the Von’s Megan’s Law
classification. Id. at ¶ 25.
5 Bodyke severed R.C. 2950.031 and 2950.032 for violation of the separation-of-
powers doctrine. The statutes required that the attorney general reclassify sex offenders
under the AWA whose classifications had already been adjudicated by a court and made
“offenders originally classified under Megan’s Law have a continuing duty to abide
by the requirements of Megan’s Law.” Id. at ¶ 31.
Scott was not originally classified under Megan’s Law. Scott was
originally classified under the AWA, a void classification.
This court observes the state did “not contest that Brunning’s
conviction for failing to verify an address in violation of R.C. 2950.06 should be
vacated, pursuant to [State v.] Gingell, [128 Ohio St.3d 444, 2011-Ohio-1481, 946
N.E.2d 192. R.C. 2950.06]. Gingell was classified under Megan’s Law as a sexually
oriented offender, then improperly reclassified as a Tier III offender under the AWA.
Reporting under AWA Tier III was every ninety days while under Megan’s Law,
reporting as a sexually oriented offender was annual.
In State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, 946 N.E.2d
192, this court addressed the case of a defendant who was originally
classified as a sexually oriented offender under Megan’s Law and who,
as a reclassified Tier III sex offender, was charged with violating the
AWA version of R.C. 2950.06. The AWA version of R.C. 2950.06(B)(3)
contains a 90-day address-verification requirement for Tier III
offenders; the Megan’s Law version contained a less onerous, annual
address-verification requirement for sexually oriented offenders.
Former R.C. 2950.06(B)(2), 146 Ohio Laws, Part II, 2613. This court
held that pursuant to Bodyke, the current version of R.C. 2950.06 did
not apply to Gingell, because he was required to comply with Megan’s
Law, not the AWA. Simply put, Gingell had been indicted for violating
a statutory requirement that he was not obligated to meet. Instead,
“Gingell remained accountable for the yearly reporting requirement
under Megan’s Law * * *.” Id. at ¶ 8.
Brunning at ¶ 14.
the subject of a final order under Megan’s Law. The court “reinstated the classifications
and community-notification and registration orders imposed previously by judges upon
sex offenders originally classified under Megan’s Law.” Boydyke at ¶ 66.
Gingell was classified as a Megan’s Law offender at the time of
conviction and improperly reclassified as a Tier III offender under the AWA. The
reporting requirements under Megan’s Law was annual while under the Tier III
AWA, reporting was every ninety days; the two acts differed. In contrast, Scott was
originally classified under the AWA, a void classification, and never reclassified.
What Gingell also illuminates is that, while R.C. 2950.06(F) has remained constant,
the reporting requirements vary depending on the AWA and Megan’s Law
classifications.
Both parties cite Alsip, 8th Dist. Cuyahoga No. 98921, 2013-Ohio-
1452, as supportive. Alsip was indicted on December 20, 2007, for offenses that
occurred between April 2002 and February 2004. Id. at ¶ 1. He was sentenced to a
four-year term for his conviction for gross sexual imposition and received a Tier II
AWA classification. As Scott has done in the instant case, Alsip filed multiple
challenges to the void AWA classification including a motion to vacate an
unconstitutional sex offender classification, the issue on appeal.
This court held that “[w]here a defendant whose offenses were
committed prior to the effective date of the [AWA] is improperly classified under the
Act in violation of Williams, such classification is void.” (Citations omitted.). Id. at
¶ 8, citing State v. Vertock, 8th Dist. Cuyahoga No. 97888, 2012-Ohio-4283, ¶ 11,
citing State v. Eads, 197 Ohio App.3d 493, 2011-Ohio-6307, 968 N.E.2d 18, ¶ 18 (2d
Dist.); State v. Lawson, 1st Dist. Hamilton Nos. C-120077 and C-120067, 2012-
Ohio-5281, ¶ 8.
We determined “[c]onsistent with Williams, the remedy for improper
classification is to remand the matter to the trial court for a classification hearing in
accordance with the law in effect at the time the offense was committed.” Id. at ¶ 10,
citing State v. Bolton, 8th Dist. Cuyahoga No. 96385, 2012-Ohio-169, ¶ 103. Thus,
this finding supports Scott’s position.
In Eads, cited in Aslip, the defendant was convicted of failure to verify
residence under R.C. 2950.06 and failure to notify the sheriff of an address change,
R.C. 2950.05. Eads, 197 Ohio App.3d 493, 2011-Ohio-6307, 968 N.E.2d 18 (2d
Dist.). The offenses were first-degree felonies under the then current version of
R.C. 2950.99, which sets forth the penalties for violations of certain provisions of
R.C. Chapter 2950. Eads was adjudicated delinquent in 2008 for two counts of rape
in 2006. He was notified that he would register as a Tier IIII offender. Based on
Williams, Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, this court determined
that “Eads’s classification as a Tier III sex offender by the juvenile court violated
Ohio’s Retroactivity Clause and is void. The prosecution for Eads’s failures to verify
his address and notify the sheriff’s office of his new address was based on that
unconstitutional classification.” Id. at ¶ 24. “As a result, Eads cannot be prosecuted
for failing to verify his address and to notify the sheriff’s office of his new address as
a Tier III offender.” Id.
The state’s argument that Eads could still be held liable because he
“would have been required to verify his address and notify the sheriff of a change of
address under Megan’s Law” was rejected. Id. at ¶ 25. “At this juncture, Eads has
never been designated as a sexually oriented offender, habitual sexual offender, or
sexual predator by a judge, and it is unclear what his designation would be.” Id.
“Absent a sex offender classification by the juvenile court, Eads’s convictions for
failing to verify his address and failing to register a change of address must be
vacated.” Id.
This court has adopted the conclusion in Eads under similar fact
situations. In State v. Vertock, 8th Dist. Cuyahoga No. 97888, 2012-Ohio-4283,
quoting Eads at ¶ 25, Vertock’s pre-AWA classification was void under Williams.
Id. at ¶ 11, citing Eads at ¶ 18. “As in Eads, Vertock has never been properly
classified. Therefore, he currently has no registration or reporting requirements. As
the trial court found, there is no basis for determining any violation.” Id. at ¶ 14. See
also State v. Lilley, 8th Dist. Cuyahoga No. 98905, 2013-Ohio-3616, ¶ 12 (“Lilley’s
classification as a Tier III sex-offender under the Adam Walsh Act is void and cannot
serve as the predicate for failure to verify and provide change of address.”).6
The Tenth District in State v. Hartley, 2016-Ohio-2854, 64 N.E.3d
472, ¶ 19 (10th Dist.), has arrived at a similar conclusion. Hartley’s offense was
committed prior to the AWA effective date but he was classified under the AWA in
6 Currently pending before the Ohio Supreme Court is the question of whether the
court’s holding regarding void and voidable judgments in State v. Henderson, 161 Ohio
St.3d 285, 162 N.E.3d 776, 2020-Ohio-4784 now supersedes this Court’s holding in
State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108 where a
convicted sex offender, whose offense occurred prior to the January 1, 2008 effective date
of AWA S.B. 10, and are they now subject to the sex offender registration requirements of
AWA S.B. 10 if an AWA S.B. 10 Tier classification is entered in the offender’s sentencing
entry. State v Schilling, 2022-Ohio-1773, 189 N.E.3d 405 (1st Dist.), discretionary appeal
allowed State v. Schilling, 167 Ohio St.3d 1511, 2022-Ohio-3135, 194 N.E.3d 386.
2009, a void classification under Williams, 129 Ohio St.3d 344, 2011-Ohio-3374,
952 N.E.2d 1108. In 2010, Hartley pleaded guilty to failure to provide notice of
change of address in violation of R.C. 2950.05 but moved to vacate or for relief from
judgment due to the void classification.
As it does here, the state argued that Hartley’s Megan’s Law sex
offender classification attached as a matter of law. Pertinent here, after a review of
case law including Hayden and Brunning, both supra, the court noted that unlike
the defendant in Brunning, “there is no evidence that [the defendant] was subject
to a valid classification pursuant to Megan’s Law.” Id. at ¶ 26. The court concluded
that the registration and reporting requirements of Megan’s Law did not apply to
Hartley.
The state’s cited cases do not involve a failure to follow the express
mandate by a higher court that arguably resulted in the current conviction. “Under
the ‘mandate rule,’ a lower court must ‘carry the mandate of the upper court into
execution.’” Id., quoting Sprague v. Ticonic Natl. Bank, 307 U.S. 161, 168, 59 S.Ct.
777, 83 L.Ed. 1184 (1939). “[T]he mandate rule ‘provides that a lower court on
remand must implement both the letter and the spirit of the appellate court’s
mandate and may not disregard the explicit directives of that court.’” Id., quoting
State v. Larkins, 8th Dist. Cuyahoga No. 85877, 2006-Ohio-90, at ¶ 31.7
7 “[A]bsent extraordinary circumstances, such as an intervening decision by this
court, an inferior court has no discretion to disregard the mandate of a superior court in
a prior appeal in the same case.” Nolan v. Nolan, 11 Ohio St.3d 1, 5, 462 N.E.2d 410(1984). This case does not present an extraordinary circumstance.
Had the trial court moved forward as instructed, Scott would have
been reclassified and properly advised of his reporting requirements.
Here, Scott was journalized, notified, and registered as an AWA
offender. Scott V, issued ten years after Hayden, specifically mandated that based
on its findings in In Re Bruce S., 134 Ohio St.3d 477, 2012-Ohio-5696, 983 N.E.2d
350, the trial court was ordered to hold a hearing for the limited purpose of a
classification hearing, arguably because the current classification was void. Again,
In re Bruce S. declared that the AWA “classification, registration, and community-
notification provisions” could not “be constitutionally applied to” Scott. Id. at ¶ 1.
This court observes that while R.C. 2950.06(F) has remained intact
through Megan’s Law and AWA amendments, that is not true of other portions of
R.C. 2950.06; more specifically, R.C. 2950.06(A)-(C). According to the form of the
statute in effect under Megan’s Law, a sexually oriented offender is required to verify
on the anniversary of the offender’s initial registration date while a Tier III offender
reports every ninety days. Former R.C. 2950.06(B)(1).
Scott’s sentencing entry classified Scott as a Tier II and Tier III sex
offender registrant. The reporting requirements for Tier II under AWA is “every one
hundred eight days.” R.C. 2950.06(B)(2). The Tier III reporting requirements are
every ninety days. R.C. 2950.06(B)(3). Id.
Thus, the indictment advises that Scott violated the periodic
reporting requirements. As the state conceded at the hearing, Scott simply was not
advised of the Megan’s Law requirements.
This case presents a unique scenario. Based on the record before this
court and the specific and distinctive circumstances of this case, this court finds that
the Scott’s conviction for failure to register under R.C. 2950.06(F) was in error. Of
great import is the Scott V mandate to hold a hearing for classification. The failure
to hold that hearing for a decade and only upon Scott’s motion, resulted in the
confusion regarding status and responsibilities.
The single assigned error is sustained.
The judgment is reversed and the conviction is vacated.
It is ordered that appellant recover from appellee 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
common pleas 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.
_____________________________________
ANITA LASTER MAYS, ADMINISTRATIVE JUDGE
EMANUELLA D. GROVES, J., CONCURS;
EILEEN T. GALLAGHER, J., DISSENTS WITH SEPARATE OPINION
EILEEN T. GALLAGHER, J., DISSENTING:
I respectfully dissent from the majority’s conclusion that Scott’s
conviction for failure to verify his address in violation of R.C. 2950.06(F) “was in
error” based on the trial court’s failure to hold a classification hearing following
State v. Scott, 135 Ohio St.3d 134, 2012-Ohio-5910, 984 N.E.2d 1055 (“Scott V”). In
reaching this conclusion, I recognize the plain language of the court’s mandate in
Scott V. Id. at ¶ 1. Furthermore, I acknowledge that Ohio courts, including the
Eighth District Court of Appeals, have concluded that a defendant cannot be
convicted for violating the registration requirements of Megan’s Law if the
defendant was never designated as a sexually oriented offender, a habitual-sexual
offender, or a sexual predator by a judge. See State v. Vertock, 8th Dist. Cuyahoga
No. 97888, 2012-Ohio-4283; State v. Eads, 197 Ohio App.3d 493, 2011-Ohio-6307,
968 N.E.2d 18 (2d Dist.); and State v. Hartley, 2016-Ohio-2854, 64 N.E.3d 472(10th Dist.).
Nevertheless, I note that Ohio courts have reached the opposite
conclusion under analogous circumstances. For instance, in State v. Wood, 1st Dist.
Hamilton No. C-120598, 2013-Ohio-2724, the First District Court of Appeals
concluded that the defendant could be convicted for violating Megan Law’s
reporting obligations despite the court’s failure to provide formal notice of the
defendant’s duty to register under Megan’s Law. The court reasoned that once the
Ohio Supreme Court determined that the Adam Walsh Act could not be applied
retroactively, “[the defendant] — by operation of law — assumed the registration
requirements of a ‘sexually-oriented offender’ under Megan’s Law.” Id. at ¶ 8, citing
State v. Brunning, 134 Ohio St.3d 438, 2012-Ohio-5752, 983 N.E.2d 316, ¶ 19.
In support of its judgment, the First District relied extensively on the
Ohio Supreme Court’s decision in State v. Hayden, 96 Ohio St.3d 211, 2002-Ohio-
4169, 773 N.E.2d 502. In Hayden, paragraph two of the syllabus, the court held that
a trial court need not hold a hearing to determine if an individual convicted of a
sexually oriented offense is a sexually oriented offender, because “the sexually
oriented offender designation attaches as a matter of law.” The court noted that
once the defendant was convicted of a sexually oriented offense, he “was
automatically classified as a sexually-oriented offender and therefore [was required
to] register with the sheriff of the county in which he resides as prescribed by
R.C. 2950.04(A)(2).” Id. at ¶ 15. In other words, trial courts are not required to
perform any act beyond entering a judgment of conviction on a sexually oriented
offense for a defendant’s registration requirements under Megan’s Law to arise. See
State v. Freeman, 8th Dist. Cuyahoga No. 86740, 2006-Ohio-2583, ¶ 14, 20
(“[A]lthough the trial court should have given Freeman notice at his sentencing of
his duty to report, its failure to do so does not affect his duty to register.”); see also
State v. Davis, 9th Dist. Summit No. 21077, 2002-Ohio-6461.
After careful consideration, I am more persuaded by the First
District’s discussion in Wood. Given the nature of Scott’s underlying convictions for
gross sexual imposition and attempted rape, Scott’s status as a sexually oriented
offender arose by operation of law once the Ohio Supreme Court determined that
the Adam Walsh Act could not be applied retroactively to him. A hearing was not
required to effectuate Scott’s registration requirements under Megan’s Law. Under
these circumstances, I would conclude that Scott could be charged and convicted for
violating the unambiguous requirements of R.C. 2950.06(F). Accordingly, I would
affirm Scott’s conviction in this matter.