[Cite as State v. Freeman,

.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-100389 TRIAL NO. B-0908525 Plaintiff-Appellee, : D E C I S I O N. vs. :

JERRY FREEMAN, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed and Cause Remanded

Date of Judgment Entry on Appeal: August 31, 2011

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Robert R. Hastings, Jr., Office of the Hamilton County Public Defender, for Defendant-Appellant.

Please note: This case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

Per Curiam.

{¶1} On December 21, 2009, defendant-appellant Jerry Freeman was

indicted for failing to provide notice of an address change. The indictment alleged that

Freeman, who was required to register as a sexually oriented offender on the basis of a

January 18, 1975, conviction for gross sexual imposition, had a prior conviction for

failing to verify his address.

{¶2} Freeman filed a motion to dismiss the indictment, which the trial court

overruled. On May 11, 2010, Freeman withdrew his plea of not guilty and pleaded no

contest to failing to provide notice of an address change. The trial court found Freeman

guilty. Freeman has appealed, raising two assignments of error for our review.

{¶3} We initially note that the indictment and the sentencing entry

incorrectly referred to Freeman’s failure-to-notify offense as a violation of R.C.

2950.05(E)(1). R.C. 2950.05(E)(1) sets forth the duties of the sheriff upon receiving a

change-of-address notification. The indictment should have referred to R.C.

2950.05(F)(1), which provides that “[n]o person who is required to notify a sheriff of a

change of address * * * shall fail to notify the appropriate sheriff * * *.”

{¶4} A clerical error in an indictment that does not mislead or prejudice a

defendant, even if carried through to the judgment entry, does not affect the validity of

the conviction and may be corrected in a nunc pro tunc entry.1 The language of the

indictment and the facts set forth by the prosecutor during Freeman’s plea hearing

clearly indicated that he was charged with and convicted of an offense under R.C.

2950.05(F)(1). Freeman pleaded no contest to facts establishing a violation of R.C.

1 See State ex rel. Womack v. Marsh,

,

,

, ¶13, citing State ex rel. Cruzado v. Zaleski,

,

,

, ¶18- 19; State v. Brown, 1st Dist. Nos. C-100309 and C-100310,

; State v. Marzolf, 9th Dist. No. 24459,

; Crim.R. 36.

2 OHIO FIRST DISTRICT COURT OF APPEALS

2950.05(F)(1). It is clear from the record that Freeman was not misled or prejudiced by

the clerical error. Therefore, it may be corrected.

{¶5} Freeman’s first assignment of error alleges that the trial court erred in

overruling his motion to dismiss the indictment, because he had served his sentence for

gross sexual imposition in full before July 1, 1997, and therefore, he was not required to

register as a sex offender.

{¶6} Former R.C. Chapter 2950 (“Megan’s Law”)2 provided that “[r]egardless

of when the sexually oriented offense was committed, an offender who [was] sentenced

for the sexually oriented offense to a prison term, a term of imprisonment, or any other

type of confinement and, on or after July 1, 1997, [was] released in any manner from

the prison term, term of imprisonment, or confinement” was required to register with

the sheriff as a sexually oriented offender.3

{¶7} On January 22, 1971, Freeman was placed on five years’ probation for

armed robbery. He violated the terms of his probation, and on February 23, 1972, he

was sentenced to ten to 25 years’ incarceration for armed robbery. He was granted

parole on September 13, 1974. While on parole for the armed robbery, he was charged

with theft and gross sexual imposition. He pleaded guilty to both charges, and on June

6, 1975, he was sentenced to concurrent terms of one and one-half to five years’

incarceration. His armed-robbery parole was revoked.

{¶8} In 1975, R.C. 2929.41(B)(3) provided that “a sentence of imprisonment

shall be served consecutively to any other sentence of imprisonment * * * when it is

imposed for a new felony committed by a probationer, parolee, or escapee.” Therefore,

Freeman was required to serve his armed-robbery sentence before serving his

2 See Am.Sub.H.B. No. 180, 146 Ohio Laws, Part II, 2560, enacted in 1996, was amended in 2003 by Am.Sub. S.B. No. 5, 150 Ohio Laws, Part IV, 6556. 3 R.C. 2950.04(A)(1)(a).

3 OHIO FIRST DISTRICT COURT OF APPEALS

concurrent sentences for theft and gross sexual imposition. In addition, Freeman was

required to serve one and one-half years’ incarceration, the minimum term on his 1975

sentences, before again becoming eligible for parole.4

{¶9} On November 7, 1978, Freeman was released on parole. Freeman’s

parole was revoked when he was convicted of uttering, and he was sentenced on April

26, 1979, to one to five years’ incarceration. Freeman then had to serve one year to

become eligible for parole. The time was credited to Freeman’s ten-to-25-year armed-

robbery sentence. After serving the armed-robbery sentence, Freeman had to serve the

five-year sentence for his 1975 convictions (including the gross-sexual-imposition

conviction) and then the sentence for his 1979 uttering conviction.

{¶10} On February 26, 1981, Freeman was paroled on all offenses. He pleaded

guilty to aggravated burglary in Clark County on August 21, 1981, and he was sentenced

to five to 25 years’ incarceration. His parole on all prior convictions was revoked. He

had to serve five years before again becoming eligible for parole. At that time, he was

still serving the ten-to-25-year sentence on his 1972 armed-robbery conviction.

{¶11} Freeman was again granted parole on April 23, 1996. On September 19,

1996, he was convicted of attempted aggravated burglary and sentenced to four years’

incarceration. On February 1, 1997, Freeman’s 1972 armed-robbery sentence expired.

At that time, Freeman began to serve his 1975 concurrent sentences for theft and gross

sexual imposition. On December 12, 2000, Freeman was found not to be a sexual

predator and was classified under Megan’s Law as a sexually oriented offender. He

completed his 1975 sentences, including his sentence for gross sexual imposition, on

September 6, 2001. He was paroled on February 12, 2002. On October 24, 2002, he

4 Although Freeman became eligible for parole after serving the minimum term on his new sentences, the time he served was actually credited to the ten-to-25-year armed-robbery sentence, as required by former R.C. 2929.41(B)(3) and former R.C. 2929.41(C)(2).

4 OHIO FIRST DISTRICT COURT OF APPEALS

was convicted of failing to provide notice of a change of address, and on June 22, 2006,

he was convicted of failing to verify his current address.

{¶12} The record shows that Freeman began serving his sentence for gross

sexual imposition on February 2, 1997. That sentence expired on September 6, 2001.

Therefore, under former R.C. 2950.04(A)(1)(a), Freeman had to register as a sexually

oriented offender, and under former R.C. 2950.05, he was required to provide notice at

least 20 days prior to changing his address. The first assignment of error is overruled.

{¶13} Freeman’s second assignment of error alleges that the trial court erred

in accepting his no-contest plea and finding him guilty of the failure-to-notify offense,

because the offense was based upon an unlawful reclassification under Am.Sub.S.B. No.

10 (“Senate Bill 10”).

{¶14} The Ohio Supreme Court, citing State v. Bodyke,5 held in State v.

Gingell6 that an offender who was judicially classified as a sexually oriented offender

and ordered to register annually for ten years under Megan’s Law could not be

prosecuted for failing to comply with a more restrictive registration requirement

imposed after reclassification as a Tier III sex offender under Senate Bill 10.

{¶15} Freeman was classified under Megan’s Law as a sexually oriented

offender on December 12, 2000. There is nothing in the record to show that Freeman

was reclassified as a tier offender or subject to more restrictive registration duties under

Senate Bill 10. Therefore, the record does not demonstrate the alleged error.

{¶16} Freeman also alleges that the trial court erred in retroactively applying

current R.C. 2950.99, which proscribes the penalty for Freeman’s failure-to-notify

5

,

,

. 6

,

,

.

5 OHIO FIRST DISTRICT COURT OF APPEALS

offense. Freeman argues that the court should have applied the version of R.C. 2950.99

that was in effect at the time of his original classification as a sexually oriented offender.

{¶17} “A statute is retroactive if it penalizes conduct that occurred before its

enactment.”7 A statute that “does not ‘change * * * the legal consequences of acts

completed before its effective date,’ but simply mandates an enhanced penalty for acts

committed after the effective date of the provision,” is not retrospective.8

{¶18} The penalty provisions contained in current R.C. 2950.99 became

effective January 1, 2008. Freeman pleaded guilty to failing to notify the sheriff of an

address change on or about October 15, 2009. Although Freeman’s duty to register

stemmed from his sex offense, his failure to notify the sheriff of an address change was

a new offense that he had committed after the effective date of current R.C. 2950.99’s

penalty provisions.9 Therefore, current R.C. 2950.99 was not applied retroactively to

Freeman’s conduct.

{¶19} The Ohio Supreme Court’s decision in State v. Williams10 does not

require a different result. Williams had been indicted in November 2007 for unlawful

sexual conduct with a minor. He had pleaded guilty on December 14, 2007. During the

plea colloquy, the trial court had indicated that Williams would not be subject to

reporting requirements. On January 1, 2008, Senate Bill 10’s new tier classifications

for sexual offenders became effective. Williams was sentenced on February 1, 2008.

He moved to be sentenced under the Megan’s Law version of R.C. Chapter 2950 that

was in effect at the time he had committed his offense. The trial court applied Senate

7 See State v. Williams,

,

,

. 8 See State v. Clark (Aug. 5, 1992), 1st Dist. No. C-910541, citing Miller v. Florida (1987),

,

. 9 See State v. Richey, 10th Dist. No. 09AP-36,

. 10 ___ Ohio St.3d ___,

, ___ N.E.2d ___.

6 OHIO FIRST DISTRICT COURT OF APPEALS

Bill 10’s classification scheme and labeled Williams a Tier II sex offender. Williams’s

classification was upheld by the appellate court.

{¶20} The Ohio Supreme Court reversed Williams’s tier classification under

Senate Bill 10, holding that “2007 Am.Sub.S.B. No. 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.”11

The court concluded that Senate Bill 10’s more stringent classification, registration, and

community-notification provisions imposed “new or additional burdens, duties,

obligations, or liabilities as to a past transaction” and created “new burdens, new duties,

new obligations, or new liabilities not existing at the time” upon sex offenders who had

committed their crimes prior to Senate Bill 10’s enactment.12 The court held that

Senate Bill 10’s classification, registration, and community-notification provisions were

punitive and could not constitutionally be retroactively applied to sex offenders who

had committed their sex offenses before its enactment.

{¶21} Williams dealt with the imposition of Senate Bill 10’s more stringent

registration requirements upon an offender who had committed his sex offense prior to

its enactment. The instant case case deals with the imposition of current R.C. 2950.99’s

penalty provisions on Freeman, who committed his failure-to-notify offense after the

effective date of that statute. Although current R.C. 2950.99 has the same effective date

as Senate Bill 10, it was not enacted as part of Senate Bill 10. It was enacted as part of

Senate Bill 97, which, among other things, modified the penalties for violations of the

sex-offender registration and notification laws.

11

at syllabus. 12 Id. at ¶19.

7 OHIO FIRST DISTRICT COURT OF APPEALS

{¶22} Freeman had committed a sex offense and had been classified as a

sexually oriented offender under Megan’s Law. Pursuant to that classification, he was

required to annually register as a sex offender for ten years and to notify the sheriff of

any change in his address. There is no evidence that Freeman was reclassified under

Senate Bill 10 or that Senate Bill 10 affected Freeman’s reporting duties. Freeman

committed his failure-to-notify offense on or about October 15, 2009, well after the

effective date of current R.C. 2950.99. Freeman had an ongoing duty to notify the

sheriff of any change of address. He failed to do so. Freeman’s sentence was based on

his failure-to-notify offense, which occurred after R.C. 2950.99’s effective date. The

second assignment of error is overruled.

{¶23} The judgment of the trial court is affirmed, but the cause is remanded

for correction of the record to reflect a conviction under R.C. 2950.05(F)(1).

Judgment affirmed, and cause remanded.

D INKELACKER , P.J., H ILDEBRANDT , and C UNNINGHAM , JJ.

Please Note: The court has recorded its own entry this date.

8