Miller v. Cordray

922 N.E.2d 973, 184 Ohio App. 3d 754
CourtOhio Court of Appeals
DecidedJuly 23, 2009
DocketNo. 08AP-1016
StatusPublished
Cited by7 cases

This text of 922 N.E.2d 973 (Miller v. Cordray) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Miller v. Cordray, 922 N.E.2d 973, 184 Ohio App. 3d 754 (Ohio Ct. App. 2009).

Opinion

McGrath, Judge.

{¶ 1} Plaintiff-appellant, Jerry D. Miller, appeals from a judgment of the Franklin County Court of Common Pleas denying his motion for summary judgment and granting summary judgment in favor of defendants-appellees, Ohio Attorney General Nancy H. Rogers (“Rogers”),1 Franklin County Prosecutor Ron O’Brien, and Franklin County Sheriff James A. Karnes, collectively referred to as “appellees.”

{¶ 2} The parties filed with the trial court a stipulated statement of material facts for purposes of their motions for summary judgment. According to those stipulated facts, on December 22, 1994, appellant was convicted in the 13th [756]*756Judicial Circuit Court of LaSalle County, Illinois, of aggravated criminal sexual abuse, a violation of Chapter 720, Section 5/12 — 16(c)(1)(i) of the Illinois State Criminal Code.2 (Nov. 7, 2008 Corrected Stipulations.) Appellant moved to Ohio prior to 2007 and has lived in Ohio continuously since that time. Appellant did not register with Karnes or any other Ohio sheriff, verify his address, or provide notice of a change of address, at any time subsequent to his arrival in Ohio. Appellant did not receive a letter from Rogers or her predecessors notifying him of reclassification as a tiered sex offender under Senate Bill 10 (“S.B. 10”). Appellant was not reclassified by Rogers or her predecessors as a tiered sex offender under S.B. 10.

{¶ 3} On July 24, 2008, appellant was indicted on one count of failure to register as required by R.C. 2950.04 “from on or about April 19, 2001 to July 18, 2008.” On September 22, 2008, appellant entered a plea of guilty to the stipulated lesser-included offense of attempted failure to register.

{¶ 4} On October 16, 2008, appellant filed a complaint for declaratory judgment, seeking a declaration that he is not subject to the requirements and sanctions of R.C. Chapter 2950, as amended by S.B. 10. Appellant also sought preliminary and permanent injunctive relief. On October 29, 2008, appellant filed a motion for summary judgment. As is pertinent to this appeal, appellant argued in that motion that (1) by operation of law he is not a sex offender because his out-of-state conviction is not substantially equivalent to an Ohio sexually oriented offense, (2) there is no existing authority under which he can lawfully be reclassified as a tiered sex offender, and (3) by operation of law, he has no duty to register. Appellees filed cross-motions for summary judgment, and the parties fully briefed the matter.

{¶ 5} On November 10, 2008, the trial court issued a decision granting appellees’ motions for summary judgment. The trial court found that appellant’s out-of-state conviction was substantially equivalent to the Ohio offense of gross sexual imposition, which pursuant to R.C. 2950.01 is a sexually oriented offense. The trial court further found that the reclassification and registration requirements were applicable to appellant.

{¶ 6} Appellant timely appealed and brings the following three assignments of error for our review:

FIRST ASSIGNMENT OF ERROR
[757]*757The trial court erred in holding that Appellant’s Illinois conviction is substantially equivalent to R.C. 2907.05(A)(4), and thus finding Appellant to have committed a “sexually oriented offense,” as defined by R.C. 2950.01(A)(11).
SECOND ASSIGNMENT OF ERROR
The trial court erred in holding that R.C. 2950.031(B) authorizes the Ohio attorney general to reclassify an offender who has never registered as a sex offender in Ohio, and thus finding Appellant to be subject to reclassification as a tiered offender.
THIRD ASSIGNMENT OF ERROR
The trial court erred in holding that R.C. 2950.07(A)(8) operates to subject Appellant to any ongoing duty to provide notice of address changes or periodically verify his address, and in rejecting, by implication or by omission, Appellant’s assertion that the duties to provide notice and verify, under R.C. 2950.05 and 2950.06, cannot be applied to an offender who has never registered as a sex offender in Ohio.

{¶ 7} This matter was decided in the trial court by summary judgment, which under Civ.R. 56(C) may be granted only when there remains no genuine issue of material fact, the moving party is entitled to judgment as a matter of law, and reasonable minds can come to but one conclusion, that conclusion being adverse to the party opposing the motion. Tokles & Son, Inc. v. Midwestern Indemn. Co. (1992), 65 Ohio St.3d 621, 629, 605 N.E.2d 936, citing Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 8 O.O.3d 73, 375 N.E.2d 46. Additionally, a moving party cannot discharge its burden under Civ.R. 56 simply by making conclusory assertions that the nonmoving party has no evidence to prove its case. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. Rather, the moving party must point to some evidence that affirmatively demonstrates that the nonmoving party has no evidence to support his or her claims. Id.

{¶ 8} An appellate court’s review of summary judgment is de novo. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, 588, 641 N.E.2d 265; Bard v. Soc. Natl. Bank (Sept. 10, 1998), 10th Dist. No. 97APE11-1497, 1998 WL 598092. Thus, we conduct an independent review of the record and stand in the shoes of the trial court. Jones v. Shelly Co. (1995), 106 Ohio App.3d 440, 445, 666 N.E.2d 316. As such, we must affirm the trial court’s judgment if any of the grounds raised by the movant at the trial court are found to support it, even if the trial court failed to consider those grounds. See Dresher, 75 Ohio St.3d 280, 662 N.E.2d 264; Coventry Twp. v. Ecker (1995), 101 Ohio App.3d 38, 41-42, 654 N.E.2d 1327.

{¶ 9} The core issue before us is whether the Illinois statute under which appellant was convicted is substantially equivalent to Ohio’s gross-sexual-imposi[758]*758tion statute such that upon moving into this state, appellant was required to register as a sex offender pursuant to R.C. Chapter 2950. Under his first assigned error, appellant contends that the statutes are not substantially equivalent.

(¶ 10} Prior to the imposition of the Adam Walsh Act, implemented by S.B. 10, trial courts were required to determine whether sex offenders fell into one of three classifications: (1) sexually oriented offenders, (2) habitual sexual offenders, or (3) sexual predators. Effective January 1, 2008, S.B. 10 abolished the prior sex-offender classifications, and now, under S.B. 10, depending on the sex offense committed, an offender is considered a Tier I, Tier II, or Tier III offender.

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Bluebook (online)
922 N.E.2d 973, 184 Ohio App. 3d 754, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-cordray-ohioctapp-2009.