[Cite as Sheets v. State,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION Nos. 95876, 95877, 95878, 95879, and 95880

WILLIAM SHEETS, ET AL.

PLAINTIFFS-APPELLEES

vs.

STATE OF OHIO DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Common Pleas Court Case Nos. CV-649958, CV-663683, CV-655323, CV-656992, and CV-649862

BEFORE: E. Gallagher, J., Sweeney, P.J., and Keough, J.

RELEASED AND JOURNALIZED: August 18, 2011 2

ATTORNEYS FOR APPELLANT

William D. Mason Cuyahoga County Prosecutor By: Daniel T. Van Assistant County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEES

For William Sheets

Stuart H. Lippe 940 Leader Building 526 Superior Ave. Cleveland, Ohio 44114

For Richard Ogletree

Cullen Sweeney Assistant Public Defender 310 Lakeside Avenue Suite 400 Cleveland, Ohio 44113

Karnell Johnson, pro se 464 Eddy Road Cleveland, Ohio 44108

Fred Andrew Farley, Jr., pro se 10914 Nelson, Down Cleveland, Ohio 44103

Otis Lockett, pro se 4681 Country Lane, Apt. 157 3

Warrensville Heights, Ohio 44128

EILEEN A. GALLAGHER, J.:

{¶ 1} In this consolidated appeal, the appellant, the state of Ohio,

appeals the trial court’s judgments granting the petitions contesting the

application of Ohio’s Adam Walsh Act (“AWA”) filed by the appellees,

William Sheets, Karnell Johnson, Fred Andrew Farley, Jr., Otis Lockett, and

Richard Ogletree, in the Cuyahoga County Court of Common Pleas. For the

following reasons, we affirm.

{¶ 2} The Cuyahoga County Common Pleas Court convicted Sheets of

rape in 1984; Johnson of sexual battery in 1991; Farley of sexual battery in

1996; Lockett of kidnapping with the purpose to engage in sexual activity in

1986; and Ogletree of rape in 1983. At the time of the filing of the petitions

in these cases each appellee was residing in Cuyahoga County and

registering with the county sheriff pursuant to R.C. chapter 2950. The

dockets for each of the appellees’ criminal cases reveal that the trial court in

each instance never conducted a hearing to determine the appellees’ sex

offender classification or issued a journal entry designating their

classification.1

1 The docket for appellee Farley’s sexual battery conviction, CR-321484-ZA, reflects that the state requested a sexual predator adjudication and that the trial 4

{¶ 3} After the enactment of the AWA, appellees each received

notification from the Ohio Attorney General indicating their sex offender

reclassification with new reporting and notification requirements associated

with that classification. Ogletree was reclassified as a “Tier III” sex

offender under the AWA. Johnson was reclassified as a “Tier II” offender.

The record is unclear as to the remaining appellees’ reclassifications. In

2008, each of the appellees filed petitions pursuant to R.C. 2950.031 and R.C.

2950.032, contesting their reclassification and the application of the AWA.

{¶ 4} While appellees’ petitions were pending, the Ohio Supreme

Court issued its decision in State v. Bodyke,

,

,

, reconsideration denied,

,

,

, in which the Supreme Court held

that, “R.C. 2950.031 and 2950.032, the reclassification provisions in the

AWA, are unconstitutional because they violate the separation-of-powers

doctrine.”

. Because those sections were held

unconstitutional, the Supreme Court chose to sever the statutes.

court ordered appellee to appear for a hearing on the matter. However the hearing was never held. The court further stated that “Notice of this hearing does not negate [appellee’s] responsibility to register as a sexually oriented offender within 7 days of release with the Sheriff’s Department.” In the case of appellee Sheets, the docket reflects that the State declined proceedings under H.B. 180 on July 3, 2000. 5

Specifically, the Supreme Court stated, “As a remedy, we strike R.C.

2950.031 and 2950.032, hold that the reclassifications of sex offenders by the

attorney general are invalid, and reinstate prior judicial classifications of sex

offenders.”

{¶ 5} Thereafter, the trial court granted each appellee’s petition

pursuant to Bodyke and in each case stated, “Petitioner is restored to his

previous registration status under the terms and conditions of the final

decision in his criminal case.” It is from these orders that the state appeals.

{¶ 6} The state first argues that the trial court erred in applying

Bodyke to the appellees because they were classified under Megan’s Law by

operation of law rather than by an Ohio court. The state contends that

where there is no prior judicial order classifying a sex offender,

reclassification by the attorney general under the AWA does not violate the

separation-of-powers doctrine under Bodyke because it does not require the

opening of a final court order or a review by the executive branch of a past

decision of the judicial branch. The state argues in its second assignment of

error that the trial court erred by applying Bodyke to the appellees because

the appellees did not demonstrate by clear and convincing evidence that they

were previously classified by an Ohio court.

{¶ 7} This court recently addressed these precise arguments in Speight 6

v. State of Ohio,

, Cuyahoga App. Nos. 96041, 96042, 96043,

96044, 96405 and Hannah v. Ohio,

, Cuyahoga App. Nos.

95883, 95884, 95885, 95886, 95887, 95888, 95889.

{¶ 8} In Hannah we stated, “[w]e recognize that the state raises a

conceivably correct interpretation of Bodyke and that the language in Bodyke

appears to limit its separation-of-powers holding to judicially classified sex

offenders and not those sex offenders classified by operation of law.

However, the remedy of Bodyke was complete and included total severance of

the provisions providing for the attorney general’s authority to reclassify sex

offenders. The severance makes no distinction between those classified

judicially and those classified by operation of law.” We concluded that

“offenders whose pre-AWA classification arose purely as a matter of law still

must receive the benefit of the Bodyke remedy returning those offenders to

their pre-AWA classifications because of Bodyke’s complete severance of the

statutory provisions governing reclassification by the attorney general.”

{¶ 9} Until the Ohio Supreme Court renders a decision expressly

limiting the holding in Bodyke, we will continue to apply the precedents

made by this court. In further support of this conclusion, we note the Ohio

Supreme Court’s recent decision in State v. Williams, ____ Ohio St.3d ____,

, wherein the Court held: 7

“When we consider all of the changes enacted by S.B. 10 in aggregate, we conclude that imposing the current registration requirements on a sex offender whose crime was committed prior to the enactment of S.B. 10 is punitive. Accordingly, we conclude that S.B. 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.” Id. at ¶20.

{¶ 10} Accordingly, we hold that the trial court did not err in applying

Bodyke and we overrule the State’s assignments of error.

{¶ 11} The judgment of the trial court is affirmed.

It is ordered that appellant recover of appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the lower court to

carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

EILEEN A. GALLAGHER, JUDGE

JAMES J. SWEENEY, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR