State v. Bowling

2011 Ohio 4946

• Court: Ohio Court of Appeals
• Decided: September 30, 2011
• Docket: C-100323
• Status: Published

Opinion

[Cite as State v. Bowling, 2011-Ohio-4946.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-100323 TRIAL NO. B-0903357 Plaintiff-Appellee, : O P I N I O N. vs. :

DAVID BOWLING, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part and Cause Remanded

Date of Judgment Entry on Appeal: September 30, 2011

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

Ravert J. Clark, for Defendant-Appellant.

Please note: This case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

S YLVIA S IEVE H ENDON , Judge.

{¶1} On May 22, 2009, defendant-appellant David Bowling, who was

required to register as a sex offender on the basis of a July 14, 1997, conviction for rape,

was indicted for failing to provide notice of an address change, a first-degree felony.

Bowling had been classified on July 29, 1997, as a sexual predator under former R.C.

Chapter 2950 (“Megan’s Law”). See Am.Sub.H.B. No. 180, 146 Ohio Laws, Part II,

2560, enacted in 1996, amended in 2003 by Am.Sub.S.B. No. 5, 150 Ohio Laws, Part IV,

6556. He had been reclassified as a Tier III sex offender by the Ohio Attorney General

under Am.Sub.S.B. No. 10 (“Senate Bill 10”), which the General Assembly enacted in

2007 to implement the federal Adam Walsh Child Protection and Safety Act of 2006.

{¶2} Bowling initially pleaded not guilty by reason of insanity. After a

court-clinic evaluation, Bowling pleaded guilty to failing to provide notice of an address

change as a second-degree felony. He was sentenced to seven years’ incarceration.

Bowling has appealed, raising three assignments of error for our review.

{¶3} We note that the indictment incorrectly referred to Bowling’s failure-to-

notify offense as a violation of R.C. 2950.05(E)(1), and that the sentencing entry

incorrectly referred to the offense as a violation of R.C. 2950.05(E)(2). R.C.

2950.05(E)(1) and (E)(2) set forth the duties of the sheriff upon receiving an offender’s

change-of-address notification or an offender’s registration of a new residence, school,

institution of higher learning, or place of employment. The indictment and the

sentencing entry should have referred to R.C. 2950.05(F)(1), which provides that “[n]o

person who is required to notify a sheriff of a change of address * * * shall fail to notify

the appropriate sheriff * * *.”

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{¶4} A clerical error in an indictment that does not mislead or prejudice a

defendant, even if carried through to the judgment entry, does not affect the validity of

the conviction and may be corrected in a nunc pro tunc entry. See State ex rel.

Womack v. Marsh, 128 Ohio St.3d 303, 2011-Ohio-229, 943 N.E.2d 1010, ¶13, citing

State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263,

¶18-19; State v. Brown, 1st Dist. Nos. C-100309 and C-100310, 2011-Ohio-1029; State

v. Marzolf, 9th Dist. No. 24459, 2009-Ohio-3001; Crim.R. 36. The language of the

indictment and the facts set forth by the prosecutor during Bowling’s plea hearing

clearly indicated that he was charged with and convicted of an offense under R.C.

2950.05(F)(1). Bowling pleaded guilty to facts establishing a violation of R.C.

2950.05(F)(1). It is clear from the record that Bowling was not misled or prejudiced by

the clerical error. Therefore, it may be corrected. See State v. Freeman, 1st Dist. No. C-

100389, 2011-Ohio-4357.

{¶5} Bowling’s first assignment of error alleges that the trial court erred in

accepting his guilty plea. Bowling argues that his plea was not made knowingly,

intelligently, and voluntarily because he was under the influence of prescription

medication.

{¶6} The record shows that in accepting Bowling’s plea, the trial court

conducted a thorough colloquy with Bowling, strictly complying with the provisions

of Crim.R. 11(C) and correctly informing him about the constitutional rights

enumerated in Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709. The court

substantially complied with the rule in all other respects. See State v. Ballard (1981),

66 Ohio St.2d 473, 423 N.E.2d 115; State v. McCann (1997), 120 Ohio App.3d 505,

698 N.E.2d 470.

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{¶7} Regarding Bowling’s medication, the trial court addressed him as

follows:

{¶8} “THE COURT: Today, are you under the influence of drugs,

medication or alcohol?

{¶9} “THE DEFENDANT: Medication.

{¶10} “THE COURT: What medication?

{¶11} “THE DEFENDANT: Morphine, Oxycodone, Neurontin, for pain.

{¶12} “THE COURT: Okay. And do those affect your ability to understand

and make intelligent choices?

{¶13} “THE DEFENDANT: I don’t believe so, no.

{¶14} “THE COURT: Okay. All right. The Court has observed the

defendant for a little while here now at this point and it is apparent to me that the

defendant understands what’s going on and appears to be competent to make

decisions that he’s making today.”

{¶15} The court specifically asked Bowling about his medications and their

effects on him. Bowling indicated that his medications did not affect his ability to

understand the plea proceedings. The trial court stated on the record that Bowling

did not appear to be affected by the medications. The record shows that the trial

court conducted a meaningful dialogue with Bowling to ensure that his plea was

made knowingly, voluntarily, and intelligently. There is no indication in the record

that Bowling was confused, or that he did not understand the nature of the

proceedings or the consequences of his plea. The first assignment of error is

overruled.

4 OHIO FIRST DISTRICT COURT OF APPEALS

{¶16} Bowling’s second assignment of error alleges that he was denied the

effective assistance of counsel because his trial counsel advised him that he would

receive “probation” in exchange for pleading guilty.

{¶17} Counsel’s performance will not be deemed ineffective unless and until

it is proved to have fallen below an objective standard of reasonable representation

and to have prejudiced the defendant. See Strickland v. Washington (1984), 466

U.S. 668, 104 S.Ct. 2052. To show that a defendant has been prejudiced by counsel’s

deficient performance, the defendant must affirmatively demonstrate to a reasonable

probability that were it not for counsel’s errors, the result of the proceedings would

have been different. See id.; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d

373.

{¶18} The record does not demonstrate Bowling’s alleged error. When the

trial court asked Bowling if he had been promised “anything * * * to plead guilty,” he

answered, “No.” Bowling also stated that he was satisfied with counsel’s

representation. Further, during sentencing, Bowling’s counsel stated, “If the court

were to consider community control, he’d be supervised by the probation

department as well as his parole officer in addition to his duties to continue to

report,” indicating that community control was a possibility, not a condition of the

guilty plea.

{¶19} The record does not support Bowling’s claim of ineffective assistance

of counsel. The second assignment of error is overruled.

{¶20} Bowling’s third assignment of error, raised in his supplemental brief,

alleges that the trial court erred in accepting his guilty plea to the failure-to-notify

offense because the offense was based upon an unconstitutional reclassification under

Senate Bill 10.

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{¶21} In State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d

753, the Ohio Supreme Court held that “R.C. 2950.031 and 2950.032, which require

the attorney general to reclassify sex offenders whose classifications have already

been adjudicated by a court and made the subject of a final order, violate the

separation-of-powers doctrine by requiring the reopening of final judgments.” See

id., paragraph three of the syllabus. Further, the court held that the statutes violate

the separation-of-powers doctrine because they “impermissibly instruct the

executive branch to review past decisions of the judicial branch.” See id., paragraph

two of the syllabus. The court severed the statutory provisions, holding that “R.C.

2950.031 and 2950.032 may not be applied to offenders previously adjudicated by

judges under Megan’s Law, and the classifications and community-notification and

registration orders imposed previously by judges are reinstated.” See id. at ¶66.

{¶22} In State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, 946 N.E.2d

192, the Ohio Supreme Court held, citing Bodyke, that an offender who was judicially

classified as a sexually oriented offender and ordered to register annually for ten years

under Megan’s Law could not be prosecuted for failing to comply with a more

restrictive registration requirement imposed after reclassification as a Tier III sex

offender under Senate Bill 10.

{¶23} Bowling was classified under Megan’s Law as a sexual predator on July

29, 1997. He was subsequently reclassified under Senate Bill 10 as a Tier III sex

offender. Pursuant to Bodyke, Bowling’s Megan’s Law classification, community-

notification, and registration orders were reinstated. Bowling’s classification under

Megan’s Law as a sexual predator required him to register for life and to verify his

information every 90 days. He also had an ongoing duty to notify the sheriff of any

change of address. That duty remained the same under both versions of R.C. Chapter

6 OHIO FIRST DISTRICT COURT OF APPEALS

2950 and was not affected by any reclassification. Therefore, his failure-to-notify

offense was not based upon an unconstitutional reclassification.

{¶24} Bowling also alleges that the trial court erred in applying current R.C.

2950.99, which prescribes the penalty for Bowling’s failure-to-notify offense. Bowling

argues that the court should have applied the version of R.C. 2950.99 that was in effect

at the time of his original classification as a sexual predator.

{¶25} “A statute is retroactive if it penalizes conduct that occurred before its

enactment.” See State v. Williams, 103 Ohio St.3d 112, 2004-Ohio-4747, 814 N.E.2d

818, ¶7. A statute that “does not ‘change * * * the legal consequences of acts completed

before its effective date,’ but simply mandates an enhanced penalty for acts committed

after the effective date of the provision,” is not retroactive. See State v. Clark (Aug. 5,

1992), 1st Dist. No. C-910541, citing Miller v. Florida (1987), 482 U.S. 423, 107 S.Ct.

2446.

{¶26} Current R.C. 2050.99’s penalty provisions became effective January 1,

2008. Bowling pleaded guilty to failing to notify the sheriff of an address change on or

about May 1, 2009. Although Bowling’s duty to register stemmed from his sex offense,

his failure to notify the sheriff of an address change was a new offense that he had

committed after the effective date of current R.C. 2950.99’s penalty provisions. See

Freeman, supra at ¶25; State v. Richey, 10th Dist. No. 09AP-36, 2009-Ohio-4487.

Therefore, current R.C. 2950.99 was not applied retroactively to Bowling’s conduct.

See Freeman, supra at ¶25.

{¶27} The Ohio Supreme Court’s decision in State v. Williams, ___ Ohio

St.3d ___, 2011-Ohio-3374, ___ N.E.2d ___, does not require a different result. In

Williams, the court held that “2007 Am.Sub.S.B. No. 10, as applied to defendants who

committed sex offenses prior to its enactment, violates Section 28, Article II of the Ohio

7 OHIO FIRST DISTRICT COURT OF APPEALS

Constitution, which prohibits the General Assembly from passing retroactive laws.” Id.,

syllabus. The court concluded that Senate Bill 10’s more stringent classification,

registration, and community-notification provisions imposed “new or additional

burdens, duties, obligations, or liabilities as to a past transaction” and created “new

burdens, new duties, new obligations, or new liabilities not existing at the time” upon

sex offenders who had committed their crimes prior to Senate Bill 10’s enactment. Id.

at ¶19. The court held that Senate Bill 10’s classification, registration, and community-

notification provisions were punitive and could not constitutionally be retroactively

applied to sex offenders who had committed their sex offenses before its enactment.

{¶28} As we pointed out in Freeman, “Williams dealt with the imposition of

Senate Bill 10’s more stringent registration requirements upon an offender who had

committed his sex offense prior to its enactment.” See Freeman, supra at ¶21. The

instant case deals with the imposition of current R.C. 2950.99’s penalty provisions on

Bowling, who committed his failure-to-notify offense after the effective date of that

statute. Although current R.C. 2950.99 has the same effective date as Senate Bill 10, it

was not enacted as part of Senate Bill 10. It was enacted as part of Am.Sub.S.B. 97

(“Senate Bill 97”), which, among other things, modified the penalties for violations of

the sex-offender registration and notification laws. See Freeman, supra at ¶21.

{¶29} Bowling had committed a sex offense and had been classified under

Megan’s Law as a sexual predator. Pursuant to that classification, he was required to

register as a sex offender every 90 days for life and to notify the sheriff of any change in

his address. Senate Bill 10 did not affect Bowling’s duty to notify the sheriff of a change

of address. Bowling committed his failure-to-notify offense on or about May 1, 2009,

well after the effective date of current R.C. 2950.99. Bowling had an ongoing duty to

notify the sheriff of any change of address. He failed to do so. Bowling’s sentence was

8 OHIO FIRST DISTRICT COURT OF APPEALS

based on his failure-to-notify offense, which occurred after R.C. 2950.99’s effective

date. The third assignment of error is overruled.

{¶30} We, therefore, remand the cause for correction of the record to reflect a

conviction under R.C. 2950.05(F)(1), but in all other respects we affirm the judgment of

the court below.

Judgment affirmed in part, and cause remanded.

H ILDEBRANDT , P.J., and C UNNINGHAM , J., concur.

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