[Cite as State v. Smith,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION Nos. 96582, 96622, 96623

STATE OF OHIO PLAINTIFF-APPELLEE/ CROSS-APPELLANT

vs.

GEORGE SMITH DEFENDANT-APPELLANT/ CROSS-APPELLEE

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-542832

BEFORE: Kilbane, P.J., Stewart, J., and E. Gallagher, J.

RELEASED AND JOURNALIZED: January 26, 2012 ATTORNEY FOR APPELLANT

Thomas A. Rein Leader Building, Suite 940 526 Superior Avenue Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor Daniel T. Van Sanjeev Bhasker Assistant County Prosecutors The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113

MARY EILEEN KILBANE, P.J.:

{¶ 1} This consolidated appeal arises from defendant-appellant’s conviction and

sentence for failing to register his address as a sex offender. Finding no merit to the

appeal, we affirm.

{¶ 2} In October 2010, George Smith (Smith) was charged with failing to register

in violation of R.C. 2950.04(E). The count carried a furthermore clause stating that

Smith had previously been convicted of failing to verify his current residence in March

2006. Smith moved to dismiss the indictment in November 2010.

Plaintiff-appellee/cross-appellant, the state of Ohio (State), opposed and the trial court denied Smith’s motion. Smith then moved for a competency evaluation. At a hearing

on November 29, 2010, the trial court addressed Smith’s motion, stating that it was going

to refer Smith to the court psychiatric clinic. The court, however, never journalized an

order to have Smith evaluated. At this hearing, the trial court granted defense counsel’s

motion to withdraw. The trial court then appointed Smith new counsel, who represented

Smith at trial.

{¶ 3} The following evidence was adduced at Smith’s jury trial.

{¶ 4} Vila Pintarich (Pintarich) testified that part of her duties as Correctional

Records Management Officer for Belmont Correctional Institution include ensuring that

sex offenders are properly registered. Pintarich testified that she met with Smith on

September 1, 2010 and reviewed Smith’s paperwork prior to his release from prison. His

paperwork included a Notice of Registration Duties of Sexually Oriented Offender or

Child-Victim Offender Form (SORN) and his postrelease control reporting orders. The

SORN Form states that Smith’s expected residence is 6209 Schade Avenue, Cleveland,

Ohio and that since his expected residential address is in Cuyahoga County, he is required

to register in person no later than September 4, 2010, with the Cuyahoga County Sheriff’s

Office. The SORN Form advises that the “[f]ailure to register * * * will result in

criminal prosecution.” Pintarich testified that Smith gave this address to his dorm

officer, who then relayed this information to Pintarich.

{¶ 5} Pintarich further testified that her meeting with Smith was difficult. First,

Smith “was adamant that he did not want to sign the PRC reporting orders.” Then, Smith was adamant about not signing the SORN Form. Since Smith refused to sign the SORN

Form, Pintarich completed the part of the Form that states: “[c]omplete this only if

offender was unable to read, and official read notice to offender. I certify that I

specifically informed the offender of these duties as set forth above and the offender

indicated to me an understanding of these duties.” However, on cross-examination,

Pintarich testified that she “didn’t get too far with [Smith] as far as explaining because *

* * he was adamant that he didn’t want to sign it.”

{¶ 6} Anita Phillips (Phillips) of the Adult Parole Authority testified that Smith

was expected to meet with her on September 2, 2010, but he never reported to her.

{¶ 7} Detective Susan DeChant (DeChant) of the Cuyahoga County Sheriff’s

Department testified that part of her duties include ensuring that a sex offender is in

compliance with sex offender registration laws. DeChant identified a journal entry

indicating that Smith was classified as a sexual predator. 1 DeChant also identified

Smith’s original notice of registration duties form, dated March 19, 2004. DeChant

further identified two other notice of registration duties forms, dated March 29, 2004 and

June 29, 2004. Smith signed these forms, but wrote “signed under duress” above his

signature. He signed the March 29, 2004 form when he initially registered with the

Sheriff’s office and the June 29, 2004 form on his next report date at the Sheriff’s office.

1At trial, Smith stipulated that he was convicted of rape in July 1985 and failure to verify current residence in March 2006. {¶ 8} DeChant then testified she was assigned this case when she was notified by

Phillips that Smith had been released from prison. When Smith did not report to the

Sheriff’s office by September 4, 2010, she contacted Phillips who advised that Smith still

had not reported to her. As a result, DeChant forwarded this information to Sergeant

Clifford Pinkney (Pinkney) of the Cuyahoga County Sheriff’s Department who arrested

Smith on or about October 27, 2010, at the 6209 Schade Avenue address listed on the

SORN Form.

{¶ 9} At the conclusion of trial, the jury found him guilty of failing to register and

of the further finding that, in March 2006, Smith was previously convicted of failing to

verify his current residence. The trial court, relying on this court’s decision in State v.

Page, Cuyahoga App. No. 94364,

, sentenced Smith under Megan’s Law as

opposed to the Adam Walsh Act (AWA) and imposed a one-year prison sentence for a

third degree felony. Smith’s sentence was enhanced because of the furthermore clause.

Smith’s Appeal

{¶ 10} In his appeal, Smith raises the following three assignments of error for our

review, which shall be discussed together where appropriate.

ASSIGNMENT OF ERROR ONE

“The trial court erred in denying [Smith’s] motion for acquittal as to the charges when the State failed to present sufficient evidence to sustain a conviction.”

ASSIGNMENT OF ERROR TWO

“[Smith’s conviction is] against the manifest weight of the evidence.” ASSIGNMENT OF ERROR THREE “[Smith’s] rights were violated when he was convicted without ever having a competency hearing although he had been referred to the court psychiatric clinic.”

{¶ 11} In the first and second assignments of error, Smith challenges his

conviction, arguing that there was insufficient evidence to sustain his conviction and that

his conviction is against the manifest weight of the evidence.

{¶ 12} The Ohio Supreme Court in State v. Diar,

,

,

, explained the standard for sufficiency of the

evidence as follows:

“Raising the question of whether the evidence is legally sufficient to support the jury verdict as a matter of law invokes a due process concern. State v. Thompkins (1997),

,

. In reviewing such a challenge, ‘[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.’ State v. Jenks (1991),

,

, paragraph two of the syllabus, following Jackson v. Virginia (1979),

,

,

.”

{¶ 13} With regard to a manifest weight challenge, the

“reviewing court asks whose evidence is more persuasive — the state’s

or the defendant’s? * * * ‘When a court of appeals reverses a

judgment of a trial court on the basis that the verdict is against the

weight of the evidence, the appellate court sits as a “thirteenth juror”

and disagrees with the factfinder’s resolution of the conflicting

testimony.’ [

], citing Tibbs v. Florida (1982),

,

,

.” State v. Wilson,

,

,

, ¶25.

{¶ 14} Moreover, an appellate court may not merely substitute its view for that of

the jury, but must find that “‘in resolving conflicts in the evidence, the jury clearly lost its

way and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered.’”

, quoting State v. Martin (1983),

,

. Accordingly, reversal on manifest weight grounds

is reserved for “‘the exceptional case in which the evidence weighs heavily against the

conviction.’”

quoting Martin.

{¶ 15} In the instant case, Smith was convicted of failing to register in violation of

R.C. 2950.04(E), which provides that “[n]o person who is required to register pursuant to

divisions (A) and (B) of this section, and no person who is required to send a notice of

intent to reside pursuant to division (G) of this section, shall fail to register or send the

notice of intent as required in accordance with those divisions or that division.”

{¶ 16} Smith argues that his conviction should be reversed because it is unclear as

to whether Megan’s Law or the AWA applies. It is undisputed that Smith was classified

as a sexual predator under Megan’s Law. In State v. Bodyke,

,

,

, the Ohio Supreme Court held that the reclassification

provisions of the AWA were unconstitutional, which meant that R.C. 2950.031 and R.C.

2950.032 may not be applied to offenders adjudicated under Megan’s Law. Id. at ¶66. We note that the State indicated prior to the start of trial that it was prosecuting under

Megan’s Law. Thus, we will focus our analysis under Megan’s Law.

{¶ 17} Under Megan’s Law, Smith was required to register personally with the

Cuyahoga County’s Sheriff Office within five days of his release. See former

R.C. 2950.04(A)(1).2 In the instant case, a review of the record reveals that Smith still

had not registered with the sheriff’s office or reported to his parole officer by October 27,

2010, which is nearly two months after the five-day registration requirement. Thus,

Smith failed to comply with the registration requirements of R.C. 2950.04(E).

{¶ 18} Smith further argues the State failed to establish that he was given proper

notice or properly notified of the requirements expected of him. In support of his

argument, he refers to Pintarich’s testimony that she did not read the registration form to

Smith. There is no evidence in the record that Smith did not receive notice, rather he

refused to sign the form indicating that he had been informed of his duties. When Smith

was released from prison, he was serving time for previously failing to verify an address.

The testimony at trial revealed that Smith has been through the registration process before

when he initially registered with the Sheriff’s office when he was released from prison in

2004.

{¶ 19} Smith’s refusal to sign his registration notification does not negate his duty

to register. This court has found that “the failure to notify a sex offender of his duty to

2Underthe AWA, an offender has three days after release to register. See R.C. 2950.04(A)(2)(a). register does not affect the duty to register, which arises by operation of law.” State v.

Johns, Cuyahoga App. No. 92627,

, ¶12, citing In re Hawkins, Hamilton

App. No. C-080052,

. “As the Ohio Supreme Court made clear in State

v. Hayden,

,

, [

,] * * * once a defendant

is convicted of a sexually oriented offense, he is ‘automatically classified as a sexually

oriented offender and therefore must register with the sheriff of the county in which he

resides as prescribed by R.C. 2950.04(A)(2).’ Id. at ¶15. (Emphasis added.) Thus,

upon conviction of a sexually oriented offense, the classification and the duty to register

arise by operation of law. Id.; see, also, State v. Moncrief, Cuyahoga App. No. 85479,

; State v. Grider (2001),

; State v. Mickey

(Apr. 5, 2001), Cuyahoga App. No. 77889.” State v. Freeman, Cuyahoga App. No.

86740,

.

{¶ 20} Thus, we find that any rational trier of fact could have concluded that Smith

failed to register with the sheriff’s office after his release from prison. We further find

that this is not the extraordinary case where the “jury lost its way” and created a manifest

miscarriage of justice.

{¶ 21} Accordingly, the first and second assignments of error are overruled.

{¶ 22} In the third assignment of error, Smith argues his statutory and

constitutional rights were violated when the trial court failed to conduct a competency

hearing after referring Smith for a competency evaluation. {¶ 23} We recognize that a defendant who is legally incompetent may not stand

trial. State v. Berry,

, 359,

,

, citing

Pate v. Robinson (1966),

,

,

and Drope v.

Missouri (1975),

,

,

. In Ohio, a defendant is

presumed to be competent unless it is demonstrated by a preponderance of the evidence

that he is incapable of understanding the nature and objective of the proceedings against

him or of presently assisting in his defense. R.C. 2945.37(G).

{¶ 24} R.C. 2945.37(B) allows the trial court, prosecutor, or the defense to raise

the issue of a defendant’s competence to stand trial. In State v. Were,

,

,

, paragraph one of the syllabus, the Ohio Supreme Court

held that a competency hearing is required if the request is made before trial.

Nevertheless, when a request for a competency evaluation is made prior to trial, the

failure to hold the mandatory competency hearing is harmless error when the record fails

to reveal sufficient indicia of incompetence. State v. Bock (1986),

,

.

{¶ 25} Accordingly, “[t]he right to a hearing ‘rises to the level of a constitutional

guarantee where the record contains “sufficient indicia of incompetence,” such that an

inquiry * * * is necessary to ensure the defendant’s right to a fair trial.’” State v. Skatzes,

,

,

, ¶156, quoting State v. Berry

(1995),

,

. In Bock, the court defined

incompetency as the “defendant’s inability to understand ‘* * * the nature and objective of the proceedings against him or of presently assisting in his defense.’” Id. at 110,

quoting R.C. 2945.37(A). The court further explained that “[i]ncompetency must not be

equated with mere mental or emotional instability or even with outright insanity. A

defendant may be emotionally disturbed or even psychotic and still be capable of

understanding the charges against him and of assisting his counsel.” Id.

{¶ 26} Moreover, this court, relying on Bock, has found that when a request for a

competency evaluation is made prior to trial, the failure to hold the mandatory

competency hearing is harmless error when the record fails to reveal sufficient indicia of

incompetence. State v. Almashni, Cuyahoga App. No. 92237,

,¶14,

appeal not allowed by State v. Almashni,

,

,

. In Almashni, the defendant’s “first attorney requested a psychiatric

evaluation of the defendant. The court granted the request and referred Almashni to the

court psychiatric clinic for an evaluation as to competence to stand trial and sanity at the

time of the act. No hearing was held regarding the results of the evaluation.” Id. at ¶12.

{¶ 27} In finding that the record failed to contain sufficient indicia of

incompetence, we relied on the fact that “[t]here is no motion in the file describing the

original defense attorney’s reasons for requesting the evaluation, nor does the court’s

journal entry indicate why the evaluation was ordered. Further, neither the second nor the

third defense attorney requested an evaluation or brought to the court’s attention that

Almashni was incompetent.” Id. at ¶14. See, also, State v. Tong (Mar. 10, 1994),

Cuyahoga App. No. 64903, (where this court, also relying on Bock, found that without sufficient indicia of incompetency in the record, the failure of the trial court to hold a

competency hearing was harmless error and did not interfere with defendant’s due

process rights.)

{¶ 28} Similarly, in the instant case, the record fails to contain sufficient indicia of

incompetence. The motion submitted by the original defense attorney lists no reason for

requesting the evaluation, other than stating “[a]fter several conversations with Mr.

Smith, defense counsel feels that it is in his best interests to file these Motions.” At the

November 29, 2010 hearing, the court stated that it was going to refer Smith to the court

psychiatric clinic. Smith replied, “[f]or what? Ain’t nothing wrong with me, your

Honor.” The court stated that it wanted to refer Smith to an evaluation out of an

abundance of caution, but no order was ever journalized. Furthermore, at the hearing

Smith indicated that he wanted new counsel, stating that current counsel “recommended

and I told her that I didn’t want to because I fail to enter a plea of guilt, because I won’t

enter a plea —.” Moreover, subsequent defense counsel never requested an evaluation or

brought to the court’s attention that Smith was incompetent.

{¶ 29} Based on the foregoing, we find that there is nothing in the record to

indicate Smith was incapable of understanding the nature and objective of the

proceedings against him. Therefore, the error was harmless and Smith’s third

assignment of error is overruled.

State’s Cross Appeal {¶ 30} In its cross appeal, the State raises the following three assignments of error

for review.

ASSIGNMENT OF ERROR ONE

“The trial court imposed a sentence that was contrary to law because it did not apply the penalty in effect at the time of the offense.”

ASSIGNMENT OF ERROR TWO

“Application of the version of R.C. 2950.99 in effect at the time of the offense to a sex offender who was previously classified under Megan’s law does not violate the Separation of Powers Doctrine.”

ASSIGNMENT OF ERROR THREE

“Application of the version of R.C. 2950.99 in effect at the time of the offense to a sex offender who was previously classified under Megan’s Law does not violate the Retroactivity Clause of the Ohio Constitution.”

{¶ 31} Within these cross-assignments of error, the State argues that R.C. 2950.99,

as amended through S.B. 97, should be applied to Smith even though he committed his

sexually oriented offense prior to January 1, 2008, but he committed his registration

offense after January 1, 2008. The State argues that the retroactive application of S.B. 97

does not violate constitutional principles.

{¶ 32} In the instant case, the trial court, relying on our decision in Page,

sentenced Smith under Megan’s Law to one year in prison for a third degree felony. The

State, however, argues that the trial court should have sentenced Smith under the current

version of R.C. 2950.99, which would have resulted in a mandatory minimum sentence of

three years in prison. See R.C. 2950.99(A)(2)(b). {¶ 33} In Page, the defendant was “convicted of importuning and was

subsequently labeled a sexual predator under * * * Megan’s Law, which, at the time,

detailed the classification, registration, and notification requirements of convicted sex

offenders. Former R.C. 2950 et seq. On August 2, 2006, Page was convicted under

Megan’s Law of failing to register as a sex offender and sentenced to one year in prison.”

Id. at ¶2. In July 2009, Page was “indicted under the AWA for failing to verify his

address as a sex offender, with a furthermore clause indicating he had a prior conviction

for violating Ohio’s sex offender registration and notification laws. The furthermore

clause enhanced the minimum penalty that defendant faced as a repeat offender from the

possibility of parole to a mandatory three years in prison. R.C. 2950.06(F) and

2950.99(A)(2)(b).” Id. at ¶4.

{¶ 34} Page pled no contest to the charge and the court sentenced him to a

mandatory minimum of three years in prison. Id. at ¶5. Page appealed, arguing that the

trial court’s sentence according to R.C. 2950.99 as effective at the time of sentencing

violated his constitutional rights because it violates the ex post facto clause of the United

States Constitution.

{¶ 35} In reviewing the AWA and the Ohio Supreme Court’s decision in State v.

Bodyke,

,

,

, we explained:

“The AWA classifies sex offenders using a three-tiered system, with designation into each tier based solely on the offense committed. In addition, the AWA includes provisions that retroactively reclassify offenders previously classified under prior versions of the law. See R.C. 2950.031 and 2950.032. As the Ohio Supreme Court recently explained, ‘[t]he entire reclassification process is administered by the attorney general, with no involvement by any court. There is no individualized assessment. No consideration is given to any of the other factors employed previously in classification hearings held pursuant to Megan’s Law.’ [Bodyke, at] ¶22.

In Bodyke, the Ohio Supreme Court held that reclassification of sex offenders under the AWA’s R.C. 2950.031 and 2950.032, ‘who have already been classified by court order under former law,’ violates the separation-of-powers doctrine and is unconstitutional. Id. at ¶¶60-61. The Bodyke Court severed these provisions from the Ohio Revised Code, holding that ‘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.’ Id. at ¶66 (emphasis added).

This court recently applied Bodyke to reverse convictions based on violations of sex offender registration and notification requirements under the AWA, when the defendant was initially classified as a sexual offender under Megan’s Law. The Ohio Supreme Court explicitly directed that the registration obligations of the prior law are to be reinstated in such cases. * * * Bodyke, at ¶66.

In State v. Smith, Cuyahoga App. No. 92550,

, ¶29, this court held that because the reclassification under the AWA was unlawful, ‘it cannot serve as the predicate for the crime for which [the defendant] was indicted and convicted.’ See, also, State v. Patterson, Cuyahoga App. No. 93096,

; State v. Jones, Cuyahoga App. No. 93822,

. * * *” Id. at ¶8-11.

{¶ 36} In Page, we found that Page’s reclassification under Ohio’s AWA is

contrary to law under Bodyke. Id. ¶12. We then stated, “[a]dhering to precedent in this

district, convictions arising from alleged reporting violations under the AWA for any

individual reclassified under its provisions are contrary to law as well. Smith; Patterson,

supra. We [reversed Page’s] conviction for failure to verify address in violation of R.C.

2950.06(F), vacate[d] his sentence, and [held] that [Page] is subject to the reporting requirements, and penalties for violating these requirements, of sexual predators pursuant

to Megan’s Law.” Id.

{¶ 37} Subsequent to our decision in Page, the Ohio Supreme Court decided State

v. Gingell,

,

,

and State v. Williams,

,

,

. In Gingell, the court held that

an offender who was originally classified under Megan’s Law could not be convicted of

violating the registration requirements of the AWA. Id. at ¶8. In Williams, the court

held 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 syllabus.

{¶ 38} In the instant case, Smith was classified as a sexual predator under Megan’s

Law and the trial court sentenced him to a third-degree felony under Megan’s Law. As

the Williams court stated: “[t]he General Assembly has the authority, indeed the

obligation, to protect the public from sex offenders. It may not, however, consistent with

the Ohio Constitution, ‘impose[ ] new or additional burdens, duties, obligations, or

liabilities as to a past transaction.’” Id. at ¶22, quoting Pratte v. Stewart,

,

,

, ¶37. Thus, we find that the trial court properly

sentenced Smith under Megan’s Law to one year in prison.

{¶ 39} Accordingly, the State’s first, second, and third cross-assignments of error

are overruled.

{¶ 40} Judgment is affirmed. It is ordered that appellee recover from appellant costs herein taxed.

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

pleas 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.

MARY EILEEN KILBANE, PRESIDING JUDGE

MELODY J. STEWART, J., and EILEEN A. GALLAGHER, J., CONCUR