State v. Smith

[Cite as State v. Smith, 2016-Ohio-3521.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-150445
C-150446
Plaintiff-Appellee, : TRIAL NOS. 04CRB-6826A
04CRB-6826B
vs. :
WILLIAM SMITH, : O P I N I O N.
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Municipal Court
Judgments Appealed From Are: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: June 22, 2016
Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and
Christopher Liu, Assistant City Prosecutor, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David Hoffmann,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
STAUTBERG, Judge.
{¶1} Defendant-appellant William Smith presents on appeal a single
assignment of error challenging the Hamilton County Municipal Court’s judgments
overruling his postconviction motions to vacate his 2004 convictions for criminal
child enticement in violation of R.C. 2905.05. Because Smith was convicted under
an unconstitutional statute, we reverse the court’s judgments.
The Appeals are Not Moot
{¶2} We reject at the outset the state’s argument that Smith’s appeals from
the overruling of his motions must be dismissed as moot because he had, in August
2007, completed the sentences imposed for his convictions and failed to demonstrate
a collateral disability or loss of civil rights arising from his convictions.
{¶3} The doctrine of mootness is founded upon the “long and well
established” principle that courts have a “duty * * * to decide actual controversies
between parties legitimately affected by specific facts and to render judgments which
can be carried into effect.” Fortner v. Thomas, 22 Ohio St. 2d 13, 14, 257 N.E.2d 371
(1970). Thus, a court has no duty to decide a matter that is “moot in the sense that
the court cannot provide the appellant with any meaningful relief.” State v. Carr, 1st
Dist. Hamilton No. C-140172, 2015-Ohio-2529, ¶ 9, citing Miner v. Witt, 82 Ohio St.
237, 92 N.E. 21 (1910), syllabus.
{¶4} Smith’s child-enticement offenses were first-degree misdemeanors.
R.C. 2905.05(C). An appeal challenging a misdemeanor conviction is moot, and thus
subject to dismissal, if the offender has voluntarily completed his sentence and has
failed to offer evidence permitting an “inference” that he has a “substantial stake in
the judgment of conviction,” by showing that, because of his conviction, he “will
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suffer some collateral disability or loss of civil rights.” State v. Wilson, 41 Ohio St. 2d
236, 237, 325 N.E.2d 236 (1975), syllabus. Accord Cleveland Hts. v. Lewis, 129 Ohio
St.3d 389, 2011-Ohio-2673, 953 N.E.2d 278, ¶ 17-19.
{¶5} A collateral disability is “an adverse legal consequence of a conviction
or judgment that survives despite the court’s sentence having been satisfied or
served.” In re S.J.K., 114 Ohio St. 3d 23, 2007-Ohio-2621, 867 N.E.2d 408, ¶ 10. An
offender suffers under a collateral disability when he “may be subject to further
penalties or disabilities under state or federal law even after a judgment has been
satisfied.” Id. at ¶ 14. A collateral disability “need not have an immediate impact or
impairment but may be something that occurs in the future.” Id. at 25. An appeal is
moot “only if it is shown that there is no possibility [of] any collateral legal
consequences.” Wilson at 237, quoted in In re S.J.K. at ¶ 14.
{¶6} In 1996, the General Assembly enacted R.C. Chapter 2950 (“Megan’s
Law”), Am.Sub.H.B. No. 180, 146 Ohio Laws, Part II, 2560, providing for the
classification and registration of sex offenders. In 2003, Megan’s Law was amended
by Am.Sub.S.B. No. 5, 150 Ohio Laws, Part IV, 6556, to provide for
the classification and registration of an offender convicted of a “child victim oriented
offense.”
{¶7} Under the version of Megan’s Law in effect in 2004, when Smith was
convicted, his child-enticement convictions were, by definition, “child-victim
oriented offense[s].” See R.C. 2950.01(S)(1)(a)(i). And he was, by operation of law,
classified as a child-victim-oriented offender for purposes of the duty to register
imposed by R.C. 2950.041(A)(1)(a). Thus, Smith was upon his August 2007 release
from confinement, and he remains until August 2017, subject to the ten-year
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registration requirements of then-effective R.C. 2950.041, along with any sanction
that might be imposed under R.C. 2950.99 for violating his duty to register. See
former R.C. 2950.041(F) and 2950.07(A)(1) and (B)(3) (effective July 31, 2003).
Accord State v. Tucker, 1st Dist. Hamilton No. C-130026, 2013-Ohio-5102 (holding
that defendant’s 2004 conviction for the child-victim-oriented offense of abduction
required him, upon his 2007 release from confinement, to register under former R.C.
2950.041(A)(1) as a child-victim-oriented offender).
{¶8} The registration and reporting requirements imposed under Megan’s
Law are not part of an offender’s sentence. State v. Cook, 83 Ohio St. 3d 404, 417,
700 N.E.2d 570 (1998). Therefore, Smith completed his sentences in August 2007,
when he was released from confinement. But his duty to register as child-victim-
oriented offender, with the accompanying risk of sanctions for violating that duty,
constitutes a collateral disability that survives his completion of the sentences
imposed upon his child-enticement convictions. Accordingly, his appeals from the
overruling of his motions to vacate those convictions are not moot.
The Child-Enticement Statute and Romage
{¶9} We also hold that the municipal court erred in not granting Smith the
relief sought in his motions. Smith was convicted in 2004 on two counts of criminal
child enticement in violation of the 2001 version of R.C. 2905.05. That version of the
statute proscribed criminal child enticement as follows:
(A) No person, by any means and without privilege to do so, shall
knowingly solicit, coax, entice, or lure any child under fourteen years
of age to accompany the person in any manner, including entering into
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OHIO FIRST DISTRICT COURT OF APPEALS
any vehicle or onto any vessel, whether or not the offender knows the
age of the child, if both of the following apply:
(1) The actor does not have express or implied permission of the
parent, guardian, or other legal custodian of the child in undertaking
the activity.
(2) The actor is not a law enforcement officer, medic, firefighter, or
other person who regularly provides emergency services, and is not an
employee or agent of, or a volunteer acting under the direction of,
any board of education, or the actor is any of such persons, but, at the
time the actor undertakes the activity, the actor is not acting within the
scope of the actor’s lawful duties in that capacity.
{¶10} Before it was amended in 2001, the child-enticement statute had
proscribed knowingly soliciting, coaxing, enticing, or luring a child under 14 “to enter
into any vehicle.” Am.Sub.S.B. No. 321, 140 Ohio Laws, Part I, 1192, 1211. In 1988
and 1989, we held that the pre-2001 version of the statute was not unconstitutionally
vague or overbroad. See State v. Long, 49 Ohio App. 3d 1, 2, 550 N.E.2d 522 (1st
Dist.1989); State v. Kroner, 49 Ohio App. 3d 133, 134-135, 551 N.E.2d 212 (1st
Dist.1988).
{¶11} The 2001 amendment broadened the statute’s proscription,
prohibiting a person from knowingly soliciting, coaxing, enticing, or luring a child
under 14 “to accompany the person in any manner, including entering into any
vehicle.” (Emphasis added.) S.B. No. 312, 148 Ohio Laws, Part V, 11668. In 2005, in
State v. Clark, 1st Dist. Hamilton No. C-040329, 2005-Ohio-1324, ¶ 8, we followed
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OHIO FIRST DISTRICT COURT OF APPEALS
our decisions in Long and Kroner to hold that the 2001 version of the statute was not
overbroad.
{¶12} In 2008, R.C. 2905.05 was again amended, to additionally prohibit,
under division (B) of the statute, the act of violating division (A) of the statute “with a
sexual motivation.” S.B. No. 10, 152 Ohio Laws, Sec. 1. But division (A) of the statute
remained unchanged.
{¶13} Thereafter, R.C. 2905.05(A) was held to be unconstitutionally
overbroad by the Second Appellate District in 2008, State v. Chapple, 175 Ohio
App.3d 658, 2008-Ohio-1157, 888 N.E.2d 1121, ¶ 18 (2d Dist.); by the Tenth
Appellate District in 2012, State v. Romage, 2012-Ohio-3381, 974 N.E.2d 120 (10th
Dist.); and by the Ninth Appellate District in 2013, State v. Goode, 2013-Ohio-556,
989 N.E.2d 107 (9th Dist.). And the Eighth Appellate District, in 2009, struck down
as overbroad a substantially similar municipal ordinance. Cleveland v. Cieslak, 8th
Dist. Cuyahoga No. 92017, 2009-Ohio-4035, ¶ 16.
{¶14} In 2014, the conflict between those appellate court decisions and our
decision in Clark was resolved when the Ohio Supreme Court in State v. Romage,
138 Ohio St. 3d 390, 2014-Ohio-783, 7 N.E.3d 1156, held that R.C. 2905.05(A) was
unconstitutionally overbroad. The court concluded that R.C. 2905.05(A) “sweeps
within its prohibitions a significant amount of * * * activity” protected by the First
Amendment, because it prohibits soliciting, coaxing, enticing, or luring a child
without requiring aggression toward the victim or the intent to commit an unlawful
act,1 and because the “common, ordinary meaning of the word ‘solicit’ encompasses
1 The General Assembly had, in 2013, again amended R.C. 2905.05 to additionally prohibit, under subsection
(C) of the statute, engaging in any activity described in division (A) of the statute, “for any unlawful purpose
other than, or in addition to, that proscribed in division (A).”
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OHIO FIRST DISTRICT COURT OF APPEALS
‘merely asking’.” Id. at ¶ 10-11, 18. The court further determined that the statute’s
unconstitutional overbreadth could not be cured by severing or narrowly construing
the term “solicit.” Id. at ¶ 15-16. Thus, the court “invalidated” R.C. 2905.05 on the
ground that it was unconstitutionally overbroad. Id. at ¶ 8 and syllabus.
Jurisdiction to Grant Relief
{¶15} In cases on direct appeal, we have followed the Supreme Court’s
decision in Romage to reverse child-enticement convictions and order the
defendants discharged. See State v. Cobia, 1st Dist. Hamilton No. C-140058, 2015-
Ohio-331, ¶ 12; State v. Rebholz, 1st Dist. Hamilton No. C-130636, 2014-Ohio-2429,
¶ 3-4. But Smith did not appeal his convictions. Instead, in March and June 2015,
over 11 years after he had been convicted and almost eight years after he had, in
August 2007, completed the sentences imposed for his offenses, Smith filed with the
municipal court motions seeking an order vacating his convictions on the authority
of Romage. The municipal court overruled the motions, and these appeals followed.
{¶16} In his motions, Smith did not designate a statute or rule under which
relief could be granted. A court confronted with such a motion may “recast” the
motion “in whatever category necessary to identify and establish the criteria by
which the motion should be judged.” State v. Schlee, 117 Ohio St. 3d 153, 2008-Ohio-
545, 882 N.E.2d 431, ¶ 12.
{¶17} No jurisdiction to grant habeas corpus, postconviction,
or Civ.R. 56(B) relief. But Smith’s motions were not reviewable under R.C.
2725.01 et seq., as petitions for writs of habeas corpus. Relief may be afforded under
the habeas corpus statutes only when the petitioner is presently in “the actual
physical custody of the state.” Harrod v. Harris, 1st Dist. Hamilton No. C-000791,
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OHIO FIRST DISTRICT COURT OF APPEALS
2001 Ohio App. LEXIS 2092 (May 11, 2001), citing Tomkalski v. Maxwell, 175 Ohio
St. 377, 378, 194 N.E.2d 845 (1963). And Smith had, by August 2007, been released
from confinement.
{¶18} Nor were Smith’s motions reviewable under R.C. 2953.21 et seq.,
governing the proceedings on a petition for postconviction relief. The postconviction
statutes require that a postconviction petition be filed with the court that sentenced
the petitioner and confer jurisdiction over a postconviction petition only upon a
common pleas court. See State v. Cowan, 101 Ohio St. 3d 372, 2004-Ohio-1583, 805
N.E.2d 1085; R.C. 2953.21(A)(1)(a). Smith was convicted in municipal court.
{¶19} Crim.R. 57(B) requires a court to “look to the rules of civil procedure
and to the applicable law if no rule of criminal procedure exists.” And Civ.R.
60(B)(5) permits a court to grant relief from a judgment for “any * * * reason
justifying relief.” We have held that, because the criminal rules provide no procedure
for an offender convicted in municipal court to seek relief from his conviction based
on evidence outside the record, Crim.R. 57(B) permits the offender to seek relief
under Civ.R. 60(B)(5). State v. Black, 1st Dist. Hamilton No. C-070546, 2008-Ohio-
3790. But Smith’s challenge to the constitutionality of his convictions was not
reviewable under Civ.R. 60(B)(5), because the challenge does not depend for its
resolution upon outside evidence and was thus reviewable under the procedures
provided for a direct appeal. Therefore, Crim.R. 57(B) did not require the municipal
court to review this challenge under Civ.R. 60(B).
{¶20} Jurisdiction to vacate void convictions. But a court always
has jurisdiction to correct a void judgment. State ex rel. Cruzado v. Zaleski, 111 Ohio
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St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 18-19. And Smith’s convictions were
void.
{¶21} In Romage, the Ohio Supreme Court “invalidated” the 2008 version of
the R.C. 2925.05(A) as unconstitutionally overbroad, because the statute prohibits
anyone not specifically exempted under the statute from asking any child under 14 to
accompany that person in any manner and for any reason. Romage, 138 Ohio St. 3d
390, 2014-Ohio-783, 7 N.E.3d 1156, at ¶ 11. Because the 2008 amendment to R.C.
2905.05 did not alter division (A) of the statute, the 2001 version of R.C. 2905.05(A),
under which Smith was convicted, suffers from the same constitutional infirmities as
the 2008 version held to be overbroad in Romage. Thus, Smith stands convicted
under an unconstitutional statute.
{¶22} The United States Supreme Court has long held,
An unconstitutional law is void, and is as no law. An offence created by
it is not a crime. A conviction under it is not merely erroneous, but is
illegal and void * * *. It is true, if no writ of error lies, the judgment
may be final, in the sense that there may be no means of reversing it.
But * * * if, the laws are unconstitutional and void, the [trial] Court
acquired no jurisdiction of the causes [because] [i]ts authority to indict
and try the [defendants] arose solely upon these laws.
Ex parte Siebold, 100 U.S. 371, 376-377, 25 L. Ed. 717 (1880), quoted in Montgomery
v. Louisiana, ___ U.S. ___, 136 S. Ct. 718, 730-731, 193 L. Ed. 2d 599 (2016). Accord
Middletown v. Ferguson, 25 Ohio St. 3d 71, 80, 495 N.E.2d 380 (1986); Cincinnati,
Wilmington and Zanesville RR. Co. v. Clinton Cty., 1 Ohio St. 77, 86 (1852); Hogg v.
Zanesville Canal & Mfg. Co., 5 Ohio 410, 417 (1832); Spier v. Am. Univ. of
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OHIO FIRST DISTRICT COURT OF APPEALS
Caribbean, 3 Ohio App. 3d 28, 30, 443 N.E.2d 1021 (1st Dist.1981) (holding that an
unconstitutional statute is void ab initio). Nevertheless, the state insists that Smith
was not entitled to relief from his convictions based on Romage, because Romage
applied only to cases on direct review, and Smith’s convictions had become final well
before Romage was decided. We conclude, to the contrary, that the rule of Romage
applied retroactively and required Smith’s child-enticement convictions to be
vacated.
{¶23} Smith’s convictions became final in April 2004, when the time for him
to perfect a direct appeal had expired. See Teague v. Lane, 489 U.S. 288, 295, 109
S. Ct. 1060, 103 L. Ed. 2d 334 (1989); Agee v. Russell, 92 Ohio St. 3d 540, 2001-Ohio-
1279, 751 N.E.2d 1043 (holding that a conviction becomes final when all appellate
remedies have been exhausted). The rule of Romage—that R.C. 2905.05 is
unconstitutionally overbroad—was announced in 2014.
{¶24} A new rule of law applies to criminal cases still pending on direct
appeal, but generally does not apply to a conviction that was final when the new rule
was announced. Teague at 311; Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct.
708, 93 L. Ed. 2d 649 (1987). But “courts must give retroactive effect to new
substantive rules of constitutional law.” Montgomery at 728, citing Teague at 307,
and Schriro v. Summerlin, 542 U.S. 348, 352, 124 S. Ct. 2519, 159 L. Ed. 2d 442
(2004), fn. 4.
{¶25} “[A] case announces a new rule if the result was not dictated by
precedent existing at the time the defendant’s conviction became final.” Teague at
301. A holding is not dictated by then existing precedent unless it would have been
“apparent to all reasonable jurists.” Lambrix v. Singletary, 520 U.S. 518, 527-528,
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OHIO FIRST DISTRICT COURT OF APPEALS
117 S. Ct. 1517, 137 L. Ed. 2d 771 (1997). Applying this standard, we conclude that the
rule of Romage constituted a “new rule.”
{¶26} When, in 2004, Smith’s convictions became final, Romage’s holding
that R.C. 2905.05(A) is unconstitutionally overbroad could not be said to have been
“apparent to all reasonable jurists.” We had held in 1988 and 1989 that the pre-2001
version of R.C. 2905.05 was not overbroad. Long, 49 Ohio App. 3d at 2, 550 N.E.2d
522; Kroner, 49 Ohio App. 3d at 134-135, 551 N.E.2d 212. Then, in 2005, we upheld
the 2001 version of the statute, despite its amendment extending its reach to “any
manner” of enticements. Clark, 1st Dist. Hamilton No. C-040329, 2005-Ohio-1324,
at ¶ 8. Not until 2008 did an Ohio appellate court hold that R.C. 2905.05(A) was
overbroad. See Chapple, 175 Ohio App. 3d 658, 2008-Ohio-1157, 888 N.E.2d 1121, ¶
18. Accord Goode, 2013-Ohio-556, 989 N.E.2d 107; Romage, 2012-Ohio-3381, 974
N.E.2d 120. See also Cieslak, 8th Dist. Cuyahoga No. 92017, 2009-Ohio-4035, at ¶
16. And the conflict among the appellate districts on the issue of overbreadth was
not resolved until 2014, when the Ohio Supreme Court decided Romage. Thus, in
2004, when Smith’s convictions became final, precedent did not dictate a holding
that the 2001 version of the statute under which he had been convicted was
unconstitutionally overbroad. Accordingly, in 2014, when it held in Romage that
R.C. 2905.05(A) was unconstitutionally overbroad, the Ohio Supreme Court
announced a new rule of constitutional law.
{¶27} A new rule of constitutional law is “substantive,” and thus not subject
to the bar on retroactive application, if it “place[s], as a matter of constitutional
interpretation, certain kinds of primary, private individual conduct beyond the
power of the criminal law-making authority to proscribe.” Montgomery, 136 S. Ct. at
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729, 193 L. Ed. 2d 599, quoting Mackey v. United States, 401 U.S. 667, 692, 91 S. Ct.
1160, 28 L. Ed. 2d 404 (1971) (opinion concurring in judgments in part and dissenting
in part), and citing Teague, 489 U.S. at 292, 312, 109 S. Ct. 1060, 103 L. Ed. 2d 334,
and Schriro, 542 U.S. at 352, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (recognizing that
substantive rules are more accurately characterized as not subject to, rather than an
exception to, the retroactivity bar). The effect of the rule in Romage was to place
beyond the General Assembly’s power to punish those acts proscribed under the R.C.
2905.05(A), i.e., soliciting, coaxing, enticing, or luring a child under 14 to accompany
a person in any manner and for any purpose. Thus, the court in Romage announced
a substantive rule of constitutional law.
{¶28} A new substantive rule of constitutional law applies retroactively to a
criminal case because such rules “necessarily carry a significant risk that a defendant
stands convicted of ‘an act that the law does not make criminal.’ ” Bousley v. United
States, 523 U.S. 614, 620, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998), quoting Davis v.
United States, 417 U.S. 333, 346, 94 S. Ct. 2298, 41 L. Ed. 2d 109 (1974). Accord
Montgomery, 136 S. Ct. at 734, 193 L. Ed. 2d 599; Schriro, 542 U.S. at 352, 124 S. Ct.
2519, 159 L. Ed. 2d 442. Therefore, when a new substantive rule of constitutional law
controls the outcome of a case, that rule must be given retroactive effect, regardless
of whether the conviction has become final. Montgomery, 136 S. Ct. at 729, 193
L. Ed. 2d 599.
{¶29} The new substantive rule of constitutional law announced in
Romage—that the version of R.C. 2905.05(A) under which Smith was convicted was
unconstitutionally overbroad—controls the outcome in Smith’s case. Because the
statute was unconstitutional, it was void ab initio, and Smith’s convictions under the
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OHIO FIRST DISTRICT COURT OF APPEALS
statute were void. Because Smith’s convictions were void, the municipal court had
jurisdiction to vacate his convictions and discharge him. We, therefore, hold that the
rule of Romage applies retroactively to afford Smith the relief from his 2004 child-
enticement convictions sought in his 2015 motions to vacate those convictions.
{¶30} Accordingly, we reverse the municipal court’s judgments overruling
Smith’s motions and remand to the court with instructions to vacate his convictions
and to order that he be discharged from further prosecution for those offenses.
Judgments reversed and cause remanded.
FISCHER, P.J., and MOCK, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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