[Cite as State v. Pritchett,

.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 24183

v. : T.C. NO. 09CR1226

THOMAS PRITCHETT : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 18th day of November , 2011.

..........

KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

LORI R. CICERO, Atty. Reg. No. 0079508, 500 East Fifth Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant

..........

DONOVAN, J.

{¶ 1} This matter is before the Court on the Notice of Appeal of Thomas Pritchett,

filed August 4, 2010. On April 29, 2009, Pritchett was indicted on one count of failure to

notify of a change of address, a felony of the second degree, in violation of R.C. 2950.05(A)

and (F)(1). On July 23, 2009, Pritchett pled no contest, and the trial court sentenced him to 2

a mandatory three year sentence. Pritchett did not appeal. On June 17, 2010, Pritchett

filed a motion to withdraw his plea. Pritchett asserted that “he was no longer under an

obligation to report his address due to the holding” in State v. Bodyke,

,

, which was decided on June 3, 2010. The trial court held an evidentiary

hearing and overruled the motion on July 12, 2010.

{¶ 2} In its Decision, the trial court noted that Pritchett is a sexually oriented

offender, having been previously convicted of attempted rape in Franklin County. After

serving a prison term, Pritchett was released in 1999. While Pritchett testified at the

hearing that he was released from prison in early 1999, the trial court noted that “all the

written documentation before the court, and the Defendant’s own motion, indicate that the

Defendant was released in August 1999.” Accordingly, the court found as a matter of fact

that Pritchett was released from prison in August ,1999, and that “his first registration as a

Sexually Oriented Offender was August 18, 1999. According to the statutes in effect at the

time of the Defendant’s initial registration, commonly referred to as ‘Megan’s Law,’ the

defendant * * * was required to register his address with the county sheriff for a period of 10

years. That would have made his last annual registration in August 2008, and he would no

longer be required to keep his registration current after August 2009 (10 years). ORC §

2950.05, in the version that was in effect in 1999, and in the version under which the

Defendant was indicted in April 2009, required that the Defendant notify the sheriff if he

changed his address from the one where he last registered.

{¶ 3} “With the adoption of the new statutory scheme for sexually oriented

offenders which became effective in Ohio January 1, 2008, commonly known as ‘the Adam 3

Walsh Act,’ Thomas Pritchett was re-classified as a Tier III sex offender requiring that he

register every 90 days (instead of annually). In State of Ohio v. Bodyke,

,

the Ohio Supreme Court found that the reclassification of offenders was unconstitutional and

that the three-tier registration scheme of the Adam Walsh Act ‘* * * may not be applied to

offenders previously adjudicated by judges under Megan’s Law, and the classifications and

community-notification and registration orders imposed previously by judges are reinstated.’

Undoubtedly, the recent Bodyke decision prompted the Defendant’s motion to withdraw his

plea.” The trial court noted in a footnote that there was no evidence that Pritchett had been

classified by a judge, but that he “would have been classified as a sexually oriented offender,

the lowest classification under ‘Megan’s Law,’ by statute, without the necessity of a hearing.

However, the Bodyke holding, that a defendant could not be reclassified by the Attorney

General, still applies and Thomas Pritchett remains a sexually oriented offender.”

{¶ 4} According to the trial court, Pritchett, “believing that he was required to

register every 90 days, registered on March 27, 2009 with an address of 50 Central Ave. Apt.

304 Dayton Ohio 45406. The Sheriff’s office attempted to confirm the Defendant’s address

on April 7th and 9th and it was determined that the apartment was vacant since [March] 30,

2009. The former named tenant, J.D. Knight was evicted and the move out date was

3-30-2009. [Pritchett] stated that he was unable to get back in the apartment to get his

property and clothing.

{¶ 5} “[Pritchett’s] indictment charged that the Defendant, as of March 30, 2009

(the date his reported residence became vacant) failed to provide the sheriff with a change of

address within the time required by statute.” 4

{¶ 6} In the course of its analysis, the court noted that Pritchett was not charged

with a failure to register every 90 days under the Adam Walsh Act but rather a failure to

provide notice of a change of address. The court further noted that, regarding any defenses

Pritchett may have had to his indicted charge, he “had those same defenses available to him

at the time of his plea whether he was required to keep his address current under Megan’s

Law or the Adam Walsh Act.

{¶ 7} “* * *

{¶ 8} “In this case, if [Pritchett] had been charged with failure to follow the 90 day

registration requirement of the Adam Walsh Act, the Court would be inclined to grant his

request to withdraw his plea because the Ohio Supreme Court has determined that he should

not be reclassified. However, the Defendant was charged with a failure to provide notice of

his new address, which was a statutory requirement of his registration under Megan’s Law,

regardless of the inapplicable change in the registration requirements.” The court found no

manifest injustice and overruled Pritchett’s motion to withdraw his plea.

{¶ 9} Pritchett asserts one assignment of error as follows:

{¶ 10} “THE TRIAL COURT ERRED IN OVERRULING THOMAS

PRITCHETT’S MOTION TO WITHDRAW PLEA AND VOID CONVICTION.”

{¶ 11} According to Pritchett, a manifest injustice is demonstrated in that he is “an

innocent man” with many defenses to the indicted charge. Pritchett continues to dispute the

trial court’s finding that he was released from prison in August, 1999. According to

Pritchett, “if he had known that he was no longer under the 90 day requirement, he would

not have pled no contest to the indicted charge; he would have pled not guilty. As such, Mr. 5

Pritchett’s reclassification under the Adam Walsh Act was a factor considered when

weighing his options to enter a plea or defend his case at trial. It goes without saying that

one cannot make a knowing, intelligent plea and waiver of rights under the facts of this

case.” Finally, Pritchett asserts that he received ineffective assistance of counsel in that

counsel failed to address his “viable defenses,” namely “lack of knowledge that he had to

move, impossibility of timely registration, and the fact that he was operating under an

inapplicable law, among others.”

{¶ 12} “A motion to withdraw a plea of guilty or no contest may be made only

before sentence is imposed; but to correct manifest injustice the court after sentence may set

aside the judgment of conviction and permit the defendant to withdraw his or her plea.”

Crim. R. 32.1.

{¶ 13} “Under Crim.R. 32.1, a defendant who files a post-sentence motion to

withdraw [his] guilty plea bears the burden of establishing a ‘manifest injustice.’ (Internal

citation omitted). * * * A manifest injustice has been defined as ‘a clear or openly unjust act’

that involves ‘extraordinary circumstances.’ (Internal citation omitted). We apply an

abuse-of-discretion standard to a trial court’s decision on a motion to withdraw a guilty

plea.” Xenia v. Jones, Greene App. No. 07-CA-104,

.

{¶ 14} “‘Abuse of discretion’ has been defined as an attitude that is unreasonable,

arbitrary or unconscionable. (Internal citation omitted). It is to be expected that most

instances of abuse of discretion will result in decisions that are simply unreasonable, rather

than decisions that are unconscionable or arbitrary.

{¶ 15} “A decision is unreasonable if there is no sound reasoning process that would 6

support that decision. It is not enough that the reviewing court, were it deciding the issue de

novo, would not have found that reasoning process to be persuasive, perhaps in view of

countervailing reasoning processes that would support a contrary result.” AAAA

Enterprises, Inc. v. River Place Community Redevelopment (1990),

.

{¶ 16} “A trial court does not abuse its discretion in overruling a motion to

withdraw: (1) where the accused is represented by highly competent counsel, (2) where the

accused was afforded a full hearing, pursuant to Crim.R. 11, before he entered his plea, (3)

when, after the motion to withdraw is filed, the accused is given a complete and impartial

hearing on the motion, and (4) where the record reveals that the court gave full and fair

consideration to the plea withdrawal request.” State v. Peterseim (1980),

,

, syllabus.

{¶ 17} R.C. 2950.05(A) provides that if an offender is required to register under R.C.

2950.04, then he “ * * * shall provide written notice of any change of residence address * * *

to the sheriff * * * at least twenty days prior to changing the address of the residence.” R.C.

2950.05(F)(1) provides, “No person who is required to notify a sheriff of a change of

address pursuant to division (A) of this section * * * shall fail to notify the appropriate

sheriff in accordance with that division.”

{¶ 18} “We review the alleged instances of ineffective assistance of trial counsel

under the two prong analysis set forth in Strickland v. Washington (1984),

,

,

, and adopted by the Supreme Court of Ohio in State v. Bradley

(1989),

, * * * . Pursuant to those cases, trial counsel is entitled to a

strong presumption that his or her conduct falls within the wide range of reasonable 7

assistance. Strickland,

. To reverse a conviction based on ineffective

assistance of counsel, it must be demonstrated that trial counsel’s conduct fell below an

objective standard of reasonableness and that his errors were serious enough to create a

reasonable probability that, but for the errors, the result of the trial would have been

different.

Hindsight is not permitted to distort the assessment of what was reasonable

in light of counsel’s perspective at the time, and a debatable decision concerning trial

strategy cannot form the basis of a finding of ineffective assistance of counsel.” (Internal

citation omitted). State v. Mitchell, Montgomery App. No. 21957,

.

{¶ 19} Prior to analyzing the arguments Pritchett sets forth, we note that on June 17,

2011, we issued a Decision and Entry allowing the parties time to brief an issue not raised in

the lower court or in this appeal, namely the disparity in sentencing arising under the Adam

Walsh Act and Megan’s Law, including felony level and mandatory time. Under Megan’s

Law, failure to notify of a change of address was a felony of the third degree for an offender

like Pritchett, who was previously convicted, in 2005 CR 5053, for failure to register, in

violation of R.C. 2950.06(A) and (F). Former R.C. 2950.99. Under the Adam Walsh

Act, failure to notify of a change of address, subsequent to Pritchett’s prior R.C. 2950.06

conviction, is a felony of the same degree as Pritchett’s underlying sexually oriented offense

(attempted rape), namely a felony of the second degree, subject to a mandatory prison term

of no less than three years. R.C. 2950.99(A)(2)(b).

{¶ 20} Beginning with Pritchett’s assertion that he was released from prison early in

1999, we agree with the trial court that the record does not support that conclusion.

Pritchett’s motion to withdraw his plea provides that he “was released from CRC in August, 8

1999, and was told to register no later than five days after his release, * * * and first

registered on August 18, 1999.” Pritchett attached to his motion a computer printout

identifying Pritchett as a sexually oriented offender and listing his characteristics, including

an “initial registration date” of August 18, 1999. In the course of the hearing on the motion

to withdraw, Pritchett identified a document that he signed regarding his reporting

requirements when he registered his address in 2002, and the document is dated August 18,

2002, a date consistent with his yearly registration requirements, which he asserted in his

motion had commenced on August 18, 1999. The court asked Pritchett when in 1999 he

was initially released from prison, and Pritchett stated, “Definitely the first of the year, sir,”

and he further testified that he had to register immediately after his release. As the trial

court noted in the course of the hearing, it “doesn’t make sense” that Pritchett’s initial

registration date would be months after his release and not immediately thereupon. Other

than Pritchett’s statements, which the trial court did not credit, there is no support in the

record to conclude that Pritchett was released in early 1999.

{¶ 21} Pursuant to Bodyke, the trial court found Pritchett’s reclassification as a Tier

III sex offender and the attendant community notification and registration requirements may

not be applied, and Pritchett’s original classification as a sexually oriented offender is

reinstated. The version of R.C. 2950.05 that was in effect in 1999, when Pritchett was

released from prison, as well as the version under which Pritchett was indicted in 2009,

required Pritchett to notify the sheriff if he changed his address of residence. In other

words, the requirement to notify of a change of address of residence does not originate from

any unlawful reclassification, and the application of the “Adam Walsh Act” herein is not 9

based upon Pritchett’s previous, unlawful reclassification. Pritchett had an ongoing duty to

notify regarding a change of address of residence that was not altered by either the “Adam

Walsh Act” or Bodyke. State v. Milby, Montgomery App. No. 23798,

,

(holding that Milby “could be found criminally liable for his conduct in failing to notify,

based on the prior sexual offender classification to which the defendant was reinstated per

Bodyke”); State v. Johnson, Montgomery App. No. 24029,

(holding, on the

authority of Milby, that the trial court did not err when it found Johnson guilty of violating

R.C. 2950.05(F)(1) for his failure to notify the sheriff prior to Johnson’s change of his

residence address); State v. Alexander, Montgomery App. No. 24119,

.

{¶ 22} We agree with the trial court, and the State, that any defenses that Pritchett

may have had to the indicted charge were available to him when he entered his no contest

plea. Any advice that his counsel provided when Pritchett entered his plea was based upon

the law in effect at that time; Bodyke did not declare the tiered reclassifications

unconstitutional until June 3, 2010, and Pritchett’s claim that the fact that Bodyke changed

the law renders his plea somehow involuntary fails. Most importantly, Bodyke did not

change the fact that Pritchett had a duty to notify the sheriff of a change in his address of

residence, and Pritchett’s defenses were the same, whether he were a Tier III sex offender or

a sexually oriented offender. As the State notes, Bodyke merely changed the period of time

during which Pritchett was required to register back to the original ten years for a sexually

oriented offender, as discussed by the trial court, such that Pritchett would no longer be

required to keep his registration current after August, 2009.

{¶ 23} The record reflects that Pritchett was represented by counsel at the complete 10

and impartial hearing on his motion to withdraw, the trial court gave the motion full and fair

consideration, and an abuse of discretion is not demonstrated. Further, the record before us

does not establish deficient performance on the part of defense counsel at the time of

Pritchett’s plea, and prejudice is not shown.

{¶ 24} Regarding the issue of sentencing, Pritchett directs our attention to Milby and

Johnson in his supplemental brief, which were decided after his appellate brief was filed,

and he argues that he is entitled to re-sentencing. Milby was convicted, following a bench

trial, of failing to register at his new address subsequent to his conviction for rape, and he

appealed that judgment. We noted that the Adam Walsh Act “increased the penalty for

failure to notify to a first-degree felony. That penalty may not be applied to Milby. Under

the former law, violation of the reporting requirement was a felony of the third degree. * * *

Since the trial court improperly treated Milby’s conviction as a first-degree felony,” we

remanded the matter for re-sentencing as a third-degree felony conviction. Id., ¶ 31.

Similarly, Johnson was convicted on a no contest plea for failing to provide notice of his

change of residence, and on his appeal we determined that the trial court erred when it

convicted him of a first degree felony and sentenced him to a three year term, instead of

finding him guilty of a felony of the third degree. We reversed the matter for resentencing.

Johnson, ¶ 10.

{¶ 25} In Alexander, we determined, on Alexander’s appeal from his conviction for

failure to notify following a jury trial, that the trial court erred in sentencing him to a three

year term since, “under the former version [of R.C. 2950.05, Alexander] would have been

guilty of a third-degree felony instead of a first-degree felony under the current version.” 11

Id., ¶ 38. We noted that Bodyke was decided in the middle of Alexander’s trial, and that

Alexander raised its application in the trial court below. We accordingly concluded that

Alexander did not waive the issue on appeal.

{¶ 26} Very recently, in State v. Williams,

,

, the

Supreme Court of Ohio held that the provision of 2007 Am.Sub. S.B. 10, which imposes

greater penalties on sexual offenders, such as Pritchett, for violations of notification and

registration requirements than applied when they were convicted of their underlying sexual

offense, violates the prohibition against retroactive laws in Section 28, Article II of the Ohio

Constitution. That section provides, in pertinent part: “The general assembly shall have no

power to pass retroactive laws.” Any law “passed” in violation of that section is therefore

void. Further, because such a law purports to apply retroactively, a holding that the law

violates Section 28, Article II likewise applies retroactively to any person to whom the law

was retroactively applied.

{¶ 27} Crim.R. 32.1 authorizes the court that entered a judgment of conviction to set

aside the judgment of conviction and permit the defendant to withdraw his plea after

sentence was imposed in order to correct a manifest injustice. A judgment of conviction

memorializes “the plea, the verdict or findings, upon which each conviction is based, and the

sentence.” Crim.R. 32(C). When the sentence that was imposed constitutes a manifest

injustice, Crim.R. 32.1 reasonably authorizes the court to correct that defect without

disturbing the other elements of a conviction. “A ‘manifest injustice’ comprehends a

fundamental flaw in the path of justice so extraordinary that the defendant could not have

sought redress from the resulting prejudice through another form of application reasonably 12

available to him or her.” State v. Hartzell (Aug. 20, 1999), Montgomery App. No. 17499.

{¶ 28} Under Megan’s law (which had been applied to Pritchett in 2005), Pritchett

with the 2005 prior failure to notify conviction was subject to sentencing for a felony of the

third degree. As a result of a subsequent amendment of the law, Pritchett was instead

sentenced for a second degree felony offense. That amendment of the law is void, per

Williams. The sentence the court imposed pursuant to that law is likewise void. It would

be a manifest injustice to continue Pritchett’s incarceration on a void sentence.

{¶ 29} “[A] trial court is authorized to correct a void sentence.” State ex rel.

Cruzado v. Zaleski,

,

, ¶ 19. An appellate court has

inherent authority to vacate the void judgment and remand the case to the trial court to

conduct a new sentencing hearing. State v. Miller, Summit App. No. 24692,

, ¶ 6,7.

{¶ 30} Accordingly, we reverse Pritchett’s conviction, in part, by vacating the

sentence the court imposed, and we remand the matter for a new sentencing hearing.

..........

GRADY, P.J., and FROELICH, J., concur.

Copies mailed to:

Kirsten A. Brandt Lori R. Cicero Hon. Dennis Adkins