State v. Chessman

935 N.E.2d 887, 188 Ohio App. 3d 428
CourtOhio Court of Appeals
DecidedJuly 9, 2010
DocketNo. 23412
StatusPublished
Cited by4 cases

This text of 935 N.E.2d 887 (State v. Chessman) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Chessman, 935 N.E.2d 887, 188 Ohio App. 3d 428 (Ohio Ct. App. 2010).

Opinion

Brogan, Judge.

{¶ 1} Scott Chessman has appealed from his conviction under section 2950.05 of Ohio’s Sex Offender Registration and Notification Act for failure to notify of a change in telephone numbers. Because there is no penalty specified for such a failure, there can be no criminal offense. We will vacate the conviction.

I

{¶ 2} On November 21, 2003, Chessman was convicted of rape, a first-degree offense, and was sentenced to three years in prison. He was designated a sexually- oriented offender and told that he must register annually for ten years following his release from prison. When S.B. 10 went into effect in 2008 (bringing Ohio’s Sex Offender Registration and Notification Act into compliance with the federal Adam Walsh Child Protection and Safety Act of 2006), Chessman was redesignated a Tier III sex offender.1 This meant, among other things, that [430]*430beginning on January 1, 2008, he had to verify his address and registration information every 90 days. During 2008, Chessman dutifully complied with all his registration requirements.

{¶ 3} On December 18, 2008, Chessman’s sister bought him a cell phone. According to the service provider’s records, the phone was registered to Chessman at his sister’s address. The phone was of the pay-as-you-go variety. This particular phone began with $10 and, after the phone was activated, $2 was deducted every day, whether the user talked on the phone all day or not at all. So after five days this phone would stop working unless more days were purchased.

{¶ 4} Two days later, on December 20, 2008, Chessman was sent to jail for an unspecified parole violation. His parole officer arranged for Chessman to enter the in-residence New Life Program at Volunteers of America (“VOA”) upon his release from jail. When Chessman was released on December 31, 2008, before being taken to the VOA, he was brought to the sheriffs department to fulfill his address-verification requirement. In addition to verifying his address, an offender must also verify that all of his registration information is current, including telephone numbers. Chessman completed and signed the verification paperwork, but he did not list the new cell-phone number.

{¶ 5} Despite knowing that residents at the VOA were not permitted to have cell phones, Chessman smuggled the phone in with him. Even though the phone was no longer functioning, the $10 having been used up some time ago, Chessman hoped to get it working again. Somehow (the record does not say how) Chessman did get the phone working while at the VOA. And, on February 6, 2009, a VOA employee caught Chessman talking on it beneath the covers of his bed. The VOA confiscated the phone and handed it over to Chessman’s parole officer, who then turned it over to the Montgomery County Sheriffs Office.

{¶ 6} Chessman was eventually arrested and indicted on a charge of failure to notify of a change in telephone numbers under division (D) of section 2950.05 in violation of subdivision (F)(1) of that section. After a bench trial, the court found him guilty. Chessman’s duty to notify arose because he was convicted of a sexually-oriented offense (rape), so under R.C. 2950.99(A)(l)(a)(ii), his failure to notify is a first-degree felony. The trial court sentenced Chessman to the statutory-minimum for a first-degree felony, three years in prison. See R.C. 2929.14(A)(1). Chessman appealed.

[431]*431II

{¶ 7} Chessman assigns two errors to the trial court. First, he argues that his conviction is contrary to the manifest weight of the evidence. And, second, he argues that the trial court should not have overruled his motion to dismiss the indictment. We overrule the first assignment of error as moot. We will sustain the second, however, because the indictment does not charge a criminal offense. This means that the trial court had no subject-matter jurisdiction, and the court’s judgment of conviction is void.

{¶ 8} During our review of the above two assignments of error, we noticed that the penalty section of the Sex Offender Registration and Notification Act (“SORNA”), R.C. 2950.99, does not appear to specify a penalty for violation of the requirement in R.C. 2950.05(D) that offenders provide notification of a change in telephone numbers. Although neither party had raised this issue, in the interest of justice, we ordered them to brief the issue of whether R.C. 2950.99 prescribes a penalty for failing to comply with this notice requirement. After reviewing the parties’ supplemental briefs and the penalty section itself, we conclude that the penalty section does not prescribe a penalty for failing to provide notification of a change in telephone numbers. Under Ohio law, when there is no penalty, there is no crime.

{¶ 9} Abrogating the common law of crimes, R.C. 2901.03 says that if conduct is not statutorily defined as an offense, that conduct cannot constitute a criminal offense. R.C. 2901.03(A) (“No conduct constitutes a criminal offense against the state unless it is defined as an offense in the Revised Code”). “[Ujnder R.C. 2901.03(B), a criminal offense is not defined unless ‘one or more sections of the Revised Code state a positive prohibition or enjoin a specific duty, and provide a penalty for violation of such prohibition or failure to meet such duty.’ ” State ex rel. Quality Stamping Prods. v. Ohio Bur. of Workers’ Comp. (1998), 84 Ohio St.3d 259, 264, 703 N.E.2d 309, quoting R.C. 2901.03(B).

{¶ 10} The touchstone of statutory construction is the intent of the legislature. See State v. Jordan (2000), 89 Ohio St.3d 488, 491, 733 N.E.2d 601 (“[Tjhe cornerstone of statutory construction and interpretation is legislative intention”). “ ‘[Tjhe intent of the lawmakers is to be sought first of all in the language employed, and if the words be free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the lawmaking body, there is no occasion to resort to other means of interpretation.’ ” Sears v. Weimer (1944), 143 Ohio St. 312, 316, 28 O.O. 270, 55 N.E.2d 413, quoting Slingluff v. Weaver (1902), 66 Ohio St. 621, 64 N.E. 574, at paragraph two of the syllabus. Intent is determined by giving effect to the words used by the legislature in the statute, not adding or deleting words. Jordan at 492, 733 N.E.2d 601 (saying that a court must “give effect to the words used [in a statute], not * * * delete words [432]*432used or * * * insert words not used” [citations omitted and emphasis sic]). “[P]lain language requires no additional statutory interpretation.” State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124, 2010-Ohio-2671, 931 N.E.2d 110, at ¶ 30; see also Jordan at 492, 733 N.E.2d 601 (“If the meaning of the statute is unambiguous and definite, it must be applied as written and no further interpretation is necessary” [citation omitted]).

{¶ 11} While R.C. 2950.05 positively prohibits failing to provide notification of a change in telephone numbers, the plain language of R.C. 2950.99 provides no penalty for violation.

{¶ 12} The SORNA imposes five registration-related requirements on offenders. R.C.

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Bluebook (online)
935 N.E.2d 887, 188 Ohio App. 3d 428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-chessman-ohioctapp-2010.