[Cite as State v. McDonald, 2014-Ohio-989.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2013-07-056
: OPINION - vs - 3/17/2014 :
PHILLIP HALL MCDONALD, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2007 CR 000990
D. Vincent Faris, Clermont County Prosecuting Attorney, Judith A. Brant, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee
Phillip Hall McDonald, #A576-717, Chillicothe Correctional Institution, P.O. Box 5500, Chillicothe, Ohio 45601-0990, defendant-appellant, pro se
RINGLAND, P.J.
{¶ 1} Defendant-appellant, Phillip McDonald, appeals a decision of the Clermont
County Court of Common Pleas classifying him as a sexual predator. For the reasons
detailed below, we affirm the decision of the trial court.
{¶ 2} On November 28, 2007, appellant was indicted on 12 counts for illegal use of a
minor in nudity-oriented material or performance, attempted use of a minor in nudity-oriented Clermont CA2013-07-056
material or performance, voyeurism, and gross sexual imposition. The charges stemmed
from allegations that appellant had taken sexually explicit photographs of four female
juveniles while they were sleeping as guests in his home between the years of 2001 and
2007.
{¶ 3} On February 14, 2008, appellant entered a plea of no contest to the charges.
The trial court accepted appellant's plea of no contest and subsequently found appellant
guilty on all 12 counts. As a result, appellant was sentenced to a total prison term of nine
years and eight months. Appellant was also classified as a Tier II sex offender under the
Adam Walsh Act (AWA). This court affirmed appellant's convictions on direct appeal in State
v. McDonald, 12th Dist. Clermont No. CA2008-05-045, 2009-Ohio-1168.1
{¶ 4} Subsequently, on March 1, 2011, the Ohio Supreme Court released its decision
in State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374. In its decision, the Ohio Supreme
Court held the AWA cannot be applied to any sex offender who committed an offense prior to
its enactment. Id. at ¶ 22. As a result, the court ordered that sex offenders must be
classified under the law in effect at the time the defendant committed the offense. Id. at ¶ 23.
{¶ 5} On April 9, 2012, appellant filed a "petition for declaratory judgment," which the
trial court construed as a motion for postconviction relief. In his motion, appellant alleged
that his classification as a Tier II sex offender under the AWA was improper pursuant to the
Ohio Supreme Court's decision in Williams.
{¶ 6} On October 19, 2012, the trial court issued a written decision finding that
appellant's classification under the AWA must be vacated and ordered a resentencing
hearing on appellant's sex offender classification under the relevant Megan's Law.
1. In his direct appeal, appellant did not raise an assignment of error with respect to his classification as a sex offender under the AWA. Therefore, this court did not address appellant's classification as a sex offender. -2- Clermont CA2013-07-056
{¶ 7} On May 23, 2013, the trial court held a resentencing hearing to determine
appellant's classification under Megan's Law. Following the hearing, the trial court issued
another written decision finding by clear and convincing evidence that appellant was likely to
engage in one or more future sexually-oriented offenses. Accordingly, the trial court
reclassified appellant as a sexual predator. Appellant now appeals the trial court's decision,
raising six assignments of error for review.
{¶ 8} Assignment of Error No. 1:
{¶ 9} THE TRIAL COURT ABUSED ITS DISCRETION BY RECLASSIFYING
MCDONALD UNDER SECTION 2950.09(A) OF THE OHIO REVISED CODE, AND BY
IMPOSING A SEXUAL PREDATOR CLASSIFICATION THAT IS UNAUTHORIZED BY LAW.
{¶ 10} Assignment of Error No. 5:
{¶ 11} THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED TO THE
PREJUDICE OF MCDONALD BECAUSE THE WEIGHT OF THE EVIDENCE DOES NOT
SUPPORT THE DETERMINATION THAT MCDONALD IS LIKELY TO ENGAGE IN THE
FUTURE IN ONE OR MORE SEXUALLY ORIENTED OFFENSES.
{¶ 12} Appellant's first and fifth assignments of error are interrelated and will be
addressed together. In his assignments of error, appellant essentially alleges the trial court
erred when it reclassified him as a sexual predator under Megan's Law. Under his first
assignment of error, appellant argues the trial court erred when it "automatically" classified
him as a sexual predator under Megan's Law. However, under his fifth assignment of error,
appellant argues the evidence presented at his reclassification hearing was insufficient to
support by "clear and convincing evidence that [appellant] is likely to engage in the future in
one or more sexually oriented offenses." We find appellant's contradictory arguments to be
without merit.
{¶ 13} Pursuant to the Ohio Supreme Court's decision in Williams, appellant was -3- Clermont CA2013-07-056
reclassified as a sexual predator under the law in effect at the time appellant committed the
offense, Megan's Law. Williams, 2011-Ohio-3374 at ¶ 23. A sexual predator is defined as a
person who has been convicted of, or has pled guilty, to committing a sexually-oriented
offense and is likely to engage in the future in one or more sexually-oriented offenses. R.C.
2950.01(E); State v. Eppinger, 91 Ohio St.3d 158, 163 (2001). In determining whether an
offender should be classified as a sexual predator, the trial court shall consider all relevant
factors. State v. Carnes, 12th Dist. Brown No. CA2005-01-001, 2006-Ohio-2134, ¶ 91; State
v. Bregen, 12th Dist. Clermont No. CA2005-11-101, 2006-Ohio-4691, ¶ 10. Those factors
include, but are not limited to:
the offender's age; the offender's past criminal conduct; the age of the victim; whether multiple victims were involved; whether the offender used drugs or alcohol to impair the victim or to prevent the victim from resisting; whether the offender was previously convicted of an offense, and if a sexual offense, whether the offender participated in sexual offender treatment; the mental illness or mental disability of the offender; the nature of the offender's sexual conduct, sexual contact, or interaction in a sexual context with the victim of the sexually-oriented offense and whether the sexual conduct, sexual contact, or interaction was part of a demonstrated pattern of abuse; whether the offender displayed cruelty or made one or more threats of cruelty; and any additional behavioral characteristics that contribute to the offender's conduct.
Bregen at ¶ 10, citing R.C. 2950.09(B)(3)(a)-(j).
{¶ 14} The Ohio Revised Code states that there must be clear and convincing
evidence that appellant is a sexual predator prior to application of that classification. R.C.
2950.09(B)(4); Bregen at ¶ 8. Clear and convincing evidence is evidence "which will produce
in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be
established." Id., citing Cross v. Ledford, 161 Ohio St. 469, 477 (1954). A court is under no
obligation to "tally up" the R .C. 2950.09(B)(3) factors in any particular fashion. State v.
Kerps, 4th Dist. Washington No. 02CA2, 2002-Ohio-4806, ¶ 11; State v. Mollohan, 4th Dist.
-4- Clermont CA2013-07-056
Washington No. 98CA13, 1999 WL 671824, *8 (Aug. 19, 1999). In fact, "[a] court may
classify an offender as a 'sexual predator' even if only one or two statutory factors are
present, so long as the totality of the relevant circumstances provides clear and convincing
evidence that the offender is likely to commit a future sexually oriented offense." Id.
{¶ 15} We begin by noting that appellant's reclassification as a sexual predator under
Megan's Law was not done "automatically." Following the trial court's decision to reclassify
appellant under Megan's Law, the trial court scheduled the matter for a hearing. The trial
court issued its findings from that hearing on June 13, 2013. Although appellant never filed a
transcript of those proceedings before this court, appellant acknowledges at several points in
his brief that a hearing did take place. For example, in his brief, appellant notes "[i]t is
irrelevant that the trial court held the alleged adjudication hearing to consider the evidence
and arguments of the parties, as this alleged hearing was nothing more than a ludicrous,
empty show." Because the record does not support appellant's contention that his
classification as a sexual predator under Megan's Law was done automatically, appellant's
first assignment of error is overruled.
{¶ 16} Since we have found the trial court did not automatically reclassify appellant as
a sexual offender, it is appropriate to discuss appellant's fifth assignment of error regarding
appellant's reclassification hearing. However, because his assignment of error argues the
trial court's decision was against the manifest weight of the evidence, appellant was required
to submit a transcript of those proceedings.
{¶ 17} As this court has repeatedly acknowledged, because "an appealing party bears
the burden of showing error in the underlying proceeding by reference to matters in the
record, the appellant has a duty to provide a transcript for appellate review." State v.
Williams, 12th Dist. Clermont No. CA2012-Ohio-08-060, 2013-Ohio-1387, ¶ 18; Knapp v.
Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980); see App. R. 9(B); see also App. R. -5- Clermont CA2013-07-056
16(A)(7). "Where portions of the transcript necessary for resolution of assigned errors are
omitted from the record, the reviewing court has nothing to pass upon and thus has no
choice but to presume the regularity or validity of the lower court's proceedings and affirm."
Knapp at 199; Williams at ¶ 18; State v. Gregory, 12th Dist. Clinton No. CA2006-05-016,
2006-Ohio-7037, ¶ 3. Without a transcript, this court cannot determine whether the trial
court's decision was against the manifest weight of the evidence.
{¶ 18} On June 13, 2013, the trial court issued a written decision detailing its findings
from the May 23, 2013 reclassification hearing. In its decision, the trial court adjudicated
appellant as a sexual predator after considering all of the relevant factors, including those
contained in R.C. 2950.09(B)(3). The trial court explained pertinent findings relevant to its
determination, including the facts that appellant showed little remorse for his actions,
continued to contact at least one of the victims, and has never accepted responsibility for his 2 actions. Based on the totality of the evidence, the trial court found the state had shown by
clear and convincing evidence that appellant was likely to engage in future sexually-oriented
offenses and therefore ordered appellant to be classified as a sexual predator under Megan's
Law.
{¶ 19} Because appellant failed to provide the transcript or provide any evidence to the
contrary, we find the trial court did not err in reclassifying appellant as a sexual predator
under Megan's Law. We are further assisted in this determination by the fact that appellant
does not dispute any particular finding of the trial court. Instead, appellant argues the trial
court's decision was not based on clear and convincing evidence because the trial court
found only two out of the ten possible factors listed in R.C. 2950.09 were relevant. However,
2. The trial court referenced correspondence between appellant and one of the victims, which graphically discussed sex and appellant's desire to engage in sex when he is released from prison, including appellant's revelation that "I don't guess it even matter who I f**k at this point, a stiff dick has no conscious [sic]." -6- Clermont CA2013-07-056
as previously noted, a court is not required to "tally up" the R.C. 2950.09 factors and such
arguments have been consistently rejected by reviewing courts. See, e.g., Keerps, 2002-
Ohio-4806 at ¶ 11; Mollohan, 1999 WL 671824 at *8. As such, we find appellant's first and
fifth assignments of error are without merit.
{¶ 20} Assignment of Error No. 2:
{¶ 21} THE RETROACTIVE APPLICATION OF 2003 AM.SUB.S.B. NO. 5, 150 Ohio
Laws, Part IV, 6558, VIOLATES SECTION 28, ARTICLE II OF THE OHIO CONSTITUTION,
WHICH PROHIBITS THE GENERAL ASSEMBLY FROM PASSING RETROACTIVE LAWS
THAT IMPOSE NEW OR ADDITIONAL BURDENS, DUTIES, OBLIGATIONS, OR
LIABILITIES AS TO PAST TRANSACTIONS.
{¶ 22} Appellant's second assignment of error argues his classification as a sexual
predator constitutes a "new or additional burden, dut[y], obligation, or liabilit[y] as to a past
transaction" in violation of Ohio's prohibition against ex post facto laws contained in Section
28, Article II of the Ohio Constitution. In his assignment of error, appellant essentially argues
the amendments to Ohio's sexual predator classification statute and registration
requirements have become unduly burdensome. As a result, appellant alleges his
classification under Megan's Law is punitive and therefore violates Ohio's prohibition of ex
post fact laws.
{¶ 23} Appellant's position on this matter is confusing. As previously noted, appellant
was reclassified as a sexual predator under Megan's Law. 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 Williams, 2011-Ohio-3374 at ¶ 7. Appellant essentially argues that his
classification under Megan's Law is unconstitutionally retroactive. However, "the Ohio
Supreme Court has consistently held that pre-AWA versions of R.C. Chapter 2950 are
remedial, not punitive, and that retroactive application of them does not violate the Ohio or -7- Clermont CA2013-07-056
United States Constitutions." State v. Bronkar, 5th Dist. Muskingum No. CT2012-0045,
2013-Ohio-683, ¶ 13; State v. Lay, Champaign No. 2012-CA-7, 2012-Ohio-4447, ¶ 7, citing
State v. Cook, 83 Ohio St.3d 404 (1998), and State v. Ferguson, 120 Ohio St.3d 7, 2008-
Ohio-4824. Furthermore, appellant's classification was clearly not applied retroactively.
Megan's Law was in existence prior to appellant's commission of the sexual offenses and
convictions. Accordingly, we find appellant's classification as a sexual predator under
Megan's Law does not "impose new or additional burdens, duties, obligations, or liabilities as
to a past transaction." Appellant's second assignment of error is without merit.
{¶ 24} Assignment of Error No. 3:
{¶ 25} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT IMPOSED SEX
OFFENDER CLASSIFICATION AND REGISTRATION DUTIES ON MCDONALD WITHOUT
PRIOR NOTIFICATION OF THE CONSEQUENCES OF HIS "NO CONTEST" PLEAS [sic]
PURSUANT TO CRIMINAL RULE 11(C)(2)(b).
{¶ 26} In his third assignment of error, appellant argues the trial court "should not have
accepted [appellant's] no contest pleas unless it determined, inter alia, that [appellant] was
voluntarily entering the pleas with the understanding that [appellant's] sex offender
classification and registration duties could change at any time in the future." As a result,
appellant argues the trial court improperly accepted his plea of no contest.
{¶ 27} When a criminal defendant enters a plea of no contest, "the plea must be made
knowingly, intelligently, and voluntarily, and the failure on any of those points renders
enforcement of the plea unconstitutional under both the United States Constitution and the
Ohio Constitution." State v. Douglass, 12th Dist. Butler Nos. CA2008-07-168, CA2008-08-
199, 2009-Ohio-3826, ¶ 9; State v. Engle, 74 Ohio St.3d 525, 527 (1996). In order for a trial
court to ensure that a defendant's plea is knowing, voluntary, and intelligent, it must engage
the defendant in a colloquy pursuant to Crim.R. 11(C). State v. Clark, 119 Ohio St.3d 239, -8- Clermont CA2013-07-056
2008-Ohio-3748, ¶ 25-26.
{¶ 28} "Historically, a trial court had no obligation to inform a defendant of the
applicable registration and notification requirements pursuant to R.C. Chapter 2950 prior to
accepting a guilty plea." State v. Butcher, 12th Dist. Butler No. CA2012-10-206, 2013-Ohio-
3081, ¶ 9. Although a trial court must advise a defendant of the basic registration
requirements under the AWA version of R.C. Chapter 2950 before accepting a guilty plea, we
have held differently for the registration requirements under Megan's Law. Compare id. at ¶
11 with State v. Dotson, 12th Dist. Preble No. CA2007-11-025, 2008-Ohio-4965, at ¶ 28. As
this court acknowledged in Dotson:
Before accepting a guilty plea, courts are not obligated under Crim.R. 11(C)(2) to explain the registration and reporting requirements pursuant to R.C. Chapter 2950, because they are remedial and not punitive in nature. State v. Isaac, Greene App. No. CA03-CA-91, 2004-Ohio-4683, ¶ 33; see also, State v. Nelson (Dec. 29, 1997), Clermont App. No. CA96-09-077, at 3 at 3 (holding the classifications provisions and attendant registration, verification, and community notification requirements of R.C. Chapter 2950 do not constitute punishment). Indeed, the Supreme Court of Ohio noted that R.C. Chapter 2950 was never meant to punish a defendant, instead it was created "to protect the safety and general welfare of the people of this State." State v. Eppinger, 91 Ohio St.3d 158, 165, 743 N.E.2d 881, 2001- Ohio-247.
Dotson at ¶ 28. Accordingly, the trial court was neither required nor obligated to inform
appellant of the registration requirements when he pled no contest to the facts listed in the
indictment.
{¶ 29} Furthermore, we also note the record from appellant's direct appeal reflects that
the trial court did indeed inform appellant of sexual offender registration requirements during
the plea colloquy. In his change of plea hearing held on February 14, 2008, appellant stated
on the record that he understood that a conviction would mandate classification as a sex
offender under the AWA. Although appellant was eventually classified under Megan's Law,
-9- Clermont CA2013-07-056
that fact alone does not invalidate appellant's plea. In fact, appellant's classification as a
sexual predator under Megan's Law was not mandatory. Rather, appellant was afforded
more rights than previously advised when he originally agreed to enter his plea, including a
hearing to determine whether he should be classified as a sexual predator. See R.C.
2950.09(B)(2). Accordingly, the trial court also "substantially complied" with the requirements
of Crim.R.11 and any discrepancy in appellant's classification as a sex offender under the
AWA or Megan's Law did not prejudice appellant. See, e.g., Butcher at ¶ 13 (trial court
properly accepted appellant's guilty plea because the trial court's statements regarding the
registration requirements under R.C. Chapter 2950 "substantially complied" with the
nonconstitutional provisions of Crim.R. 11). Appellant's third assignment of error is overruled.
{¶ 30} Assignment of Error No. 4:
{¶ 31} THE TRIAL COURT ABUSED ITS DISCRETION, AS THE REGISTRATION
DUTIES UNDER FORMER CHAPTER 2950 OF THE OHIO REVISED CODE ARE BARRED
BY THE DOCTRINE OF RES JUDICATA, WHICH PRECLUDES THE RE-LITIGATION OF A
CAUSE OF ACTION.
{¶ 32} In his fourth assignment of error, appellant contends his classification as a
sexual predator under Megan's Law is erroneous based on the doctrine of res judicata. In
essence, appellant appears to argue that because the trial court originally classified him
under the AWA, he is immune from reclassification under Megan's Law following the Ohio
Supreme Court's reversal in Williams. Appellant's argument is without merit.
{¶ 33} Pursuant to the Ohio Supreme Court's decision in Williams, "[t]he remedy for
improper classification is to remand the matter to the trial court for a classification hearing in
accordance with the law in effect at the time the offense was committed." State v. Alsip, 8th
Dist. Cuyahoga No. 98921, 2013-Ohio-1452, ¶ 10; State v. Bolton, 8th Dist. Cuyahoga No.
96385, 2012-Ohio-169, ¶ 103; State v. Johnson, 3d Dist. Wyandot Nos. 16-11-05 and 16-11- - 10 - Clermont CA2013-07-056
06, 2013-Ohio-136, ¶ 9; State v. Dillon, 5th Dist. Muskingum No. CT 11-0062, 2012-Ohio-
773, ¶ 19. That is precisely what happened in the case at bar. Because appellant was given
an improper classification under the AWA, the trial court set a new hearing to determine
appellant's classification in accordance with Megan's Law. See Williams, 2011-Ohio-3374 at
¶ 23. Following a hearing, appellant was classified as a sexual predator. Appellant's
classification as a sexual predator under Megan's Law was not barred by res judicata.
Accordingly, appellant's argument is without merit and his fourth assignment of error is
overruled.
{¶ 34} Assignment of Error No. 6:
{¶ 35} THE TRIAL COURT ABUSED ITS DISCRETION AND ACTED WITH
VINDICTIVENESS TOWARD MCDONALD IN REGARD TO SENTENCES FOR ALLIED
OFFENSES, ADDITIONAL PUNISHMENT UNDER THE ADAM WALSH ACT, AND THE
UNLAWFUL AUTOMATIC CLASSIFICATION AS A SEXUAL PREDATOR UNDER R.C.
2950.09(A).
{¶ 36} In his final assignment of error, appellant argues the trial court acted with
vindictiveness throughout the case because Clermont County is a "close-knit community."
As a result, appellant argues the procedural posture of the case, as well as his classification
as a sexual predator was a product of vindictiveness. Appellant first complains the trial court
was vindictive when it applied the provisions of the AWA, and further, when the trial court
"automatically" classified appellant as a sexual predator under Megan's Law. Next, appellant
complains the trial court was vindictive for imposing sentences for offenses that constituted
allied offenses of similar import. We find no merit to appellant's arguments.
{¶ 37} Due process prohibits a court from imposing a harsher sentence on a
defendant in retaliation for exercising her right to appeal. State v. Craycraft, 12th Dist.
Clermont Nos. CA2011-04-029, CA2011-04-030, 2012-Ohio-884, ¶ 11; State v. Andrews, - 11 - Clermont CA2013-07-056
12th Dist. Butler No. CA2006-06-142, 2007-Ohio-223, ¶ 23; State v. Fernbach, 12th Dist.
Warren Nos. CA2006-11-130, CA2006-11-131, 2008-Ohio-5670, ¶ 27. However, based on
our review of the record, appellant has failed to set forth any coherent argument to show the
trial court acted improperly, or with vindictiveness.
{¶ 38} In the present case, appellant was convicted in 2008 for criminal actions
occurring between the years of 2001 and 2007. The trial court classified appellant as a
sexual predator under the AWA, which came into effect on January 1, 2008. The trial court's
classification was consistent with this court's position on the matter. State v. Williams, 12th
Dist. Warren No. CA2008-02-029, 2008-Ohio-6195, rev'd Williams, 2011-Ohio-3374 at ¶ 23.
However, subsequent to appellant's conviction and sentence, the Ohio Supreme Court
reversed our holding in Williams and held that offenders like appellant could not be classified
under the AWA. See Williams, 2011-Ohio-3374 at ¶ 23. As a result, the trial court properly
vacated appellant's classification under the AWA and held a reclassification hearing to
determine appellant's status as a sex offender under Megan's Law. Following a full hearing,
appellant was reclassified as a sexual predator under Megan's Law. There is no evidence in
the record to suggest the trial court acted with vindictiveness at any point during the process.
{¶ 39} In addition, we also reject appellant's contention that the trial court acted with
vindictiveness when it allegedly entered guilty convictions on offenses constituting allied
offenses of similar import. "Under the doctrine of res judicata, a final judgment of conviction
bars the convicted defendant from raising and litigating in any proceeding, except an appeal
from that judgment, any defense or any claimed lack of due process that was raised or could
have been raised by the defendant at the trial which resulted in that judgment of conviction or
on an appeal from that judgment." State v. Perry, 10 Ohio St.2d 175, 180-181 (1967).
{¶ 40} In the present case, although appellant did initially raise the issue of allied
offenses with the trial court in the original action, appellant failed to raise the issue on direct - 12 - Clermont CA2013-07-056
appeal. See McDonald, 2009-Ohio-1168. Nothing precluded appellant from raising that
argument on direct appeal. Appellant cannot now raise the issue after a final judgment has
been rendered. See, e.g., State v. Hickman, 5th Dist. Licking No. 11-CA-134, 2012-Ohio-
3050; State v. Hughes, 10th Dist. Franklin No. 12AP-165, 2012-Ohio-4513. Accordingly,
appellant's contention is barred by the doctrine of res judicata. As appellant has failed to
raise any valid argument the trial court acted vindictively in any way, we find appellant's
argument is without merit and the sixth assignment of error is overruled.
{¶ 41} Judgment affirmed.
HENDRICKSON and M. POWELL, JJ., concur.
- 13 -