State v. Alredge

[Cite as State v. Alredge, 2012-Ohio-414.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24755
vs. : T.C. CASE NO. 2010CR0096
JAMES T. ALREDGE : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 1st day of February, 2012.
. . . . . . . . .
Mathias H. Heck, Jr., Pros. Attorney; Johnna M. Shia, Asst. Pros.
Attorney, Atty. Reg. No. 0067685, P.O. Box 972, Dayton, OH 45422
Attorneys for Plaintiff-Appellee
Kristopher A. Haines, Atty. Reg. No. 0080558, Asst. State Public
Defender, 250 E. Broad Street, Suite 1400, Columbus, OH 43215
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant, James Alredge, appeals from his conviction
for failure to notify of a change of address.
{¶ 2} In 2004, Alredge was adjudicated a delinquent child in
Montgomery County Juvenile Court on a finding that he engaged in
conduct which would constitute the offense of rape if committed
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by an adult. The Juvenile Court ordered Alredge confined at the
Department of Youth Services (DYS) for a period of twelve months,
not to exceed age twenty-one, to run consecutive to other sentences
for other offenses, which resulted in a sentence of confinement
of twenty-four months. The Juvenile Court notified Alredge that
the court would hold a sex offender classification hearing prior
to his release from DYS. R.C. 2152.83(A). Alredge did not appeal
his delinquency adjudication and disposition.
{¶ 3} On April 7, 2008, the Juvenile Court held a sex offender
classification hearing for Alredge. By that time, Ohio’s version
of the Adam Walsh Act, S.B. 10, which replaced the prior Megan’s
Law provisions concerning sex offender classification and
registration, was in effect. The Juvenile Court classified
Alredge as a Tier III sex offender based upon his delinquency
adjudication for rape. That classification required Alredge to
register his address for the remainder of his lifetime and verify
his residence address with the sheriff every ninety days. R.C.
2950.05(B)(1); 2950.06(B)(3). Alredge did not appeal his sex
offender classification.
{¶ 4} Between October 19, 2009, and January 9, 2010, Alredge
failed to notify the Montgomery County Sheriff’s Office of his
change of address. Alredge was indicted on January 14, 2010, on
one count of failure to notify in violation of R.C. 2950.05(A),
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(F)(1). The offense is a felony of the first degree under S.B.
10, because Alredge’s underlying delinquency adjudication for rape
is a first degree felony. R.C. 2950.99(A)(1)(a)(ii). Following
a bench trial on March 23, 2010, Alredge was found guilty of failure
to notify.
{¶ 5} On March 29, 2010, the trial court sentenced Alredge
to the minimum sentence for a first degree felony offense of three
years in prison. Alredge did not timely perfect a direct appeal.
On August 3, 2011, Alredge filed a motion for leave to file a
delayed appeal from his conviction and sentence for failure to
notify. We granted Alredge’s motion for leave to file a delayed
appeal on August 26, 2011.
ASSIGNMENT OF ERROR
{¶ 6} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
ENTERED A JUDGMENT OF CONVICTION AND SENTENCED MR. ALREDGE TO A
THREE-YEAR PRISON TERM FOR VIOLATING THE STATUTES IMPOSING CERTAIN
RESTRICTIONS ON HIM AS A TIER III SEX OFFENDER, IN VIOLATION OF
MR. ALREDGE’S RIGHTS UNDER THE FIFTH, SIXTY, AND FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION, SECTIONS 10 AND 16,
ARTICLE I OF THE OHIO CONSTITUTION, AND SECTION 28, ARTICLE II
OF THE OHIO CONSTITUTION.”
{¶ 7} Alredge argues that the trial court erred by both
convicting and sentencing him to three years in prison for failure
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to provide notice of his change of address because that offense
resulted from his unconstitutional classification under S.B. 10
as a Tier III sex offender.
{¶ 8} Initially, we note that this case does not involve an
unconstitutional reclassification of Alredge pursuant to R.C.
2950.031 and 2950.032. Those sections required the attorney
general to reclassify under S.B. 10 sex offenders who had already
been classified by court order under the former Megan’s Law.
Alredge was never classified as a sex offender under the former
Megan’s Law by any court prior to the enactment of S.B. 10 in 2007.
Therefore, State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424,
does not apply.
{¶ 9} The statutory scheme in effect for the classification
of sex offenders at the time Alredge committed the offense of rape
and was adjudicated a delinquent child in 2004 was Ohio’s version
of Megan’s Law, H.B. 180, which was enacted in 1996 and amended
in 2003 by S.B.5. The statutory scheme for the classification
of sex offenders currently in effect when Alredge was classified
a Tier III offender, Ohio’s version of the Adam Walsh Act, S.B.
10, was enacted in 2007. It creates substantial changes by
imposing stricter reporting and registration requirements and it
imposes them for a longer period of time.
{¶ 10} In considering whether the changes to the reporting and
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registration requirements brought about by S.B. 10 could be applied
to persons whose crime was committed prior to the enactment of
S.B. 10, the Ohio Supreme Court has held that the application of
S.B. 10 to a sex offender whose crime was committed prior to the
enactment of S.B. 10 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. The Ohio Supreme Court subsequently applied its
holding in Williams to juvenile sex offenders whose offenses
occurred prior to the enactment of S.B. 10. See: In re: D.J.S.,
130 Ohio St. 3d 257, 2011-Ohio-5342.
{¶ 11} Because Alredge’s rape-based delinquency adjudication
occurred in 2004, before the enactment of S.B. 10, the provisions
of S.B. 10 cannot be applied to Alredge. Williams; In re D.J.S.
Instead, Alredge’s sex offender classification must be determined
based upon the former Megan’s Law that was in effect at the time
of Alredge’s offense in 2004. Furthermore, Williams applies to
Alredge despite his failure to challenge his classification under
S.B. 10 in a direct appeal. See: State v. Eads, 2nd Dist. Montgomery
No. 24696, 2011-Ohio-6307 at ¶ 23.
{¶ 12} The State argues that Alredge cannot through his present
appeal from a failure to register offense collaterally attack his
2008 classification as a Tier III sex offender because he took
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no appeal from that classification, and the issue of his
classification is therefore barred as res judicata. In order for
res judicata to apply, there must be a “valid” prior judgment.
Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379. Alredge’s 2008
classification was pursuant to a statute which the Supreme Court
has held violates Section 28, Article II of the Ohio Constitution,
In re: D.J.S., which provides that the General Assembly “shall
have no power to pass retroactive laws.” Alredge’s 2008
classification was therefore void. State v. Pritchett, Montgomery
App. No. 24183, 2011-Ohio-5978. Being void, the 2008
classification is not a “valid” prior judgment for purposes of
res judicata. Grava.
{¶ 13} Per Williams, the retroactive application of S.B. 10
to Alredge is a nullity, and Alredge’s classification thereunder
as a Tier III sex offender is void. Eads. The prosecution of
Alredge for failure to notify the sheriff of a change of his address
was based upon that unconstitutional classification. As a result,
Alredge cannot be prosecuted for failure to notify the sheriff
of his new address as a Tier III sex offender. Eads.
{¶ 14} Finally, we cannot conclude that Alredge’s conviction
for failing to notify the sheriff of a change of address is proper
on the ground that Alredge would have been required to notify the
sheriff of a change of his address under the former Megan’s Law.
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Pursuant to R.C. 2152.83(A), the juvenile court did not classify
Alredge as a sex offender at the time of his delinquency
adjudication in 2004, but rather waited until April 2008, after
Alredge’s release from confinement at DYS. By that time, S.B.
10 was in effect and the juvenile court classified Alredge under
that law as a Tier III offender. Unlike the sex offenders in State
v. Milby, 2nd Dist. Montgomery No. 23798, 2010-Ohio-6344; State
v. Johnson, 2nd Dist. Montgomery 24029, 2011-Ohio-2069; and State
v. Alexander, 2nd Dist. Montgomery No. 24119, 2011-Ohio-4015, but
like the juvenile offender in Eads, Alredge has never been
classified as a sexually oriented offender, habitual sex offender,
or sexual predator under Megan’s Law, by any court. Accordingly,
the registration and reporting requirements under Megan’s Law do
not apply to Alredge. He cannot therefore be convicted of failing
to comply with those requirements under Megan’s Law by failing
to notify the sheriff of a change of his address. Eads. Alredge’s
conviction for failing to notify the sheriff of a change of his
address must be reversed and vacated. Id.{¶ 15} Alredge’s sole assignment of error is sustained. The
judgment of the trial court will be reversed and vacated.
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FROELICH, J., And HALL, J., concur.
Copies mailed to:
Johnna M. Shia, Esq.
Kristopher A. Haines, Esq.
Hon. Frances E. McGee