[Cite as State v. Jackson,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100877

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

HARRISON JACKSON

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED IN PART, VACATED IN PART, AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-574810-A

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

RELEASED AND JOURNALIZED: November 20, 2014 ATTORNEYS FOR APPELLANT

Robert L. Tobik Cuyahoga County Public Defender

BY: Jeffrey Gamso Assistant Public Defender 310 Lakeside Avenue Suite 200 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

BY: Denise J. Salerno Assistant Prosecuting Attorney The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113

EILEEN T. GALLAGHER, J.: {¶1} Defendant-appellant, Harrison Jackson (“Jackson”), appeals his conviction and

sentence. We find some merit to the appeal and affirm in part and reverse in part, the trial

court’s judgment.

{¶2} In May 2013, Jackson was charged with rape, in violation of R.C. 2907.02(A)(2),

and kidnaping, in violation of R.C. 2905.01(A)(4), as a result of an incident that occurred on

June 7, 1993. At a bench trial, the victim (“A.G.”) testified that in 1993 she was a 35 year-old

drug addict, who sold and used drugs. She knew Jackson, who was then 19 years old, because

they sometimes smoked crack together, but she did not know him by any other name but “Cool

Man.”

{¶3} Sometime after midnight on June 7, 1993, while A.G. was sleeping, Jackson

knocked on the door of the apartment where A.G. was temporarily living. He was looking for

drugs, and A.G. told him she had none. A.G. testified that Jackson entered the apartment to use

the bathroom, and A.G. went back to bed. Jackson subsequently entered A.G.’s bedroom and

raped her. After the rape, A.G. walked to her sister’s house, and her sister took her to the

hospital where a nurse completed a rape kit. A.G. gave a statement to police while she was in

the hospital, and the police report was admitted into evidence at trial.

{¶4} Jackson testified and told a different story. Jackson admitted that he came to

A.G.’s apartment on the night of June 7, 1993, and that they had sexual intercourse. However,

he stated that he came to A.G.’s apartment with some crack he had stolen and traded some of the

crack for sex. He maintained the sex was consensual. After having sex, Jackson slept on the

couch and left in the morning.

{¶5} Jackson further testified that he saw A.G. with another woman named Diane the day

after the alleged rape, and Diane told Jackson that A.G. accused him of raping her. Jackson

testified that he confronted A.G., who was nearby, about the accusation, and she denied it. According to Jackson, the three of them then got high together. Jackson acknowledged he has

been known as “Cool Man” all his life.

{¶6} Two other witnesses testified at trial. Timothy Clark (“Clark”), an investigator in

the Cuyahoga County Prosecutor’s Office, testified that he investigates “cold cases” in which

DNA evidence was collected years ago but no suspect was identified at that time. He explained

that many suspects now provide DNA samples in buccal swabs when they are arrested, and their

DNA information is collected in the Combined DNA Index System (“CODIS”) database. As

DNA tests are performed in both new and cold cases, the results of these tests are entered into the

same database. If the DNA from a recently tested sample matches DNA previously entered into

the CODIS database, there is a “CODIS hit,” which means the recently tested DNA matches an

individual in the database.

{¶7} In this case, DNA from A.G.’s rape kit was sent to the Ohio Attorney General’s

Bureau of Criminal Investigation (“BCI”) for DNA testing in 2011. In 2013, there was a

CODIS hit. The DNA test results indicated that DNA contained in A.G.’s rape kit matched the

DNA of “Harrison Jackson, a.k.a. Tyrone Jackson, Desmond Moss, and Harrison Moss.”

{¶8} Once the CODIS hit was made, the case was assigned to Clark, who reviewed the

police report of the rape. Clark also called and interviewed A.G., who had stopped using drugs

and started a new life in Atlanta, Georgia. After A.G. confirmed the allegations, Clark sent a

photo array of suspects to Cynthia Nwokocha (“Nwokocha”), who was an investigator in the

Fulton County District Attorney’s Office in Atlanta, Georgia. Nwokocha testified that she did

not know any of the individuals pictured in the line up. When Nwokocha presented the line up

to A.G., A.G. immediately identified Jackson as the man who raped her and called him “Cool

Man.” Nwokocha subsequently mailed the line up back to Clark. {¶9} Clark interviewed Jackson following his arrest. Jackson admitted that he knew

A.G. and that he had sex with her on June 7, 1993. Clark took another buccal swab that

confirmed the results of the earlier DNA testing.

{¶10} The trial court found Jackson guilty of both the rape and kidnaping charges and

referred him to the Court Psychiatric Clinic for a H.B. 180 classification assessment. At the

sentencing hearing, the court sentenced Jackson to 8-25 years in prison and classified him as a

sexual predator. Jackson now appeals and raises four assignments of error, which we discuss

out of order for the sake of economy.

Manifest Weight of the Evidence

{¶11} In the third assignment of error, Jackson asserts his convictions are not sustained

by the manifest weight of the evidence. He argues the evidence produced at trial demonstrates

that A.G. was lying when she claimed she was raped.

{¶12} “A manifest weight challenge * * * questions whether the prosecution met its

burden of persuasion.” State v. Thomas,

,

(1982). The

manifest weight of the evidence standard of review requires us to review the entire record, weigh

the evidence and all reasonable inferences, consider the credibility of witnesses, and determine

whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created

such a manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered. State v. Thompkins,

,

(1997).

{¶13} The trier of fact “has the best opportunity to view the demeanor, attitude, and

credibility of each witness, something that does not translate well on the written page.” Davis v.

Flickinger,

,

(1997). Therefore, the discretionary

power to grant a new trial should only be exercised in exceptional cases where the evidence

weighs heavily against the conviction. Thompkins,

,

. {¶14} Jackson argues that discrepancies between A.G.’s testimony and the statement she

gave police proves A.G. was lying. At trial, A.G. testified that she only knew Jackson by the

name “Cool Man.” However, in her statement to police, she identified the rapist as “Henderson

Jackson.” Therefore, Jackson argues, A.G. was lying when she stated she only knew him as

“Cool Man.”

{¶15} However, A.G. made her statement to police over 20 years ago. Since that time,

A.G. has stopped using drugs, moved out-of-state, and obtained employment, which she has

maintained for many years. She testified that she “put this incident behind her,” tried to forget

it, and had no recollection of the statement she gave to police.

{¶16} In addition, “Henderson Jackson” is not Jackson’s real name; it is one of several

aliases he has used over the years. And Jackson admitted at trial that he has been called “Cool

Man” all his life. After over 20 years, it is conceivable that A.G. would forget some details of

the incident, including a false name the defendant rarely used. Moreover, the police report

indicates that A.G. identified the suspect as “Cool Man,” in addition to “Henderson Jackson.”

Therefore, A.G.’s testimony that Cool Man raped her has been consistent since the day the rape

occurred.

{¶17} Jackson argues A.G.’s testimony that the rape occurred after midnight conflicts

with the timing evidenced in the police report because the police report was not completed until

7:30 a.m. However, A.G. testified that Jackson came into the apartment “sometime after

midnight.” She had been sleeping and was not sure of the exact time. After midnight could

mean several hours after midnight. Just because A.G. did not know the exact hour and minute

the rape occurred, does not prove she was lying.

{¶18} Jackson also contends A.G.’s testimony that she did not know her daughter had

been dating Jackson and was pregnant with his child until shortly before trial also proves she was lying. Perhaps the defense considered the pregnancy of A.G.’s daughter relevant to show a

motive to lie, but the court had practically no information regarding A.G.’s relationship with her

daughter upon which the court could draw such conclusion. Any motive, such as revenge, is

speculative. It is not clear how the pregnancy of A.G.’s daughter is relevant. The trial court

was in the best position to assess A.G.’s credibility and found her testimony credible

{¶19} Moreover, the consistencies in A.G.’s story far outweigh any discrepancies. The

police report indicates she told police on the day the rape occurred that the suspect was known as

“Cool Man.” Jackson admitted that he has been called “Cool Man” all his life. When Clark

interviewed her about the rape in 2013, her statements were consistent with her statements in the

police report. When Nwokocha presented A.G. with a photo array of suspects, she immediately

identified Jackson as the rapist. As it turned out, the DNA of the suspect she identified matched

the DNA found in A.G.’s rape kit. Jackson admitted he had sex with A.G., but claimed it was

consensual. Yet A.G. described how the rape occurred in detail. Although she did not

remember a false name Jackson may have used 20 years ago, she remembered the more traumatic

aspects of the incident.

{¶20} The court found A.G.’s testimony more credible than Jackson’s. Under these

circumstances, we cannot say the trier of fact clearly lost its way. Therefore, the third assignment

of error is overruled.

Sexual Predator Classification

{¶21} In the second assignment of error, Jackson argues the trial court erred in classifying

him as a sexual predator. He contends the trial court lacked authority to make a sexual predator

determination without holding a hearing. We agree.

{¶22} The trial court classified Jackson as a sexual predator under Ohio’s former sexual

offender registration law, commonly known as “Megan’s Law.” Although Jackson committed the rape against A.G. before the effective date of Megan’s law, Jackson does not contest the

applicability of Megan’s Law to this case. Indeed, the Ohio Supreme Court has held that the

law applies retroactively to offenses committed prior to its effective date. State v. Cook,

,

(1998). See also State v. Williams,

,

,

(explaining that the legislature intended that Megan’s Law

apply retroactively).1

{¶23} Under Megan’s Law, a convicted sex offender may be classified as a “sexually

oriented offender,” “habitual sex offender,” or “sexual predator,” depending on the offender’s

history of sex crime convictions. Megan’s Law also established different registration

requirements for each class commensurate with the seriousness of the classification. See former

R.C. 2950.07(B)(1) and 2950.06(B)(1). Sexual predators are required to register every 90 days

for the remainder of the offender’s life. See former R.C. 2950.07(B)(1) and 2950.06(B)(1).

{¶24} Under Megan’s Law, R.C. 2950.01(E)(1) defines a “sexual predator” as a person

who has been convicted of or pleaded guilty to committing a sexually oriented offense and “is

likely to engage in the future in one or more sexually oriented offenses.” Former R.C.

2950.09(B)(1)(a) requires trial courts to conduct a hearing prior to classifying a defendant as a

sexual predator, and that “the offender and the prosecutor shall have an opportunity to testify,

present evidence, call and examine witnesses and expert witnesses, and cross-examine witnesses

and expert witnesses regarding the determination as to whether the offender is a sexual predator.”

(Emphasis added.) See State v. Blake-Taylor, 8th Dist. Cuyahoga No. 100419,

.

1 The current statutory scheme, Am.Sub. S.B. 10, was enacted in 2007, and is based on the federal Adam Walsh Act, 42 U.S.C. 16901 et seq. Under the Adam Walsh Act, an offender is now subject to additional reporting and registration requirements and is subject to those requirements for a longer time. {¶25} After reviewing all the evidence, the trial court “shall determine by clear and

convincing evidence whether the offender is a sexual predator.” Former R.C. 2950.09(B)(4).

If the court determines the offender is a sexual predator, “the judge shall specify in the offender’s

sentence and the judgment of conviction that contains the sentence that the judge has determined

that the offender is a sexual predator and shall specify that the determination was pursuant to

[R.C. 2950.09(B)].” Blake-Taylor at ¶ 4, quoting R.C. 2950.09(B)(1).

{¶26} Jackson did not object to the court’s failure to hold a hearing. The state argues

that because sexual predator classifications are civil in nature, this court must review this error

under a civil plain error standard. In civil cases, the plain error doctrine applies only “in the

extremely rare case involving exceptional circumstances where error, to which no objection was

made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the

judicial process, thereby challenging the legitimacy of the underlying judicial process itself.”

State v. Gowdy,

,

(2000). In Gowdy, the Ohio Supreme

Court held that failure to provide the defendant with adequate notice of a sexual predator

classification hearing “involves such exceptional circumstances” that it amounts to plain error.

. The court in Gowdy further held that “[a]bsent compliance with the mandatory

notice provision of R.C. 2950.09(B)(1), a defendant’s classification must be vacated and the

matter remanded for the trial court to conduct a sexual offender classification hearing with proper

advance notice of the hearing to all parties.”

.

{¶27} In this case, the trial court did not hold a classification hearing. Yet, it announced

at the sentencing hearing that it had classified Jackson a sexual predator. Since the Supreme

Court in Gowdy held that failure to provide the defendant with notice of a classification hearing

amounts to plain error, certainly the failure to actually hold the hearing in violation of a statutory

mandate is also plain error. {¶28} Therefore, the second assignment of error is sustained.

Sentence

{¶29} In the fourth assignment of error, Jackson argues the trial court lacked authority to

sentence him to an indefinite prison term of 8-25 years under pre-S.B. 2 sentencing law. He

contends that although he committed the rape and kidnaping offenses in 1993, he should have

been sentenced under Am.Sub.H.B. 86 (“H.B. 86”), which became effective on September 30,

2011. The state, on the other hand, contends that because H.B. 86 did not repeal Am.Sub.S.B.

No. 2 (“S.B. 2”) and S.B. 2 only applies to offenses committed on or after July 1, 1996,

Jackson’s rape and kidnaping offenses, which were committed in 1993, are not subject to the

sentencing amendments in H.B. 86.

{¶30} Section 5 of S.B. 2 states:

The provisions of the Revised Code in existence prior to July 1, 1996, shall apply to a person upon whom a court imposed a term of imprisonment prior to that date and, NOTWITHSTANDING DIVISION (B) OF SECTION 1.58 OF THE REVISED CODE, to a person upon whom a court on or after that date and in accordance with the law in existence prior to that date, IMPOSES a term of imprisonment for an offense that was committed prior to that date.

(Emphasis sic.)

Thus, in S.B. 2 the General Assembly specifically declared that all defendants who committed

crimes on or before July 1, 1996 had to be sentenced under the law in existence at the time of the

offense, “notwithstanding division (B) of section 1.58 of the Revised Code.” Section 3,

Am.Sub.S.B. No. 269, 146 Ohio Laws, Part IV, 11099, amending Section 5 of S.B. 2. See State

v. Rush,

,

(1998).

{¶31} However, H.B. 86 does not include this exclusionary language. In fact, in

Sections 3 and 4 of the act, the General Assembly expressly provides that certain specified

offenses and certain sentencing provisions are subject to H.B. 86 sentencing amendments even though the subject offenses were committed prior to its effective date. As relevant here, Section

4 states, in relevant part:

SECTION 4. The amendments to * * * division (A) of section 2929.14 of the Revised Code that are made in this act apply to a person penalized under th[at] section[] on or after the effective date of this section and to a person to whom division (B) of section 1.58 of the Revised Code makes the amendments applicable.

{¶32} Division (A) of R.C. 2929.14, which governs basic prison terms, states in relevant

part:

[I]f the court imposing a sentence upon an offender for a felony elects or is required to impose a prison term on the offender pursuant to this chapter, the court shall impose a definite prison term that shall be one of the following:

(1) For a felony of the first degree, the prison term shall be three, four, five, six, seven, eight, nine, ten, or eleven years.

{¶33} Jackson was convicted of rape in violation of R.C. 2907.02(A)(2) and kidnaping in

violation of R.C. 2905.01(A)(4). Both are first-degree felonies. Pursuant to R.C. 2929.14(A),

as amended by H.B. 86, the trial court was required to impose a definite prison term of “three,

four, five, six, seven, eight, nine, ten, or eleven years,” for first-degree felonies. Section 4 of

H.B. 86 specifically states that the basic prison terms outlined in R.C. 2929.14(A), as amended

by the act, apply to a person who is penalized under that section.

{¶34} In contrast to Section 5 of S.B. 2, which excluded application of R.C. 1.58(B) from

its provisions, Section 4 of H.B. 86 expressly states H.B. 86 amendments apply “to a person to

whom division (B) of section 1.58 of the Revised Code makes the amendments applicable.”

R.C. 1.58(B) states:

If the penalty, forfeiture, or punishment for any offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture, or punishment, if not already imposed, shall be imposed according to the statute as amended.

{¶35} These provisions are consistent with the legislative intent behind H.B. 86. In

State v. Limoli,

,

,

, the Ohio Supreme Court examined the effect of H.B. 86 on a defendant who was convicted of an offense specified in

Section 3 of H.B. 86 prior to its effective date but was not sentenced until after its effective date.

The specified offense was possession of crack cocaine in violation of R.C. 2925.11. The court

noted that Section 3 of H.B. 86, which is very similar to Section 4, specifically identified R.C.

2925.11 and stated that R.C. 1.58(B) makes the amendments to that code section applicable.

Therefore, the Limoli court concluded that individuals who possessed crack cocaine in violation

of R.C. 2925.11 prior to H.B. 86’s effective date, but are penalized after its effective date, must

be sentenced under the H.B. 86 amendments. Regarding the legislature’s intent, the Supreme

Court explained:

The goal of the General Assembly in enacting H.B. 86 was “to reduce the state’s

prison population and to save the associated costs of incarceration by diverting

certain offenders from prison and by shortening the terms of other offenders

sentenced to prison.” [State v.] Taylor,

,

,

, citing Ohio Legislative Service Commission, Fiscal Note &

Local Impact Statement to Am.Sub.H.B. 86, at 3 (Sept. 30, 2011).

{¶36} Athough neither Section 3 nor Section 4 specify rape and kidnaping as offenses

covered by H.B. 86, Section 4 states that H.B. 86 amendments apply to defendants penalized

under R.C. 2929.14(A). Moreover, H.B. 86 expressly states that where its sentencing

provisions provide a more lenient sentence than previous sentencing statutes, then R.C. 1.58(B)

makes the H.B. 86 amendments applicable. See Sections 3 and 4 of H.B. 86.

{¶37} Jackson committed the rape and kidnaping offenses on June 7, 1993. He was

charged with these offenses, which are both first-degree felonies, on May 29, 2013. As

previously stated, R.C. 2929.14(A)(1), as amended by H.B. 86, states that the basic prison term

for a first-degree felony “shall be three, four, five, six, seven, eight, nine, ten, or eleven years.” Yet, the trial court sentenced Jackson to an indefinite term of 8 to 25 years pursuant to the

sentencing provisions in effect in 1993, when the offense was committed. The maximum prison

term Jackson could receive for rape under R.C. 2929.14(A)(1) as amended by H.B. 86 is only 11

years, whereas the maximum the trial court imposed under pre-S.B. 2 sentencing laws was 25

years. Section 4 provides that Jackson is entitled to the more lenient sentencing provisions of

H.B. 86 by virtue of R.C. 1.58(B). Therefore, the indefinite prison sentence was not authorized

by law and violated Section 4 of H.B. 86.

{¶38} In State v. Underwood,

,

,

, the

Ohio Supreme Court held that “sentences that do not comport with mandatory provisions are

subject to total resentencing.” Id. at ¶ 20, citing State v. Bezak,

,

,

. Unauthorized sentences are illegal and void ab initio.

State v. Beasley,

,

(1984). Therefore, Jackson’s indefinite

sentence must be vacated.

{¶39} The fourth assignment of error is sustained.

Postrelease Control

{¶40} In the first assignment of error, Jackson argues the trial court erroneously imposed

a five-year period of postrelease control on him. He contends that because the offenses

occurred three years before the effective date of S.B. 2, the trial court had no authority to impose

postrelease control on him in this case.

{¶41} Prior to S.B. 2, which became effective on July 1, 1996, inmates served indefinite

sentences, and the parole authority had discretion to determine when the inmate would be

released from prison and the terms of postrelease supervision, which was then called “parole.”

Woods v. Telb,

,

(2000). Postrelease control was enacted as part of S.B. 2, which eliminated indefinite sentences. Rush,

,

.

{¶42} Since the passage of H.B. 86, defendants are still given definite sentences with

varying periods of postrelease control depending on the severity of the convictions. Although

S.B. 2 made the change from parole supervision to postrelease control, R.C. 2967.28, which

governs postrelease control, has been amended several times and was last amended by

Am.Sub.S.B. No. 160 (“S.B. 160”), which became effective March 22, 2013. Therefore, the

General Assembly intended that postrelease control provided in R.C. 2967.28 shall apply to

sentences imposed under H.B. 86. Since Jackson should have been sentenced under the

sentencing provisions of H.B. 86, he is subject to postrelease control.

Since Jackson should have been sentenced under the sentencing provisions of H.B. 86, and H.B.

86 includes postrelease control, this assigned error is moot.

{¶43} Judgment affirmed in part, vacated in part, and remanded. Jackson’s convictions

are affirmed, however we vacate Jackson’s sentence. We remand the case to the trial court to

hold a sexual offender classification hearing and for a new sentencing hearing to apply H.B. 86’s

sentencing provisions, including postrelease control.

It is ordered that appellee and appellant share 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. The defendant’s conviction having been affirmed,

any bail pending appeal is terminated. Case remanded to the trial court for resentencing.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure. EILEEN T. GALLAGHER, JUDGE

MARY EILEEN KILBANE, P.J., and MELODY J. STEWART, J., CONCUR