State v. Gantt

[Cite as State v. Gantt, 2012-Ohio-5181.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98271
STATE OF OHIO
PLAINTIFF-APPELLANT
vs.
DWAYNE GANTT
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-558628
BEFORE: Kilbane, J., Boyle, P.J., and Jones, J.
RELEASED AND JOURNALIZED: November 8, 2012
ATTORNEYS FOR APPELLANT
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Daniel T. Van
Daniel South
Assistant County Prosecutors
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
Mark DeFranco
Mark A. DeFranco Law Offices
55 Public Square
Suite 1600
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶Error! Bookmark not defined.} The state of Ohio appeals from the order of the
trial court that dismissed the indictment against Dwayne Gantt for his alleged April 15,
2010 failure to register his address in violation of R.C. 2950.06(F). For the reasons set
forth below, we affirm.
{¶Error! Bookmark not defined.} Defendant was convicted of gross sexual
imposition on May 20, 2004. On May 20, 2004, he was adjudicated a sexual predator
and ordered to register and verify his address every 90 days for life, in accordance with
Megan’s Law. Thereafter, on January 1, 2008, the General Assembly repealed Megan’s
Law and replaced it with the Adam Walsh Act (“AWA”), which also sets forth address
registration and verification requirements.
{¶Error! Bookmark not defined.} On April 15, 2010, the indictment alleged Gantt
failed to verify his address as required under R.C. 2950.06(F).
{¶Error! Bookmark not defined.} On June 3, 2010, the Ohio Supreme Court
decided State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753. The
court held that the reclassification provisions of the AWA, which required the attorney
general to reclassify sex offenders who have already been classified by court order under
Megan’s Law, were unconstitutional, and it severed the reclassification provisions, R.C.
2950.031 and 2950.032. Also on that date, the court reinstated the classifications and
community-notification and registration orders imposed previously. Id. at ¶ 66-67.
{¶Error! Bookmark not defined.} On January 26, 2012, Gantt was indicted in
connection with the April 15, 2010 failure to verify his address.
{¶Error! Bookmark not defined.} On March 5, 2012, Gantt moved to dismiss the
indictment and alleged that during the time period of the alleged offense, Megan’s Law
had been repealed. Gantt additionally noted that his underlying conviction occurred prior
to the enactment of the AWA, and under Bodyke the verification requirements of the
AWA cannot be applied to him.
{¶Error! Bookmark not defined.} On March 27, 2012, the trial court dismissed the
indictment. The state now appeals and assigns the following errors for our review:
The trial court erred in dismissing the indictment, because the defendant
was indicted for failing to comply with “Megan’s Law” violation.
The trial court erred in dismissing the indictment, because Bodyke did not
create a period of time in which neither Megan’s Law or Adam Walsh Act
could be enforced.
{¶Error! Bookmark not defined.} The state concedes that this court has previously
rejected these arguments and they are raised for purposes of preserving them for further
review, in connection with State v. Brunning, Ohio Supreme Court No. 2011-1066; State
v. Campbell, Ohio Supreme Court No. 2011-1061; and State v. Gilbert, Ohio Supreme
Court No. 2011-1062, which are currently pending before the Ohio Supreme Court.
{¶Error! Bookmark not defined.} With regard to procedure, we note a trial court
may dismiss an indictment for violations of R.C. Chapter 2950 when it determines that
the chapter’s regulations do not apply to the accused. State v. Palmer, 131 Ohio St.3d
278, 2012-Ohio-580, 964 N.E.2d 406, paragraph two of the syllabus.
{¶Error! Bookmark not defined.} With regard to whether the indictment sets forth
a violation of Gantt’s reporting requirements under Megan’s Law, we note that in this
matter, the offense was alleged to have occurred on or about April 15, 2010, or the time
period after the AWA repealed Megan’s Law and before the Bodyke decision in which
the Ohio Supreme Court reinstated the classifications and community-notification and
registration orders of Megan’s Law.
{¶Error! Bookmark not defined.} Therefore, “there is no doubt that he was
indicted for a first-degree felony for a violation of the reporting requirements under the
AWA.” See State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, 946 N.E.2d 192, ¶ 8
(where defendant allegedly failed to verify an address on or about May 6, 2008, and was
charged after his reclassification and before Bodyke, “there is no doubt that he was
indicted for a first-degree felony for a violation of the reporting requirements under the
AWA.”); State v. Ogletree, 8th Dist. No. 96438, 2011-Ohio-5846, ¶ 10, discretionary
appeal allowed, 131 Ohio St.3d 1456, 2012-Ohio-648, 961 N.E.2d 1135 (because
Ogletree was originally classified under Megan’s Law, any reporting requirements
imposed on him under the AWA were unlawfully imposed and, therefore, cannot form the
basis for a reporting violation.).
{¶Error! Bookmark not defined.} Further, because Gantt was originally classified
under Megan’s Law, any reporting requirements imposed on him under the AWA were
unlawfully imposed and, therefore, cannot form the basis for a reporting violation. Id.{¶Error! Bookmark not defined.} In accordance with the foregoing, the
assignments of error are without merit.
{¶Error! Bookmark not defined.} Affirmed.
It is ordered that appellee recover from appellant 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.
______________________________________
MARY EILEEN KILBANE, JUDGE
MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR