State v. Wilson

[Cite as State v. Wilson, 2012-Ohio-2164.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : W. Scott Gwin, P.J.
: John W. Wise, J.
Plaintiff-Appellee : Julie A. Edwards, J.
:
-vs- : Case No. 2011CA00266
:
:
TIMOTHY W. WILSON : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Stark County
Court of Common Pleas Case No.
92-CR-2280
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 14, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO TIMOTHY W. WILSON
Prosecuting Attorney Inmate No. 257-911
Stark County, Ohio Belmont Correctional Institution
P.O. Box 540
BY: RENEE M. WATSON St. Clairsville, Ohio 43950
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South, Suite 510
Canton, Ohio 44702-1413
[Cite as State v. Wilson, 2012-Ohio-2164.]
Edwards, J.
{¶1} Appellant, Timothy W. Wilson, appeals a judgment of the Stark County
Common Pleas Court overruling his “Petition to Contest Classification and Request for
De Novo Review” of his 1997 sexual predator classification. Appellee is the State of
Ohio.
STATEMENT OF FACTS AND CASE
{¶2} Rex Fotos acquired Reyes Syndrome at the age of fourteen. By the time
he was 29 years old, he had no use of his legs and very limited use of his hands. In
1990, Fotos hired appellant to care for him to enable him to live on his own. As his
condition deteriorated, Fotos hired appellant to live with him and work for him on a full-
time basis, giving appellant a small salary plus room and board.
{¶3} In September of 1990, appellant began to get into bed with Fotos and kiss
him. By the spring of 1991, appellant would put Fotos on his stomach, climb on top of
him and force himself sexually on Fotos, who had no ability to resist due to his physical
condition. Also in the spring of 1991, Fotos suffered third-degree burns after appellant
held his feet in scalding water, and appellant broke one of Fotos’s legs.
{¶4} Following jury trial in the Stark County Common Pleas Court in 1992,
appellant was convicted of felonious assault in violation of R.C. 2903.11, assault in
violation of R.C. 2903.13, and gross sexual imposition in violation of R.C. 2907.05, with
a specification of a prior violence conviction based on a 1988 sexual battery conviction.
This Court affirmed the convictions. State v. Wilson, 5th Dist. No. CA-9071, 1993 WL
116083 (April 12, 1993).
Stark County App. Case No. 2011CA00266 3
{¶5} In June of 1997, the trial court held a hearing to determine appellant’s
status as a sexual offender pursuant to House Bill 180, Ohio’s version of Megan’s Law.
Appellant signed a written waiver of his right to be present at the hearing. The trial court
classified appellant as a sexual predator, noting that the victim was helpless to defend
himself, the victimization was ongoing and appellant had been hired to care for the
victim. The court further noted that appellant had victimized another individual while
acting as an advisor in the Big Brothers and Big Sisters program. Appellant did not
appeal.
{¶6} On September 27, 2011, appellant filed a petition to contest his
classification, arguing that application of Megan’s Law to his crimes violated the ex post
facto and retroactivity clauses of the United States and Ohio Constitutions. The trial
court summarily denied the motion. Appellant assigns a single error:
{¶7} “THE TRIAL COURT ERRED IN REFUSING A DE NOVO REVIEW OF
THE APPELLANT’S ADJUDICATION AS A SEXUAL PREDATOR AS CHAPTER 2950
IS SUBSTANTIVE AND APPLICATION OF SUCH TO THE APPELLANT IS A
VIOLATION OF THE EX POST FACTO AND RETROACTIVITY CLAUSES OF BOTH
THE OHIO AND UNITED STATES CONSTITUTION.”
{¶8} Appellant argues that his sexual predator classification violates the ex post
facto and retroactivity clauses of the U.S. and Ohio Constitutions.
{¶9} We first note that appellant failed to file a timely appeal from his original
sexual predator classification in 1997. Further, in the case of State v. Cook, 83 Ohio
St.3d 404, 700 N.E.2d 570, (1998), the Ohio Supreme Court held that R.C. 2950.09, as
applied to conduct prior to the effective date of the statute, does not violate the
Stark County App. Case No. 2011CA00266 4
retroactivity clause of Section 28, Article 2, of the Ohio Constitution, nor does it violate
the ex post facto of Section 10, Article 1, of the United States Constitution, Id. at
paragraphs 1 and 2 of the syllabus.
{¶10} The assignment of error is overruled.
{¶11} The judgment of the Stark County Common Pleas Court is affirmed.
By: Edwards, J.
Gwin, P.J. and
Wise, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/r0131
[Cite as State v. Wilson, 2012-Ohio-2164.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
TIMOTHY W. WILSON :
:
Defendant-Appellant : CASE NO. 2011CA00266
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to
appellant.
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_________________________________
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JUDGES