[Cite as State v. Gilbert, 2011-Ohio-1928.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION Nos. 95083 and 95084
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
GABRIEL E. GILBERT DEFENDANT-APPELLANT
JUDGMENT: REVERSED AND VACATED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-533895 and CR-529118
BEFORE: S. Gallagher, J., Kilbane, A.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: April 21, 2011 ATTORNEY FOR APPELLANT
David J. Goodwin P.O. Box 94033 Cleveland, OH 44101-6033
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
BY: W. Mona Scott Assistant Prosecuting Attorney The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶ 1} Appellant Gabriel Gilbert appeals his convictions in Cuyahoga County
Common Pleas Court Case Nos. CR-529118 and CR-533895. The state indicted
Gilbert on one count for failure to verify his current address in violation of
R.C. 2950.06(F) in CR-529118 and one count for failure to provide notice of a
change of address in violation of R.C. 2950.05(E)(1) in CR-533895. 1 Both
cases present a similar issue, and we will address both appeals together. For
1 The indictment lists the violation pursuant to R.C. 2950.05(E)(1), the previous version of R.C. 2950.05(F)(1), which went into effect January 2008. The version of that section in effect at the the following reasons, we reverse Gilbert’s conviction and vacate his sentence
in both cases.
{¶ 2} According to the state, on June 9, 2003, Gilbert pleaded guilty to
two counts of unlawful sexual conduct with a minor. He was sentenced to
three years of community control sanctions and classified as a sexually
oriented offender under Megan’s Law. Under that classification, Gilbert had
to register and verify his address annually for ten years. That obligation
expires June 9, 2013. In June 2008, in a separate case, Gilbert pleaded
guilty to one count of failure to verify his address and was sentenced to one
year of community control sanctions.
{¶ 3} Gilbert was indicted again in CR-529118 and CR-533895 for
failure to verify his current address and failure to notify of a change in
address. Both cases subjected Gilbert to sentencing enhancements based on
his 2008 failure-to-verify conviction. Gilbert pleaded no contest, and the trial
court found him guilty in both cases. It sentenced him to an aggregate of
four years in jail. It is from those convictions and sentence that Gilbert now
appeals.
{¶ 4} Gilbert raises two assignments of errors for our review, as
follows:
time of the indictment was R.C. 2950.05(F)(1). The language of the provisions is identical. {¶ 5} “I. It was error for the trial court to enter judgments of
conviction against appellant by applying to him a statutory scheme (i.e.,
Ohio’s Adam Walsh Act) for the reclassification of sexual offenders that has
since been determined to be unconstitutional, and thus unenforceable, when
applied to offenders, like appellant, who were previously adjudicated and
classified by judges under Ohio’s Megan’s Law.”
{¶ 6} “II. The trial court erred by imposing upon appellant retroactively
and enhanced, mandatory prison term penalty for violation of sexual offender
notification and verification requirements pursuant to amended Revised Code
2950.99 even though appellant’s underlying sexual offense, and original
sexual offender classification, preceded amendment of 2950.99, and
reclassication [sic] of appellant’s offender status has since been determined to
be unconstitutional.”
{¶ 7} In light of State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424,
933 N.E.2d 753 and State v. Gingell, Slip Opinion No. 2011-Ohio-1481, we
find that Gilbert’s first assignment of error has merit and is fully dispositive
of his appeal.
{¶ 8} Ohio’s Adam Walsh Act (“AWA”) went into effect in January
2008. The legislature, through R.C. 2950.031 and 2950.032, authorized the
Ohio Attorney General to reclassify offenders such as Gilbert into the tier
system of the AWA. The Ohio Supreme Court held that the reclassification under the AWA was unlawful if offenders, from a prior court order, had a duty
to report under Megan’s Law. Bodyke, 126 Ohio St.3d 266, at ¶ 22. Further, failing to
report based on an AWA registration requirement unlawfully imposed cannot serve as the
basis of a reporting violation charge. State v. Gingell, 2011-Ohio-1481. The Ohio Supreme
Court did not address this issue from the context of the reporting requirements being the same
under AWA and Megan’s law.
{¶ 9} In State v. Page, Cuyahoga App. No. 94369, 2011-Ohio-83, this court held that
reporting requirements originating from the unlawful reclassification cannot serve as the basis
for a reporting violation. Id. at ¶ 11. The majority noted that Bodyke does not create “a
fictitious distinction between an unlawful reclassification ‘that imposes a more onerous
verification requirement’ and a reclassification that does not impose heightened verification
requirements. Bodyke deemed reclassifications under the AWA unlawful, the only condition
being that the offender has ‘already been classified by court order under former law.’” Id. at
¶ 10, fn.1.
{¶ 10} This distinction is important. Once an offender was reclassified through R.C.
2950.031 and R.C. 2950.032, the offenders’ obligation to report stemmed from the AWA and
their reclassification. Therefore, the violations for an offender’s failure to verify or notify of
a change of address pursuant to R.C. 2950.06(F) and R.C. 2950.05(F)(1) were based on the
duties imposed by the AWA. Any attempt to deem the convictions otherwise valid would be essentially amending the indictment after the fact to charge an offender with a violation based
on the reporting duties under Megan’s Law, which were not reinstated until the Supreme Court
issued the Bodyke decision. Bodyke, 126 Ohio St.3d at 281.
{¶ 11} In the instant case, we first note that neither the trial court nor Gilbert had the
benefit of the Bodyke decision during the pendency of proceedings. The state concedes that
Gilbert’s conviction must be vacated in CR-533895 based on his reclassification under AWA
and the rationale in Bodyke. We agree, despite the fact that the record from the trial court
does not establish his reclassification. We must presume that Gilbert was originally subject
to a reporting requirement by prior court order under Megan’s Law and reclassified when
AWA went into effect in January 2008 based on the state’s representation. Nothing in the
record indicates otherwise.
{¶ 12} Gilbert’s reclassification under the AWA is contrary to the law. Adhering to
precedent in this district, convictions arising from reporting violations under the AWA for any
individual reclassified under its provisions are also contrary to law. Page, Cuyahoga App.
No. 94369, at ¶ 10; see, also, State v. Smith, Cuyahoga App. No. 92550, 2010-Ohio-2880, ¶
29; State v. Patterson, Cuyahoga App. No. 93096, 2010-Ohio-3715; State v. Jones,
Cuyahoga App. No. 93822, 2010-Ohio-5004.
{¶ 13} The state argues that Gilbert’s conviction in CR-529118 is valid because his
duty to notify the sheriff of a change in primary residency was the same under Megan’s Law as it is under AWA. The state claims R.C. 2950.05(E)(1) can be severed from the provision
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[Cite as State v. Gilbert, 2011-Ohio-1928.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION Nos. 95083 and 95084
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
GABRIEL E. GILBERT DEFENDANT-APPELLANT
JUDGMENT: REVERSED AND VACATED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-533895 and CR-529118
BEFORE: S. Gallagher, J., Kilbane, A.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: April 21, 2011 ATTORNEY FOR APPELLANT
David J. Goodwin P.O. Box 94033 Cleveland, OH 44101-6033
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
BY: W. Mona Scott Assistant Prosecuting Attorney The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶ 1} Appellant Gabriel Gilbert appeals his convictions in Cuyahoga County
Common Pleas Court Case Nos. CR-529118 and CR-533895. The state indicted
Gilbert on one count for failure to verify his current address in violation of
R.C. 2950.06(F) in CR-529118 and one count for failure to provide notice of a
change of address in violation of R.C. 2950.05(E)(1) in CR-533895. 1 Both
cases present a similar issue, and we will address both appeals together. For
1 The indictment lists the violation pursuant to R.C. 2950.05(E)(1), the previous version of R.C. 2950.05(F)(1), which went into effect January 2008. The version of that section in effect at the the following reasons, we reverse Gilbert’s conviction and vacate his sentence
in both cases.
{¶ 2} According to the state, on June 9, 2003, Gilbert pleaded guilty to
two counts of unlawful sexual conduct with a minor. He was sentenced to
three years of community control sanctions and classified as a sexually
oriented offender under Megan’s Law. Under that classification, Gilbert had
to register and verify his address annually for ten years. That obligation
expires June 9, 2013. In June 2008, in a separate case, Gilbert pleaded
guilty to one count of failure to verify his address and was sentenced to one
year of community control sanctions.
{¶ 3} Gilbert was indicted again in CR-529118 and CR-533895 for
failure to verify his current address and failure to notify of a change in
address. Both cases subjected Gilbert to sentencing enhancements based on
his 2008 failure-to-verify conviction. Gilbert pleaded no contest, and the trial
court found him guilty in both cases. It sentenced him to an aggregate of
four years in jail. It is from those convictions and sentence that Gilbert now
appeals.
{¶ 4} Gilbert raises two assignments of errors for our review, as
follows:
time of the indictment was R.C. 2950.05(F)(1). The language of the provisions is identical. {¶ 5} “I. It was error for the trial court to enter judgments of
conviction against appellant by applying to him a statutory scheme (i.e.,
Ohio’s Adam Walsh Act) for the reclassification of sexual offenders that has
since been determined to be unconstitutional, and thus unenforceable, when
applied to offenders, like appellant, who were previously adjudicated and
classified by judges under Ohio’s Megan’s Law.”
{¶ 6} “II. The trial court erred by imposing upon appellant retroactively
and enhanced, mandatory prison term penalty for violation of sexual offender
notification and verification requirements pursuant to amended Revised Code
2950.99 even though appellant’s underlying sexual offense, and original
sexual offender classification, preceded amendment of 2950.99, and
reclassication [sic] of appellant’s offender status has since been determined to
be unconstitutional.”
{¶ 7} In light of State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424,
933 N.E.2d 753 and State v. Gingell, Slip Opinion No. 2011-Ohio-1481, we
find that Gilbert’s first assignment of error has merit and is fully dispositive
of his appeal.
{¶ 8} Ohio’s Adam Walsh Act (“AWA”) went into effect in January
2008. The legislature, through R.C. 2950.031 and 2950.032, authorized the
Ohio Attorney General to reclassify offenders such as Gilbert into the tier
system of the AWA. The Ohio Supreme Court held that the reclassification under the AWA was unlawful if offenders, from a prior court order, had a duty
to report under Megan’s Law. Bodyke, 126 Ohio St.3d 266, at ¶ 22. Further, failing to
report based on an AWA registration requirement unlawfully imposed cannot serve as the
basis of a reporting violation charge. State v. Gingell, 2011-Ohio-1481. The Ohio Supreme
Court did not address this issue from the context of the reporting requirements being the same
under AWA and Megan’s law.
{¶ 9} In State v. Page, Cuyahoga App. No. 94369, 2011-Ohio-83, this court held that
reporting requirements originating from the unlawful reclassification cannot serve as the basis
for a reporting violation. Id. at ¶ 11. The majority noted that Bodyke does not create “a
fictitious distinction between an unlawful reclassification ‘that imposes a more onerous
verification requirement’ and a reclassification that does not impose heightened verification
requirements. Bodyke deemed reclassifications under the AWA unlawful, the only condition
being that the offender has ‘already been classified by court order under former law.’” Id. at
¶ 10, fn.1.
{¶ 10} This distinction is important. Once an offender was reclassified through R.C.
2950.031 and R.C. 2950.032, the offenders’ obligation to report stemmed from the AWA and
their reclassification. Therefore, the violations for an offender’s failure to verify or notify of
a change of address pursuant to R.C. 2950.06(F) and R.C. 2950.05(F)(1) were based on the
duties imposed by the AWA. Any attempt to deem the convictions otherwise valid would be essentially amending the indictment after the fact to charge an offender with a violation based
on the reporting duties under Megan’s Law, which were not reinstated until the Supreme Court
issued the Bodyke decision. Bodyke, 126 Ohio St.3d at 281.
{¶ 11} In the instant case, we first note that neither the trial court nor Gilbert had the
benefit of the Bodyke decision during the pendency of proceedings. The state concedes that
Gilbert’s conviction must be vacated in CR-533895 based on his reclassification under AWA
and the rationale in Bodyke. We agree, despite the fact that the record from the trial court
does not establish his reclassification. We must presume that Gilbert was originally subject
to a reporting requirement by prior court order under Megan’s Law and reclassified when
AWA went into effect in January 2008 based on the state’s representation. Nothing in the
record indicates otherwise.
{¶ 12} Gilbert’s reclassification under the AWA is contrary to the law. Adhering to
precedent in this district, convictions arising from reporting violations under the AWA for any
individual reclassified under its provisions are also contrary to law. Page, Cuyahoga App.
No. 94369, at ¶ 10; see, also, State v. Smith, Cuyahoga App. No. 92550, 2010-Ohio-2880, ¶
29; State v. Patterson, Cuyahoga App. No. 93096, 2010-Ohio-3715; State v. Jones,
Cuyahoga App. No. 93822, 2010-Ohio-5004.
{¶ 13} The state argues that Gilbert’s conviction in CR-529118 is valid because his
duty to notify the sheriff of a change in primary residency was the same under Megan’s Law as it is under AWA. The state claims R.C. 2950.05(E)(1) can be severed from the provision
declared unconstitutional in Bodyke. We find this argument is without merit.
{¶ 14} The state’s attempt to implicate Gilbert’s reporting requirements under Megan’s
Law by claiming that Gilbert’s violation was a violation of R.C. 2950.05(E)(1) is misplaced.
Both that section and the version in effect at the time of Gilbert’s reporting violation, R.C.
2950.05(F)(1), require those with a duty to register to provide the sheriff with notice of a
change in address. R.C. 2950.05(A).
{¶ 15} Gilbert’s reclassification was deemed unconstitutional and therefore cannot
serve as the predicate for the violations charged in the indictments in either case, even if the
reporting requirements under the AWA and Megan’s Law are identical. See, e.g., Gingell,
2011-Ohio-1481; State v. Godfrey, Summit App. No. 25187, 2010-Ohio-6454 (reversing the
trial court’s conviction for failure to register and failure to notify of a change of address based
on the rationale from Bodyke). Gilbert’s first assignment of error is sustained.
{¶ 16} Because of our resolution of Gilbert’s first assignment of error, the second
assignment of error is moot and we need not address the issues raised. See App.R.
12(A)(1)(c).
Judgment reversed, and the sentences imposed are vacated.
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, JUDGE
MARY EILEEN KILBANE, A.J., and EILEEN A. GALLAGHER, J., CONCUR