[Cite as State v. Lilley,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98905

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

JOSHUA LILLEY DEFENDANT-APPELLANT

JUDGMENT: REVERSED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-554842

BEFORE: E.T. Gallagher, J., S. Gallagher, P.J., and Kilbane, J.

RELEASED AND JOURNALIZED: August 22, 2013 ATTORNEY FOR APPELLANT

Susan J. Moran 55 Public Square Suite 1616 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: Nathaniel Tosi Assistant Prosecuting Attorney The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 EILEEN T. GALLAGHER, J.:

{¶1} Defendant-appellant, Joshua Lilley (“Lilley”), appeals his convictions for

failure to provide change of address and failure to verify address in violation of the

reporting requirements of the Adam Walsh Act. We find merit to the appeal and reverse

the trial court’s judgment.

{¶2} On August 8, 2006, Lilley was adjudicated a delinquent child for rape in the

Lake County juvenile court, and the court sentenced him to the Ohio Department of

Youth Services (“ODYS”) for a minimum period of one year and a maximum not to

exceed the age of 21. Lilley was released from ODYS in June 2008, when he was 16

years old.

{¶3} In December 2008, the Lake County juvenile court held a sex-offender

registration hearing and classified Lilley as a Tier III sex-offender under the 2007

Am.Sub.S.B. No. 10, Ohio’s version of the federal Adam Walsh Act (“Adam Walsh

Act”). As a Tier III sex-offender, Lilley was required to register his address with the

sheriff’s office in the county where he resided, every 90 days for life. Lilley returned to

the ODYS briefly in 2009. Following his release later that year, Lilley moved to

Cuyahoga County for approximately seven months and started registering the address of a

homeless shelter where he lived, with the Cuyahoga County Sheriff’s office. {¶4} Lilley failed to complete his periodic address verification on June 10, 2010.

The sheriff’s office sent a letter to Lilley’s last known address warning him that failure to

register his address by September 5, 2011, would result in criminal charges being filed

against him. Lilley failed to register his address, and a subsequent investigation revealed

he no longer lived at the previously registered address.

{¶5} In October 2011, Lilley was charged with failure to register his address and

failure to update his address. Lilley filed a motion to dismiss the charges, arguing that

his classification under the Adam Walsh Act was unconstitutional because he committed

the sex offenses before the Adam Walsh Act was enacted and retroactive application of

the act violated the Ohio Constitution. The trial court denied the motion to dismiss.

Lilley pleaded no contest to the charges, and the court sentenced him to community

control sanctions. Lilley now appeals and raises two assignments of error.

{¶6} In the first assignment of error, Lilley argues the trial court erroneously

applied the Adam Walsh Act to his alleged reporting violations, which resulted in a

higher penalty than would have been provided under Megan’s Law, the law in effect at

the time the crimes were committed. In the second assignment of error, Lilley contends

he was wrongfully convicted of violating the reporting provisions of the Adam Walsh Act

because his convictions resulted from his unconstitutional classification under the Adam

Walsh Act as a Tier III sex-offender. In both assigned errors, Lilley implicitly argues

that the trial court erred in denying his motion to dismiss because the charges were predicated on an unlawful sex-offender classification. We agree and discuss both of

Lilley’s assigned errors together because they are interrelated.

{¶7} Ohio’s version of Megan’s Law, Am.Sub.H.B. No. 180, 146 Ohio Laws, Part

II, 2560, 2601, which was enacted in 1996 and amended in 2003 by Am.Sub.S.B. No. 5,

was in effect for the classification of sex-offenders at the time Lilley was adjudicated a

delinquent child in 2006. However, Lilley was classified a Tier III sex-offender in

December 2008, under the Adam Walsh Act, which was enacted in 2007 and became

effective on January 1, 2008. The Ohio Supreme Court has held that while Megan’s Law

was a remedial statute, the Adam Walsh Act is punitive in nature because it imposes

stricter reporting and registration requirements, and it imposes them for a longer period of

time. State v. Williams,

,

,

.

{¶8} In Williams, the Ohio Supreme Court held that the application of the Adam

Walsh Act to an adult sex-offender whose crime was committed prior to its enactment

violates the Ohio Constitution, Article II, Section 28, which prohibits the General

Assembly from passing retroactive laws. State v. Williams at ¶ 21. Nevertheless, the

state asserts that Lilley was properly classified under the Adam Walsh Act because he

was a juvenile at the time of his classification, and judges have more discretion in

juvenile classifications than judges involved in adult classifications that are based on the

level of the offense.

{¶9} In support of the state’s argument, the state relies on In re C.P.,

,

,

. In that case, the Ohio Supreme Court explained that, in contrast to the adult criminal justice system, which may be punitive, the

juvenile system is designed to both maintain the juvenile’s privacy while rehabilitating

the errant child and bring him back to productive citizenship. Id. at ¶ 40, 47, 54, 62, and

66. To achieve these goals, the court in In re C.P. stated that the juvenile court must

have discretion in order to provide “individual, corrective treatment” to each juvenile

offender. Id. at ¶ 61, quoting In re Agler,

,

(1969).

Thus, the state asserts, the juvenile court may impose classifications under the Adam

Walsh Act as long as the juvenile court judge has discretion to select the appropriate

classification.

{¶10} However, the state ignores the crux of Lilley’s argument, which is that

retroactive application of the Adam Walsh Act violates the Retroactivity Clause of the

Ohio Constitution. The juvenile in In re C.P. was not charged with a sex offense until

June 26, 2009. Since the Adam Walsh Act became effective on January 1, 2008, before

the juvenile was charged and adjudicated delinquent, retroactivity was not an issue in that

case. In re C.P. involved juvenile offenders who were charged and adjudicated

delinquent after the Adam Walsh Act went into effect.

{¶11} As previously stated in Williams, the Ohio Supreme Court held that the

application of the Adam Walsh Act to an adult sex-offender whose crime was committed

prior to its enactment violates the Retroactivity Clause of the Ohio Constitution.

Williams,

,

,

. The Ohio

Supreme Court subsequently applied its holding in Williams to juvenile sex-offenders whose offenses occurred prior to the enactment of the Adam Walsh Act. See In re:

D.J.S.,

,

,

.

{¶12} In accordance with Supreme Court precedent, this court has also held that

where a juvenile defendant’s offenses were committed prior to the Adam Walsh Act’s

enactment, his classification as a juvenile sex-offender under the Adam Walsh Act is a

violation of Williams and is void. State v. Vertock, 8th Dist. Cuyahoga No. 97888,

. The Lake County juvenile court classified Lilley as a Tier III

sex-offender under the Adam Walsh Act even though he committed the offenses and was

adjudicated a delinquent child under Megan’s Law. Therefore, Lilley’s classification as

a Tier III sex-offender under the Adam Walsh Act is void and cannot serve as the

predicate for failure to verify and provide change of address. See State v. Faranda, 8th

Dist. Cuyahoga No. 96807,

. The trial court erred in denying

Lilley’s motion to dismiss.

{¶13} Lilley’s assignments of error are sustained.

{¶14} The trial court’s judgment is reversed, and the case is remanded to the trial

court to vacate Lilley’s convictions.

It is ordered that appellant recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

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.

EILEEN T. GALLAGHER, JUDGE

SEAN C. GALLAGHER, P.J., and MARY EILEEN KILBANE, J., CONCUR