State v. Smith

[Cite as State v. Smith, 2012-Ohio-261.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 96582, 96622, 96623
STATE OF OHIO
PLAINTIFF-APPELLEE/
CROSS-APPELLANT
vs.
GEORGE SMITH
DEFENDANT-APPELLANT/
CROSS-APPELLEE
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-542832
BEFORE: Kilbane, P.J., Stewart, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: January 26, 2012
ATTORNEY FOR APPELLANT
Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Daniel T. Van
Sanjeev Bhasker
Assistant County Prosecutors
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, P.J.:
{¶ 1} This consolidated appeal arises from defendant-appellant’s conviction and
sentence for failing to register his address as a sex offender. Finding no merit to the
appeal, we affirm.
{¶ 2} In October 2010, George Smith (Smith) was charged with failing to register
in violation of R.C. 2950.04(E). The count carried a furthermore clause stating that
Smith had previously been convicted of failing to verify his current residence in March
2006. Smith moved to dismiss the indictment in November 2010.
Plaintiff-appellee/cross-appellant, the state of Ohio (State), opposed and the trial court
denied Smith’s motion. Smith then moved for a competency evaluation. At a hearing
on November 29, 2010, the trial court addressed Smith’s motion, stating that it was going
to refer Smith to the court psychiatric clinic. The court, however, never journalized an
order to have Smith evaluated. At this hearing, the trial court granted defense counsel’s
motion to withdraw. The trial court then appointed Smith new counsel, who represented
Smith at trial.
{¶ 3} The following evidence was adduced at Smith’s jury trial.
{¶ 4} Vila Pintarich (Pintarich) testified that part of her duties as Correctional
Records Management Officer for Belmont Correctional Institution include ensuring that
sex offenders are properly registered. Pintarich testified that she met with Smith on
September 1, 2010 and reviewed Smith’s paperwork prior to his release from prison. His
paperwork included a Notice of Registration Duties of Sexually Oriented Offender or
Child-Victim Offender Form (SORN) and his postrelease control reporting orders. The
SORN Form states that Smith’s expected residence is 6209 Schade Avenue, Cleveland,
Ohio and that since his expected residential address is in Cuyahoga County, he is required
to register in person no later than September 4, 2010, with the Cuyahoga County Sheriff’s
Office. The SORN Form advises that the “[f]ailure to register * * * will result in
criminal prosecution.” Pintarich testified that Smith gave this address to his dorm
officer, who then relayed this information to Pintarich.
{¶ 5} Pintarich further testified that her meeting with Smith was difficult. First,
Smith “was adamant that he did not want to sign the PRC reporting orders.” Then, Smith
was adamant about not signing the SORN Form. Since Smith refused to sign the SORN
Form, Pintarich completed the part of the Form that states: “[c]omplete this only if
offender was unable to read, and official read notice to offender. I certify that I
specifically informed the offender of these duties as set forth above and the offender
indicated to me an understanding of these duties.” However, on cross-examination,
Pintarich testified that she “didn’t get too far with [Smith] as far as explaining because *
* * he was adamant that he didn’t want to sign it.”
{¶ 6} Anita Phillips (Phillips) of the Adult Parole Authority testified that Smith
was expected to meet with her on September 2, 2010, but he never reported to her.
{¶ 7} Detective Susan DeChant (DeChant) of the Cuyahoga County Sheriff’s
Department testified that part of her duties include ensuring that a sex offender is in
compliance with sex offender registration laws. DeChant identified a journal entry
indicating that Smith was classified as a sexual predator. 1 DeChant also identified
Smith’s original notice of registration duties form, dated March 19, 2004. DeChant
further identified two other notice of registration duties forms, dated March 29, 2004 and
June 29, 2004. Smith signed these forms, but wrote “signed under duress” above his
signature. He signed the March 29, 2004 form when he initially registered with the
Sheriff’s office and the June 29, 2004 form on his next report date at the Sheriff’s office.
1At trial, Smith stipulated that he was convicted of rape in July 1985 and
failure to verify current residence in March 2006.
{¶ 8} DeChant then testified she was assigned this case when she was notified by
Phillips that Smith had been released from prison. When Smith did not report to the
Sheriff’s office by September 4, 2010, she contacted Phillips who advised that Smith still
had not reported to her. As a result, DeChant forwarded this information to Sergeant
Clifford Pinkney (Pinkney) of the Cuyahoga County Sheriff’s Department who arrested
Smith on or about October 27, 2010, at the 6209 Schade Avenue address listed on the
SORN Form.
{¶ 9} At the conclusion of trial, the jury found him guilty of failing to register and
of the further finding that, in March 2006, Smith was previously convicted of failing to
verify his current residence. The trial court, relying on this court’s decision in State v.
Page, Cuyahoga App. No. 94364, 2011-Ohio-83, sentenced Smith under Megan’s Law as
opposed to the Adam Walsh Act (AWA) and imposed a one-year prison sentence for a
third degree felony. Smith’s sentence was enhanced because of the furthermore clause.
Smith’s Appeal
{¶ 10} In his appeal, Smith raises the following three assignments of error for our
review, which shall be discussed together where appropriate.
ASSIGNMENT OF ERROR ONE
“The trial court erred in denying [Smith’s] motion for acquittal as to
the charges when the State failed to present sufficient evidence to
sustain a conviction.”
ASSIGNMENT OF ERROR TWO
“[Smith’s conviction is] against the manifest weight of the evidence.”
ASSIGNMENT OF ERROR THREE
“[Smith’s] rights were violated when he was convicted without ever
having a competency hearing although he had been referred to the
court psychiatric clinic.”
{¶ 11} In the first and second assignments of error, Smith challenges his
conviction, arguing that there was insufficient evidence to sustain his conviction and that
his conviction is against the manifest weight of the evidence.
{¶ 12} The Ohio Supreme Court in State v. Diar, 120 Ohio St.3d 460,
2008-Ohio-6266, 900 N.E.2d 565, ¶113, explained the standard for sufficiency of the
evidence as follows:
“Raising the question of whether the evidence is legally sufficient to
support the jury verdict as a matter of law invokes a due process
concern. State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678
N.E.2d 541. In reviewing such a challenge, ‘[t]he relevant inquiry is
whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.’ State v.
Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the
syllabus, following Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560.”
{¶ 13} With regard to a manifest weight challenge, the
“reviewing court asks whose evidence is more persuasive — the state’s
or the defendant’s? * * * ‘When a court of appeals reverses a
judgment of a trial court on the basis that the verdict is against the
weight of the evidence, the appellate court sits as a “thirteenth juror”
and disagrees with the factfinder’s resolution of the conflicting
testimony.’ [Thompkins at 387], citing Tibbs v. Florida (1982), 457
U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652.” State v. Wilson, 113 Ohio
St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶25.
{¶ 14} Moreover, an appellate court may not merely substitute its view for that of
the jury, but must find that “‘in resolving conflicts in the evidence, the jury clearly lost its
way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’” Thompkins at 387, quoting State v. Martin (1983),
20 Ohio App.3d 172, 485 N.E.2d 717. Accordingly, reversal on manifest weight grounds
is reserved for “‘the exceptional case in which the evidence weighs heavily against the
conviction.’” Id., quoting Martin.
{¶ 15} In the instant case, Smith was convicted of failing to register in violation of
R.C. 2950.04(E), which provides that “[n]o person who is required to register pursuant to
divisions (A) and (B) of this section, and no person who is required to send a notice of
intent to reside pursuant to division (G) of this section, shall fail to register or send the
notice of intent as required in accordance with those divisions or that division.”
{¶ 16} Smith argues that his conviction should be reversed because it is unclear as
to whether Megan’s Law or the AWA applies. It is undisputed that Smith was classified
as a sexual predator under Megan’s Law. In State v. Bodyke, 126 Ohio St.3d 266,
2010-Ohio-2424, 933 N.E.2d 753, the Ohio Supreme Court held that the reclassification
provisions of the AWA were unconstitutional, which meant that R.C. 2950.031 and R.C.
2950.032 may not be applied to offenders adjudicated under Megan’s Law. Id. at ¶66.
We note that the State indicated prior to the start of trial that it was prosecuting under
Megan’s Law. Thus, we will focus our analysis under Megan’s Law.
{¶ 17} Under Megan’s Law, Smith was required to register personally with the
Cuyahoga County’s Sheriff Office within five days of his release. See former
R.C. 2950.04(A)(1).2 In the instant case, a review of the record reveals that Smith still
had not registered with the sheriff’s office or reported to his parole officer by October 27,
2010, which is nearly two months after the five-day registration requirement. Thus,
Smith failed to comply with the registration requirements of R.C. 2950.04(E).
{¶ 18} Smith further argues the State failed to establish that he was given proper
notice or properly notified of the requirements expected of him. In support of his
argument, he refers to Pintarich’s testimony that she did not read the registration form to
Smith. There is no evidence in the record that Smith did not receive notice, rather he
refused to sign the form indicating that he had been informed of his duties. When Smith
was released from prison, he was serving time for previously failing to verify an address.
The testimony at trial revealed that Smith has been through the registration process before
when he initially registered with the Sheriff’s office when he was released from prison in
2004.
{¶ 19} Smith’s refusal to sign his registration notification does not negate his duty
to register. This court has found that “the failure to notify a sex offender of his duty to
2Underthe AWA, an offender has three days after release to register. See
R.C. 2950.04(A)(2)(a).
register does not affect the duty to register, which arises by operation of law.” State v.
Johns, Cuyahoga App. No. 92627, 2010-Ohio-68, ¶12, citing In re Hawkins, Hamilton
App. No. C-080052, 2008-Ohio-4381. “As the Ohio Supreme Court made clear in State
v. Hayden, 96 Ohio St.3d 211, 2002-Ohio-4169, [773 N.E.2d 502,] * * * once a defendant
is convicted of a sexually oriented offense, he is ‘automatically classified as a sexually
oriented offender and therefore must register with the sheriff of the county in which he
resides as prescribed by R.C. 2950.04(A)(2).’ Id. at ¶15. (Emphasis added.) Thus,
upon conviction of a sexually oriented offense, the classification and the duty to register
arise by operation of law. Id.; see, also, State v. Moncrief, Cuyahoga App. No. 85479,
2005-Ohio-4812, at ¶23; State v. Grider (2001), 144 Ohio App.3d 323; State v. Mickey
(Apr. 5, 2001), Cuyahoga App. No. 77889.” State v. Freeman, Cuyahoga App. No.
86740, 2006-Ohio-2583, ¶14.
{¶ 20} Thus, we find that any rational trier of fact could have concluded that Smith
failed to register with the sheriff’s office after his release from prison. We further find
that this is not the extraordinary case where the “jury lost its way” and created a manifest
miscarriage of justice.
{¶ 21} Accordingly, the first and second assignments of error are overruled.
{¶ 22} In the third assignment of error, Smith argues his statutory and
constitutional rights were violated when the trial court failed to conduct a competency
hearing after referring Smith for a competency evaluation.
{¶ 23} We recognize that a defendant who is legally incompetent may not stand
trial. State v. Berry, 72 Ohio St.3d 354, 359, 1995-Ohio-310, 650 N.E.2d 433, citing
Pate v. Robinson (1966), 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 and Drope v.
Missouri (1975), 420 U.S. 162, 95 S.Ct 896, 43 L.Ed.2d 103. In Ohio, a defendant is
presumed to be competent unless it is demonstrated by a preponderance of the evidence
that he is incapable of understanding the nature and objective of the proceedings against
him or of presently assisting in his defense. R.C. 2945.37(G).
{¶ 24} R.C. 2945.37(B) allows the trial court, prosecutor, or the defense to raise
the issue of a defendant’s competence to stand trial. In State v. Were, 94 Ohio St.3d 173,
2002-Ohio-481, 761 N.E.2d 591, paragraph one of the syllabus, the Ohio Supreme Court
held that a competency hearing is required if the request is made before trial.
Nevertheless, when a request for a competency evaluation is made prior to trial, the
failure to hold the mandatory competency hearing is harmless error when the record fails
to reveal sufficient indicia of incompetence. State v. Bock (1986), 28 Ohio St.3d 108,
110, 502 N.E.2d 1016.
{¶ 25} Accordingly, “[t]he right to a hearing ‘rises to the level of a constitutional
guarantee where the record contains “sufficient indicia of incompetence,” such that an
inquiry * * * is necessary to ensure the defendant’s right to a fair trial.’” State v. Skatzes,
104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶156, quoting State v. Berry
(1995), 72 Ohio St.3d 354, 359, 650 N.E.2d 433. In Bock, the court defined
incompetency as the “defendant’s inability to understand ‘* * * the nature and objective
of the proceedings against him or of presently assisting in his defense.’” Id. at 110,
quoting R.C. 2945.37(A). The court further explained that “[i]ncompetency must not be
equated with mere mental or emotional instability or even with outright insanity. A
defendant may be emotionally disturbed or even psychotic and still be capable of
understanding the charges against him and of assisting his counsel.” Id.
{¶ 26} Moreover, this court, relying on Bock, has found that when a request for a
competency evaluation is made prior to trial, the failure to hold the mandatory
competency hearing is harmless error when the record fails to reveal sufficient indicia of
incompetence. State v. Almashni, Cuyahoga App. No. 92237, 2010-Ohio-898,¶14,
appeal not allowed by State v. Almashni, 126 Ohio St.3d 1582, 2010-Ohio-4542, 934
N.E.2d 355. In Almashni, the defendant’s “first attorney requested a psychiatric
evaluation of the defendant. The court granted the request and referred Almashni to the
court psychiatric clinic for an evaluation as to competence to stand trial and sanity at the
time of the act. No hearing was held regarding the results of the evaluation.” Id. at ¶12.
{¶ 27} In finding that the record failed to contain sufficient indicia of
incompetence, we relied on the fact that “[t]here is no motion in the file describing the
original defense attorney’s reasons for requesting the evaluation, nor does the court’s
journal entry indicate why the evaluation was ordered. Further, neither the second nor the
third defense attorney requested an evaluation or brought to the court’s attention that
Almashni was incompetent.” Id. at ¶14. See, also, State v. Tong (Mar. 10, 1994),
Cuyahoga App. No. 64903, (where this court, also relying on Bock, found that without
sufficient indicia of incompetency in the record, the failure of the trial court to hold a
competency hearing was harmless error and did not interfere with defendant’s due
process rights.)
{¶ 28} Similarly, in the instant case, the record fails to contain sufficient indicia of
incompetence. The motion submitted by the original defense attorney lists no reason for
requesting the evaluation, other than stating “[a]fter several conversations with Mr.
Smith, defense counsel feels that it is in his best interests to file these Motions.” At the
November 29, 2010 hearing, the court stated that it was going to refer Smith to the court
psychiatric clinic. Smith replied, “[f]or what? Ain’t nothing wrong with me, your
Honor.” The court stated that it wanted to refer Smith to an evaluation out of an
abundance of caution, but no order was ever journalized. Furthermore, at the hearing
Smith indicated that he wanted new counsel, stating that current counsel “recommended
and I told her that I didn’t want to because I fail to enter a plea of guilt, because I won’t
enter a plea —.” Moreover, subsequent defense counsel never requested an evaluation or
brought to the court’s attention that Smith was incompetent.
{¶ 29} Based on the foregoing, we find that there is nothing in the record to
indicate Smith was incapable of understanding the nature and objective of the
proceedings against him. Therefore, the error was harmless and Smith’s third
assignment of error is overruled.
State’s Cross Appeal
{¶ 30} In its cross appeal, the State raises the following three assignments of error
for review.
ASSIGNMENT OF ERROR ONE
“The trial court imposed a sentence that was contrary to law because it
did not apply the penalty in effect at the time of the offense.”
ASSIGNMENT OF ERROR TWO
“Application of the version of R.C. 2950.99 in effect at the time of the
offense to a sex offender who was previously classified under Megan’s
law does not violate the Separation of Powers Doctrine.”
ASSIGNMENT OF ERROR THREE
“Application of the version of R.C. 2950.99 in effect at the time of the
offense to a sex offender who was previously classified under Megan’s
Law does not violate the Retroactivity Clause of the Ohio
Constitution.”
{¶ 31} Within these cross-assignments of error, the State argues that R.C. 2950.99,
as amended through S.B. 97, should be applied to Smith even though he committed his
sexually oriented offense prior to January 1, 2008, but he committed his registration
offense after January 1, 2008. The State argues that the retroactive application of S.B. 97
does not violate constitutional principles.
{¶ 32} In the instant case, the trial court, relying on our decision in Page,
sentenced Smith under Megan’s Law to one year in prison for a third degree felony. The
State, however, argues that the trial court should have sentenced Smith under the current
version of R.C. 2950.99, which would have resulted in a mandatory minimum sentence of
three years in prison. See R.C. 2950.99(A)(2)(b).
{¶ 33} In Page, the defendant was “convicted of importuning and was
subsequently labeled a sexual predator under * * * Megan’s Law, which, at the time,
detailed the classification, registration, and notification requirements of convicted sex
offenders. Former R.C. 2950 et seq. On August 2, 2006, Page was convicted under
Megan’s Law of failing to register as a sex offender and sentenced to one year in prison.”
Id. at ¶2. In July 2009, Page was “indicted under the AWA for failing to verify his
address as a sex offender, with a furthermore clause indicating he had a prior conviction
for violating Ohio’s sex offender registration and notification laws. The furthermore
clause enhanced the minimum penalty that defendant faced as a repeat offender from the
possibility of parole to a mandatory three years in prison. R.C. 2950.06(F) and
2950.99(A)(2)(b).” Id. at ¶4.
{¶ 34} Page pled no contest to the charge and the court sentenced him to a
mandatory minimum of three years in prison. Id. at ¶5. Page appealed, arguing that the
trial court’s sentence according to R.C. 2950.99 as effective at the time of sentencing
violated his constitutional rights because it violates the ex post facto clause of the United
States Constitution.
{¶ 35} In reviewing the AWA and the Ohio Supreme Court’s decision in State v.
Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, we explained:
“The AWA classifies sex offenders using a three-tiered system, with
designation into each tier based solely on the offense committed. In
addition, the AWA includes provisions that retroactively reclassify
offenders previously classified under prior versions of the law. See
R.C. 2950.031 and 2950.032. As the Ohio Supreme Court recently
explained, ‘[t]he entire reclassification process is administered by the
attorney general, with no involvement by any court. There is no
individualized assessment. No consideration is given to any of the
other factors employed previously in classification hearings held
pursuant to Megan’s Law.’ [Bodyke, at] ¶22.
In Bodyke, the Ohio Supreme Court held that reclassification of sex
offenders under the AWA’s R.C. 2950.031 and 2950.032, ‘who have
already been classified by court order under former law,’ violates the
separation-of-powers doctrine and is unconstitutional. Id. at ¶¶60-61.
The Bodyke Court severed these provisions from the Ohio Revised
Code, holding that ‘R.C. 2950.031 and 2950.032 may not be applied to
offenders previously adjudicated by judges under Megan’s law, and the
classifications and community-notification and registration orders
imposed previously by judges are reinstated.’ Id. at ¶66 (emphasis
added).
This court recently applied Bodyke to reverse convictions based on
violations of sex offender registration and notification requirements
under the AWA, when the defendant was initially classified as a sexual
offender under Megan’s Law. The Ohio Supreme Court explicitly
directed that the registration obligations of the prior law are to be
reinstated in such cases. * * * Bodyke, at ¶66.
In State v. Smith, Cuyahoga App. No. 92550, 2010-Ohio-2880, ¶29, this
court held that because the reclassification under the AWA was
unlawful, ‘it cannot serve as the predicate for the crime for which [the
defendant] was indicted and convicted.’ See, also, State v. Patterson,
Cuyahoga App. No. 93096, 2010-Ohio-3715; State v. Jones, Cuyahoga
App. No. 93822, 2010-Ohio-5004. * * *” Id. at ¶8-11.
{¶ 36} In Page, we found that Page’s reclassification under Ohio’s AWA is
contrary to law under Bodyke. Id. ¶12. We then stated, “[a]dhering to precedent in this
district, convictions arising from alleged reporting violations under the AWA for any
individual reclassified under its provisions are contrary to law as well. Smith; Patterson,
supra. We [reversed Page’s] conviction for failure to verify address in violation of R.C.
2950.06(F), vacate[d] his sentence, and [held] that [Page] is subject to the reporting
requirements, and penalties for violating these requirements, of sexual predators pursuant
to Megan’s Law.” Id.
{¶ 37} Subsequent to our decision in Page, the Ohio Supreme Court decided State
v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, 946 N.E.2d 192 and State v. Williams,
129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108. In Gingell, the court held that
an offender who was originally classified under Megan’s Law could not be convicted of
violating the registration requirements of the AWA. Id. at ¶8. In Williams, the court
held that S.B. 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.” Id. at syllabus.
{¶ 38} In the instant case, Smith was classified as a sexual predator under Megan’s
Law and the trial court sentenced him to a third-degree felony under Megan’s Law. As
the Williams court stated: “[t]he General Assembly has the authority, indeed the
obligation, to protect the public from sex offenders. It may not, however, consistent with
the Ohio Constitution, ‘impose[ ] new or additional burdens, duties, obligations, or
liabilities as to a past transaction.’” Id. at ¶22, quoting Pratte v. Stewart, 125 Ohio St.3d
473, 2010-Ohio-1860, 929 N.E.2d 415, ¶37. Thus, we find that the trial court properly
sentenced Smith under Megan’s Law to one year in prison.
{¶ 39} Accordingly, the State’s first, second, and third cross-assignments of error
are overruled.
{¶ 40} Judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
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, PRESIDING JUDGE
MELODY J. STEWART, J., and
EILEEN A. GALLAGHER, J., CONCUR