State v. Lindsey

[Cite as State v. Lindsey, 2012-Ohio-1945.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97033
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
FRANKLIN LINDSEY
DEFENDANT-APPELLANT
JUDGMENT:
CONVICTIONS REVERSED;
SENTENCE VACATED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-530222
BEFORE: Celebrezze, P.J., Sweeney, J., and Kilbane, J.
RELEASED AND JOURNALIZED: May 3, 2012
ATTORNEYS FOR APPELLANT
Timothy Young
Ohio Public Defender
By: Peter Galyardt
Assistant State Public Defender
250 East Broad Street
Suite 1400
Columbus, Ohio 43215
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Matthew E. Meyer
Daniel T. Van
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Defendant-appellant Franklin Lindsey appeals his convictions and sentence,
after pleading guilty, in Cuyahoga County Common Pleas Court Case No. CR-530222.
For the reasons that follow, we reverse appellant’s convictions and vacate his sentence.
{¶2} Appellant was previously convicted of sexual battery in Case No. CR-238068
on June 27, 1989. He was not subject to Ohio’s first comprehensive sex-offender
regulations, enacted as Megan’s Law in 1996. Am.Sub.H.B. No. 180, 146 Ohio Laws,
Part II, 2560, 2601. The regulations did not apply to offenders who, like appellant,
completed their sex-offense prison sentences before July 1, 1997. Former R.C.
2950.04(A); id. at 2609; see also State v. Champion, 106 Ohio St.3d 120,
2005-Ohio-4098, 832 N.E.2d 718, ¶ 13.
{¶3} Unlike Megan’s Law, however, the Adam Walsh Act of 2007 sweepingly
applied to sex offenders regardless of when their offenses occurred. 2007 Am.Sub.S.B.
No. 10; scope language appears in multiple provisions; e.g., R.C. 2950.04(A)(2). Based
on appellant’s 1989 sexual-battery conviction, the Adam Walsh Act automatically
imposed a Tier III sex-offender classification. R.C. 2950.01(G)(1)(a). Tier III is the
most restrictive category of R.C. Chapter 2950. It requires registration with authorities
every 90 days for life as well as a number of community-notification obligations under
R.C. 2950.11. R.C. 2950.07(B)(1) and 2950.06(B)(3).
{¶4} On November 4, 2009, appellant was indicted in Case No. CR-530222 for
failure to verify his address, in violation of R.C. 2950.06, a felony of the third degree; and
failure to provide a notice of change of address, in violation of R.C. 2950.05, a felony of
the third degree. On February 11, 2010, appellant pled guilty to each count and was
sentenced to one year in prison on each count, to be served consecutively, for an
aggregate sentence of two years in prison.
{¶5} Appellant now appeals his convictions, raising two assignments of error for
review:
I. Appellant’s conviction for failure to verify his current address under
2007 Am.Sub.S.B. No. 10 violates the Ohio Constitution.
II. Appellant’s conviction for failure to provide notice of his change of
address under 2007 Am.Sub.S.B. No. 10 violates the Ohio Constitution.
Law and Analysis
I. Constitutionality of Retroactive Application
{¶6} For the purposes of judicial clarity, we will consider appellant’s assignments
of error together. Appellant argues that his convictions for failure to verify his current
address and failure to provide notice of his change of address under the Adam Wash Act
(“S.B. 10”) violate the Ohio Constitution.
{¶7} The Supreme Court of Ohio recently held that “2007 Am.Sub.S.B. No. 10, as
applied to defendants who committed sex offenses prior to its enactment, violates Section
28, Article II of the Ohio Constitution, which prohibits the General Assembly from
passing retroactive laws.” State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952
N.E.2d 1108. Further, failing to report based on a S.B. 10 registration requirement
unlawfully imposed cannot serve as the basis of a reporting violation charge, and
convictions for such violations are void. State v. Gingell, 128 Ohio St.3d 444,
2011-Ohio-1481, 946 N.E.2d 192. See also State v. Brunning, 8th Dist. No. 95376,
2011-Ohio-1936; State v. Smith, 8th Dist. No. 92550, 2010-Ohio-2880; State v. Patterson,
8th Dist. No. 93096, 2010-Ohio-3715; State v. Jones, 8th Dist. No. 93822,
2010-Ohio-5004.
{¶8} In the case at hand, the underlying sexual offense supporting appellant’s
failure to report convictions was committed well before the 2007 enactment of S.B. 10.
Accordingly, the attorney general’s reclassification of appellant under S.B. 10 was
unconstitutional pursuant to Williams and could not serve as the predicate for his failure
to report convictions.
{¶9} The state concedes this point stating that, based on this court’s precedence,
appellant’s convictions for failure to verify his current address and failure to provide
notice of his change of address should be vacated under State v. Grunden, 8th Dist. No.
95909, 2011-Ohio-3687, appeal allowed, 131 Ohio St.3d 1410, 2012-Ohio-136, 959
N.E.2d 1055.1 In Grunden, this court stated:
The precedent in this district holds that “convictions arising from reporting
violations under the AWA for any individual reclassified under its
provisions are also contrary to law.” State v. Gilbert, 8th Dist. Nos. 95083
1The state preserved its objections regarding appellant’s failure to provide
notice of his change of address conviction pending resolution of cases currently
before the Ohio Supreme Court.
and 95084, 2011-Ohio-1928, citing State v. Page, 8th Dist. No. 94369,
2011-Ohio-83, ¶ 10; see also State v. Smith, 8th Dist. No. 92550,
2010-Ohio-2880, ¶ 29; State v. Patterson, 8th Dist. No. 93096,
2010-Ohio-3715; State v. Jones, 8th Dist. No. 93822, 2010-Ohio-5004.
***
The law is quite clear; Grunden could not be reclassified under the AWA,
and the improper classification cannot serve as a predicate for an offense
against him. Gingell, 2011-Ohio-1481; Gilbert, 2011-Ohio-1928; Page,
2011-Ohio-83; Smith, 2010-Ohio-2880; Patterson, 2010-Ohio-3715; Jones,
2010-Ohio-5004.
{¶10} Following the dispositive precedent of this court, appellant’s assignments of
error are sustained.
{¶11} Judgment reversed, sentences imposed are vacated.
It is ordered that appellant recover of appellee 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.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
JAMES J. SWEENEY, J., and
MARY EILEEN KILBANE, J., CONCUR