[Cite as State v. Kaminski,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 27112

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE JOHN KAMINSKI COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR2004 12 4427

DECISION AND JOURNAL ENTRY

Dated: June 30, 2014

HENSAL, Judge.

{¶1} John Kaminski appeals a judgment of the Summit County Court of Common

Pleas that denied his motion for immediate relief from community notification, registration, and

residency requirements. For the following reasons, this Court reverses.

I.

{¶2} In 1993, Mr. Kaminski pleaded guilty in Florida to a charge of lewd and

lascivious act upon a person under the age of sixteen. According to Mr. Kaminski, at first he

was not subject to any sex-offender reporting requirements. In 1996, however, Florida enacted a

law requiring him to report once a year for ten years. Mr. Kaminski alleges that he complied

with that requirement even after he moved to Ohio, completing his obligation in 2004.

{¶3} In 2005, the State charged Mr. Kaminski for failing to verify his current address,

alleging that he had not complied with his sex-offender reporting requirements. Mr. Kaminski

moved to dismiss the count, arguing that he had satisfied the requirement. Following a hearing, 2

the trial court entered an order explaining that the issue appeared to be that Florida had changed

its law at some point to require offenders like Mr. Kaminski to report for life. Because that

requirement endured even though Mr. Kaminski now lived in Ohio, the court denied his motion

to dismiss. Mr. Kaminski subsequently pleaded guilty to the offense, and the trial court

sentenced him to one year of community control.

{¶4} In 2013, Mr. Kaminski filed a “Motion for Immediate Relief from Community

Notification, Registration and Residency Requirements Pursuant to R.C. 2950.09(F)(1),

2950.031(E) and R.C. 2950.032(E),” requesting that the trial court declare that he “is not subject

to the registration and community notification provisions of R.C. 2950.11 or in the alternative, to

schedule an R.C. 2950.11(F)(2) hearing.” In his motion, Mr. Kaminski noted that, in 2007, the

Ohio Attorney General had reclassified him as a Tier III sex offender under the Adam Walsh

Act. He argued that he was entitled to a hearing under Revised Code Section 2950.11(F)(2) to

determine whether he was subject to the Adam Walsh Act’s reporting provisions. He also

argued that the reclassification was punitive in nature. He sought an order enjoining the sheriff’s

office from sending any community notification cards pending a hearing and a declaration that

his reclassification was unconstitutional.

{¶5} The State opposed Mr. Kaminski’s motion, noting that, in State v. Bodyke,

,

, the Ohio Supreme Court held that the Ohio Attorney General

did not have authority to reclassify defendants under the Adam Walsh Act. The State argued

that, in light of that decision, Mr. Kaminski was not subject to the Adam Walsh Act’s

notification provisions as he alleged. Rather, he remained subject to his previous classification

under Megan’s Law. It also argued that, to the extent that Mr. Kaminski was attempting to

challenge his 2005 conviction, res judicata applied. 3

{¶6} Mr. Kaminski filed a reply brief, explaining that he was not challenging his

previous convictions in Ohio or Florida. He explained that the basis of his motion was that,

under State v. Lloyd,

,

, Ohio’s registration requirements do

not apply to someone who moves into the state unless the person’s out-of-state conviction

contained a registration provision. He argued that, because his reporting requirements were only

added years after his conviction by virtue of a new Florida statute, they did not carry over to

Ohio.

{¶7} In September 2013, the trial court entered its ruling on Mr. Kaminski’s motion. It

noted that, after the Ohio Attorney General reclassified Mr. Kaminski under the Adam Walsh

Act, he had filed a civil action challenging his reclassification. It noted that, the resolution of

that case was that Mr. Kaminski had been advised by the Ohio Supreme Court that he retained

the classification and reporting requirements that he had under Megan’s Law. Regarding Lloyd,

the trial court determined that it did not support his plea for relief. The court also determined

that, to the extent that Mr. Kaminski was challenging his reporting requirements, he had not

satisfied the prerequisites under Revised Code Section 2950.15 to invoke the jurisdiction of the

court. It further determined that he could not seek relief under Section 2950.09(F) because the

statute had been repealed. The court, therefore, dismissed his motion. Mr. Kaminski has

appealed, assigning one error.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN ITS JUDGMENT AND ERRED IN NOT HOLDING A HEARING FAILING TO APPLY THE CORRECT STANDARD OF REVIEW, THEREFORE ABUSING ITS DISCRETION IN THE ANALYSIS AND JUDGMENT DISMISSING KAMINSKI’S MOTION FOR RELIEF FROM SEX OFFENDER CLASSIFICATION. 4

{¶8} Mr. Kaminski argues that the issue in this case is not whether he has to register,

but whether he has an avenue to petition for a determination and/or termination of his sex

offender classification and reporting requirements. He asserts that, in light of everything that has

happened, it is not clear how many years he must register and whether he must do it every 90

days or merely on a yearly basis. He also argues that, since he has never been adjudicated as a

sexual predator, he cannot be required to register for life under Megan’s Law. He further argues

that the trial court incorrectly determined that he may not challenge his sex offender

classification under former Revised Code Section 2950.09(F).

{¶9} The parties agree that, in light of the Supreme Court’s decisions regarding the

Adam Walsh Act, Mr. Kaminski is only subject to Megan’s Law. At the time Mr. Kaminski

moved to Ohio, Section 2950.09(A) provided that, if, as a result of a conviction in another state,

an offender is required, under the law of that jurisdiction, to register as a sex offender until the

offender’s death, the adjudication “automatically classifies the person as a sexual predator for the

purposes of this chapter[.]” See also R.C. 2950.01(G)(5). Former Section 2950.09(A) provided,

however, that a person who is automatically classified as a sexual predator “may challenge that

classification pursuant to division (F) of this section.” Former Section 2950.09(F)(1) provided

that an offender classified as a sexual predator “may petition the court of common pleas * * * to

enter a determination that the offender * * * is not an adjudicated sexual predator in this state for

purposes of registration * * *.”

{¶10} The trial court determined that Mr. Kaminski could not seek relief under former

Section 2950.09(F) because the section had been repealed by the General Assembly when it

enacted the Adam Walsh Act. It reasoned that he could only seek relief under Sections 2950.11

or 2950.15 instead. In State v. Brunning,

,

, however, the 5

Ohio Supreme Court held that “the repeal of Megan’s Law is invalid as it affects offenders

originally classified under Megan’s Law.” Id. at ¶ 22. Mr. Kaminski, therefore, was able to

petition the court to contest his automatic classification as a sexual predator under former Section

2950.09(F). In re. D.W., 6th Dist. Lucas No. L-12-1318,

, ¶ 16; State v.

Forsythe, 5th Dist. Stark No. 2012CA00225,

. We see no reason to

conclude that it was improper for Mr. Kaminski to initiate his petition by filing a motion in this

case as opposed to filing a new action with the trial court to challenge his classification.

{¶11} Until the trial court resolves whether Mr. Kaminski is a sexual predator under

Section 2950.09, we cannot identify the frequency and duration of his reporting requirements

under Megan’s Law. Mr. Kaminski’s assignment of error is sustained, and this matter is

remanded to the trial court to consider the merits of his motion for relief under Section

2950.09(F).

III.

{¶12} The trial court incorrectly determined that Mr. Kaminski had failed to invoke the

jurisdiction of the trial court. The judgment of the Summit County Common Pleas Court is

reversed, and this matter is remanded for further consideration of Mr. Kaminski’s motion for

immediate relief from community notification, registration, and residency requirements.

Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal. 6

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellee.

JENNIFER HENSAL FOR THE COURT

WHITMORE, J. CONCURS.

BELFANCE, P. J. CONCURS IN JUDGMENT ONLY.

APPEARANCES:

RICHARD P. KUTUCHIEF, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.