State v. Banks

2019 Ohio 2811

Opinion

[Cite as State v. Banks, 2019-Ohio-2811.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-180315 TRIAL NO. B-0203515 Plaintiff-Appellee, :

vs. : O P I N I O N.

JOSEPH BANKS, :

Defendant-Appellant. :

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Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Vacated and Cause Remanded

Date of Judgment Entry on Appeal: July 10, 2019

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

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

Z AYAS , Judge.

{¶1} This is an appeal from a sexual-predator classification under Ohio’s

Megan’s Law, former R.C. Chapter 2950. Defendant-appellant Joseph Banks was

not given proper notice of his sexual-offender-classification hearing pursuant to

former R.C. 2950.09(B)(2) before he was classified as a sexual predator. We vacate

the judgment of the trial court classifying Banks as a sexual predator and remand the

matter for a new sexual-offender-classification hearing.

Facts and Procedural History

{¶2} On July 31, 2002, following a bench trial, Banks was convicted of two

counts of gross sexual imposition in violation of R.C. 2907.05(A)(1). He was

sentenced to two concurrent terms of 18 months in prison and classified as a sexual

predator. On August 6, 2002, the trial court issued a judgment entry and notice of

duties to register as a sexual predator, but did not serve the entry on Banks. On July

16, 2003, upon Banks’s appeal of his convictions, we affirmed the judgment of the

trial court. See State v. Banks, 1st Dist. Hamilton No. C-020554 (July 16, 2003).

{¶3} On September 20, 2010, the trial court denied Banks’s motion to

reconsider his classification. On May 7, 2014, in the case numbered C-130469, we

dismissed for lack of jurisdiction Banks’s appeal of the denial of his motion for

reconsideration. We explained that, because Banks was never provided proper

notice of the sexual-predator entry pursuant to Civ.R. 58, his time for appealing from

the judgment declaring him a sexual predator had not yet begun to run. State v.

Banks, 1st Dist. Hamilton No. C-130469 (May 2, 2014), citing Frazier v. Cincinnati

School of Med. Massage, 1st Dist. Hamilton No. C-060359, 2007-Ohio-2390, ¶ 4-5

(holding that because service of a notice of judgment and its entry had not been

made, the 30 days to appeal had not begun to run). Service of the entry regarding his

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notice of duties to register was thereafter perfected on May 31, 2018. Banks now

appeals from his original adjudication as a sexual predator.

Legal Analysis

{¶4} Banks argues that the trial court erred in three respects by classifying

him as a sexual predator. First, he claims that he did not receive proper notice of his

sexual-offender-classification hearing. Second, he claims that the trial court failed to

appoint an expert witness for him, an indigent defendant, at the classification

hearing, when a risk evaluation was reasonably necessary. Third, he argues that the

trial court failed to specify in the sentencing entry that the classification was

pursuant to former R.C. 2950.09(B). Banks asks us to vacate his classification. The

state concedes that Banks was not given proper notice and argues that Banks’s

classification should be vacated and the cause remanded for a new sexual-offender-

classification hearing pursuant to State v. Gowdy, 88 Ohio St.3d 387, 2000-Ohio-

355, 727 N.E.2d 579, which is directly on point. We agree with the state.

{¶5} Failure to give a defendant notice of his sexual-offender-classification

hearing is reviewed for plain error. Gowdy at 399. “ ‘In appeals of civil cases, the

plain error doctrine is not favored and may be applied 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.’ ” Id., quoting Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d

1099 (1997), syllabus.

{¶6} Proceedings under former R.C. Chapter 2950 were civil proceedings,

not criminal. State v. Cook, 83 Ohio St.3d 404, 416-418, 700 N.E.2d 570 (1998);

State v. Hunter, 144 Ohio App.3d 116, 121, 759 N.E.2d 809 (1st Dist.2001).

Therefore, the rules of civil procedure applied to sexual-predator determinations.

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State v. Marshall, 2d Dist. Montgomery No. 18587, 2001 WL 1468893, *5 (Nov. 16,

2001).

{¶7} In Gowdy, the Supreme Court held that the trial court erred in

conducting a sexual-offender-classification hearing on the same day as sentencing

without having provided notice of the sexual-offender-classification hearing. The

court explained:

[I]t is imperative that counsel have time to adequately prepare for the

hearing. At the hearing, the defendant is entitled 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.” Former R.C.

2950.09(B)(1).

***

[D]ecisions are made regarding classification, registration, and

notification that will have a profound impact on a defendant’s life.

Defendants must have notice of the hearing in order to “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.” Former R.C. 2950.09(B)(1).

Gowdy at 398.

{¶8} The court ultimately held that the notice provision of former R.C.

2950.09(B)(1) demands strict compliance. “Absent compliance with the mandatory

notice provision, defendant’s classification as a sexual predator must be vacated and

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

with proper advance notice of the hearing issued to the parties.” Id. at 399.

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{¶9} Here, it is evident that Banks did not receive proper notice under

former R.C. 2950.09(B)(2). Accordingly, we sustain Banks’s assignment of error,

vacate Banks’s sexual-predator classification, and remand this cause for a new

sexual-offender-classification hearing. We do not address the remaining issues

presented for review because they are now moot.

Judgment accordingly.

BERGERON and CROUSE, JJ., concur.

Please note: The court has recorded its own entry on the date of the release of this opinion.