State v. Buckwald

2014 Ohio 1953

Opinion

[Cite as State v. Buckwald, 2014-Ohio-1953.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100629

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

DELBERT D. BUCKWALD DEFENDANT-APPELLANT

JUDGMENT: REVERSED, CLASSIFICATION VACATED, REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-576370-A

BEFORE: S. Gallagher, P.J., Keough, J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: May 8, 2014 ATTORNEY FOR APPELLANT

Kelly A. Gallagher P.O. Box 45551 Westlake, OH 44145

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: Margaret A. Troia Jesse W. Canonico Assistant Prosecuting Attorneys Justice Center - 9th Floor 1200 Ontario Street Cleveland, OH 44113 SEAN C. GALLAGHER, P.J.:

{¶1} Appellant Delbert D. Buckwald appeals his sentence with regard to his

sex-offender classification under the Adam Walsh Act. We reverse the judgment, vacate

Buckwald’s Tier III sex-offender classification, and remand the matter for the limited

purpose of classifying Buckwald under Megan’s Law.

{¶2} On October 21, 2013, pursuant to a plea agreement, Buckwald entered a plea

of guilty to two counts of rape in violation of R.C. 2907.02(A)(2) and one count of rape

in violation of R.C. 2907.02(A)(1)(b), all felonies of the first degree, for offenses that

took place in 1993 and 1994. The record reflects that the trial court complied with

Crim.R. 11 and that the guilty pleas were made knowingly, voluntarily, and intelligently.

{¶3} The trial court sentenced Buckwald to ten years on each count, to be served

consecutively with no shock probation. The potential maximum penalty was 25 years on

each count, to be determined by the parole board. The sentence was run consecutive to a

term Buckwald was serving in another case.

{¶4} Buckwald had already been designated a sexual predator from an earlier sex

offense. The trial court permitted Buckwald to elect to be classified as a Tier III sex

offender under the Adam Walsh Act and notified Buckwald of the reporting

requirements.

{¶5} Buckwald filed this appeal, claiming the trial court erred in classifying him as

a Tier III sex offender. He argues that because his offenses occurred prior to the enactment of Ohio’s Adam Walsh Act, he should have been sentenced under Megan’s

Law. He cites State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d

1108, ¶ 21, in which the Ohio Supreme Court determined that application of R.C. Chapter

2950, as amended by S.B. No. 10, to a sex offender who committed an offense prior to

the enactment of S.B. No. 10, violates the Ohio Constitution, Article II, Section 28, which

prohibits the General Assembly from enacting retroactive laws. The state concedes the

error.

{¶6} We hold Buckwald’s classification as a Tier III sex-offender under the Adam

Walsh Act is void. We vacate Buckwald’s sex-offender classification and remand the

matter to the trial court for a classification hearing in accordance with Megan’s Law,

which was the law in effect at the time the offense was committed.

{¶7} Judgment reversed; sex-offender classification vacated; case remanded.

It is ordered that appellant recover from 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 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.

SEAN C. GALLAGHER, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and EILEEN T. GALLAGHER, J., CONCUR