State v. Bronkar

[Cite as State v. Bronkar, 2013-Ohio-683.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Patricia A. Delaney, P. J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Sheila G. Farmer, J.
-vs-
Case No. CT2012-0045
EARL BRONKAR, JR.
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case Nos. C88-0054 and C88-0060
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 25, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
EARL BRONKAR, JR.
Post Office Box 5500
Chillicothe, Ohio 45601
Muskingum County, Case No. CT2012-0045 2
Farmer, J.
{¶1} Appellant Earl Bronkar, Jr. appeals from the decisions of the Court of
Common Pleas, Muskingum County, which denied his motions to vacate sex offender
classifications in two 1989 rape cases. The relevant facts leading to this appeal are as
follows.
Trial Court Case No. C88-54
{¶2} On February 1, 1989, appellant pled guilty to four counts of rape, R.C.
2907.02, aggravated felonies of the first degree. The trial court accepted appellant’s
pleas, and the matter proceeded to sentencing on April 10, 1989. At that time, appellant
was sentenced to an indeterminate sentence of seven to twenty-five years on each
count, to be served concurrently to each other and to the sentence imposed in case
number C88-60.
{¶3} On March 16, 2001, the trial court conducted a hearing pursuant to former
R.C. 2950.09(C) and, on March 28, 2001, issued a judgment entry classifying appellant
as a sexual predator under H.B. 180.
{¶4} On September 1, 2012, appellant filed a “motion to vacate
registration/classification” in the trial court. The court denied said motion on September
12, 2012.
Trial Court Case No. C88-60
{¶5} On February 1, 1989, appellant pled guilty to one count of rape, R.C.
2907.02, an aggravated felony of the first degree. The trial court accepted appellant’s
pleas, and the matter proceeded to sentencing on April 10, 1989. At that time, appellant
Muskingum County, Case No. CT2012-0045 3
was sentenced to an indeterminate sentence of seven to twenty-five years on each
count, to be served concurrently to the sentence imposed in case number C88-54.
{¶6} On March 16, 2001, the trial court conducted a hearing pursuant to former
R.C. 2950.09(C) and, on March 28, 2001, issued a judgment entry classifying appellant
as a sexual predator under H.B. 180.
{¶7} On September 1, 2012, appellant filed a “motion to vacate
registration/classification” in the trial court. The court denied said motion on September
12, 2012.
Appellate History
{¶8} On September 24, 2012, appellant filed a notice of appeal as to the
judgment entries dated September 12, 2012 in cases C88-54 and C88-60. Appellant
filed his brief on November 20, 2012. Appellee State of Ohio has not filed a response
brief.
{¶9} Appellant herein raises the following sole Assignment of Error:
{¶10} “I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY
REOPENING A VALID FINAL JUDGMENT.”
I.
{¶11} In his sole Assignment of Error, appellant challenges his sexual predator
classifications rendered subsequent to his 1989 rape convictions.
{¶12} As an initial matter, we note appellant’s brief asserts that he was also
reclassified as a “Tier III” offender approximately in November 2007. However, our
review of the record does not reveal any written documentation of such reclassification,
which presumably would have been handled by the Ohio Attorney General under the
Muskingum County, Case No. CT2012-0045 4
S.B. 10 statutory scheme enacted in 2007, which was based on the federal Adam
Walsh Act.1 Furthermore, appellant’s September 2012 motions to “vacate
registration/classification” do not clearly indicate whether he is challenging his original
sexual predator classification or his purported Tier III reclassification, although his
memorandum in support suggests both. Generally, a reviewing court will not presume
facts from a silent record or give credence to statements appearing only in the briefs.
See Enderle v. Chapman, Hamilton App.No. C-880267; State v. Green, Montgomery
App.No. 14049, 1994 WL 718220. Accordingly, we will limit our analysis in the present
appeal to appellant’s challenge to his 2001 sexual predator classifications, which are
the only classifications documented in the present trial court record.
{¶13} Ohio's version of the federal “Megan's Law” was enacted in 1996 under
H.B. 180, and was additionally amended in 2003 by S.B. 5. See State v. Williams, 129
Ohio St.3d 344, 345, 952 N.E.2d 1108, 2011-Ohio-3374, ¶ 7. Appellant’s essential
argument as to his H.B. 180 classifications is based on the theory that such
classifications are unconstitutionally retroactive. However, “[t]he Ohio Supreme Court
consistently has held that pre-Adam Walsh Act versions of R.C. Chapter 2950 are
remedial, not punitive, and that retroactive application of them does not violate the Ohio
or United States Constitutions.” State v. Lay, Champaign App.No. 2012–CA–7, 2012-
Ohio-4447, ¶ 7, citing State v. Cook, 83 Ohio St.3d 404, 700 N.E.2d 570, 1998-Ohio-
291, and State v. Ferguson, 120 Ohio St.3d 7, 896 N.E.2d 110, 2008-Ohio-4824.
1
We must also note the trial court files reflect a motion in each case by the State of
Ohio, filed in December 2012, after the notices of appeal, requesting vacation of
appellant’s “reclassification that occurred under the Adam Walsh Act.” The record does
not indicate that these motions by the State have been addressed by the trial court at
this time.
Muskingum County, Case No. CT2012-0045 5
Moreover, because appellant apparently never appealed his 2001 sexual predator
classifications, we find his challenge thereto barred by the doctrine of res judicata. See
State v. Valentine, Cuyahoga App.No. 96047, 2011-Ohio-5828, ¶ 17.
{¶14} We therefore find no reversible error regarding the trial court’s denial of
appellant’s motion to vacate his 2001 sexual predator classifications in cases C88-54
and C88-60. The sole Assignment of Error is overruled.
{¶15} For the reasons stated in the foregoing opinion, the decision of the Court
of Common Pleas, Muskingum County, Ohio, is hereby affirmed.
By: Farmer, J.
Delaney, P. J., and
Hoffman, J., concur.
s/ Sheila G. Farmer___________________
s/ Patricia A. Delaney_________________
s/ William B. Hoffman ________________
JUDGES
SGF/d 0206
Muskingum County, Case No. CT2012-0045 6
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
EARL BRONKAR, JR. :
:
Defendant-Appellant : Case No. CT2012-0045
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Muskingum County, Ohio, is affirmed.
Costs assessed to appellant.
s/ Sheila G. Farmer___________________
s/ Patricia A. Delaney_________________
s/ William B. Hoffman ________________
JUDGES