State v. Kaminski

[Cite as State v. Kaminski, 2014-Ohio-2858.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27112
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JOHN KAMINSKI COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR2004 12 4427
DECISION AND JOURNAL ENTRY
Dated: June 30, 2014
HENSAL, Judge.
{¶1} John Kaminski appeals a judgment of the Summit County Court of Common
Pleas that denied his motion for immediate relief from community notification, registration, and
residency requirements. For the following reasons, this Court reverses.
I.
{¶2} In 1993, Mr. Kaminski pleaded guilty in Florida to a charge of lewd and
lascivious act upon a person under the age of sixteen. According to Mr. Kaminski, at first he
was not subject to any sex-offender reporting requirements. In 1996, however, Florida enacted a
law requiring him to report once a year for ten years. Mr. Kaminski alleges that he complied
with that requirement even after he moved to Ohio, completing his obligation in 2004.
{¶3} In 2005, the State charged Mr. Kaminski for failing to verify his current address,
alleging that he had not complied with his sex-offender reporting requirements. Mr. Kaminski
moved to dismiss the count, arguing that he had satisfied the requirement. Following a hearing,
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the trial court entered an order explaining that the issue appeared to be that Florida had changed
its law at some point to require offenders like Mr. Kaminski to report for life. Because that
requirement endured even though Mr. Kaminski now lived in Ohio, the court denied his motion
to dismiss. Mr. Kaminski subsequently pleaded guilty to the offense, and the trial court
sentenced him to one year of community control.
{¶4} In 2013, Mr. Kaminski filed a “Motion for Immediate Relief from Community
Notification, Registration and Residency Requirements Pursuant to R.C. 2950.09(F)(1),
2950.031(E) and R.C. 2950.032(E),” requesting that the trial court declare that he “is not subject
to the registration and community notification provisions of R.C. 2950.11 or in the alternative, to
schedule an R.C. 2950.11(F)(2) hearing.” In his motion, Mr. Kaminski noted that, in 2007, the
Ohio Attorney General had reclassified him as a Tier III sex offender under the Adam Walsh
Act. He argued that he was entitled to a hearing under Revised Code Section 2950.11(F)(2) to
determine whether he was subject to the Adam Walsh Act’s reporting provisions. He also
argued that the reclassification was punitive in nature. He sought an order enjoining the sheriff’s
office from sending any community notification cards pending a hearing and a declaration that
his reclassification was unconstitutional.
{¶5} The State opposed Mr. Kaminski’s motion, noting that, in State v. Bodyke, 126
Ohio St.3d 266, 2010-Ohio-2424, the Ohio Supreme Court held that the Ohio Attorney General
did not have authority to reclassify defendants under the Adam Walsh Act. The State argued
that, in light of that decision, Mr. Kaminski was not subject to the Adam Walsh Act’s
notification provisions as he alleged. Rather, he remained subject to his previous classification
under Megan’s Law. It also argued that, to the extent that Mr. Kaminski was attempting to
challenge his 2005 conviction, res judicata applied.
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{¶6} Mr. Kaminski filed a reply brief, explaining that he was not challenging his
previous convictions in Ohio or Florida. He explained that the basis of his motion was that,
under State v. Lloyd, 132 Ohio St.3d 135, 2012-Ohio-2015, Ohio’s registration requirements do
not apply to someone who moves into the state unless the person’s out-of-state conviction
contained a registration provision. He argued that, because his reporting requirements were only
added years after his conviction by virtue of a new Florida statute, they did not carry over to
Ohio.
{¶7} In September 2013, the trial court entered its ruling on Mr. Kaminski’s motion. It
noted that, after the Ohio Attorney General reclassified Mr. Kaminski under the Adam Walsh
Act, he had filed a civil action challenging his reclassification. It noted that, the resolution of
that case was that Mr. Kaminski had been advised by the Ohio Supreme Court that he retained
the classification and reporting requirements that he had under Megan’s Law. Regarding Lloyd,
the trial court determined that it did not support his plea for relief. The court also determined
that, to the extent that Mr. Kaminski was challenging his reporting requirements, he had not
satisfied the prerequisites under Revised Code Section 2950.15 to invoke the jurisdiction of the
court. It further determined that he could not seek relief under Section 2950.09(F) because the
statute had been repealed. The court, therefore, dismissed his motion. Mr. Kaminski has
appealed, assigning one error.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN ITS JUDGMENT AND ERRED IN NOT
HOLDING A HEARING FAILING TO APPLY THE CORRECT STANDARD
OF REVIEW, THEREFORE ABUSING ITS DISCRETION IN THE
ANALYSIS AND JUDGMENT DISMISSING KAMINSKI’S MOTION FOR
RELIEF FROM SEX OFFENDER CLASSIFICATION.
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{¶8} Mr. Kaminski argues that the issue in this case is not whether he has to register,
but whether he has an avenue to petition for a determination and/or termination of his sex
offender classification and reporting requirements. He asserts that, in light of everything that has
happened, it is not clear how many years he must register and whether he must do it every 90
days or merely on a yearly basis. He also argues that, since he has never been adjudicated as a
sexual predator, he cannot be required to register for life under Megan’s Law. He further argues
that the trial court incorrectly determined that he may not challenge his sex offender
classification under former Revised Code Section 2950.09(F).
{¶9} The parties agree that, in light of the Supreme Court’s decisions regarding the
Adam Walsh Act, Mr. Kaminski is only subject to Megan’s Law. At the time Mr. Kaminski
moved to Ohio, Section 2950.09(A) provided that, if, as a result of a conviction in another state,
an offender is required, under the law of that jurisdiction, to register as a sex offender until the
offender’s death, the adjudication “automatically classifies the person as a sexual predator for the
purposes of this chapter[.]” See also R.C. 2950.01(G)(5). Former Section 2950.09(A) provided,
however, that a person who is automatically classified as a sexual predator “may challenge that
classification pursuant to division (F) of this section.” Former Section 2950.09(F)(1) provided
that an offender classified as a sexual predator “may petition the court of common pleas * * * to
enter a determination that the offender * * * is not an adjudicated sexual predator in this state for
purposes of registration * * *.”
{¶10} The trial court determined that Mr. Kaminski could not seek relief under former
Section 2950.09(F) because the section had been repealed by the General Assembly when it
enacted the Adam Walsh Act. It reasoned that he could only seek relief under Sections 2950.11
or 2950.15 instead. In State v. Brunning, 134 Ohio St.3d 438, 2012-Ohio-5752, however, the
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Ohio Supreme Court held that “the repeal of Megan’s Law is invalid as it affects offenders
originally classified under Megan’s Law.” Id. at ¶ 22. Mr. Kaminski, therefore, was able to
petition the court to contest his automatic classification as a sexual predator under former Section
2950.09(F). In re. D.W., 6th Dist. Lucas No. L-12-1318, 2013-Ohio-3955, ¶ 16; State v.
Forsythe, 5th Dist. Stark No. 2012CA00225, 2013-Ohio-3301, ¶ 17. We see no reason to
conclude that it was improper for Mr. Kaminski to initiate his petition by filing a motion in this
case as opposed to filing a new action with the trial court to challenge his classification.
{¶11} Until the trial court resolves whether Mr. Kaminski is a sexual predator under
Section 2950.09, we cannot identify the frequency and duration of his reporting requirements
under Megan’s Law. Mr. Kaminski’s assignment of error is sustained, and this matter is
remanded to the trial court to consider the merits of his motion for relief under Section
2950.09(F).
III.
{¶12} The trial court incorrectly determined that Mr. Kaminski had failed to invoke the
jurisdiction of the trial court. The judgment of the Summit County Common Pleas Court is
reversed, and this matter is remanded for further consideration of Mr. Kaminski’s motion for
immediate relief from community notification, registration, and residency requirements.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
JENNIFER HENSAL
FOR THE COURT
WHITMORE, J.
CONCURS.
BELFANCE, P. J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
RICHARD P. KUTUCHIEF, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.