[Cite as State v. Bennett,

.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellant : C.A. CASE NO. 25600

v. : T.C. NO. 12CR2549

MICHAEL D. BENNETT : (Criminal appeal from Common Pleas Court) Defendant-Appellee :

:

..........

OPINION

Rendered on the 18th day of October , 2013.

..........

R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellant

VICTOR A. HODGE, Atty. Reg. No. 0007298, Assistant Public Defender, 117 S. Main Street, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellee

..........

DONOVAN, J.

{¶ 1} This matter is before the Court on the Notice of Appeal of the State of Ohio, 2

filed January 30, 2013. The State appeals from the December 31, 2012 decision of the trial

court which granted Michael Dean Bennett’s motion to dismiss an indictment charging him

with one count of failure to notify of a change of address, in violation of R.C. 2950.05(A)

and (F)(1), a felony of the first degree. We hereby affirm the judgment of the trial court.

{¶ 2} On March 31, 2008, Bennett pled guilty to kidnaping (sexual activity), a

first degree felony. He committed the offense in November, 2007. On April 2, 2008, he

was sentenced to a three year term of imprisonment, and he was designated a Tier II sex

offender. Bennett was indicted herein on September 13, 2012, and he filed his motion to

dismiss the charge of failure to notify on November 1, 2012, asserting that his “classification

as a Tier II sex offender is null and void, as a result of which he cannot be prosecuted for a

violation of a duty which is based upon the S.B. 10 (Adam Walsh Act) Tier classification.”

Bennett asserted that “as a matter of law, he had no duty to notify the Sheriff of a residence

change, and therefore, cannot be prosecuted for the omission.” Bennett further asserted,

“where the offense occurred prior to January 1, 2008, but the accused was convicted and

classified as an S.B. 10 Tier level offender, the Tier classification is unconstitutional as

applied to a sex offender who committed the offense prior to January 1, 2008.” Attached to

the motion to dismiss is Bennett’s 2007 indictment, judgment entry of conviction, and

classification notice. On December 27, 2012, Bennett filed a Notice of Additional

Authority, citing In re Bruce S.,

,

,

, in response to the State’s Memorandum Contra Motion to Dismiss.

{¶ 3} In sustaining Bennett’s motion to dismiss, the trial court noted from the

bench that Bennett committed the kidnaping offense in 2007, and the court stated as follows: 3

Judge Langer following the express dictates of what was done (sic)

as the Adam Walsh Act had you classified as a sex offender under the express

terms of the Adam Walsh Act. That’s subsequently been determined by the

Supreme Court of Ohio and the Second District Court of Appeals which

governs my actions to have been in error. And so now the issue remains as

to whether you should be reclassified under the previous law which was

called Megan’s Law and if so, what your classification would be.

* * * But in any event, as it relates to your indictment in connection

with this matter, I’m dismissing the case. * * *

The entry of dismissal provides, “Simply put, and based upon the authority cited by

Defendant in his Motion and Notice of Additional Authority, Defendant’s Motion is

well-taken.”

{¶ 4} The State asserts one assigned error herein as follows:

THE TRIAL COURT ERRED BY DISMISSING THE STATE’S

INDICTMENT FOR FAILURE TO NOTIFY OF A CHANGE OF

ADDRESS IN VIOLATION OF R.C. 2950.05 WHERE MICHAEL DEAN

BENNETT IS PRESUMED TO HAVE KNOWN THAT, BY OPERATION

OF LAW, HE QUALIFIED AS A SEXUALLY ORIENTED OFFENDER

UNDER MEGAN’S LAW, AND SEXUALLY ORIENTED OFFENDERS

ARE REQUIRED TO NOTIFY THE SHERIFF OF THEIR COUNTY OF

RESIDENCE OF A CHANGE IN ADDRESS AT LEAST TWENTY DAYS

PRIOR TO MAKING THE CHANGE. 4

{¶ 5} We note that “Crim.R. 12 permits a court to consider evidence beyond the

face of an indictment when ruling on a pretrial motion to dismiss an indictment if the matter

is capable of determination without trial of the general issue.” State v. Brady,

,

,

; Crim.R.12(C)1. The general issue for

trial herein is whether Bennett failed to notify the Sheriff’s Office regarding his change of

address, pursuant to an enforceable legal duty. Bennett’s motion to dismiss was based upon

his not being subject to any constitutional classification, which could be determined without

trial of the general issue, and Crim.R. 12(C) allowed the trial court to consider the motion.

Id., ¶ 18.

{¶ 6} As this Court has previously noted:

The original version of Ohio's sex offender classification and

registration law was enacted in 1963. See former R.C. Chapter 2950, 130

Ohio Laws 669. In 1996, the Ohio General Assembly enacted Ohio's version

of “Megan's Law,” which “repealed prior versions of R.C. Chapter 2950 and

created Ohio's first comprehensive registration and classification system for

sex offenders.” State v. Bodyke,

,

,

, citing State v. Cook (1998),

,

. Under Ohio's Megan's Law, judges classified sex offenders, after

a hearing, as either a sexually oriented offender, habitual sex offender, or

1 Crim.R. 12(C) provides in part as follows: “Prior to trial, any party may raise by motion any defense, objection, evidentiary issue, or request that is capable of determination without trial of the general issue. The following must be raised before trial: * * *.” 5

sexual predator, based on the judge's consideration of various factors. Sex

offenders were subject to registration, classification, and/or

community-notification requirements in accordance with their specific

classification.

In 2006, the United States Congress passed the Adam Walsh Child

Protection and Safety Act, which divided sex offenders into three tiers based

solely upon the offense committed.

. * * * 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 Adam Walsh Act (“S.B. 10"),

effective January 1, 2008.

; current R.C. Chapter 2950. State

v. Eads,

,

,

(2d

Dist.), appeal not allowed,

,

,

.

{¶ 7} “In State v. Williams,

,

,

, [the Supreme Court of Ohio] held, at syllabus: ‘2007 Am.Sub.S.B. No. 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.’ ” In re Bruce S.,

,

,

. In

other words, “Senate Bill 10's classification, registration, and community-notification

provisions cannot be constitutionally applied to a sex offender who committed his sex

offense between July 1, 2007, and December 31, 2007, the last day before January 1, 2008,

the effective date of S.B. 10's classification, registration, and community-notification 6

provisions.” Id., ¶ 12. We note that the State does not contest the fact that Bennett

committed the offense of kidnaping (sexual activity) in November, 2007, nor that his Tier II

classification is void. Furthermore, the State does not dispute the fact that at the time of

Bennett’s conviction, Megan’s Law had been repealed. Finally, we find the State’s

argument unpersuasive that Bennett is somehow “by operation of law, a sexually oriented

offender under Megan’s Law and therefore subject to the duty to notify * * * .” The State

does not contest the fact that Bennett was never designated as a sexually oriented offender,

habitual sexual offender, or sexual predator by a judge, following a hearing, and as in Eads,

“it is unclear what his designation would be.” Eads, ¶ 25. In other words, Bennett has no

enforceable duty to register, pursuant to R.C. 2950.05(A) and (F)(1), and he is accordingly

not subject to prosecution for failure to notify.

{¶ 8} The State’s sole assigned error is overruled, and the judgment of the trial

court is affirmed.

..........

FAIN, P.J., concurs.

FROELICH, J., concurring:

{¶ 9} To paraphrase Tom Hanks, “There is no summary judgment in the criminal

rules.”

“When a defendant in a criminal case files a motion to dismiss which goes beyond

the face of the indictment, he is, essentially, moving for a summary judgment, which is not

permitted under the Ohio Rules of Criminal Procedure.” (Internal citations omitted.) State

v. Link,

,

,

(5th Dist.); see also 7

State v. Robinson, 4th Dist. Athens No. 01CA51,

, ¶ 22. As stated in State

v. Kolat, 11th Dist. Lake No. 2001-L-117,

, ¶ 16:

In criminal matters, a motion to dismiss can only raise matters that are

“capable of determination without a trial of the general issue.” Crim.R.

12(B); State v. O’Neal (1996),

,

.

Thus, in the criminal context, a motion to dismiss “tests the sufficiency of the

indictment, without regard to the quantity or quality of evidence that may be

produced by either the state or the defendant.” State v. Patterson (1989),

,

. If the allegations contained in the

indictment constitute offenses under Ohio criminal law, it is premature to

determine, in advance of trial, whether the state could satisfy its burden of

proof with respect to those charges, and thus, a motion to dismiss must be

denied. Consequently, a pretrial motion, such as a motion to dismiss, must

not entail a determination of the sufficiency of the evidence to support the

indictment because such a determination cannot properly be made until, at the

earliest, the conclusion of the state’s case in chief and pursuant to a Crim.R.

29(A) motion. State v. Abercrombie (May 20, 2002), 12th Dist. No.

CA2001-06-057,

at * 9.

{¶ 10} In State v. Brady,

,

,

,

the defendant was charged with numerous counts of pandering obscenity. The defendant

moved to dismiss the indictment, claiming that his court-appointed expert would be unable

to adequately prepare for trial because of the risk of federal prosecution. Citing State v. 8

O’Neal,

,

(2d Dist. 1996) and State v. Varner,

,

(9th Dist. 1991), the State argued it was premature to determine,

in advance of trial, whether the State could satisfy its burden of proof with respect to the

charges. The Ohio Supreme Court rejected this argument and held that Brady’s situation

compromised his constitutional right to a fair trial, as opposed to O’Neal and Varner “that

required consideration of the general issue for trial.” Brady at ¶ 18.

{¶ 11} Accordingly, in State v. Gaines,

,

,

(12th Dist.), the court, relying on Brady, reversed the dismissal of an

indictment that had been based on the grounds that the defendants’ conduct did not

constitute the crime of extortion. The “motion to dismiss addressed the very issue to be

determined at trial and required a determination of the general (and ultimate) issue for trial,

to-wit, whether [the defendants’] alleged acts constituted extortion under Ohio law. In turn,

a review of the trial court’s decision dismissing the indictments clearly shows that the trial

court considered the alleged facts of the case and applied Ohio and federal cases to the

facts.” Gaines at ¶ 21. This appears to be what occurred in our case.

{¶ 12} There is nothing that would have prevented the defendant from waiving a

jury, and then the parties’ agreeing to submit the facts to the court as a stipulated trial.

However, here, as in Link, the State neither objected to the motion and procedure, nor has it

specifically raised such an issue in its appeal. And, similar to Link, the underlying facts of

the trial court’s decision are not in dispute.

{¶ 13} With the unique facts and procedure before us, I would consider the merits

as both the State and defendant apparently desire and I concur in the affirmance. 9

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Copies mailed to:

R. Lynn Nothstine Victor A. Hodge Hon. Steven K. Dankof