[Cite as State v. Dillon,

.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J. -vs- Case No. CT11-0062 RANDY L. DILLON

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR 2007-0114

JUDGMENT: Reversed and Remanded for Limited Proceedings

DATE OF JUDGMENT ENTRY: February 23, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RON WELCH RANDY L. DILLON Assistant Prosecuting Attorney Ross Correctional Institution Muskingum County, Ohio P.O. Box 7010 27 North Fifth Street Chillicothe, Ohio 45601 Zanesville, Ohio 43701 Muskingum County, Case No. CT11-0062 2

Hoffman, J.

{¶ 1} Defendant-appellant Randy L. Dillon appeals the November 1, 2011

Judgment Entry entered by the Muskingum County Court of Common Pleas denying his

motion for resentencing. Plaintiff-appellee is the state of Ohio.

STATEMENT OF THE CASE

{¶ 2} Following a jury trial, Appellant was found guilty of burglary, a felony of the

second degree; kidnapping, a felony of the first degree; attempted murder, a first degree

felony; and rape, a first degree felony. On March 13, 2007, Appellant burglarized the

home of Tonya Alexander, kidnapping her 14 month-old daughter, raping her, and

leaving her on the side of the road where she was later discovered and taken for

medical care.

{¶ 3} Via Judgment Entry of May 30, 2008, the trial court sentenced Appellant to

a collective sentence of life without the possibility of parole plus twenty-eight years. The

Court further classified Appellant a Tier III sex offender, subject to a lifetime of reporting,

pursuant to S.B. 10 and the Adam Walsh Act.

{¶ 4} On April 10, 2008, Appellant filed a “Common Law Motion to Vacate: Void

Judgement [SIC] for Lack of Subject-Matter Jurisdiction.” Via Journal Entry of April 12,

2010, the trial court denied the motion.

{¶ 5} On October 31, 2011, Appellant moved the trial court for resentencing.

Appellant’s motion cites the Ohio Supreme Court decision in State v. Williams 2011-

Ohio-3374. Appellant argued the offenses for which he was convicted occurred prior to

July 1, 2007; therefore, S.B. 10 could not be applied retrospectively in violation of the Ex Muskingum County, Case No. CT11-0062 3

Post Fact Laws of the Ohio and United States’ Constitutions. Appellant maintains

Ohio’s version of Megan’s Law is applicable sub judice.

{¶ 6} Via Journal Entry of November 1, 2011, the trial court denied the motion

for resentencing. Appellant now appeals, assigning as error:

{¶ 7} “THE ADAM WALSH ACT DOES NOT APPLY TO APPELLANT’S

SENTENCE WHEN IT VIOLATES THE EX POST FACTO CLAUSE.”1

{¶ 8} Initially, we note, Appellant filed a direct appeal from his May 30, 2008

sentence, but did not raise the issue presented herein in his direct appeal to this Court.

This Court affirmed Appellant’s conviction via Opinion and Judgment Entry of June 24,

2009, Muskingum App. No.2008-CA-37.

{¶ 9} Appellant argues his offenses occurred prior to July 1, 2007; therefore, the

trial court erred in retroactively applying the provisions of the Adam Walsh Act, S.B. 10,

in classifying him a Tier III sex offender.

{¶ 10} In State v. Williams,

, the Ohio Supreme Court held the

statutory changes of S.B. 10 and the Adam Walsh Act violate the prohibition against Ex

Post Facto laws or retroactive laws when applied to a person whose crime was

committed prior the enactment of S.B. 10.

{¶ 11} In State v. Eads

, the Second District Court of Appeals,

analyzed the issue presented herein:

{¶ 12} “In Williams, the supreme court concluded that S.B. 10 retroactively

created new burdens, duties and obligations on persons (such as Eads) who committed

sex offenses prior to the effective date of that statute.

. Accordingly, the

1 We note Appellant’s assignment of error states a proposition of law rather than a claim of trial court error. Muskingum County, Case No. CT11-0062 4

retroactive application of S.B. 10 to those persons is a nullity, and Eads's classification

as a Tier III sex offender is void.

{¶ 13} “We further note that, with respect to S.B. 10, the Ohio Supreme Court

has applied its holdings broadly. In State v. Bodyke,

, 2010–Ohio–

2424, the 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.’ The court severed the reclassification

provisions from S.B. 10. The court thus held: ‘We therefore hold that R.C. 2950.031 and

2950.032 are severed and, that after severance, they may not be enforced. R.C.

2950.031 and 2950.032 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.’ (Emphasis added in

original.)

at ¶ 66

{¶ 14} “Following its expansive language, the supreme court has not limited its

holding in Bodyke to that case and to those sex offenders who had pending cases

based on challenges to their reclassifications. Rather, the Supreme Court has applied

Bodyke to all sex offenders who were reclassified by the Attorney General under R.C.

2950.031 and R.C. 2950.032.

{¶ 15} “For example, in State v. Gingell,

, 2011–Ohio–1481,

Gingell was convicted of three counts of rape in 2000 and was originally classified as a Muskingum County, Case No. CT11-0062 5

sexually oriented offender. In accordance with S.B. 10, Gingell was reclassified by the

Attorney General as a Tier III sex offender, who was required to register every 90 days

for life. Gingell was later prosecuted for failing to verify his address and failing to register

a change of address; he pled guilty to failing to verify his address. Gingell appealed,

claiming that the trial court erred in retroactively applying the current version of R.C.

2950.99 (which made Gingell's offense a first degree felony), rather than the version

that was in effect at the time of his original classification. Bodyke was rendered during

the pendency of Gingell's appeal.

{¶ 16} “Although Gingell had not challenged his reclassification as a Tier III sex

offender and had pled guilty to failing to verify his address in accordance with the S.B.

10's 90–day reporting schedule, the supreme court gave Gingell the benefit of Bodyke.

The court reasoned: ‘* * * [P]ursuant to Bodyke, Gingell's original classification under

Megan's Law and the associated community-notification and registration order were

reinstated. Therefore, the current version of R.C. 2950.06, which requires Tier III sexual

offenders to register every 90 days, does not apply to Gingell. Since Gingell was

charged after his reclassification and before Bodyke, there is no doubt that he was

indicted for a first-degree felony for a violation of the reporting requirements under the

AWA [S.B. 10]. Because the application of the AWA was based upon an unlawful

reclassification, we reverse the judgment of the court of appeals and vacate Gingell's

conviction for a violation of the 90–day address-verification requirement of R.C.

2950.06. Gingell remained accountable for the yearly reporting requirement under

Megan's Law; whether he met that requirement is not a part of this case.’

. Muskingum County, Case No. CT11-0062 6

{¶ 17} “Like the broad holding in Bodyke, the holding in Williams expressly

applies to ‘any other sex offender who committed an offense prior to the enactment of

S.B. 10.’

. Considering this language in Williams and the supreme

court's broad application of Bodyke in Gingell, we conclude that Williams must be

applied to Eads, despite his failure to challenge his classification under S.B. 10 in a

direct appeal of his delinquency adjudication.

{¶ 18} “In summary, Eads's classification as a Tier III sex offender by the juvenile

court violated Ohio's Retroactivity Clause and is void.”

{¶ 19} Based upon the Ohio Supreme Court holding in Williams and the analysis

set forth in

we find the trial court erred in classifying Appellant a Tier III sex

offender under the provisions of S.B. 10 and the Adam Walsh Act where the offenses

for which Appellant was convicted occurred prior to the enactment of the legislation.

Accordingly, we reverse the November 1, 2011 Judgment Entry of the trial court and

remand the matter to the trial court for a classification hearing in accordance with the

law in effect at the time the offenses were committed.

By: Hoffman, P.J.

Farmer, J. and

Delaney, J. concur s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ Sheila G. Farmer___________________ HON. SHEILA G. FARMER

s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY Muskingum County, Case No. CT11-0062 7

IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : RANDY L. DILLON : : Defendant-Appellant : Case No. CT11-0062

For the reason stated in our accompanying Opinion, we reverse and remand the

matter to the trial court for the limited purpose of classifying Appellant in accordance

with the law in effect at the time the offenses were committed. Costs to Appellee.

s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ Sheila G. Farmer___________________ HON. SHEILA G. FARMER

s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY