State v. McGee

[Cite as State v. McGee, 2018-Ohio-3171.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 106423
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
BELVIN McGEE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-99-383003-ZA
BEFORE: E.T. Gallagher, P.J., Boyle, J., and Blackmon, J.
RELEASED AND JOURNALIZED: August 9, 2018
FOR APPELLANT
Belvin McGee, pro se
Grafton Correctional Institution
Inmate No. A379965
2500 South Avon-Belden Road
Grafton, Ohio 44044
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Amy Venesile
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, P.J.:
{¶1} Defendant-appellant, Belvin McGee, appeals pro se from his classification as a
sexual predator in accordance with former R.C. 2950.09(A). McGee raises the following
assignments of error for review:
1. The trial court’s nunc pro tunc entry is barred and must be vacated.
2. The trial court was not authorized to reinstate his Megan’s Law classification
as a sexual predator.
{¶2} After careful review of the record and relevant case law, we affirm the trial court’s
judgment.
I. Procedural History
{¶3} In December 1999, McGee pleaded guilty to five counts of sexually oriented
offenses committed against his five children. At the time of his plea, McGee stipulated “that he
is a sexual predator for classification under House Bill 180.” He was sentenced as follows: eight
years incarceration on Count 17 (rape); life imprisonment on Count 27 (rape); life imprisonment
on Count 37 (rape); and five years incarceration on Counts 43 and 53 (gross sexual imposition).
All of the sentences were to be served concurrently with the exception of Count 17, which was to
run consecutively to the other counts. In addition, the trial court found that McGee was
automatically classified as a sexual predator pursuant to R.C. 2950.09(A).
{¶4} Following the imposition of his sentence, McGee’s convictions were affirmed in
State v. McGee, 8th Dist. Cuyahoga No. 77463, 2001-Ohio-4238. Thereafter, McGee filed
multiple appeals with this court following the trial court’s denial of successive postconviction
motions to withdraw his previously entered guilty pleas. See State v. McGee, 8th Dist.
Cuyahoga No. 82092, 2003-Ohio-1966 (affirmed denial of motion to withdraw guilty plea); State
v. McGee, 8th Dist. Cuyahoga No. 83613, 2004-Ohio-2856 (affirmed denial of motion to
withdraw guilty plea); State v. McGee, 8th Dist. Cuyahoga No. 77463, 2005-Ohio-3553 (denied
application to reopen appeal).
{¶5} In December 2006, McGee appealed from the trial court’s denial of his motion for
correction of invalid pleas and sentence. Finding merit to his appeal, this court found that
McGee’s December 1999 sentencing judgment was void because he was never “lawfully
sentenced to postrelease control.” State v. McGee, 8th Dist. Cuyahoga No. 89133,
2007-Ohio-6655, ¶ 16. Consequently, this court vacated McGee’s sentence and remanded the
matter for resentencing. Id. at ¶ 20.
{¶6} On remand, the trial court held a resentencing hearing in May 2008 and sentenced
McGee to the same prison term originally imposed. This time, however, the trial court
sufficiently imposed postrelease control. In addition, the trial court advised McGee of his
“reporting requirements as a Tier III sex offender” under the Adam Walsh Act.
{¶7} Thereafter, McGee filed additional appeals with this court, including but not limited
to, the following: State v. McGee, 8th Dist. Cuyahoga No. 91638, 2009-Ohio-3374 (affirmed
denial of motion to withdraw guilty plea); State v. McGee, 8th Dist. Cuyahoga No. 91638,
2009-Ohio-6637 (denied application to reopen appeal); State v. McGee, 8th Dist. Cuyahoga No.
101307, 2014-Ohio-5289 (affirmed imposition of postrelease control, but remanded for issuance
of nunc pro tunc order); State v. McGee, 8th Dist. Cuyahoga No. 102740, 2015-Ohio-4908
(affirmed denial of motion to withdraw guilty plea).
{¶8} In March 2016, McGee filed a motion to vacate his sentences and remand for
resentencing. The motion was denied in May 2016. On appeal, this court affirmed the trial
court’s judgment denying McGee’s motion to vacate his sentences. However, this court found
the trial court erred in classifying McGee as a Tier III sex offender under the Adam Walsh Act.
This court stated, in relevant part:
Although appellant failed to raise this issue through a direct appeal, we must
recognize that because appellant committed the offenses prior to the enactment of
2007 Am.Sub.S.B. No. 10, his classification as a Tier III sex offender is invalid.
See State v. Williams, 129 Ohio St. 3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶
22. The record reflects that at his original sentencing in December 1999,
appellant was automatically classified as a sexual predator pursuant to former
R.C. 2950.09(A). The sexual predator classification should have been reinstated
upon his resentencing in 2008. Accordingly, we remand the matter for the
limited purpose of vacating the Tier III sex-offender classification and [for] the
automatic imposition of the sexual-predator classification in accordance with
former R.C. 2950.09(A). Appellant is not entitled to a resentencing hearing.
His third assignment of error is sustained only insofar as the trial court imposed an
improper sex-offender classification.
State v. McGee, 8th Dist. Cuyahoga No. 104566, 2017-Ohio-1363, ¶ 10.
{¶9} On October 10, 2017, the trial court issued the following journal entry:
Upon decision from the Court of Appeals in Case No. 104566, judgment is
affirmed and sentence ordered into execution pursuant to order from the Court of
Appeals. Defendant is classified as a sexual predator in accordance with former
R.C. 2950.09(A).
{¶10} McGee now appeals from his classification as a sexual predator.
II. Law and Analysis
A. Sexual Predator Classification
{¶11} In his first assignment of error, McGee argues the trial court did not have the
authority to reimpose the sexual predator classification from his 1999 original sentence because
the sentence was rendered void by this court’s decision in McGee, 8th Dist. Cuyahoga No.
89133, 2007-Ohio-6655. McGee contends the trial court’s October 10, 2017 entry must be
vacated and remanded to the trial court for a de novo resentencing hearing.
{¶12} As stated, this court previously found that McGee’s original sentence was void
because postrelease control was not properly imposed. McGee, 8th Dist. Cuyahoga No. 89133,
2007-Ohio-6655. Accordingly, the matter was remanded for a de novo resentencing hearing.1
At the resentencing hearing, the trial court classified him as a Tier III sex offender under the
Adam Walsh Act.
{¶13} In State v. Williams, 129 Ohio St. 3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, the
Ohio Supreme Court held that applying S.B. 10 to “defendants who committed sex offenses prior
to its enactment violates Article II, Section 28, of the Ohio Constitution, which prohibits the
General Assembly from passing retroactive laws.” Id. at ¶ 20. Following the mandates of
Williams, this court found that the trial court erred in classifying McGee as a Tier III sex offender
at the resentencing hearing because McGee’s offenses were committed prior to the Adam Walsh
Act’s effective date. McGee, 8th Dist. Cuyahoga No. 104566, 2017-Ohio-1363, at ¶ 10.
Accordingly, the case was remanded “for the limited purpose of vacating the Tier III sex-offender
classification and [for] the automatic imposition of the sexual-predator classification in
accordance with former R.C. 2950.09(A).” Id.
{¶14} On remand, the trial court complied with the express and limited directives of this
court and classified McGee as a sexual predator in accordance with former R.C. 2950.09.
Contrary to McGee’s arguments on appeal, he was not entitled to a de novo resentencing hearing
because he stipulated at the time of his December 1999 plea that “he is a sexual predator for
1
The decision was issued many years before State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, 942
N.E.2d 332, ¶ 28-29 (when an offender is entitled to a new sentencing hearing because postrelease control had not
been properly imposed, the new hearing is limited to proper imposition of postrelease control).
classification under House Bill 180.”2 While McGee’s original sentence in December 1999 was
rendered void by this court’s decision in McGee, 8th Dist. Cuyahoga No. 89133,
2007-Ohio-6655, the terms and stipulations of McGee’s plea remain in full effect.
{¶15} This court has previously held that when a defendant stipulates as part of his plea
bargain that he is to be classified as a sexual predator, such classification is automatic and there
is no need for the trial court to conduct a hearing. See State v. Bolton, 8th Dist. Cuyahoga No.
75865, 2000 Ohio App. LEXIS 665, 12-13 (Feb. 24, 2000); State v. Wiggins, 8th Dist. Cuyahoga
No. 78598, 2001 Ohio App. LEXIS 3702, 2 (Aug. 23, 2001). Applying the foregoing to the
circumstances of this case, we find McGee’s classification as a sexual predator was automatic.
Thus, this court properly found in McGee, 8th Dist. Cuyahoga No. 104566, 2017-Ohio-1363, that
there was no need for the trial court to conduct further hearings to consider the factors listed in
former R.C. 2950.09(B). McGee’s attempt to use this appeal as an attempt to challenge the
limited nature of this court’s remand in McGee, 8th Dist. Cuyahoga No. 104566,
2017-Ohio-1363, is improper and meritless.
{¶16} McGee’s first assignment of error is overruled.
B. Application of State v. Holdcroft
{¶17} In his second assignment of error, McGee argues the trial court was not authorized
to classify him as a sexual predator because it “violates the holding of State v. Holdcroft, 137
Ohio St. 3d 526, 2013-Ohio-5014, 1 N.E.3d 382.” McGee contends that because he has
“completely served” the prison terms imposed on several of his offenses, “an increase in the
sentence is prohibited by the double jeopardy clause, among other things.”
2
McGee’s previous challenges to validity of his sexual-predator stipulation have been rejected by this
court. See McGee, 8th Dist. Cuyahoga No. 104566, 2017-Ohio-1363, at ¶ 5-7; McGee, 8th Dist. Cuyahoga No.
102740, 2015-Ohio-4908, at ¶ 8-11; McGee, 8th Dist. Cuyahoga No. 89133, 2007-Ohio-6655, at ¶ 9.
{¶18} Initially, we note that proceedings under Megan’s Law are civil in nature and are
legally distinct from the proceedings governing a defendant’s underlying criminal conviction and
sentence. State ex rel. Hunter v. Binette, Slip Opinion No. 2018-Ohio-2681, ¶ 16. The
classifications “are not a punishment within the defendant’s sentence.” State v. Bell, 12th Dist.
Clermont No. CA2015-10-077, 2016-Ohio-7363, ¶ 13. Thus, McGee’s characterization of his
sexual-predator classification as an “increase in his sentence” is inaccurate.
{¶19} We further reject McGee’s reliance on the Ohio Supreme Court’s decision in
Holdcroft, because it is inapplicable to the circumstances of this case. In Holdcroft, the Ohio
Supreme Court determined that a trial court does not have jurisdiction to correct a void sentence
once the prison term is complete. The court held, in relevant part:
when the entirety of a prison sanction has been served, the defendant’s interest in
finality in his sentence becomes paramount, and his sentence for that crime may
no longer be modified.
Id., 137 Ohio St. 3d 526, 2013-Ohio-5014, 1 N.E.3d 382, at ¶ 18.
However, unlike correcting a sentence already served, addressing classification
and registration requirements according to Megan’s Law is different because such
requirements are collateral consequence[s] of the offender’s criminal acts rather
than a form of punishment per se.
***
Therefore, the disposition of [a] challenge to the trial court’s jurisdiction to
reclassify him must be determined upon rules specific to classification pursuant to
Megan’s Law, rather than rules that pertain to sentencing or punishment.
Bell, 12th Dist. Clermont No. CA2015-10-077, 2016-Ohio-7363, at ¶ 12-13 (holding that the
civil and remedial nature of a Megan’s Law classification is inherently different than trying to
correct a void prison sentence once that sentence is already served).
{¶20} Based on the foregoing, we find no merit to McGee’s reliance on Holdcroft and its
sentencing restrictions. In this case, the trial court had jurisdiction to automatically impose the
civil and remedial classification based on McGee’s stipulation at the time of his plea. The
status of McGee’s time served is irrelevant to the imposition of his sexual-predator classification.
McGee’s second assignment of error is overruled.
{¶21} Judgment affirmed.
It is ordered that appellee recover from appellant the 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.
EILEEN T. GALLAGHER, PRESIDING JUDGE
MARY J. BOYLE, J., and
PATRICIA ANN BLACKMON, J., CONCUR