[Cite as State v. Stubbs,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY

STATE OF OHIO : : Appellate Case No. 2011-CA-62 Plaintiff-Appellee : : Trial Court Case No. 06-CR-495 v. : : TOMMY STUBBS : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : : ...........

OPINION

Rendered on the 29th day of June, 2012.

...........

STEPHEN K. HALLER, Atty. Reg. #0009172, by STEPHANIE HAYDEN, Atty. Reg. #0082881, Greene County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee

MICHAEL B. MURPHY, Atty. Reg. #0017992, 5241 Shiloh Springs Road, Dayton, Ohio 45426 Attorney for Defendant-Appellant

.............

FAIN, J.

{¶ 1} Defendant-appellant Tommy Stubbs appeals from an order of the trial

court classifying him as a sexually oriented offender under the sex offender classification law 2

in effect at the time Stubbs committed his offense (Megan’s Law). Stubbs questions whether

he is subject to classification under Megan’s Law, since the enactment of the Adam Walsh Act

(2007 Am.Sub.S.B. No. 10), repealed the prior law.

{¶ 2} We conclude that despite the repeal by the Adam Walsh Act of the

prior statutory provisions pertaining to sex offender classification, the prior law governs the

classification of sex offenders whose offenses were committed prior to the effective date of

the Adam Walsh Act. State v. Williams,

,

,

. Accordingly, the order of the trial court from which this appeal is taken is

Affirmed.

I. The Course of Proceedings

{¶ 3} In 2006, Stubbs was charged by indictment with Rape, in violation of

R.C. 2907.02(A)(1); Kidnapping, in violation of R.C. 2905.01(A)(4); and Unlawful Sexual

Conduct with a Minor, in violation of R.C. 2907.04(A). Ultimately, Stubbs pled guilty to

Unlawful Sexual Conduct with a Minor, and the other charges were dismissed. In August,

2008, Stubbs was sentenced to four years in prison, and was classified as a Tier II sex offender

in accordance with the Adam Walsh Act.

{¶ 4} In 2010, Stubbs unsuccessfully moved for reclassification. In 2011, by

letter, Stubbs again sought reclassification, this time citing State v. Williams, supra. The trial

court held a hearing on Stubbs’s request.

{¶ 5} At the hearing, appointed counsel for Stubbs, while recognizing that his

case is factually indistinguishable from that of the defendant in Williams, questioned whether 3

Stubbs was subject to classification at all, since in enacting the Adam Walsh Act, the General

Assembly repealed the prior version of the statute.

{¶ 6} The trial court decided that, consistently with State v. Williams, Stubbs

would be reclassified under the law in effect at the time he committed his offense, the result

being that he would be classified as a Sexually Oriented Offender, the mildest sex offender

classification under Megan’s Law. From the order reclassifying him as a Sexually Oriented

Offender, Stubbs appeals.

II. Despite Having Been Repealed by the Adam Walsh Act,

Megan’s Law Remains the Law Pertaining to Sex Offender

Classification in Effect When Stubbs Committed his Offense.

{¶ 7} Stubbs’s brief does not actually contain an assignment of error.

Instead, it raises the following question (as an issue presented for review): “Does the repeal of

Megan’s Law by the General Assembly and replacing it with Adam Walsh act preclude the

Courts from classifying an offender as a sex offender?” And Stubbs, in his brief, answers this

question in the negative: “Therefore the Supreme Court [of Ohio] has answered the issue that

Stubbs raised in his motion to be reclassified. He is subject to Megan’s Law and not the

Adam Walsh Act[,] as the [trial] Court properly found.” We agree.

{¶ 8} The Ohio Constitution requires that when the General Assembly

amends a law, it must repeal the section or sections amended. Article II, Section 15(D).

Therefore, the General Assembly’s mere compliance with this constitutional requirement,

without more, should not be deemed to imply its intent that the old law shall have no effect, 4

whatsoever. In complying with the constitutional mandate, the General Assembly is merely

specifying those parts of existing statutory law that are to be superseded by the new statute, so

as to avoid inadvertently replacing an existing law with a new one, when the intent is that both

statutes shall apply insofar as possible.

{¶ 9} In any event, in State v. Williams, supra, the Supreme Court of Ohio has

at least implicitly answered the question raised by Stubbs. In that case, as in this one, a

sexual offender was initially classified as a Tier II sex offender under the Adam Walsh Act,

despite having committed his offense – Unlawful Sexual Conduct with a Minor, the same

offense to which Stubbs pled guilty – before the effective date of the Adam Walsh Act. The

Supreme Court of Ohio held that the retroactive application of the Adam Walsh Act to an

offender who committed his offense before its effective date offends the prohibition against

retroactive laws found in Article II, Section 28 of the Ohio Constitution. Id., ¶ 21. The

Supreme Court of Ohio concluded: “We reverse the judgment of the court of appeals and

remand the cause for resentencing under the law in effect at the time Williams committed the

offense.” Id., ¶ 23.

{¶ 10} The case before us is indistinguishable from State v. Williams. The trial court

correctly re-classified Stubbs as a Sexually Oriented Offender under the law in effect before

the effective date of the Adam Walsh Act.

III. Conclusion

{¶ 11} The order from which this appeal is taken, reclassifying Stubbs as a Sexually

Oriented Offender, is Affirmed. 5

.............

FROELICH and CANNON, JJ., concur.

(Hon. Timothy P. Cannon, Eleventh District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).

Copies mailed to:

Stephen K. Haller Stephanie R. Hayden Michael B. Murphy Hon. Stephen Wolaver