State v. Nelson

[Cite as State v. Nelson, 2012-Ohio-2400.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : W. Scott Gwin, P.J.
: William B. Hoffman, J.
Plaintiff-Appellee : Julie A. Edwards, J.
:
-vs- : Case No. 2011CA00219
:
:
JERRY NELSON : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Stark County
Court of Common Pleas Case No.
2011CR0787
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 29, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO STEVEN A. REISCH
Prosecuting Attorney Stark County Public
Stark County, Ohio Defender’s Office
200 W. Tuscarawas Street, Suite 200
BY: KATHLEEN O. TATARSKY Canton, Ohio 44702
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South
Suite 510
Canton, Ohio 44702-1413
[Cite as State v. Nelson, 2012-Ohio-2400.]
Edwards, J.
{¶1} Appellant, Jerry Nelson, appeals a judgment of the Stark County
Common Pleas Court convicting him of failing to provide notice of change of address
(R.C. 2950.05(A), (F)(1)) and sentencing him to a mandatory term of incarceration of
three years pursuant to R.C. 2950.99. Appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} Appellant entered a plea of guilty to corruption of a minor in 2000. He was
found to be a sexually oriented offender under Megan’s Law, the sex offender
registration statute in effect at the time of his conviction. His registration duties included
registering any change of address within twenty days prior to changing his address, and
verifying his residential address annually for ten years.
{¶3} In 2004 and again in 2008, appellant was convicted of violating his
registration requirements. On March 2, 2011, appellant registered his address as 4401
Louisville Street N.E., Canton, Ohio. Appellant was brought to the Stark County Jail on
a domestic violence charge on May 31, 2011. At that time, law enforcement learned
that he was sharing a residence with his girlfriend at 210 Edwin Ave. S.E., Massillon,
Ohio, an address he failed to register with the Stark County Sheriff.
{¶4} Appellant was indicted by the Stark County Grand Jury on one count of
failure to notify of change of address. Because he had two previous convictions for
change of address violations, his potential penalty was elevated to a mandatory three
year prison sentence.
{¶5} Appellant entered a plea of not guilty. He filed a pleading entitled
“Defendant’s Objection to Mandatory Sentence,” which the trial court overruled.
Stark County App. Case No. 2011CA00219 3
Appellant changed his plea to no contest and was found guilty. He was sentenced to
three years incarceration. He assigns two errors on appeal:
{¶6} “I. THE APPLICATION OF THE MANDATORY PRISON SENTENCE OF
S.B. 9 TO THE APPELLANT VIOLATED SECTION 28, ARTICLE II OF THE OHIO
CONSTITUTION.
{¶7} “II. THE IMPOSITION OF A THREE YEAR SENTENCE FOR FAILURE
TO REGISTER AS A SEXUALLY ORIENTED OFFENDER IS GROSSLY
DISPROPORATIONATE TO THE CRIME AND CONSTITUTES CRUEL AND
UNUSUAL PUNISHMENT.”
I
{¶8} Appellant argues that the court erred in imposing the mandatory prison
term of three years as required by R.C. 2950.99 because those penalty provisions were
not in effect at the time he was classified as a sexually oriented offender. The penalty
provision that was applied to appellant was a part of S.B.97, and the amendment was
effective January 1, 2008. Appellant argues that application of this penalty provision to
him is unconstitutionally retroactive pursuant to Section 28, Article II of the Ohio
Constitution.
{¶9} Appellant recognizes in his brief that this Court rejected his argument in
State v. Poling, 5th Dist. No. 2009-CA-0264, 2011-Ohio-3201, finding that the increased
penalties of R.C. 2950.99 did not violate the prohibition against retroactive laws so long
as the changes in the law were effective prior to the registration offense:
{¶10} “In the case at bar, R.C. 2950.99 as amended in 2008 does not punish
any action that was formerly not a crime or increase the penalty for a crime already
Stark County App. Case No. 2011CA00219 4
committed. In 2006 appellant was subject to the reporting requirements as a sexually
oriented offender for a period of ten years. R.C. 2950.07(B)(3) (repealed January 1,
2008). The pre-existing ten-year reporting period applicable to appellant had not expired
when he was charged and convicted of failing to provide notice of an address change
twenty days prior to the change. Appellant had a duty to report a change of address
when the statutory amendment to R.C. 2950.99 was enacted. Accordingly, appellant
could only be charged with a felony of the first degree if he failed to report an address
change after January 1, 2008.
{¶11} “We find that the application of amended R.C. 2950.99 does not violate
the Ex Post Facto Clause. See State v. Dycus, Franklin App. No. 04AP–751, 2005-
Ohio-3990 at ¶ 21. (Citations omitted). As the Ohio Supreme Court observed in Cook,
{¶12} “‘Even prior to the promulgation of the current version of R.C. Chapter
2950, failure to register was a punishable offense. See former R.C. 2950.99, 130 Ohio
Laws 671. Thus, any such punishment flows from a failure to register, a new violation of
the statute, not from a past sex offense. In other words, the punishment is not applied
retroactively for an act that was committed previously, but for a violation of law
committed subsequent to the enactment of the law.’ 83 Ohio St.3d at 420–421, 700
N.E.2d at 584, 1998–Ohio–291.
{¶13} “In the case at bar, appellant was advised of his duty to report a change of
address at his sentencing hearing December 4, 2006. The penalty provisions for failure
to register a change of address were increased nearly two years later on January 1,
2008. Appellant was charged based upon his conduct in failing to register his address
change approximately seventeen months later in June–July 2009. Thus, appellant had
Stark County App. Case No. 2011CA00219 5
fair warning that his conduct could be treated as a criminal offense, and that the penalty
would be classified as a felony of the first degree, well-in advance of the conduct which
led to his indictment.” Id. at ¶29-32.
{¶14} In the instant case, appellant was sentenced pursuant to penalty
provisions which were effective January 1, 2008. He did not commit the crime until
2011. Therefore, application of the new penalty provisions is not unconstitutionally
retroactive.
{¶15} Appellant argues that we should revisit Poling in light of State v. Williams,
129 Ohio St. 3d 344, 2011-Ohio-3374, 952 N.E.2d 1108. In Williams, the Ohio
Supreme Court concluded that S.B. 10, which changed the registration requirements
from Megan’s Law to the Adam Walsh Act, is unconstitutionally retroactive as applied to
defendants who committed sex offenses prior to its passage.
{¶16} This Court has recognized that although the current R.C. 2950.99 has the
same effective date as Senate Bill 10, it was not enacted as a part of Senate Bill 10, but
rather was enacted as part of Senate Bill 97. State v. Dunwoody, 5th Dist. CT11–0029,
2011-Ohio-6360, ¶40. Williams dealt only with the imposition of Senate Bill 10’s more
stringent registration requirements upon an offender who had committed his sex offense
prior to its enactment, not to the imposition of the penalty provisions of R.C. 2950.99 on
an offender who committed his registration offense after the effective date of the
change. Id. We thus concluded subsequent to Williams that a defendant who was
required to register under Megan’s Law and never reclassified under the Adam Walsh
Act could be sentenced pursuant to the new penalty provisions of R.C. 2950.99. Id. at
¶42.
Stark County App. Case No. 2011CA00219 6
{¶17} Like the appellant in Dunwoody, appellant was properly required to
register under Megan’s Law. His failure to register occurred after the enactment of R.C.
2950.99 and he could be sentenced pursuant to the penalty provisions in effect at the
time of his failure-to-notify offense.
{¶18} The first assignment of error is overruled.
II
{¶19} Appellant argues that a three-year sentence violates the 8th Amendment to
the United States Constitution’s ban on cruel and unusual punishment. He argues the
sentence is disproportionate to the underlying offense for which he was required to
register because the sentence of three years is twice the maximum sentence he could
have served for the underlying offense of corruption of a minor.
{¶20} The Tenth District Court of Appeals considered this issue in State v.
Richey, 10th Dist. 09AP-36, 2009-Ohio-4487. In Richey, the appellant’s underlying
offense for which he was required to register was sexual imposition, a third degree
misdemeanor. In 2009, he entered a plea of guilty to attempted failure to provide notice
of a change of address, a fifth degree felony. The Court of Appeals rejected his
argument that he was subjected to cruel and unusual punishment, holding:
{¶21} “Appellant has also argued that R.C. 2950.99 unconstitutionally applies
felony sentencing to him because the failure to register offense is ‘of lesser gravity’ than
the third-degree misdemeanor sex offense that triggered the registration requirements.
(Dec. Tr. 3.) Appellant is incorrect. When a person commits a failure to register offense,
he exhibits recidivist behavior given that (1) he already has a prior offense that triggered
the registration requirements, and (2) the failure to register offense stems from a
Stark County App. Case No. 2011CA00219 7
person's inability to follow the law and adhere to the registration requirements imposed
upon him. See, e.g., R.C. 2929.12(D) (indicating that a defendant's prior criminal record
and unfavorable response to previous sanctions demonstrates recidivism). The
individual's status as a sex offender further exacerbates this recidivist factor. See
McKune v. Lile (2002), 536 U.S. 24, 33-34, 122 S.Ct. 2017, 2024-25, 153 L.Ed.2d 47(recognizing concerns that sex offenders have a high rate of recidivism). Severe
penalties are warranted for recidivism. See Solem, 463 U.S. at 296, 103 S.Ct. at 3013.
Given the recidivist factors, we conclude that it is not contrary to the cruel and unusual
punishment clause for a failure to register offense to carry a felony penalty, despite a
prior sex offense being a misdemeanor, just as an offender's prior misdemeanor would
not necessarily bar felony sentencing under the cruel and unusual punishment clause
for the offender's new crime of escaping the incarceration for the misdemeanor. Id. at
¶20.
{¶22} We agree with the reasoning of the Tenth District. Appellant’s sentence
stems from his inability to follow the registration requirements imposed on him. The
instant offense was appellant’s third conviction for registration violations since 2004. A
sentence of three years was not grossly disproportionate to appellant’s failure to register
offense.
Stark County App. Case No. 2011CA00219 8
{¶23} The second assignment of error is overruled.
{¶24} The judgment of the Stark County Common Pleas Court is affirmed.
By: Edwards, J.
Gwin, P.J. and
Hoffman, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/r0214
[Cite as State v. Nelson, 2012-Ohio-2400.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
JERRY NELSON :
:
Defendant-Appellant : CASE NO. 2011CA00219
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.
_________________________________
_________________________________
_________________________________
JUDGES