[Cite as State v. Davis,

.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 25221

v. : T.C. NO. 10CR497

CLARENCE P. DAVIS : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 14th day of December , 2012.

..........

MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

CLARENCE P. DAVIS, 627874, Chillicothe Correctional Institute, P. O. Box 5500, Chillicothe, Ohio 45601 Defendant-Appellant

..........

FROELICH, J.

{¶ 1} Clarence P. Davis appeals from a judgment of the Montgomery County

Court of Common Pleas denying his “Motion to Vacate Sentence” for failing to notify the 2

sheriff of a change of address, in violation of R.C. 2950.05(A) and (F)(1). The trial court

denied the motion as an untimely petition for post-conviction relief and, alternatively,

because Davis was required to provide notice of a change of address “at all times, whether

under Adam Walsh Act or Megan’s Law.” For the following reasons, the trial court’s

judgment will be affirmed in part and vacated in part, and the matter will be remanded for

resentencing under the former law.

I.

{¶ 2} In 1989, Davis was convicted of rape of a child under the age of 13 and

gross sexual imposition. He was sentenced to five to 25 years in prison. In 1999, while

still incarcerated, Davis was classified as a sexually oriented offender under Megan’s Law.

As a sexually oriented offender, Davis was required, upon his release from prison, to register

annually for ten years and to notify the sheriff of any change of address during that period.

{¶ 3} Davis was released from prison in 2002. In 2007, the Ohio General

Assembly enacted 2007 Am.Sub.S.B. No. 10, which replaced Megan’s Law with Ohio’s

version of the federal Adam Walsh Act. Davis was reclassified as a Tier III sex offender,

which required him to register every 90 days for life and to notify the sheriff of any change

of address.

{¶ 4} In February 2010, Davis was indicted for failure to notify the sheriff of his

change of address between December 30, 2009 and February 11, 2010, in violation of R.C.

2950.05(A) and (F)(1) of the Adam Walsh Act. Davis pled guilty to the charge, and the

court sentenced him to three years in prison. Davis did not challenge the constitutionality of

the Adam Walsh Act in the trial court, and he did not appeal from his conviction. 3

{¶ 5} Nearly two years later, on March 15, 2012, Davis filed a “Motion to Vacate

Sentence,” arguing that his reclassification under the Adam Walsh Act was unconstitutional

pursuant to State v. Bodyke,

,

,

. Davis

also claimed that his continued incarceration violated the Retroactivity Clause of the Ohio

Constitution.

{¶ 6} The trial court construed Davis’s motion as a petition for post-conviction

relief, and it found that the petition was untimely and that Davis had not demonstrated that

any of the exceptions to the time limitation applied. The court further noted that Davis was

indicted for failure to provide notice of a change of address, a requirement that was

“unaffected” by Davis’s reclassification. It stated: “Defendant, at all times, whether under

Adam Walsh Act or Megan’s Law, was under a requirement to notify the Montgomery

County Sheriff’s Office of any change to a registered address. Defendant pled guilty to this

charge.”

{¶ 7} Davis appeals from the denial of his motion.

II.

{¶ 8} Davis raises two assignments of error, which we will address together.

They state:

I. “WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY

ASSERTING MOTION WAS UNTIMELY.”

II. “WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY

SENTENCING APPELLANT TO RETROACTIVE LAW.”

{¶ 9} In his assignments of error, Davis claims that the trial court erred in treating 4

his motion as a petition for post-conviction relief. He asserts that Bodyke and recent case

law regarding the Retroactivity Clause apply to his conviction, that his conviction is void,

and that he was entitled to challenge his conviction at any time.

{¶ 10} In Bodyke, the Ohio Supreme Court concluded that “R.C. 2950.031 and

2950.032, which require the attorney general to reclassify sex offenders who have already

been classified by court order under former law, impermissibly instruct the executive branch

to review past decisions of the judicial branch and thereby violate the separation-of-powers

doctrine. In addition, R.C. 2950.031 and 2950.032 violate the separation-of-powers

doctrine by requiring the opening of final judgments.” Bodyke,

,

,

. The court severed the reclassification provisions

from S.B. 10, ordered that they may not be applied to offenders previously adjudicated by

judges under Megan’s Law, and reinstated the classifications and community-notification

and registration orders previously imposed by judges. Id. at ¶ 66. The supreme court has

applied Bodyke to all sex offenders who were reclassified by the attorney general under R.C.

2950.031 and 2950.032. See State v. Gingell,

,

,

.

{¶ 11} In July 2011, the Supreme Court of Ohio rendered its decision in State v.

Williams,

,

,

. In that case, Williams

was indicted in 2007 for unlawful sexual conduct with a minor, and he pled guilty to the

charge. At his plea hearing, Williams was informed that he would not be subject to

reporting requirements. Williams subsequently requested that he be sentenced under

Megan’s Law, rather than S.B. 10, which was in effect at the time of Williams’s sentencing 5

in 2008. The trial court applied S.B. 10 and informed Williams that he would be designated

a Tier II sex offender. Williams appealed, arguing that S.B. 10 could not constitutionally be

applied retroactively to a defendant whose offense occurred prior to the effective date of that

statute. The supreme court agreed with Williams, holding 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.” Williams at ¶ 21.

{¶ 12} We have addressed Bodyke and Williams in several cases with different

procedural postures. We summarized some of those cases in State v. Blanton, 2d Dist.

Montgomery No. 24295,

, as follows:

We have applied Bodyke and Williams in a variety of contexts. In

State v. Eads, 2d Dist. Montgomery No. 24696,

, the

defendant did not appeal from his classification under S.B. 10, but he

challenged that classification on appeal after he was subsequently convicted

for failing to verify his residential address. On direct appeal from that

conviction, we recognized that the defendant's classification under S.B. 10

was void under Williams, and we vacated his conviction for failing to verify

his address.

In State v. Montgomery, 2d Dist. Montgomery No. 24450,

, the defendant pled guilty to failure to verify his address in

accordance with S.B. 10 and did not file a direct appeal. He later moved to

vacate his conviction and sentence, arguing that the trial court should have 6

applied Bodyke. We noted that Montgomery could not use Civ.R. 60(B) to

vacate his conviction, and that he did not meet the procedural requirements of

a petition for post-conviction relief, if his motion were construed as such.

However, we declined to determine whether Civ.R. 60(B) or R .C. 2953.21

were properly invoked, because his motion could “more correctly be

characterized as a Crim.R. 32.1 motion to withdraw his guilty plea.”

Montgomery at ¶ 15. Construed as such, we held that the trial court erred in

failing to grant the motion. We ordered that Montgomery’s conviction and

sentence be vacated, and we remanded to the trial court.

However, in State v. Caldwell, 2d Dist. Montgomery No. 24333,

, we held that the defendant's motion to vacate his conviction

for failing to verify his address was properly construed as a petition for

post-conviction relief. Like Blanton, Caldwell was convicted, after a bench

trial, of failure to verify after he had been reclassified under S.B. 10. A year

later, Caldwell moved to vacate his conviction, based on Bodyke. The trial

court treated the motion as a petition for post-conviction relief and dismissed

it as untimely.

Upon review, we held that the trial court properly reviewed

Caldwell’s motion as a petition for post-conviction relief. We stated,

“Caldwell’s motion was filed after his direct appeal could have been taken,

claimed a constitutional violation based on Bodyke, sought to render his

judgment of conviction void, and asked the trial court to vacate the judgment 7

and sentence. Since Caldwell's motion meets the statutory definition of a

postconviction-relief petition, the trial court properly treated it as such.” Id.

at ¶ 3. We agreed with the trial court that Caldwell’s petition was untimely

and, even if it were timely, Caldwell could have raised his constitutional

challenges on direct appeal and thus his arguments were barred by res

judicata.

We also rejected Caldwell's argument that his conviction was void

and thus the trial court had inherent authority to vacate the conviction. We

distinguished Eads on the ground that Eads was a direct appeal from a

conviction for failing to verify the defendant’s address, whereas Caldwell

presented a collateral attack on the conviction. Caldwell at ¶ 13. We stated,

“[b]ecause Caldwell’s pre- Bodyke, pre- Williams conviction for violating the

AWA's registration requirements is, at best, an erroneous exercise of

jurisdiction, meaning a legal error, it may not be collaterally attacked.” Id. at

¶ 14. We also distinguished Montgomery, noting, in part, that it had been

resolved under Crim.R. 32.1. See Caldwell at ¶ 15–18. We affirmed

Caldwell’s conviction; for reasons not relevant to [Blanton’s] appeal, we

reversed Caldwell’s sentence and remanded for resentencing.

{¶ 13} In Blanton, the defendant also failed to comply with S.B. 10’s registration

requirements after his reclassification. Blanton was convicted after a bench trial, and he did

not timely appeal his conviction. He later filed a petition for post-conviction relief, which

the trial court denied. On appeal from that ruling, we concluded that Blanton’s 8

circumstances were governed by Caldwell, and we affirmed the denial of his petition.

{¶ 14} Davis cites to an additional case, State v. Pritchett, 2d Dist. Montgomery

No. 24183,

, in which the defendant appealed from the denial of his motion

to withdraw his plea to failure to notify of a change of address. We rejected Pritchett’s

argument that the trial court had erred in denying his motion to withdraw his plea, noting

that “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.” Id. at ¶ 22. However, we held that

Pritchett should have been convicted of failure to notify as a third-degree felony under

Megan’s Law, rather than as a second-degree felony under the Adam Walsh Act. Id. at

¶ 28. We vacated Pritchett’s “void” sentence and remanded for a new sentencing hearing.

Id. at ¶ 28, ¶ 30. (We vacated the defendant’s sentence in Caldwell based on the same

reasoning.)

{¶ 15} The trial court treated Davis’s Motion to Vacate Sentence as a petition for

post-conviction relief, but it could have been construed as a motion to withdraw his plea, as

was done in Montgomery, 2d Dist. Montgomery No. 24450,

. Regardless of the

approach taken, we agree with the trial court that Davis was not entitled to have his

conviction vacated.

{¶ 16} As a threshold matter, Davis’s reclassification under the Adam Walsh Act

was nullified by Bodyke and Williams, but his conviction for failing to notify the sheriff of a

change of address was merely voidable. See

Accordingly, we reject

Davis’s assertion that his conviction was void and was subject to attack at any time. [Cite as State v. Davis,

.] {¶ 17} Davis’s motion to vacate, if treated as a petition for post-conviction relief,

was clearly untimely under R.C. 2953.21(A)(2), which requires petitions to be filed no later

than 180 days after the expiration of the time for filing an appeal from a conviction. Davis

has not established a basis for filing an untimely petition, i.e., that he was unavoidably

prevented from discovering facts upon which he relies or that the United States Supreme

Court has recognized a new federal or state right that applies retroactively to his situation.

See R.C. 2953.23(A).

{¶ 18} Even if the trial court had explicitly treated Davis’s motion as a motion to

withdraw his guilty plea, the trial court did not err in rejecting Davis’s motion. Withdrawal

of a guilty plea after sentencing is permitted only in the most extraordinary cases. State v.

Smith,

,

(1977). A defendant who files a

post-sentence motion to withdraw his guilty plea bears the burden of establishing manifest

injustice. Crim.R. 32.1; State v. Harris, 2d Dist. Montgomery No. 19013,

,

¶ 7, citing Smith at paragraph one of the syllabus. Consideration of “[t]he motion is

‘addressed to the sound discretion’ of the trial court.”

citing Smith at paragraph two of

the syllabus. Thus, an appellate court reviews the trial court’s decision under an abuse of

discretion standard.

citing State v. Adams,

,

(1980). An abuse of discretion means “that the court’s attitude is unreasonable, arbitrary or

unconscionable.”

{¶ 19} The trial court stated that “[Davis], at all times, whether under Adam Walsh

Act or Megan’s Law, was under a requirement to notify the Montgomery County Sheriff’s

Office of any change to a registered address. Defendant pled guilty to this charge.”

Davis’s defenses were the same, whether he were a Tier III sex offender or a sexually 10

oriented offender. And his indictment was sufficient to allege a violation of the notification

requirements under Megan’s Law, even though it cited to the Adam Walsh Act provision,

R.C. 2950.05(F)(1). See State v. Brunning, Slip Opinion No.

. Thus,

as in Pritchett, Davis did not demonstrate that a manifest injustice existed so as to justify the

vacation of his conviction.

{¶ 20} Nevertheless, we conclude that the trial court did err in failing to vacate

Davis’s sentence. The judgment entry in this case reflects that Davis was convicted of

failure to notify as a first-degree felony, the offense level under the Adam Walsh Act.

Effective January 1, 2004, after Megan’s Law but prior to the Adam Walsh Act

amendments, the failure to notify of a change of address (where the underlying offense was a

first-degree felony) was a felony of the third degree. Former R.C. 2950.99(A)(1)(a)(i). See

State v. Howard, Slip Opinion No.

(holding that a defendant

subject to Megan’s Law should be sentenced under the version of former R.C. 2950.99 in

place when Megan’s Law was repealed).

{¶ 21} We held in Pritchett that the trial court erred in sentencing the defendant

for a second-degree felony under the Adam Walsh Act, rather than for a third-degree felony

under prior law, stating:

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 [,

St.3d 344,

,

]. 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.

“[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.

Pritchett at ¶ 28-29, following State v. Milby, 2d Dist. Montgomery No. 23798,

.

{¶ 22} Pritchett applies to this case. See, e.g., Caldwell, 2d Dist. Montgomery No. 24333,

. Accordingly, we must vacate Davis’s sentence and remand so

that Davis can be resentenced under the version of former R.C. 2950.99 that was in

place at the time that Megan’s Law was repealed.

{¶ 23} Davis’s assignments of error are sustained in part and overruled in part.

III.

{¶ 24} The trial court’s judgment will be affirmed in part and vacated in part, and

the matter will be remanded for resentencing under the former law.

..........

GRADY, P.J. and HALL, J., concur.

Copies mailed to:

Michele D. Phipps 12

Clarence P. Davis Hon. Frances E. McGee