State v. Bell

2018 Ohio 2643

• Court: Ohio Court of Appeals
• Decided: July 5, 2018
• Docket: 105735
• Status: Published

Opinion

[Cite as State v. Bell, 2018-Ohio-2643.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 105735

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

MICHEAL A. BELL

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-607280-A

BEFORE: Jones, J., Boyle, P.J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: July 5, 2018 ATTORNEYS FOR APPELLANT

Mark A. Stanton Cuyahoga County Public Defender

BY: Paul Kuzmins Assistant County Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, Ohio 44113

Judith M. Kowalski 333 Babbitt Road, Suite 323 Euclid, Ohio 44123

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor

BY: Sean Kilbane Assistant County Prosecutor 1200 Ontario Street, 9th Floor Cleveland, Ohio 44113

LARRY A. JONES, SR., J.: {¶1} Defendant-appellant Micheal A. Bell (“Bell”) appeals from the portion of the trial

court’s judgment labeling him a Tier II sexual offender. For the reasons that follow, we affirm.

{¶2} In the summer of 2016, Bell was charged with two counts each of kidnapping, gross

sexual imposition, and attempted gross sexual imposition. The victims were his girlfriend’s

daughters. The older child, who was 11 years of age at the time, stated that Bell would come

into the girls’ bedroom at night and touch them on their buttocks. The younger child denied

that anything happened. Bell denied that any crimes — relative to both victims — occurred.

{¶3} After negotiations with the state, Bell pleaded guilty to two amended counts of gross

sexual imposition in exchange for the remaining counts being nolled; his attorney characterized it

as an Alford plea.1 The trial court sentenced him to 180 days in jail, with 89-90 days credit for

time served, and an additional six-month term of confinement at a facility. The trial court also

sentenced Bell to five years of community control sanctions, and labeled him a Tier II sex

offender. Bell now appeals, setting forth the following assignment of error for our review:

“Mandatory sex offender classifications constitute cruel and unusual punishment in violation of

the Eighth Amendment to the United States Constitution.”

{¶4} The Eighth Amendment to the United States Constitution states, “[e]xcessive bail

shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

“Central to the Constitution’s prohibition against cruel and unusual punishment is the ‘precept

of justice that punishment for crime should be graduated and proportioned to [the] offense.’” In

re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729, ¶ 25, quoting Weems v. United

States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910). Article I, Section 9 of the Ohio

1 Under the authority of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), “[a]n Alford plea is a plea of guilty with a contemporaneous protestation of innocence.” State v. White, 11th Dist. Lake No. 2002-L-146, 2004-Ohio-6474, ¶ 44. Constitution contains its own prohibition against cruel and unusual punishment.

{¶5} Cases involving cruel and unusual punishment are rare, “limited to those involving

sanctions which under the circumstances would be considered shocking to any reasonable

person.” McDougle v. Maxwell, 1 Ohio St.2d 68, 70, 203 N.E.2d 334 (1964). “A punishment

does not violate the constitutional prohibition against cruel and unusual punishments, if it be not

so greatly disproportionate to the offense as to shock the sense of justice of the community.”

State v. Chaffin, 30 Ohio St.2d 13, 282 N.E.2d 46 (1972), paragraph three of the syllabus.

{¶6} Courts have no discretion in classifying adult sex offenders under the Adam Walsh

Act, which is codified in R.C. Chapter 2950. State v. Golson, 8th Dist. Cuyahoga No. 104776,

2017-Ohio-4438, ¶ 14. “R.C. Chapter 2950 presumes that adults who commit certain sexually

oriented offenses automatically pose a future threat to public safety. Thus, a sex offender’s

classification is automatically determined by the offense. R.C. 2950.01(E)-(G).” Id.

{¶7} The Ohio Supreme Court addressed the constitutionality of the Adam Walsh Act as

applied to adults in State v. Blakenship, 145 Ohio St.3d 221, 2015-Ohio-4624, 48 N.E.3d 516.

In Blakenship, the defendant was convicted of one count of unlawful sexual conduct with a

minor. A psychologist who evaluated the defendant characterized him as not exhibiting any of

the indicators of a sex offender and concluded that the defendant’s risk of reoffending was low.

The trial court nonetheless labeled the defendant as a Tier II sex offender.

{¶8} On appeal, the defendant contended that the Tier II sex-offender requirements

imposed on him violated the prohibition of the Eighth Amendment to the United States

Constitution against cruel and unusual punishment. The court disagreed with the defendant,

holding that the

registration and address-verification requirements for Tier II offenders under R.C. Chapter 2950 do not constitute cruel and unusual punishment in violation of either the Eighth Amendment to the United States Constitution or Article I, Section 9 of the Ohio Constitution. The Tier II registration requirements do not meet the high burden of being so extreme as to be grossly disproportionate to the crime or shocking to a reasonable person.

Id. at ¶ 38.

{¶9} Bell’s citation to In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729,

is misplaced. In re C.P. involved a juvenile, not an adult. In addressing the registration and

notification requirements of a juvenile sex offender who was under the jurisdiction of juvenile

court, the Ohio Supreme Court explained that there are some “categorical rules prohibiting

certain punishments for juveniles.” Id. at ¶ 28. The court explained in Blakenship, however,

that In re C.P. does not apply to adult sex offender registration and notification cases; the court

explained that it was “not persuaded that this longstanding distinction between the culpability of

juveniles and adults, even young adults, should be set aside in this case.” Blakenship at ¶ 23.

{¶10} Thus, under the authority of Blakenship, Bell’s sole assignment of error is without

merit.

{¶11} Judgment affirmed.

It is ordered that appellee recover of appellant 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.

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

LARRY A. JONES, SR., JUDGE

MARY J. BOYLE, P.J., and SEAN C. GALLAGHER, J., CONCUR