State v. Gantt

2012 Ohio 5181

• Court: Ohio Court of Appeals
• Decided: November 8, 2012
• Docket: 98271
• Status: Published

Opinion

[Cite as State v. Gantt, 2012-Ohio-5181.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98271

STATE OF OHIO PLAINTIFF-APPELLANT

vs.

DWAYNE GANTT DEFENDANT-APPELLEE

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-558628

BEFORE: Kilbane, J., Boyle, P.J., and Jones, J.

RELEASED AND JOURNALIZED: November 8, 2012 ATTORNEYS FOR APPELLANT

Timothy J. McGinty Cuyahoga County Prosecutor

BY: Daniel T. Van Daniel South Assistant County Prosecutors The Justice Center 1200 Ontario Street Cleveland, Ohio 44113

ATTORNEY FOR APPELLEE

Mark DeFranco Mark A. DeFranco Law Offices 55 Public Square Suite 1600 Cleveland, Ohio 44113 MARY EILEEN KILBANE, J.:

{¶Error! Bookmark not defined.} The state of Ohio appeals from the order of the

trial court that dismissed the indictment against Dwayne Gantt for his alleged April 15,

2010 failure to register his address in violation of R.C. 2950.06(F). For the reasons set

forth below, we affirm.

{¶Error! Bookmark not defined.} Defendant was convicted of gross sexual

imposition on May 20, 2004. On May 20, 2004, he was adjudicated a sexual predator

and ordered to register and verify his address every 90 days for life, in accordance with

Megan’s Law. Thereafter, on January 1, 2008, the General Assembly repealed Megan’s

Law and replaced it with the Adam Walsh Act (“AWA”), which also sets forth address

registration and verification requirements.

{¶Error! Bookmark not defined.} On April 15, 2010, the indictment alleged Gantt

failed to verify his address as required under R.C. 2950.06(F).

{¶Error! Bookmark not defined.} On June 3, 2010, the Ohio Supreme Court

decided State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753. The

court held that the reclassification provisions of the AWA, which required the attorney

general to reclassify sex offenders who have already been classified by court order under

Megan’s Law, were unconstitutional, and it severed the reclassification provisions, R.C. 2950.031 and 2950.032. Also on that date, the court reinstated the classifications and

community-notification and registration orders imposed previously. Id. at ¶ 66-67.

{¶Error! Bookmark not defined.} On January 26, 2012, Gantt was indicted in

connection with the April 15, 2010 failure to verify his address.

{¶Error! Bookmark not defined.} On March 5, 2012, Gantt moved to dismiss the

indictment and alleged that during the time period of the alleged offense, Megan’s Law

had been repealed. Gantt additionally noted that his underlying conviction occurred prior

to the enactment of the AWA, and under Bodyke the verification requirements of the

AWA cannot be applied to him.

{¶Error! Bookmark not defined.} On March 27, 2012, the trial court dismissed the

indictment. The state now appeals and assigns the following errors for our review:

The trial court erred in dismissing the indictment, because the defendant was indicted for failing to comply with “Megan’s Law” violation.

The trial court erred in dismissing the indictment, because Bodyke did not create a period of time in which neither Megan’s Law or Adam Walsh Act could be enforced.

{¶Error! Bookmark not defined.} The state concedes that this court has previously

rejected these arguments and they are raised for purposes of preserving them for further

review, in connection with State v. Brunning, Ohio Supreme Court No. 2011-1066; State

v. Campbell, Ohio Supreme Court No. 2011-1061; and State v. Gilbert, Ohio Supreme

Court No. 2011-1062, which are currently pending before the Ohio Supreme Court.

{¶Error! Bookmark not defined.} With regard to procedure, we note a trial court

may dismiss an indictment for violations of R.C. Chapter 2950 when it determines that the chapter’s regulations do not apply to the accused. State v. Palmer, 131 Ohio St.3d

278, 2012-Ohio-580, 964 N.E.2d 406, paragraph two of the syllabus.

{¶Error! Bookmark not defined.} With regard to whether the indictment sets forth

a violation of Gantt’s reporting requirements under Megan’s Law, we note that in this

matter, the offense was alleged to have occurred on or about April 15, 2010, or the time

period after the AWA repealed Megan’s Law and before the Bodyke decision in which

the Ohio Supreme Court reinstated the classifications and community-notification and

registration orders of Megan’s Law.

{¶Error! Bookmark not defined.} Therefore, “there is no doubt that he was

indicted for a first-degree felony for a violation of the reporting requirements under the

AWA.” See State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, 946 N.E.2d 192, ¶ 8

(where defendant allegedly failed to verify an address on or about May 6, 2008, and was

charged after his reclassification and before Bodyke, “there is no doubt that he was

indicted for a first-degree felony for a violation of the reporting requirements under the

AWA.”); State v. Ogletree, 8th Dist. No. 96438, 2011-Ohio-5846, ¶ 10, discretionary

appeal allowed, 131 Ohio St.3d 1456, 2012-Ohio-648, 961 N.E.2d 1135 (because

Ogletree was originally classified under Megan’s Law, any reporting requirements

imposed on him under the AWA were unlawfully imposed and, therefore, cannot form the

basis for a reporting violation.). {¶Error! Bookmark not defined.} Further, because Gantt was originally classified

under Megan’s Law, any reporting requirements imposed on him under the AWA were

unlawfully imposed and, therefore, cannot form the basis for a reporting violation. Id.

{¶Error! Bookmark not defined.} In accordance with the foregoing, the

assignments of error are without merit.

{¶Error! Bookmark not defined.} Affirmed.

It is ordered that appellee recover from 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.

______________________________________ MARY EILEEN KILBANE, JUDGE

MARY J. BOYLE, P.J., and LARRY A. JONES, SR., J., CONCUR