State v. Baker

2012 Ohio 1085

Opinion

[Cite as State v. Baker, 2012-Ohio-1085.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 11CA5 : vs. : Released: March 8, 2012 : KYLE S. BAKER, : DECISION AND JUDGMENT : ENTRY Defendant-Appellant. : _____________________________________________________________ APPEARANCES:

Susan M. Zurface Daniels, Hillsboro, Ohio, for Appellant.

Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for Appellee. _____________________________________________________________

McFarland, J.:

{¶1} Appellant, Kyle Baker, appeals the judgment of the Highland

County Court of Common Pleas. Appellant pled guilty to one count of sexual

battery. Appellant’s appellate counsel has advised this Court that, after

reviewing the record, she cannot find a meritorious claim for appeal. As a

result, Appellant’s counsel has moved to withdraw under Anders v. California

(1967), 386 U.S. 738, 87 S.Ct. 1396. Although we find no merit to the sole

assignment of error raised by appellate counsel, after independently reviewing

the record, we have found a deficiency in the sentencing entry. Specifically, Highland App. No. 11CA5 2

the sentencing entry fails to include a statement that Appellant is a tier III

/child victim offender, as required by R.C. 2929.19(B)(4)(a)(ii).1

Accordingly, this matter is remanded for re-sentencing. Further, having

found the issue raised by appellate counsel to be wholly frivolous, we hereby

grant counsel’s motion to withdraw.

FACTS

{¶2} On September 17, 2010, Appellant was indicted on one count of

rape, a first degree felony in violation of R.C. 2907.02(A)(1)(b), and one

count of gross sexual imposition, a third degree felony in violation of R.C.

2907.05(A)(4). Appellant eventually entered into a negotiated plea agreement

with the State whereby the State agreed to amend the rape charge and dismiss

the gross sexual imposition charge, in exchange for Appellant’s agreement to

plead guilty to a bill of information charging sexual battery, a second degree

felony in violation of R.C. 2907.03(A)(5). Additionally, the bill of

information specified that Appellant was acting in loco parentis with respect

to the ten year old victim at the time of the offense.

{¶3} The trial court held a sentencing hearing on February 14, 2011,

where it sentenced Appellant to a prison term of four years and informed

Appellant he was classified as a tier III sex offender/child victim offender.

1 In reaching our decision, we apply a former version of R.C. 2929.19, rather than the current version, which did not become effective until September 30, 2011. Highland App. No. 11CA5 3

The trial court went on to explain Appellant’s registration duties related to

that classification and further had Appellant complete a form entitled

“Explanation of Duties to Register as a Sex Offender or Child Victim

Offender.” However, the sentencing entry dated February 14, 2011, does not

contain a statement regarding Appellant’s sexual offender classification. It is

from this sentencing entry that Appellant now brings his timely appeal.

ANDERS BRIEF

{¶4} Appellant's counsel has filed an Anders brief in this action. Under

Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, counsel may ask

permission to withdraw from a case when counsel has conscientiously

examined the record, can discern no meritorious claims for appeal, and has

determined the case to be wholly frivolous. Id. at 744; State v. Adkins, Gallia

App. No. 03CA27, 2004-Ohio-3627, at ¶ 8. Counsel's request to withdraw

must be accompanied with a brief identifying anything in the record that

could arguably support the client's appeal. Anders at 744; Adkins at ¶ 8.

Further, counsel must provide the defendant with a copy of the brief and

allow sufficient time for the defendant to raise any other issues, if the

defendant chooses to do so. Id.

{¶5} Once counsel has satisfied these requirements, the appellate court

must conduct a full examination of the trial court proceedings to determine if Highland App. No. 11CA5 4

meritorious issues exist. If the appellate court determines that the appeal is

frivolous, it may grant counsel's request to withdraw and address the merits of

the case without affording the appellant the assistance of counsel. Id. If,

however, the court finds the existence of meritorious issues, it must afford the

appellant assistance of counsel before deciding the merits of the case. Anders

at 744; State v. Duran, Ross App. No. 06CA2919, 2007-Ohio-2743, at ¶ 7.

{¶6} In the current action, Appellant's counsel concludes the appeal is

wholly frivolous and has asked permission to withdraw. Pursuant to Anders,

counsel has filed a brief raising one potential assignment of error for this

court to consider.

POTENTIAL ASSIGNMENT OF ERROR

“THE SEXUAL OFFENDER CLASSIFICATION SCHEME IS UNCONSTIUTIONAL AND THE TRIAL COURT’S CLASSIFICATION OF APPELLANT AS A TIER III/CHILD VICTIM OFFENDER IS IN VIOLATION OF HIS RIGHT TO DUE PROCESS.”

LEGAL ANALYSIS

{¶7} We agree with Appellant's counsel that an appeal based upon an

argument that Ohio’s sexual offender classification scheme is

unconstitutional, at least with respect to original classifications, would be

wholly frivolous. Appellant was sentenced on February 14, 2011, thus, the

trial court's “sexual offender” determination was pursuant to the version of

R.C. Chapter 2950 which became effective in January 2008, commonly Highland App. No. 11CA5 5

referred to as the Adam Walsh Act. Appellant contends that the procedure

under the Adam Walsh Act, also known as Senate Bill 10, is unconstitutional

and violated his right to due process.

{¶8} Initially, we note that the Supreme Court of Ohio has already

found certain aspects of the Adam Walsh Act to be unconstitutional. For

instance, in State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933

N.E.2d 753, the Court held that, to the extent that R.C. 2950.031 and

2950.032 allowed the executive branch to change the status of a sexual

offender who has already been the subject of a judicial determination, the

provisions of the new act violated the separation-of-powers doctrine. To be

more specific, the Supreme Court concluded that, once an offender's

classification had been set through a judicial determination, the executive

branch did not have the authority to “review” such a ruling based upon a new

standard. Id. at paragraph three of the syllabus; see also, State v. Stewart,

Ashtabula App No. 2010-A-0026, 2011-Ohio-2582 at ¶ 11.

{¶9} However, as noted in Stewart, “the Bodyke analysis was

specifically limited to those parts of the Adam Walsh Act involving the re-

classification of a convicted offender; i.e., the Supreme Court did not strike

down the entire new statutory scheme. Therefore, it has been held that Bodyke

has no application when a trial court's initial determination concerning the Highland App. No. 11CA5 6

defendant's classification was made after January 1, 2008, the effective date

of the new act.” Id. at ¶ 12; citing State v. Williams, Montgomery App. No.

22574, 2010-Ohio-3537, at ¶ 14. As a result of the limited scope of Bodyke,

“Ohio appellate courts have continued to follow their prior legal analyses

regarding the general constitutionality of the Adam Walsh Act, as applied to a

defendant who was not sentenced until after the act's effective date.” Stewart

at ¶ 12; citing State v. Cassell, Clark App. No. 09CA0064, 2011-Ohio-23.

{¶10} This Court recently considered a similar argument, albeit in a

juvenile arena, in In re C.P., Athens App. No. 09CA41, 2010-Ohio-1484. In

In re C.P., the appellant challenged his classification as a tier III juvenile

offender registrant and its required community notification and registration,

as imposed by R.C. 2152.86, the juvenile counterpart to R.C. 2950. Despite

the appellant’s due process and equal protection challenges to the

classification scheme and registry requirements, we found no unconstitutional

denial of procedural or substantive due process.

{¶11} Thus, pursuant to Stewart, as well as our reasoning in In re C.P.,

we conclude that Appellant has not demonstrated that the Adam Walsh Act is

unconstitutional or has deprived him of his right to due process. As such, we

conclude that the potential assignment of error advanced by appellate counsel

is wholly without merit. However, after conducting our own independent Highland App. No. 11CA5 7

review of the record, we have identified a deficiency in the sentencing entry

related to Appellant’s sexual offender classification. Specifically, although

the trial court properly informed Appellant of his sexual offender

classification during the sentencing hearing and had Appellant complete a

form regarding his registration requirements, the trial court did not include a

statement regarding Appellant’s sexual offender classification in the

sentencing entry.

R.C. 2929.19(B)(4)(a) states as follows:

“The court shall include in the offender's sentence a statement that the offender is a tier III sex offender/child-victim offender, and the court shall comply with the requirements of section 2950.03 of the Revised Code if any of the following apply:

***

(ii) The offender is being sentenced for a sexually oriented offense that the offender committed on or after January 1, 1997, and the offender is a tier III sex offender/child-victim offender relative to that offense.”

As Appellant was being sentenced for sexual battery with regard to a ten year

old victim, the trial court was required to comply with R.C. 2929.19(B)(4)(a).

{¶12} As indicated above, R.C. 2929.19(B)(4)(a) has two components,

the first of which is that the trial court shall comply with the notification

requirements contained in R.C. 2950.03. State v. Kase, 187 Ohio App.3d

590, 2010-Ohio-2688, 932 N.E.2d 990 at ¶ 25. The relevant portions of R.C.

2950.03 provide as follows: Highland App. No. 11CA5 8

“(A) Each person who has been convicted of, is convicted of, has pleaded guilty to, or pleads guilty to a sexually oriented offense or a child-victim oriented offense and who has a duty to register pursuant to section 2950.04 or 2950.041 of the Revised Code and each person who is adjudicated a delinquent child for committing a sexually oriented offense or a child-victim oriented offense and who is classified a juvenile offender registrant based on that adjudication shall be provided notice in accordance with this section of the offender's or delinquent child's duties imposed under sections 2950.04, 2950.041, 2950.05, and 2950.06 of the Revised Code and of the offender's duties to similarly register, provide notice of a change, and verify addresses in another state if the offender resides, is temporarily domiciled, attends a school or institution of higher education, or is employed in a state other than this state. The following official shall provide the notice required under this division to the specified person at the following time:

(2) Regardless of when the person committed the sexually oriented offense or child-victim oriented offense, if the person is an offender who is sentenced on or after January 1, 2008 for any offense, and if division (A)(1) of this section does not apply, the judge shall provide the notice to the offender at the time of sentencing.” (Emphasis added.) R.C. 2950.03(A)(2).

{¶13} R.C. 2950.03(A)(2) requires that notice shall be given “at the

time of sentencing.” Here, the trial court did provide notice of Appellant’s

classification as a tier III sex offender as well as the duties flowing from that

classification. This notification occurred during the sentencing hearing, just

prior to the trial court having Appellant complete and sign a written form

entitled “Explanation of Duties to Register as a Sex Offender or Child Victim

Offender Duties commencing on or After January 1, 2008 (ORC 2950.04 or

2950.041).” As such, the trial court complied with the first component. Highland App. No. 11CA5 9

{¶14} The second component of R.C. 2929.19(B)(4)(a) requires that

the trial court include a statement of the defendant's sex offender

classification in the judgment entry of sentencing. Kase at ¶ 29. Here, the

trial court erred by failing to include this statement in the sentencing entry.

Although the trial court properly notified Appellant about his sex-offender

classification and corresponding duties during the sentencing hearing, the trial

court's sentencing entry is deficient in that it failed to include a statement that

Appellant is a tier III sex offender/child-victim offender pursuant to R.C.

2929.19(B)(4)(a)(ii). Accordingly, this matter is remanded to the trial court

for re-sentencing. Further, having found the issue raised by appellate counsel

to be wholly frivolous, we hereby grant counsel’s motion to withdraw.

JUDGMENT REMANDED.

Kline, J., concurring.

{¶15} I concur in judgment and opinion. However, I write separately

to note that, in my view, the relevant date for determining whether a

defendant can be classified under S.B. 10 (i.e.,. the Adam Walsh Act) is the

date of the defendant’s conduct, not the date of sentencing or the date of the

final appealable order.

{¶16} The Supreme Court of Ohio has held that S.B. 10 (i.e., the Adam

Walsh Act), “as applied to defendants who committed sex offenses prior to Highland App. No. 11CA5 10

its enactment, violates Section 28, Article II of the Ohio Constitution, which

prohibits the General Assembly from passing retroactive laws.” State v.

Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, syllabus.

However, if a sex offense occurred after January 1, 2008 (i.e., the effective

date of S.B. 10), then a trial court may classify the defendant under S.B. 10.

See State v. Rucker, 1st Dist. No. C-110082, 2012-Ohio-185, ¶ 26 (“Because

[the defendant] committed a sex offense after the effective date of [S.B. 10’s]

classification provisions, we hold that the trial court properly classified him

under that statute.”).

{¶17} Here, the record indicates that Baker committed the acts in

question in December 2009, which is well after the January 1, 2008 effective

date of S.B. 10. As a result, I conclude that the trial court properly classified

Baker under S.B. 10. Thus, the potential assignment of error challenging the

constitutionality of Baker’s sex offender classification lacks merit. Highland App. No. 11CA5 11

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE REMANDED and that the Appellant recover of 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 Highland County Court of Common Pleas carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Harsha, J.: Concurs in Judgment and Opinion and Judge Kline’s concurring Opinion. Kline, J.: Concurs in Judgment and Opinion with Opinion.

For the Court,

BY: _________________________ Matthew W. McFarland, Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.