State v. Wright

[Cite as State v. Wright, 2023-Ohio-2134.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellant, : No. 22AP-275
(C.P.C. No. 19CR-5886)
v. :
(REGULAR CALENDAR)
Brooke M. Wright, :
Defendant-Appellee. :
D E C I S I O N
Rendered on June 27, 2023
On brief: [Janet Grubb, First Assistant Prosecuting
Attorney], and Seth L. Gilbert, for appellant. Argued:
Seth L. Gilbert.
On brief: The Tyack Law Firm Co., LPA, Jonathan T.
Tyack, and Holly B. Cline, for appellee. Argued:
Jonathan T. Tyack.
APPEAL from the Franklin County Court of Common Pleas
JAMISON, J.
{¶ 1} The State of Ohio, plaintiff-appellant, appeals from the decision of the Franklin
County Court of Common Pleas granting defendant-appellee, Brooke M. Wright’s, motion for
exemption from community notification requirements. We reverse and remand.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On November 13, 2019, Wright was indicted on 2 counts of sexual battery, in
violation of R.C. 2907.03, felonies of the third degree; and 2 counts of unlawful sexual
conduct with a minor, in violation of R.C. 2907.04, felonies of the third degree. The
indictment specified the victim was 13 years of age or older but less than 16 years of age at
No. 22AP-275 2
the time of the offense, and Wright was a teacher, administrator, or other person of authority
at a school in which the victim was enrolled.
{¶ 3} On September 16, 2020, Wright pled guilty to two counts of sexual battery in
violation of R.C. 2907.03, felonies of the third degree. The court informed Wright at the plea
hearing that, as a result of her guilty pleas, she would be registered as a Tier III sex offender
which required in person registration and notification to the community. The court accepted
Wright’s guilty pleas and entered a nolle prosequi to the other two charges.
{¶ 4} On February 4, 2021, Wright was sentenced to a concurrent prison term of four
years in the custody of the Ohio Department of Rehabilitation and Correction (“ODRC”). At
the time of sentencing, Wright was advised she would be classified as a Tier III sex offender
with community notification requirements under R.C. 2950.11. Wright executed an
Explanation of Duties to Register as a Sex Offender form.
{¶ 5} On February 5, 2021, the court issued the judgment entry sentencing Wright to
a concurrent four-year term of imprisonment on both counts of sexual battery. The
sentencing entry stated the court had informed Wright she would be a sexual offender and
classified, pursuant to S.B. No. 10 (“S.B. 10”), as a Tier III “with registration duties to last a
lifetime; in person verification is required every ninety (90) days and community notification
will be sent.” (Feb. 5, 2021 Jgmt. Entry at 1.) Wright did not challenge the sentence.
{¶ 6} On October 4, 2021, Wright filed a motion for judicial release pursuant to R.C.
2929.20. On February 17, 2022, the court held a hearing on the motion for judicial release
and informed the parties the motion would be granted. At the judicial release hearing, Wright
was again advised of her duties to register as a Tier III sex offender. Wright’s counsel asked
the court to issue an order exempting her from community notification pursuant to R.C.
2950.11(F)(2). The court set the community notification issue for a separate hearing.
{¶ 7} Wright was granted judicial release and placed under a term of community
control for three years. On February 19, 2022, Wright was released from the custody of
ODRC.
{¶ 8} On March 2, 2022, Wright filed a motion for exemption from community
notification pursuant to R.C. 2950.11(F)(2). The state filed a memorandum contra Wright’s
motion on March 16, 2022, asserting the applicable subsection governing Wright’s request
for exemption was R.C. 2950.11(H). At the March 24, 2022 hearing on the motion for
No. 22AP-275 3
exemption, Wright asserted she moved for exemption under R.C. 2950.11(F)(2) at the
appropriate time as she sought exemption before she was subject to the community
notification requirement. The state argued that, after sentencing, a request for exemption
from community notification was governed by R.C. 2950.11(H), not (F)(2).
{¶ 9} On April 5, 2022, the court issued a decision granting Wright’s motion for
exemption. The court concluded Wright timely sought exemption from community
notification pursuant to R.C. 2950.11(F)(2), as Wright moved for exemption prior to her
release from prison and thus prior to her duty to register as a sex offender pursuant to R.C.
2950.07(A)(3). The court further concluded that R.C. 2950.11(H) was not relevant to its
decision under R.C. 2950.11(F)(2). After considering the information contained in the pre-
sentence investigation report, the court found Wright qualified for exemption from
community notification under R.C. 2950.11(F)(2).
{¶ 10} On May 5, 2022, the state filed a motion in this court seeking leave to appeal.
On May 31, 2022, Wright filed a memorandum contra the state’s motion for leave to appeal
(filed May 5, 2022) and motion to dismiss.
{¶ 11} On September 1, 2022, this court granted the state’s motion for leave to appeal
finding the state has demonstrated a probability that its first claimed error occurred. Further,
this court dismissed Wright’s motion to dismiss and found that this appeal shall proceed as
an appeal as of right. State v. Wright, 10th Dist. No. 22AP-275, 2022-Ohio-3068.
{¶ 12} It is from the trial court’s decision granting Wright’s motion for exemption
from community notification that the state appeals. We agree with the state.
II. ASSIGNMENT OF ERROR
{¶ 13} Appellant assigns the following sole assignment of error for our review:
The trial court erred in granting Wright’s “Motion for Exemption
from Community Notification Requirement,” as Wright did not
seek relief from community notification at or before sentencing
as required by R.C. 2950.11(F)(2), and the 20-year period had
not expired as required by R.C. 2950.11(H)(2).
III. STANDARD OF REVIEW
{¶ 14} Before we begin our analysis, we note that the record shows Wright did not
object to the trial court’s imposition of the requirement for community notification at
sentencing. When a defendant fails to object at sentencing to the imposition of a punitive
No. 22AP-275 4
community notification provision, the defendant “waived all but plain error.” State v.
Twyford, 94 Ohio St.3d 340, 360 (2002); see State v. Madison, 10th Dist. No. 06AP-1126,
2007-Ohio-3547, ¶ 31 (where the appellant did not object to lack of notice of a hearing any
error is waived unless the plain-error doctrine is invoked).
{¶ 15} However, the plain-error doctrine has not been properly invoked, “and we will
not sua sponte undertake a plain-error analysis” on a party’s behalf. Cable Busters, L.L.C. v.
Mosley, 1st Dist. No. C-190364, 2020-Ohio-3442, ¶ 8. Consequently, plain-error review has
been forfeited. U.S. Bank Natl. Assn. v. Kasidonis, 1st Dist. No. C-190559, 2020-Ohio-6716,
¶ 18.
{¶ 16} An appellate court reviews an assignment of error presenting a question of law
on a de novo basis with no deference given to the trial court’s determination. State v. Linnen,
10th Dist. No. 04AP-1138, 2005-Ohio-6962, ¶ 9. Statutory interpretation is a matter of law,
and an appellate court reviews such a matter on a de novo basis. State v. Ashcraft, __ Ohio
St.3d __, 2022-Ohio-4611, ¶ 7. The primary goal of statutory interpretation is to determine
and uphold “the General Assembly’s intent in enacting the statute.” Knollman-Wade
Holdings, L.L.C. v. Platinum Ridge Properties, L.L.C., 10th Dist. No. 14AP-595, 2015-Ohio-
1619, ¶ 14. “In determining legislative intent, we must first look to the plain language of the
statute.” Id.{¶ 17} As a general rule, the words and phrases of a statute will be read in context and
construed according to the rules of grammar and common usage. R.C. 1.42. See In re
Acubens, L.L.C., 10th Dist. No. 17AP-870, 2018-Ohio-2607, ¶ 14, citing State ex rel. Rose v.
Lorain Cty. Bd. of Elections, 90 Ohio St.3d 229, 231 (2000). Where the language of a statute
is plain and conveys a clear and definite meaning, there is no need for statutory
interpretation. State v. Banks, 10th Dist. No. 11AP-69, 2011-Ohio-4252, ¶ 13. “If the [statute]
is clear and unambiguous, as it is in this case, we must apply it as written.” Ashcraft at ¶ 7.
IV. LEGAL ANALYSIS
{¶ 18} Ohio’s law governing the classification and registration of sex offenders is
codified at R.C. Chapter 2950 and dates back to 1963. On July 27, 2006, Congress enacted
the Adam Walsh Child Protection and Safety Act (“AWA”) to protect the public from sex
offenders by establishing a comprehensive national system for the registration of sex
offenders. Pub.L. No. 109-248, 120 Stat. 587 (July 27, 2006). Ohio amended its classification
No. 22AP-275 5
and registration scheme to conform to the new federal requirements through the passage of
S.B. 10, which became effective January 1, 2008. 2007 Am.Sub.S.B. No. 10.
{¶ 19} Under S.B. 10, sex offenders are classified as Tier I, II, or III offenders based
solely on the offense committed. Each tier classification carries specific sex offender
registration and notification (“SORN”) duties set forth by statute.
{¶ 20} At sentencing, the trial court has zero discretion regarding the tier
classification, and merely informs the sex offender which classification and duties attach to
his or her conviction. R.C. 2950.03(A)(2). The particular classification, duty to register, and
community notification requirements after a conviction for a sex-oriented offense arise “as a
matter of law, not by judicial determination.” State v. Crawford, 10th Dist. No. 08AP-1055,
2009-Ohio-4649, ¶ 16.
{¶ 21} A Tier III sex offender is subject to several lifetime requirements and duties as
default sanctions. In re R.M., 1st Dist. No. C-120166, 2014-Ohio-1200, ¶ 27. The sex offender
must: (1) register in person and verify his or her address every 90 days; (2) abide by the
residency requirements; and (3) submit to community notification by the appropriate sheriff,
all of which are punitive sanctions. State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374.
{¶ 22} For a Tier III sex offender, the corresponding duties are mandatory except for
community notification. The only issue that a court can consider at sentencing for a Tier III
offender is community notification. The presumption is that notification applies. State v.
Bella, 1st Dist. No. C-210581, 2022-Ohio-2884.
{¶ 23} Tier III sex offender classification is mandatory under R.C. 2950.01(G) for
those convicted of certain sexually oriented offenses. By pleading guilty to a violation of R.C.
2907.03, Wright “is automatically classified as a [Tier III] sexually oriented offender and
must comply with the registration requirements of R.C. 2950.04.” Crawford at ¶ 16.
Requiring a conviction under R.C. 2907.03 to serve as the predicate to be classified as a Tier
III sex offender “is no different than a mandatory prison sentence, mandatory fine, or any
other mandatory punishments that the General Assembly deems necessary.” State v.
Ritchey, 3d Dist. No. 1-15-80, 2016-Ohio-2878, ¶ 28.
{¶ 24} Sentence is defined as “the sanction or combination of sanctions imposed by
the sentencing court on an offender who is convicted of or pleads guilty to an offense.” R.C.
2929.01(EE). A sanction is imposed by the sentencing entry. State v. Halsey, 12th Dist. No.
No. 22AP-275 6
CA2016-01-001, 2016-Ohio-7990, ¶ 26. “[A]ll sex offender tier classifications under the AWA
are part of the sanction and must be included in the sentencing entry.” State v. Sipple, 1st
Dist. No. C-190462, 2021-Ohio-1319, ¶ 32. A sex offender must be aware at sentencing that
they are either subject to community notification or that they are exempt. There are no “to
be determined” sanctions permitted under the Ohio SORN law.
{¶ 25} This court has held that the sex offender classification and its associated
registration and notification requirements are part of the penalty for the sex offense
conviction, and Crim.R. 11(C)(2) requires the trial court ensure the sex offender understands
the requirements before it can accept a guilty plea. State v. Wallace, 10th Dist. No. 17AP-
818, 2019-Ohio-1005, ¶ 18; see State v. Henson, 12th Dist. No. CA2013-12-221, 2014-Ohio-
3994, ¶ 13 (Internal quotations and citation omitted.) (notification requirements set forth in
R.C. Chapter 2950 are part of the penalty imposed upon a defendant, and that Crim.R. 11
obligates a trial court to advise a defendant of the basic requirements under R.C. Chapter
2950 before accepting a guilty plea). Because the trial court judge maintains some discretion
over this area, it must be addressed at sentencing, so the sex offender is aware of their
sentence.
{¶ 26} Pursuant to Crim.R. 11(C)(2)(a), a trial court must inform a defendant of the
penalty for the crime. State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, ¶ 6. When
sentencing a Tier III sex offender, “a trial court need only advise that a defendant will be
subject to the registration requirements of the statutory scheme to comply with the Crim.R.
11(C)(2)(a) maximum penalty advisement requirement.” State v. Obhof, 11th Dist. No. 2021-
A-0021, 2023-Ohio-408, ¶ 28. When the tier classification is placed in a sentencing entry,
the court is, in effect, “includ[ing] in the sentence a summary of the offender’s duties.” R.C.
2929.23.
{¶ 27} R.C. 2929.19(B)(3)(a) requires that the “court shall include in the offender’s
sentence a statement that the offender is a tier III sex offender/child-victim offender, and the
court shall comply with the requirements of section 2950.03 of the Revised Code” if the sex
offense occurred after January 1, 1997 and offense mandates classification as a Tier III sexual
offender. State v. Kase, 187 Ohio App.3d 590, 2010-Ohio-2688 (7th Dist.). R.C. 2950.03
requires the sex offender be notified of the classification and consequent duties at the
sentencing hearing.
No. 22AP-275 7
{¶ 28} It is clear that “a court speaks through its journal.” State v. Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, ¶ 29. Therefore, “for a sanction to commence, it must first be
imposed by the sentencing court.” Halsey at ¶ 26. Pursuant to R.C. 2950.07(A)(3), “sex
offender registration duties commence upon entry of the judgment of conviction.” Id. at ¶ 25.
{¶ 29} Wright’s classification as a Tier III sex offender and the community notification
and registration orders attending that classification are set upon the filing of the judgment
entry on February 5, 2021. The entry reads:
In addition, at the time of the plea the Court notified the
Defendant that by entering into this plea the Defendant
will be a sexual offender and classified pursuant to S.B.
10 as a Tier III with registration duties to last a lifetime;
in person verification is required every ninety (90) days
and community notification will be sent.
(Emphasis sic.) (Feb. 5, 2021 Jgmt. Entry at 1.) Once the entry requiring community
notification is filed, Wright is subject to community notification.
{¶ 30} R.C. 2950.03(A)(2) requires the trial court judge to provide an explanation of
duties to the offender “at the time of sentencing.” The notice, known as the Explanation of
Duties to Register as a Sex Offender, details all of the duties related to the Tier III
classification. R.C. 2950.03(B)(1)(a). After the form is properly executed, the sentencing
judge distributes a copy of the form to the Ohio Attorney General (“OAG”), the sheriff of the
county of conviction, and other agencies as required. R.C. 2950.03(B)(3)(a).
{¶ 31} It is undisputed that the trial court complied with R.C. 2950.03(B) and Wright
executed a form entitled Explanation of Duties to Register as a Sex Offender outlining her
requirements, including community notification. A copy of the form was provided to the
Franklin County Sheriff because Wright had a duty to register pursuant to R.C.
2950.04(A)(1)(a). State v. Black, 10th Dist. No. 19AP-637, 2021-Ohio-676. Wright
acknowledged receiving, understanding, and signing the form at sentencing, and the trial
court judge certified that Wright was informed of her duties.
{¶ 32} The form reflects that Wright is a Tier III sex offender and explains her
registration requirements in great detail. Of significance to this matter, the box indicating
that Wright is not subject to community notification is not checked, which means she is
subject to community notification. Quite simply, at sentencing, Wright’s duties included
lifetime community notification.
No. 22AP-275 8
{¶ 33} At the time she pled guilty, Wright engaged in the following colloquy with the
court:
THE COURT: Also, by pleading guilty to this offense, you’ll be
registered as a Tier III sex offender. That requires in-person
registration in the county in which you reside every 90 days for
the remainder of your life. It also requires that you notify the
community at the residence where you live and that you cannot
occupy a residence within 1,000 feet of a school, preschool or
childcare center. Do you understand that?
[MS. WRIGHT]: Yes.
(Sept. 16, 2020 Plea Hearing Tr. at 6.)
{¶ 34} It is noteworthy that Wright’s counsel first inquired whether the community
notification requirement is mandatory at the end of the plea hearing:
THE COURT: Okay. Anything else on behalf of the State?
[THE STATE]: No, thank you, your honor.
[DEFENSE COUNSEL]: No, thank you, Your Honor. The only
other thing I would just note for the record, I told [the
prosecuting attorney] this, I’ve got to do a little more research.
The plea form seems to indicate that community notification is
mandatory. My understanding is you may have some discretion.
You don’t have discretion to - -
THE COURT: There’s a process to go through which I’m not
versed in. It doesn’t come up a whole lot, but I have - -
[DEFENSE COUNSEL]: Yeah, she’s definitely going to be a Tier
III sex offender and everything in the plea form is accurate. It’s
just with community notification there is a process where you
can rule that community notification is not appropriate.
THE COURT: Okay.
[DEFENSE COUNSEL]: Whether those arguments apply to this
case or not, I don’t know yet, but I just want the record to be
clear that might be something we have to discuss at sentencing.
(Sept. 16, 2020 Plea Hearing Tr. at 13.)
{¶ 35} At sentencing, the trial court engaged Wright in the following discussion
regarding her Tier III sex offender duties:
No. 22AP-275 9
THE COURT: Thank you. Ms. Wright, I have in front of me a
form titled Notice of - - or Explanation of Duties to Register as
a Sex Offender. It appears to be signed by you at the bottom.
Did you sign this form?
[MS. WRIGHT]: Yes, sir.
THE COURT: Did you discuss it with your attorney prior to
today before you signed it?
[MS. WRIGHT]: Yes. Sir.
THE COURT: Did he explain all the explanations of your - - of
your obligations and your duties as a Tier III offender?
[MS. WRIGHT]: Yes, sir.
THE COURT: What this means is that you’ll have to register
your address at the place where you reside in the county where
you reside. I believe it’s every 90 days for the rest of your life.
You’ll also be subject to community notification requirements.
If you fail to register, you could be subject to an additional
criminal offense for not registering. Do you understand that?
[MS. WRIGHT]: Yes.
THE COURT: Do you have any question about those
requirements?
[MS. WRIGHT]: No, sir.
THE COURT: I’m going to authorize the form at this time.
(Feb. 4, 2021 Sentencing Tr. at 11–12.)
{¶ 36} Based on the record, Wright’s counsel made no motion for hearing for the court
to determine her requirements of community notification under SORN law. Wright’s
classification as a Tier III sex offender under the AWA and the corresponding community
notification requirement was therefore a lawful part of her sentence. Williams, 2011-Ohio-
3374, at ¶ 16.
{¶ 37} While community notification is at issue here, registration of sex offenders is
the focal point of SORN law. Generally, a sex offender must register their address and other
information with the local sheriff. Registration is tied to community notification because the
No. 22AP-275 10
sheriff is responsible for notification to the local community. An offender has no direct
involvement in the notification process.
{¶ 38} The OAG is tasked with maintaining a state registry of sex offenders “regarding
each person who is convicted of, pleads guilty to, has been convicted of, or has pleaded guilty
to a sexually oriented offense.” R.C. 2950.13(A)(1). This registry is not a public document,
and is only accessible to law enforcement, the registrar of motor vehicles or a designee, and
the director of the Ohio Department of Job and Family Services or a designee. R.C.
2950.08(A). The OAG takes certain information and places it on a sex offender database that
is searchable by the public. R.C. 2950.13(A)(11).
{¶ 39} “Registrant” is defined as “an adult offender or delinquent child who has been
convicted of, pleaded guilty to, or been adjudicated delinquent for committing a sexually
oriented or child-victim oriented offense that is not a registration-exempt offense, and who
has a duty to register pursuant to section 2950.04 or 2950.041 of the Revised Code.” Ohio
Adm.Code 109:5-2-01(A). Wright is a registrant.
{¶ 40} R.C. 2950.04(A)(1)(a) imposes a duty to register on a newly convicted sex
offender going directly to prison and taken into the custody of the local sheriff for conveyance.
R.C. 2950.04(A)(1)(a) requires the sex offender register with the sheriff of the county in
which the offender pled guilty immediately after sentencing but before the offender is
transferred to the institution where the offender will be confined. A sex offender’s duty to
comply with R.C. 2950.04(A)(1)(a) and register “commences immediately after the entry of
judgment of conviction.” R.C. 2950.07(A)(1).
{¶ 41} R.C. 2950.04(A)(1)(c) provides that “[a] law enforcement officer shall be
present at the sentencing hearing * * * described in division (A)(1)(a) or (b) of this section to
immediately transport the offender * * * who is the subject of the hearing to the sheriff, or
sheriff’s designee, of the county in which the offender * * * is convicted, pleads guilty, or is
adjudicated a delinquent child.” The OAG addressed this process: “If the offender or juvenile
is being incarcerated, a law enforcement officer must be present to escort him or her to the
sheriff’s office for preregistration.” OAG’s Guide to Ohio’s Laws, 2018 Update, 12. This is the
sexual offender’s initial entry into the SORN system.
{¶ 42} R.C. 2950.04(A)(2) imposes a duty upon a sex offender to register with the
sheriff where he or she resides and is the commonly known form of registration. An
No. 22AP-275 11
incarcerated offender who registered under R.C. 2950.04(A)(1)(a) upon conviction, must
then register under R.C. 2950.04(A)(2) upon release from confinement. R.C.
2950.04(A)(1)(d).
{¶ 43} There are only two registration options available at sentencing. If an offender
is sentenced to a period of confinement, the offender will be registered after sentencing but
before the offender is conveyed by the sheriff to the confinement facility pursuant to R.C.
2950.04(A)(1)(a). If the sex offender is not being sentenced to a period of confinement, the
offender must register with the sheriff where they reside pursuant to R.C. 2950.04(A)(2).
{¶ 44} A sex offender’s duty to register in the conventional sense is not tolled during
the period of incarceration for the underlying sexual offense. An incarcerated offender’s
registration under R.C. 2950.04(A)(1)(a) must be followed by registration under R.C.
2950.04(A)(2) upon release. R.C. 2950.04(A)(1)(c). R.C. 2950.07(D) tolls the duty to
register if an offender is released from their initial prison term, commits another crime or
violation, and is sent to prison again. The tolling starts upon an offender’s return to prison.
{¶ 45} R.C. 2950.04(A)(1)(a) absolutely applies to an offender who directly reports to
prison such as Wright. The goal is for an offender who does not walk out of the courtroom,
but instead immediately begins a term of incarceration, whether with ODRC, a county jail, or
some other institution, to register into the SORN system.
{¶ 46} Wright was sentenced in court on February 4, 2021. On February 8, 2021, the
clerk of court issued a warrant to convey Wright to ODRC for confinement. Wright was not
going to be confined at the county jail, but rather held there until the time she was transported
to a state institution. Indeed, Wright is eligible for a reduction in her prison term for
confinement in the county jail “while awaiting transportation to the place where the prisoner
is to serve the prisoner’s prison term.” R.C. 2967.191(A).
{¶ 47} Wright offers a much narrower interpretation of the statute and asserts that
because she entered the jail holding cell adjacent to the courtroom without first registering,
R.C. 2950.04(A)(1)(a) does not apply, and she is only required to register on release from
prison. While the AWA is strict on notification and registration sanctions, it does not contain
the same rigidity on incarceration. An offender can receive a prison term, like Wright, serve
time in a county jail, or even be placed on community control. State v. Brooks, 103 Ohio
St.3d 134, 2004-Ohio-4746. However, the statute clearly contemplates registration before
No. 22AP-275 12
the newly convicted offender is transferred to begin confinement, not before the offender is
taken into custody immediately after sentencing by the sheriff for processing. It is quite
reasonable for safety reasons for a newly convicted sex offender to register during processing,
and not in open court.
{¶ 48} R.C. 2950.04(A)(1)(a) is a statutory mandate to register newly convicted sex
offenders as they begin their sentence. Under this section, the sheriff registers the sex
offender before conveyance to ODRC or other institution where the offender will be confined
for their sentence. It is not registration in the conventional sense where an offender
completes their prison term and registers their new address with the local sheriff. Since the
offender is not in the community but under the control and supervision of ODRC, the sheriff
does not perform community notification procedures as required under R.C. 2950.04(A)(2)
registration. This decision will not impact a sheriff’s role in R.C. 2950.04(A)(1)(a)
registration.
{¶ 49} “Community notification is undeniably the global purpose of sex offender
classification.” State v. Johnson, 8th Dist. No. 106322, 2018-Ohio-5029, ¶ 18. R.C. 2950.11
contains the community-notification provision of Ohio’s SORN law. In addition to the
registration and reporting requirements imposed on a sex offender, “the community-
notification provisions detailed in R.C. 2950.11(A) apply unless the exception in R.C.
2950.11(F)(2) applies.” State v. McConville, 124 Ohio St.3d 556, 2010-Ohio-958, ¶ 4.
{¶ 50} Community notification is the release of information about a sex offender by a
sheriff to various agencies and the general public and furthers the governmental interests of
protecting public safety and public scrutiny of the criminal and mental health systems. Id.Community notification makes registration information available to the public to encourage
community members to monitor registered sex offenders and take protective precautionary
measures.
{¶ 51} A community notification registrant “means an adult offender or delinquent
child who has been convicted of, pleaded guilty to, or been adjudicated delinquent for
committing a sexually oriented or child-victim oriented offense that is not a registration-
exempt offense, and who has a duty to register pursuant to section 2950.04 or 2950.041 of
the Revised Code.” Ohio Adm.Code 109:5-2-01(A). A “ ‘[p]erson subject to community
No. 22AP-275 13
notification’ means a person listed under division (F)(1) of section 2950.11 of the Revised
Code.” Ohio Adm.Code 109:5-2-01(B). Wright is a community notification registrant.
{¶ 52} A community notification registrant has no affirmative duties under R.C.
2950.11, and there is no “ ‘community notification requirements,’ to which [Wright] would
be bound.” Johnson at ¶ 17.
{¶ 53} Community notification is a sanction unless exempted by R.C. 2950.11(F)(2).
This determination must be made before or at sentencing to comport with constitutional
sentencing requirements, so the sex offender is aware of the sentence.
{¶ 54} The AWA provides two avenues for relief from the community notification
requirements. Community notification duties apply at conviction unless an offender requests
a hearing, and the sentencing court determines the offender is exempt from notification. R.C.
2950.11(F)(2). Once an offender is convicted and sentenced, and therefore subject to
registration and community notification, the prosecuting attorney’s office that convicted the
offender, the sentencing judge or successor, or the offender may make a motion to suspend
the community notification requirement, but only after 20 years has passed since the
offender’s conviction. R.C. 2950.11(H)(2).
{¶ 55} Wright argues that R.C. 2950.11(F)(2) is available after an offender has been
sentenced, but the state argues that Wright must first wait 20 years and can only seek relief
pursuant to R.C. 2950.11(H)(2). We must turn to the statute.
{¶ 56} The trial court construes a statute “to determine and give effect to the intent of
the General Assembly as expressed in the language it enacted.” McConnell v. Dudley, 158
Ohio St.3d 388, 2019-Ohio-4740, ¶ 19. The Supreme Court of Ohio applied the rules of
statutory interpretation and noted that R.C. 2950.11(F)(2) contained instructive language
which referred to the initial imposition of the community notification requirement at
sentencing. McConville at ¶ 10. The statute “is written in the present tense, referring to a
‘hearing’ at which a judge ‘finds’ certain facts.” Id. R.C. 2950.11(F)(2)(c), (d), and (i) all
address the offense “for which sentence is to be imposed or the order of disposition is to be
made.” State v. Thomas, 1st Dist. No. C-150294, 2016-Ohio-501, ¶ 12. While the crux of the
matter in McConville dealt with whether R.C. 2950.11(F)(2) applied to sex offenders
sentenced under pre-AWA law, “the court’s interpretation of the statute’s applicability
provides guidance.” Thomas at ¶ 9.
No. 22AP-275 14
{¶ 57} While strikingly similar, the factors a court considers under R.C. 2950.11(H)(1)
contains noteworthy distinctions. R.C. 2950.11(K). The present tense language in R.C.
2950.11(F)(2)(c), (d) and (i) referring to the “sentence is to be imposed” is omitted and
replaced with past tense language in R.C. 2950.11(K)(2), (3), and (9) referring to the offense
committed. In addition, R.C. 2950.11(H)(1) emphasizes that an order suspending
community notification does not impact other SORN requirements.
{¶ 58} Our sister court has examined the statute to determine when community
notification requirement is initially imposed, and opined that the “in futuro language very
clearly contemplates a determination of exemption being made at or before sentencing.”
Thomas at ¶ 12. We agree that the “appropriate time for a R.C. 2950.11(F)(2) hearing is at or
before the time of sentencing.” Thomas at ¶ 14.
{¶ 59} We find that the distinctions in the two sections are instructive in holding that
R.C. 2950.11(F)(2) only applies prior to or at sentencing, while R.C. 2950.11(H)(2) applies
after sentencing. Where a statute referring to one subject contains a critical phrase, omission
of that word or phrase from a similar statute on the same subject generally shows a different
legislative intent. Huntington Natl. Bank v. 199 S. Fifth St. Co., L.L.C., 10th Dist. No. 10AP-
1082, 2011-Ohio-3707.
{¶ 60} There are no cases involving the application of R.C. 2950.11(F)(2) after an
offender has been sentenced. All of the cases deal with R.C. 2950.11(F)(2) at sentencing. This
court reviewed an allegation that trial counsel was ineffective for failing to request a separate
hearing, pursuant to R.C. 2950.11(F)(2), at sentencing, but found the sex offender did not
demonstrate any prejudice from the failure, and overruled the assignment of error because
“defendant d[id] not demonstrate a reasonable probability the court would not have imposed
the community notification requirements had his counsel requested the hearing under R.C.
2950.11(F)(2).” State v. Harris, 10th Dist. No. 09AP-1111, 2010-Ohio-4127, ¶ 14. In
McConville, the trial court held a separate hearing during sentencing “for further review of
the community-notification requirement.” McConville at ¶ 2. In Bella, the defendant pled
guilty to sex offenses but asked the trial court to defer sentencing so he could be evaluated
as to whether imposing community notification requirements would be appropriate. At
sentencing, the defendant was not able to rebut the presumption of community notification
in a R.C. 2950.11(F)(2) argument. In State v. Fisher, 4th Dist. No. 16CA3553, 2017-Ohio-
No. 22AP-275 15
7260, a teacher pled guilty to sexual offenses regarding a 16-year-old student aide and was
classified a Tier III sex offender and unsuccessfully challenged the community notification
disposition at sentencing. The teacher’s request to stay the classification, registration and
notification requirements pending appeal was denied. Id. at ¶ 7.
{¶ 61} In State v. Starks, 6th Dist. No. L-16-1013, 2017-Ohio-40, the defendant
pled guilty to sex offenses and moved unsuccessfully at the sentencing hearing for relief. In
State v. Morrin, 6th Dist. No. L-13-1200, 2014-Ohio-5594, the defendant pled guilty to sex
offenses and the court held a community notification hearing prior to sentencing. The
prosecutor presented information relative to each of the factors in R.C. 2950.11(F)(2)(a)
through (k), and the defendant did not offer any information or evidence or oppose
community notification. The defendant was found to be subject to community notification.
In State v. Wood, 5th Dist. No. 09-CA-205, 2010-Ohio-2759, the Fifth District determined
that because the sex offender at sentencing “failed to request a hearing, he cannot now argue
that the trial court erred in failing to suspend the community notification provision.” Id. at
¶ 39.
{¶ 62} We find that R.C. 2950.11(F)(2) is only available to a sex offender up to the
sentencing phase, and once convicted, its use is precluded. Therefore, the trial court applied
R.C. 2950.11(F)(2) incorrectly.
{¶ 63} Wright is precluded by res judicata from raising any challenge to the
community notification requirements, which arise by operation of law upon designation of a
Tier III sex offender, because she could have raised it on direct appeal. State v. Reyes, 11th
Dist. No. 2021-P-0014, 2021-Ohio-3478. However, “since it was never appealed, it cannot
be corrected now.” State v. Schilling, 1st Dist. No. C-210363, 2022-Ohio-1773, ¶ 20.
V. CONCLUSION
{¶ 64} The trial court did not conduct a R.C. 2950.11(F)(2) hearing prior to or at
sentencing, and further determined that Wright was subject to community notification. The
window for R.C. 2950.11(F)(2) relief is closed for a Tier III sexual offender upon the filing of
a judgment entry that does not specify an exemption from community notification. The
hearing the trial court conducted after sentencing was not in accord with law.
{¶ 65} Based on the foregoing reasons, we sustain the state’s sole assignment of error.
Having sustained the state’s sole assignment of error, we reverse the judgment of the Franklin
No. 22AP-275 16
County Court of Common Pleas, and remand this matter to that court for further proceedings
consistent with law and this decision.
Judgment reversed
and cause remanded.
BOGGS, J., concurs.
DORRIAN, J., concurs in judgment only.
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