State v. Bronkar

2013 Ohio 683

• Court: Ohio Court of Appeals
• Decided: February 25, 2013
• Docket: CT2012-0045
• Status: Published

Opinion

[Cite as State v. Bronkar, 2013-Ohio-683.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Patricia A. Delaney, P. J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Sheila G. Farmer, J. -vs- Case No. CT2012-0045 EARL BRONKAR, JR.

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case Nos. C88-0054 and C88-0060

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 25, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

EARL BRONKAR, JR. Post Office Box 5500 Chillicothe, Ohio 45601 Muskingum County, Case No. CT2012-0045 2

Farmer, J.

{¶1} Appellant Earl Bronkar, Jr. appeals from the decisions of the Court of

Common Pleas, Muskingum County, which denied his motions to vacate sex offender

classifications in two 1989 rape cases. The relevant facts leading to this appeal are as

follows.

Trial Court Case No. C88-54

{¶2} On February 1, 1989, appellant pled guilty to four counts of rape, R.C.

2907.02, aggravated felonies of the first degree. The trial court accepted appellant’s

pleas, and the matter proceeded to sentencing on April 10, 1989. At that time, appellant

was sentenced to an indeterminate sentence of seven to twenty-five years on each

count, to be served concurrently to each other and to the sentence imposed in case

number C88-60.

{¶3} On March 16, 2001, the trial court conducted a hearing pursuant to former

R.C. 2950.09(C) and, on March 28, 2001, issued a judgment entry classifying appellant

as a sexual predator under H.B. 180.

{¶4} On September 1, 2012, appellant filed a “motion to vacate

registration/classification” in the trial court. The court denied said motion on September

12, 2012.

Trial Court Case No. C88-60

{¶5} On February 1, 1989, appellant pled guilty to one count of rape, R.C.

2907.02, an aggravated felony of the first degree. The trial court accepted appellant’s

pleas, and the matter proceeded to sentencing on April 10, 1989. At that time, appellant Muskingum County, Case No. CT2012-0045 3

was sentenced to an indeterminate sentence of seven to twenty-five years on each

count, to be served concurrently to the sentence imposed in case number C88-54.

{¶6} On March 16, 2001, the trial court conducted a hearing pursuant to former

R.C. 2950.09(C) and, on March 28, 2001, issued a judgment entry classifying appellant

{¶7} On September 1, 2012, appellant filed a “motion to vacate

registration/classification” in the trial court. The court denied said motion on September

Appellate History

{¶8} On September 24, 2012, appellant filed a notice of appeal as to the

judgment entries dated September 12, 2012 in cases C88-54 and C88-60. Appellant

filed his brief on November 20, 2012. Appellee State of Ohio has not filed a response

brief.

{¶9} Appellant herein raises the following sole Assignment of Error:

{¶10} “I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY

REOPENING A VALID FINAL JUDGMENT.”

I.

{¶11} In his sole Assignment of Error, appellant challenges his sexual predator

classifications rendered subsequent to his 1989 rape convictions.

{¶12} As an initial matter, we note appellant’s brief asserts that he was also

reclassified as a “Tier III” offender approximately in November 2007. However, our

review of the record does not reveal any written documentation of such reclassification,

which presumably would have been handled by the Ohio Attorney General under the Muskingum County, Case No. CT2012-0045 4

S.B. 10 statutory scheme enacted in 2007, which was based on the federal Adam

Walsh Act.1 Furthermore, appellant’s September 2012 motions to “vacate

registration/classification” do not clearly indicate whether he is challenging his original

sexual predator classification or his purported Tier III reclassification, although his

memorandum in support suggests both. Generally, a reviewing court will not presume

facts from a silent record or give credence to statements appearing only in the briefs.

See Enderle v. Chapman, Hamilton App.No. C-880267; State v. Green, Montgomery

App.No. 14049, 1994 WL 718220. Accordingly, we will limit our analysis in the present

appeal to appellant’s challenge to his 2001 sexual predator classifications, which are

the only classifications documented in the present trial court record.

{¶13} Ohio's version of the federal “Megan's Law” was enacted in 1996 under

H.B. 180, and was additionally amended in 2003 by S.B. 5. See State v. Williams, 129

Ohio St.3d 344, 345, 952 N.E.2d 1108, 2011-Ohio-3374, ¶ 7. Appellant’s essential

argument as to his H.B. 180 classifications is based on the theory that such

classifications are unconstitutionally retroactive. However, “[t]he Ohio Supreme Court

consistently has held that pre-Adam Walsh Act versions of R.C. Chapter 2950 are

remedial, not punitive, and that retroactive application of them does not violate the Ohio

or United States Constitutions.” State v. Lay, Champaign App.No. 2012–CA–7, 2012-

Ohio-4447, ¶ 7, citing State v. Cook, 83 Ohio St.3d 404, 700 N.E.2d 570, 1998-Ohio-

291, and State v. Ferguson, 120 Ohio St.3d 7, 896 N.E.2d 110, 2008-Ohio-4824.

1 We must also note the trial court files reflect a motion in each case by the State of Ohio, filed in December 2012, after the notices of appeal, requesting vacation of appellant’s “reclassification that occurred under the Adam Walsh Act.” The record does not indicate that these motions by the State have been addressed by the trial court at this time. Muskingum County, Case No. CT2012-0045 5

Moreover, because appellant apparently never appealed his 2001 sexual predator

classifications, we find his challenge thereto barred by the doctrine of res judicata. See

State v. Valentine, Cuyahoga App.No. 96047, 2011-Ohio-5828, ¶ 17.

{¶14} We therefore find no reversible error regarding the trial court’s denial of

appellant’s motion to vacate his 2001 sexual predator classifications in cases C88-54

and C88-60. The sole Assignment of Error is overruled.

{¶15} For the reasons stated in the foregoing opinion, the decision of the Court

of Common Pleas, Muskingum County, Ohio, is hereby affirmed.

By: Farmer, J.

Delaney, P. J., and

Hoffman, J., concur.

s/ Sheila G. Farmer___________________

s/ Patricia A. Delaney_________________

s/ William B. Hoffman ________________

JUDGES

SGF/d 0206 Muskingum County, Case No. CT2012-0045 6

IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : EARL BRONKAR, JR. : : Defendant-Appellant : Case No. CT2012-0045

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Muskingum County, Ohio, is affirmed.

Costs assessed to appellant.