State v. Tomlinson

[Cite as State v. Tomlinson, 2013-Ohio-4642.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
CASE NO. CA2012-12-091
Plaintiff-Appellee, :
OPINION
: 10/21/2013
- vs -
:
ANTHONY D. TOMLINSON, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2012 CR 00701
D. Vincent Faris, Clermont County Prosecuting Attorney, Judith A. Brant, 76 South Riverside
Drive, Batavia, Ohio 45103, for plaintiff-appellee
R. Daniel Hannon, Clermont County Public Defender, Robert Benintendi, 10 South Third
Street, Batavia, Ohio 45103, for defendant-appellant
S. POWELL, J.
{¶ 1} Defendant-appellant, Anthony Tomlinson, appeals from his conviction and
sentence in the Clermont County Court of Common Pleas following his plea of no contest to
a violation of R.C. 2950.05(F)(1), failure to register. For the reasons detailed below, we
reverse the decision of the trial court and remand for further proceedings.
{¶ 2} Appellant was convicted of rape in 1985 and was sentenced to a prison term of
Clermont CA2012-12-091
25 years. In 1998, pursuant to the newly enacted Megan's Law, appellant was classified as a
sexual predator. As a sexual predator, appellant was required to verify his address on an
annual basis for the remainder of his life and to notify the sheriff of any change to his
address. Failure to comply with the reporting requirements of Megan's Law was a fifth-
degree felony for offenders whose underlying offense was a felony. See former R.C.
2950.99. In 2003, the General Assembly amended portions of Megan's Law and increased
the punishment for failure to comply with former R.C. 2950.05. Thus, for offenders whose
underlying sexual offense was a first-, second-, or third-degree felony, the failure to register
under R.C.2950.05 was a third-degree felony. State v. Howard, 134 Ohio St.3d 467, 2012-
Ohio-5738, ¶ 3.
{¶ 3} Effective January 1, 2008, Megan's Law was repealed and replaced with the
Adam Walsh Act (AWA). Id. at ¶ 4. Provisions of the AWA changed many of the reporting
requirements and also made the penalty for violating the reporting requirements the same
degree offense as the underlying sexual offense. R.C. 2950.99(A)(1)(a)(ii).
{¶ 4} In March of 2008, appellant was released from prison and subsequently began
complying with the reporting requirements. Appellant verified his address on April 9, 2012,
as 2127 Woodville Pike in Clermont County, Ohio. In July of 2012, in an attempt to verify his
address, deputies learned that appellant no longer lived at that address and had been absent
for approximately two months.
{¶ 5} On September 5, 2012, appellant was indicted under R.C. 2950.05(F)(1) for
failing to file notice of his change of address. Because appellant's underlying rape conviction
was a first-degree felony, appellant was charged with a first-degree felony pursuant to the
current AWA provisions in R.C. 2950.99. Appellant pled no contest to the charge and was
subsequently sentenced to five years in prison. Appellant now appeals the decision of the
trial court, raising the following assignment of error:
-2-
Clermont CA2012-12-091
{¶ 6} THE TRIAL COURT ERRED IN APPLYING THE PROVISIONS OF THE ADAM
WALSH ACT ("AWA") AGAINST HIM WHEN HE HAD BEEN CLASSIFIED A SEX
OFFENDER UNDER MEGAN'S LAW IN 1998.
{¶ 7} Appellant seeks the vacation of his conviction and a remand to the trial court for
resentencing on the basis that the penalty for failure to notify should be imposed under
former R.C. 2950.99. The state concedes that in light of the Ohio Supreme Court's recent
decisions in State v. Brunning, 134 Ohio St.3d 438, 2012-Ohio-5752, and State v. Howard,
134 Ohio St.3d 467, 2012-Ohio-5738, appellant should have been convicted of a third-
degree felony, and not a first-degree felony.
{¶ 8} At the time of appellant's conviction and sentencing there was a split of
authority in Ohio as to whether penalties under the AWA could be constitutionally applied to
offenders classified under Megan's Law. We previously held that the penalty provisions
enacted under the AWA should also apply to those offenders originally classified under
Megan's Law. State v. Topping, 12th Dist. Warren No. CA2011-07-067, 2012-Ohio-2259, ¶
22, aff'd in part, rev'd in part, sub nom. In re Cases Held for the Decision in State v.
Brunning, 134 Ohio St. 3d 593, 2012-Ohio-5777, ¶ 19. However, following disposition by the
trial court in the present case, the Ohio Supreme Court issued an opinion resolving the split
1
of authority and reversed our decision in Topping. Id.{¶ 9} In Brunning, the Court held that offenders originally classified under Megan's
Law who were convicted of violating the AWA are not entitled to a vacation of that conviction
on the basis that the charges were brought under the AWA. Brunning at ¶ 31. In so
1. We recognize the State conceded the issue relating to the applicable penalty provisions for offenders
classified under Megan's Law in State v. Shirley, 12th Dist. Butler No. CA2012-07-127, 2013-Ohio-1948.
However, contrary to our holding in Shirley, we find the applicable penalty provisions are those found in the
version of R.C. 2950.99 in place just before the effective date of the AWA, as consistent with the Ohio Supreme
Court's decision in State v. Howard, 134 Ohio St.3d 467, 2012-Ohio-5738.
-3-
Clermont CA2012-12-091
deciding, the Court explained:
[O]ffenders originally classified under Megan's Law have a
continuing duty to abide by the requirements of Megan's Law.
Thus, this court's holding in Bodyke does not require vacation of
a conviction for violating the AWA when the offender, originally
classified under Megan's Law, was indicted for a violation of the
AWA that also constitutes a violation under Megan's Law. We
note that the applicable penalty provision for such convictions is
that contained in former R.C. 2950.99, as held in another
decision of this court announced today, State v. Howard, 134
Ohio St.3d 467, 2012-Ohio-5738, 983 N.E.2d 341.
Id. In other words, "[t]hose who committed their offense before the effective date of the AWA
are subject to the provisions of Megan's Law; those who committed their offenses after the
effective date of the AWA are subject to the AWA." Howard at ¶ 13.
{¶ 10} Although a person classified as a sex offender under Megan's Law has a
continuing obligation to follow the requirements of Megan's Law, the penalty provisions for
offenders under Megan's Law and for offenders under the AWA are separate and distinct.
Thus, while an offender under the AWA is subject to the current provisions of R.C. 2920.99,
an offender classified under Megan's Law is subject to the penalties applicable immediately
prior to the effective date of the AWA. Howard at ¶ 29; State v. Washington, 1st Dist.
Hamilton No. C-120583, 2013-Ohio-797, ¶ 5. As stated by the Ohio Supreme Court in
Howard:
[F]or 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 the AWA is the penalty set forth
in the version of R.C. 2950.99 in place just before the effective
date of the AWA.
Id. at ¶ 29. In other words, "the appropriate version of former R.C. 2950.99 to apply * * * is
the one in place at the time that Megan's Law was repealed." Id. at ¶ 21; Washington at ¶ 5
(noting the version of R.C. 2950.99 in place immediately prior to the effective date of the
AWA was the version as amended by Senate Bill 5). Accordingly, a person whose sexual
-4-
Clermont CA2012-12-091
offender status was determined under Megan's Law is subject to the punishments for failing
to register under the version of R.C. 2950.99 effective immediately prior to the replacement
of Megan's Law with the AWA.
{¶ 11} In the present case, appellant was convicted of a first-degree felony for rape in
1985. Later, appellant was classified as a sexual predator under Megan's Law in 1998. As
such, appellant should have been sentenced under the former R.C. 2950.99 pursuant to the
Ohio Supreme Court's decision in Howard. Under former R.C. 2950.99, failure to register as
a sex offender based on an underlying conviction of a first-degree felony is a third-degree
felony and not a first-degree felony. Accordingly, the trial court erred in sentencing appellant
under current R.C. 2950.99 rather than former R.C. 2950.99. We therefore reverse
appellant's sentence and remand the case to the trial court for resentencing as a third-degree
felony.
{¶ 12} Appellant's sole assignment of error is well-taken and sustained.
{¶ 13} Judgment reversed and remanded.
HENDRICKSON, P.J., and PIPER, J., concur.
-5-