State v. Santiago

2011 Ohio 3971

Opinion

[Cite as State v. Santiago, 2011-Ohio-3971.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 91623

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

WILSON SANTIAGO DEFENDANT-APPELLANT

JUDGMENT: REVERSED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-485971

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

RELEASED AND JOURNALIZED: August 11, 2011 ATTORNEY FOR APPELLANT

Katherine A. Szudy Asst. State Public Defender Office of the Ohio Public Defender 250 East Broad Street, Suite 1400 Columbus, Ohio 43215

ATTORNEYS FOR APPELLEE

William Mason Cuyahoga County Prosecutor BY: Jennifer A. Driscoll Assistant Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113

ALSO LISTED

Wilson Santiago Inmate No. 542-818 Lebanon Correctional Institution P.O. Box 56 Lebanon, Ohio 45036

JAMES J. SWEENEY, J.:

{¶ 1} Defendant-appellant Wilson Santiago (“defendant”) appeals the trial court’s

classifying him as a Tier III sex offender under Ohio’s Adam Walsh Child Protection and

Safety Act of 2006 (“ the AWA”), arguing that the retroactive application of this law is

unconstitutional. After reviewing the facts of the case and pertinent law, we reverse.

{¶ 2} On September 14, 2006, defendant was charged in a 27-count indictment, stemming from the August 24, 2006 rape and beating of a woman and the subsequent

killing of a police officer on the west side of Cleveland. On January 30, 2008, defendant

pled guilty to one count of aggravated murder, one count of felonious assault, and one

count of rape. On February 6, 2008, the court sentenced defendant to life in prison

without the possibility of parole and informed defendant that as a Tier III sex offender, he

was subject to registration and notification requirements as mandated by the AWA.

{¶ 3} Defendant appealed and raised the following assignment of error for our

review:

{¶ 4} “I. The retroactive application of Senate Bill 10 to Wilson Santiago

violates the Ex Post Facto, Due Process, and Double Jeopardy Clauses of the United

States Constitution and the Retroactivity Clause of Section 28, Article II of the Ohio

Constitution[,] Fifth and Fourteenth Amendments to the United States Constitution[,] * *

* Sections 10 and 16, Article I of the Ohio Constitution, and Section 28, Article II of the

Ohio Constitution.”

{¶ 5} In this case, defendant’s offense took place prior to the enactment of S.B.

10, aka the Adam Walsh Act. Defendant asserted that his classification under the AWA

was unconstitutional. Due to an impending intra-district conflict, this matter was stayed

pending the resolution of the issue by the Ohio Supreme Court in State v. Williams,

Ohio St.3d , 2011-Ohio-3374. In Williams, the Court held as follows:

{¶ 6} “S.B. 10, as applied to Williams and any other sex offender who committed

an offense prior to the enactment of S.B. 10, violates Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly from enacting retroactive laws.” Id.

at ¶21.

{¶ 7} Adhering to the foregoing authority, defendant’s assignment of error is

sustained.

{¶ 8} The trial court’s order classifying defendant as a Tier III sex offender under

the AWA is reversed. Case remanded for application of Ohio’s sexual offender

registration and notification laws that were effective on the date the offense was

committed, August 24, 2006.

{¶ 9} This cause is reversed and remanded to the lower court for further

proceedings consistent with this opinion.

It is, therefore, considered that said appellant recover of said appellee its costs

herein.

It is ordered that a special mandate be sent to said 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.

JAMES J. SWEENEY, JUDGE

MARY J. BOYLE, P.J., AND LARRY A. JONES, J., CONCUR