[Cite as State v. Emanuel,

.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-190450 TRIAL NO. 17CRB-16417C Plaintiff-Appellee, :

vs. : O P I N I O N.

JAMES EMANUEL, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: February 19, 2021

Andrew W. Garth, Interim City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Jon Vogt, Assistant Prosecuting Attorney, for Plaintiff-Appellee State of Ohio, City of Cincinnati,

Raymond T. Faller, Hamilton County Public Defender, and David Hoffmann, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

MYERS, Judge. {¶1} On July 13, 2017, defendant-appellant James Emanuel was convicted

of sexual imposition, a conviction that automatically classified Emanuel as a Tier I

sexual offender. The municipal court judge’s sheet, which sentenced Emanuel,

contains the notation, “all warnings about responsibilities as a sex offender were read

to defendant.” This sentencing entry does not contain the language “Tier I.” The

record contains a notification of registration duties signed by Emanuel indicating

that he was a Tier I sex offender. This notification explains in detail all of Emanuel’s

duties. And, consistent with the judgment entry’s notification that all responsibilities

were read to Emanuel, the judge also signed the written notification form indicating

that he read these duties to Emanuel and that he understood them. Emanuel also

acknowledged by his signature that the requirements had been explained to him.

Emanuel appealed his sexual-imposition conviction, which we affirmed in State v.

Emanuel, 1st Dist. Hamilton Nos. C-170445 and C-170446 (July 18, 2018)

(“Emanuel I”). The only issues raised in Emanuel’s appeal were the weight and

sufficiency of the evidence supporting his conviction.

{¶2} Emanuel’s probation was terminated on March 12, 2019. On June 5,

2019, Emanuel filed a motion to vacate/set aside his tier classification and

registration requirements on the basis that the municipal court had not imposed the

Tier I classification in the sentencing entry, and therefore, the classification had

never been legally imposed. Emanuel further argued that because he had served his

sentence, the trial court had no authority to impose the classification. The trial court

overruled Emanuel’s motion on the basis of a sentence reciting the facts in Emanuel

I, which stated, “The jail term imposed for each crime was suspended, and the trial

court placed him on one year of community control and classified him as a Tier I

sexual offender.” Relying on that sentence, the municipal court stated that “the

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matter has been determined,” and overruled Emanuel’s motion. Emanuel has

appealed.

{¶3} We first note that the issue of Emanuel’s tier classification was not

raised or decided in Emanuel I. The only issues raised in that appeal were the weight

and sufficiency of the evidence. Therefore, the issue of tier classification has not

previously been addressed.

{¶4} In this appeal, Emanuel’s sole assignment of error states, “The trial

court erred in denying the motion to vacate Mr. Emanuel’s tier classification.”

Because we did not previously decide any issue with respect to classification in the

prior appeal, we address it now.

{¶5} This court has held repeatedly that any tier classification under Ohio’s

version of the Adam Walsh Act is a criminal sanction that is part of the sentence and

must be set forth in the sentencing entry in order to be effective. See State v. Rucker,

1st Dist. Hamilton No. C-180606,

; State v. Fannon, 1st Dist.

Hamilton No. C-180270,

; State v. Merritt, 1st Dist. Hamilton No. C-

170649,

; State v. Arszman, 1st Dist. Hamilton No. C-170595, 2018-

Ohio-4132; State v. Rucker, 1st Dist. Hamilton No. C-170488,

; State

v. Hildebrand, 1st Dist. Hamilton No. C-150046,

. We held in

Fannon that the tier classification was never imposed where it was not included in

the sentencing entry, even though the classification was “noted at the hearing and

documented in detail in the ‘Explanation of Duties to Register as a Sex Offender[.]’ ”

In Merritt, we held that the tier classification was not imposed where it was not

included in the sentencing entry, even though the trial court had informed Merritt

before accepting his pleas that he would be a Tier III sex offender subject to

registration requirements.

3 OHIO FIRST DISTRICT COURT OF APPEALS

{¶6} In this case, the municipal court did not include a “Tier I” sex offender

classification in its sentencing entry. It merely stated that the warnings about

responsibilities as a sex offender were given to Emanuel. We must determine if this

was sufficient.

{¶7} Under our case law, the tier classification must be included in the

sentencing entry in order to be effective; and therefore, the tier classification was not

validly imposed in this case. We must now determine how the trial court’s failure to

include the tier classification in the sentencing entry affects Emanuel’s duty to

register. This depends in part on whether the sentence is void or voidable.

{¶8} The Supreme Court of Ohio recently stated, in State v. Harper,

,

,

,

Today, we realign our precedent in cases involving the

imposition of postrelease control with the traditional understanding of

what constitutes a void judgment. When a case is within a court’s

subject-matter jurisdiction and the accused is properly before the

court, any error in the exercise of that jurisdiction in imposing

postrelease control renders the court’s judgment voidable, permitting

the sentence to be set aside if the error has been successfully

challenged on direct appeal.

In this case, the common pleas court had subject-matter

jurisdiction over the case and personal jurisdiction over the accused.

Because the court had the constitutional and statutory power to enter a

finding of guilt and impose a sentence, any error in the exercise of its

jurisdiction in failing to properly impose postrelease control renders

the judgment of conviction voidable, not void, and it is not subject to

collateral attack.

4 OHIO FIRST DISTRICT COURT OF APPEALS

{¶9} In State v. Henderson, Slip Opinion No.

, the

Supreme Court stated, citing Harper, “Here, we conclude that sentences based on an

error, including sentences in which a trial court fails to impose a statutorily

mandated term, are voidable if the court imposing the sentence has jurisdiction over

the case and the defendant.” The Henderson court further stated,

[W]e are mindful that parties may still try to distinguish Harper from

cases that do not involve the imposition of postrelease control. Today,

we make it clear that sentences based on an error are voidable, if the

court imposing the sentence has jurisdiction over the case and the

defendant, including sentences in which a trial court fails to impose a

statutorily mandated term. A sentence is void only if the sentencing

court lacks jurisdiction over the subject matter of the case or personal

jurisdiction over the accused.

Henderson at ¶ 27.

{¶10} While prior precedent held that the classification portion of the

sentence was void, pursuant to the Supreme Court’s decisions in Harper and

Henderson, the trial court’s failure in this case to include in its sentencing entry the

tier classification, which was part of Emanuel’s sentence, rendered that part of the

sentence voidable, not void. Therefore, in order to correct it the error had to be

raised on direct appeal. But neither party raised the error on direct appeal, and it

cannot now be raised.

{¶11} Under our case law requiring that the tier classification be included in

the sentencing entry to be effective, there is no valid order in place requiring

Emanuel to register as a sex offender. Therefore, Emanuel is not required to register

as a sex offender. The assignment of error is sustained.

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{¶12} We note that Emanuel’s motion requested that the trial court

vacate/set aside his sex offender his tier classification and registration requirements.

But because the tier classification was never validly imposed, it need not be vacated

or set aside. We remand this cause with instructions to the trial court to enter an

order that Emanuel does not have to register as a sex offender because there is no

valid order in place requiring him to register.

Judgment accordingly.

ZAYAS, P.J., and CROUSE, J., concur.

Please note: The court has recorded its own entry this date.

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