[Cite as State v. Alsip,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98921

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

ROBERT ALSIP DEFENDANT-APPELLANT

JUDGMENT: REVERSED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-504804

BEFORE: E.A. Gallagher, J., Jones, P.J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: April 11, 2013 ATTORNEY FOR APPELLANT

Robert A. Dixon The Brownhoist Building 4403 St. Clair Avenue Cleveland, Ohio 44103

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

By: Daniel T. Van Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 EILEEN A. GALLAGHER, J.:

{¶1} This cause came to be heard upon the accelerated calendar pursuant to

App.R. 11.1 and Loc.R. 11.1. Robert Alsip appeals from the denial of his motion to

vacate an unconstitutional sex offender classification by the Cuyahoga County Court of

Common Pleas. For the following reasons, we reverse the judgment of the trial court.

{¶2} Alsip was indicted on December 20, 2007, whereby he was charged with

four counts of rape, four counts of kidnapping and two counts of gross sexual imposition.

The indictment alleged that all of the violations occurred between April 2002 and

February 2004.

{¶3} Following a bench trial, the trial court found Alsip guilty of one count of

gross sexual imposition, imposed a prison term of four years and classified him as a Tier

III sex offender pursuant to the Adam Walsh Act (“S.B.10”).1

{¶4} Alsip filed a direct appeal from his conviction that this court affirmed in

State v. Alsip, 8th Dist. No. 93105,

. Alsip did not raise the issue

presented herein in his direct appeal to this court.

{¶5} On March 12, 2012, Alsip filed a motion for correction of void judgment,

1 In 1996, the General Assembly enacted Am.Sub.H.B. 180 (“Megan’s Law”), which amended the state’s sex offender registration process. State v. Cook,

,

,

. In 2007, the General Assembly enacted Am.Sub.S.B. 10, which repealed Megan’s Law and replaced it with Ohio’s version of the Adam Walsh Act (“S.B.10”). State v. Bodyke,

,

,

. S.B. 10 eliminated the categories of “sexually oriented offender,” “habitual sex offender,” and “sexual predator” under Megan’s Law and replaced them with a three-tier classification system. Id. at ¶ 21. arguing that the trial court improperly classified him pursuant to the Adam Walsh Act

because his offense was committed prior to the effective date of S.B. 10. Alsip sought

reclassification under Megan’s Law. The trial court denied Alsip’s motion on March 15,

2012.

{¶6} On August 7, 2012, Alsip filed a motion to vacate unconstitutional sex

offender classification, again asserting that he had been improperly classified under the

Adam Walsh Act as opposed to Megan’s Law. The trial court denied Alsip’s motion on

August 13, 2012. Appellant now appeals, advancing the following sole assignment of

error:

The lower court erred and denied the appellant due process of law pursuant to the constitutions of the United States and the State of Ohio when it refused to vacate his sex offender classification pursuant to the Adam Walsh Act which was not effective until after the date of the appellant’s offense and further abused its discretion in failing to enter findings of fact and conclusions of law.

{¶7} In State v. Williams,

,

,

, the Ohio Supreme Court held that “2007 Am.Sub.S.B. No. 10, [the Adam Walsh

Act] 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.”

at syllabus; State v. Palmer,

,

,

, ¶ 25. Pursuant to Williams, defendants whose crimes

were committed prior to the Adam Walsh Act’s enactment should have been classified

according to the statutory scheme in place at the time they committed their crimes, even if

they were sentenced after the enactment of the Adam Walsh Act. Williams at ¶ 22; State v. Bolton, 8th Dist. No. 96385,

; State v. Johnson, 3d Dist. Nos.

16-11-05 and 16-11-06,

; State v. Dillon, 5th Dist. No. CT11-0062,

.

{¶8} Where a defendant whose offenses were committed prior to the effective

date of the Adam Walsh Act is improperly classified under the Act in violation of

Williams, such classification is void. State v. Vertock, 8th Dist. No. 97888,

, citing State v. Eads,

,

,

(2d Dist.); State v. Lawson, 1st Dist. Nos. C-120077 and C-120067,

. The state concedes that Alsip’s crimes occurred prior to the

enactment of the Adam Walsh Act.

{¶9} A reviewing court has an obligation to recognize void sentences, vacate

them, and order resentencing despite procedural irregularities in the petition. State v.

Douse, 8th Dist. No. 98249,

, citing State v. Holcomb,

,

,

(9th Dist.).

{¶10} Because the trial court failed to conduct a hearing or issue an opinion as

to the denial of the motion to vacate, we have no record before us. Consistent with

Williams, the remedy for improper classification is to remand the matter to the trial court

for a classification hearing in accordance with the law in effect at the time the offense

was committed. State v. Bolton, 8th Dist. No. 96385,

; Johnson;

Dillon; and Lawson.

{¶11} Alsip’s sole assignment of error is sustained. {¶12} The judgment of the trial court is reversed. We vacate Alsip’s

classification as a Tier III sex offender and remand this case to the common pleas court to

conduct a hearing consistent with this opinion.

It is ordered that appellant recover of said 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

lower 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 A. GALLAGHER, JUDGE

LARRY A. JONES, SR., P.J., and SEAN C. GALLAGHER, J.,CONCUR