State v. Omiecinski

2012 Ohio 98

• Court: Ohio Court of Appeals
• Decided: January 12, 2012
• Docket: 90510
• Status: Published

Opinion

[Cite as State v. Omiecinski, 2012-Ohio-98.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 90510

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

PATRICK OMIECINSKI DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-492609

BEFORE: Boyle, P.J., Sweeney, J., and Celebrezze, J.

RELEASED AND JOURNALIZED: January 12, 2012 2

ATTORNEY FOR APPELLANT Susan J. Moran 55 Public Square Suite 1616 Cleveland, Ohio 44113-1901

ATTORNEYS FOR APPELLEE William D. Mason Cuyahoga County Prosecutor BY: Pamela Bolton Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113

MARY J. BOYLE, P.J.:

{¶ 1} This appeal is before this court on remand from the Ohio Supreme Court for

application of State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108.

{¶ 2} Defendant-appellant, Patrick Omiecinski, pleaded guilty to three counts of sexual

battery in August 2007 for events that occurred in September 2006. In September 2007, the trial

court classified Omiecinski as a sexually oriented offender and sentenced him to four years in

prison. The trial court also informed Omiecinski that he would be subject to five years of

postrelease control and “advised” him that, as of January 2008, he would be classified as a Tier

III sex offender under the Adam Walsh Act (“AWA” or “S.B. 10”).

{¶ 3} Omiecinski appealed, challenging his consecutive sentence, his plea, and the

AWA as applied to him. See State v. Omiecinski, 8th Dist. No. 90510, 2009-Ohio-1066. This

court affirmed his consecutive sentence, holding that it was neither contrary to law nor an abuse

of discretion, upheld his plea, concluding that the trial court did not err when it failed to inform 3

him at his plea hearing that he would be subject to the AWA in the future, and determined that

his constitutional challenge to the AWA was premature, finding that he had not yet been

classified under it. Id. at ¶19, 43, and 45, respectively.

{¶ 4} Omiecinski appealed to the Ohio Supreme Court, which held the appeal for its

decision in Williams, supra. See State v. Omiecinski, 126 Ohio St.3d 1533, 2010-Ohio-3825,

931 N.E.2d 1097.

{¶ 5} The Ohio Supreme Court released its decision in Williams in July 2011. It held

that “S.B. No. 10, as applied to defendants who committed sex offenses prior to its enactment,

violates Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly

from passing retroactive laws.” Id., 129 Ohio St.3d at the syllabus.

{¶ 6} Omiecinski committed his offenses prior to the enactment of S.B. 10. A review

of the record here, however, reveals that Omiecinski was never classified under S.B. 10. He was

sentenced in September 2007 and classified at that time as a sexually oriented offender under

Megan’s Law. Omiecinski filed his notice of appeal in October 2007. His case has been

pending appeal — in this court or the Ohio Supreme Court — since that time. Accordingly, we

conclude that Omiecinski’s classification as a sexually oriented offender under Megan’s Law

remains intact, and the Ohio Supreme Court’s decision in Williams established that he cannot be

reclassified under the AWA.

{¶ 7} Having concluded that Omiecinski is classified as a sexually oriented offender, his

second assignment of error dealing with his plea is moot (he argued that his plea was invalid

because the trial court did not inform him that he would be subject to the AWA in the future). 4

As for his first assignment of error dealing with his consecutive sentence, our opinion in State v.

Omiecinski, 8th Dist. No. 90510, 2009-Ohio-1066, released on March 12, 2009, remains valid.

Judgment affirmed.

FRANK D. CELEBREZZE, JR., J., and JAMES J. SWEENEY, J., CONCUR

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. The defendant’s conviction having been affirmed,

any bail pending appeal is terminated. Case remanded to the trial court for execution of

sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.