[Cite as State v. Shelton, 2020-Ohio-1218.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. CT2019-0061 MATHEW E. SHELTON
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. CR2019-0258
JUDGMENT: Affirmed in Part; Reversed in Part and Remanded
DATE OF JUDGMENT ENTRY: March 27, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX ABIGAIL CHRISTOPHER PROSECUTING ATTORNEY 250 East Broad Street TAYLOR P. BENNINGTON Suite 1400 ASSISTANT PROSECUTOR Columbus, Ohio 43215 27 North Fifth Street, P.O. Box 1187 Zanesville, Ohio 43702 Muskingum County, Case No. CT2019-0061 2
Wise, J.
{¶1} Defendant-Appellant Mathew E. Shelton appeals his conviction and
sentence entered in the Muskingum County Court of Common Pleas on one count of
Failure to Register, following a plea of guilty.
{¶2} Plaintiff-Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} The relevant facts and procedural history are as follows:
{¶4} Appellant Mathew Shelton is a Tier III registered sex offender. Such
classification followed an adjudication for first-degree felony rape in September of 2015,
when Appellant was 16 years old. At the time of sentencing, Appellant was made aware
of the terms and conditions of such registration requirements.
{¶5} Pursuant to such registration requirements, Appellant had been registering
with the Muskingum County Sheriff’s Department as a sexual offender.
{¶6} On April 26, 2019, the Muskingum County Sheriff's Office received a
message from Offender Watch notifying them of a change of address for Appellant.
Appellant had reported to Columbiana County with a new address located in their
jurisdiction.
{¶7} Appellant did not advise Muskingum County prior to his move and gave no
notice of his intent to move out of county. Appellant did call the Muskingum County
Sherriff's Department after his move, stating that he was late in notifying them, and that
he had just moved to Columbiana County.
{¶8} Appellant was subsequently arrested. Muskingum County, Case No. CT2019-0061 3
{¶9} On May 8, 2019, Appellant was indicted on one count of Failure to Register
(address change), a felony of the first degree, in violation of R.C. §2950.05(A).
{¶10} On June 17, 2019, Appellant pled guilty and waived a pre-sentence
investigation. The trial court followed the joint recommendation of the parties and
sentenced Appellant to serve a mandatory three (3) years of incarceration with a
mandatory five years of post-release control. (T. at 15; Sent. JE at 2).
{¶11} Appellant now appeals, raising the following assignments of error for review:
ASSIGNMENTS OF ERROR
{¶12} “I. THE TRIAL COURT COMMITTED PLAIN ERROR BY FINDING THAT
PRISON WAS MANDATORY BECAUSE THE STATE FAILED TO PRESENT
EVIDENCE THAT MATHEW SHELTON WAS PREVIOUSLY CONVICTED OF A PRIOR
FELONY OR FAILURE TO REGISTER. R.C. 2950.99, 2929.13(F).
{¶13} “II. MATHEW WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
BECAUSE HIS TRIAL ATTORNEY FAILED TO INFORM THE COURT THAT
MATHEW'S THREE-YEAR PRISON SENTENCE WAS NOT MANDATORY AND
FAILED TO REBUT THE PRESUMPTION IN FAVOR OF SENDING MATHEW TO
PRISON IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS OF THE
U.S. CONSTITUTION, AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO
CONSTITUTION.
{¶14} “III. THE TRIAL COURT ERRED BY ACCEPTING A GUILTY PLEA FROM
A PERSON WHO HAS NOT BEEN CONVICTED AS AN ADULT OF A SEX OFFENSE
IN VIOLATION OF MATHEW'S RIGHTS UNDER THE FOURTEENTH AMENDMENT TO Muskingum County, Case No. CT2019-0061 4
THE U.S. CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO
CONSTITUTION.”
I., II.
{¶15} With regard to Appellant’s first and second assignments of error, the State
concedes the trial court erred in sentencing:
While the trial court was properly within its discretion to follow the
joint recommendation of the parties by sentencing Appellant to the minimum
sentence of three (3) years, the State conceded the prison sentence should
not be mandatory.
(Appellee’s Brief at 2).
Upon review, the State also conceded that re-sentencing is necessary to
comply with Senate Bill 201 “Reagan Tokes Law”. (Appellee’s Brief at 2).
{¶16} We therefore grant Appellant's first and second assignments of error,
vacate the sentence, and remand the matter to the trial court for resentencing.
III.
{¶17} In his third assignment of error, Appellant argues the trial court erred in
accepting his guilty plea because he was not an adult convicted of a sex offense. We
disagree.
{¶18} Three of our sister appellate districts have previously considered whether
the use of a juvenile adjudication can be used as the predicate offense for a failure-to-
register or a failure-to-notify offense committed as an adult. State v. Young, 4th Dist.
Lawrence, 2018-Ohio-4990, 125 N.E.3d 177, appeal allowed, 155 Ohio St.3d 1405, 2019-
Ohio-944, 119 N.E.3d 433; State v. Buttery, 1st Dist. Hamilton No. C-160609, 2017-Ohio- Muskingum County, Case No. CT2019-0061 5
9113, 2017 WL 6508864, appeal allowed, 152 Ohio St.3d 1462, 2018-Ohio-1795, 97
N.E.3d 499. State v. Shazier, 3rd Dist. Logan No. 8-19-12, 2019-Ohio-4409. Each of these
courts have concluded that it does not.
{¶19} In Buttery, the First District explained the differences between R.C. 2950.04,
the duty-to-register statute:
R.C. 2950.04 distinguishes between an adult offender convicted of a
sexually-oriented offense and a juvenile adjudicated delinquent and
classified for having committed a sexually-oriented offense. While both are
required to register under the statute, the registration requirements are
based on either an adult conviction or a juvenile adjudication. The statute
does not treat a juvenile adjudication as a conviction; the juvenile is required
to register based upon the juvenile adjudication and classification. The
registration requirement does not depend on an adult conviction. Like the
juvenile adjudication constituting the disability element in the weapons-
under-disability cases, the juvenile adjudication for a sexually-oriented
offense requires registration in its own right. The juvenile adjudication is not
a penalty-enhancing element; it is an element of the crime of failing to
register. Buttery at ¶ 20.
{¶20} Likewise, in Young, the Fourth District reached a similar conclusion with
respect to R.C. §2950.05, the duty-to-notify statute under which Appellant was convicted.
{¶21} In Young, the Fourth District found that “[n]one of the language in [R.C.
2950.05(F)(1)] suggests that a juvenile adjudication constitutes an adult conviction.”
Young at ¶ 12. The court found that “the duty-to-notify provision does not equate a juvenile Muskingum County, Case No. CT2019-0061 6
adjudication to an adult conviction and it does not enhance the failure-to-notify penalty
due to a prior juvenile adjudication.” Id. Moreover, the court noted that “R.C. Chapter
2950, including the failure-to-notify provision, reflects a legislative policy decision that
individuals labeled as juvenile sex offenders pose an increased risk to public safety and
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[Cite as State v. Shelton, 2020-Ohio-1218.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. CT2019-0061 MATHEW E. SHELTON
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. CR2019-0258
JUDGMENT: Affirmed in Part; Reversed in Part and Remanded
DATE OF JUDGMENT ENTRY: March 27, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX ABIGAIL CHRISTOPHER PROSECUTING ATTORNEY 250 East Broad Street TAYLOR P. BENNINGTON Suite 1400 ASSISTANT PROSECUTOR Columbus, Ohio 43215 27 North Fifth Street, P.O. Box 1187 Zanesville, Ohio 43702 Muskingum County, Case No. CT2019-0061 2
Wise, J.
{¶1} Defendant-Appellant Mathew E. Shelton appeals his conviction and
sentence entered in the Muskingum County Court of Common Pleas on one count of
Failure to Register, following a plea of guilty.
{¶2} Plaintiff-Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} The relevant facts and procedural history are as follows:
{¶4} Appellant Mathew Shelton is a Tier III registered sex offender. Such
classification followed an adjudication for first-degree felony rape in September of 2015,
when Appellant was 16 years old. At the time of sentencing, Appellant was made aware
of the terms and conditions of such registration requirements.
{¶5} Pursuant to such registration requirements, Appellant had been registering
with the Muskingum County Sheriff’s Department as a sexual offender.
{¶6} On April 26, 2019, the Muskingum County Sheriff's Office received a
message from Offender Watch notifying them of a change of address for Appellant.
Appellant had reported to Columbiana County with a new address located in their
jurisdiction.
{¶7} Appellant did not advise Muskingum County prior to his move and gave no
notice of his intent to move out of county. Appellant did call the Muskingum County
Sherriff's Department after his move, stating that he was late in notifying them, and that
he had just moved to Columbiana County.
{¶8} Appellant was subsequently arrested. Muskingum County, Case No. CT2019-0061 3
{¶9} On May 8, 2019, Appellant was indicted on one count of Failure to Register
(address change), a felony of the first degree, in violation of R.C. §2950.05(A).
{¶10} On June 17, 2019, Appellant pled guilty and waived a pre-sentence
investigation. The trial court followed the joint recommendation of the parties and
sentenced Appellant to serve a mandatory three (3) years of incarceration with a
mandatory five years of post-release control. (T. at 15; Sent. JE at 2).
{¶11} Appellant now appeals, raising the following assignments of error for review:
ASSIGNMENTS OF ERROR
{¶12} “I. THE TRIAL COURT COMMITTED PLAIN ERROR BY FINDING THAT
PRISON WAS MANDATORY BECAUSE THE STATE FAILED TO PRESENT
EVIDENCE THAT MATHEW SHELTON WAS PREVIOUSLY CONVICTED OF A PRIOR
FELONY OR FAILURE TO REGISTER. R.C. 2950.99, 2929.13(F).
{¶13} “II. MATHEW WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
BECAUSE HIS TRIAL ATTORNEY FAILED TO INFORM THE COURT THAT
MATHEW'S THREE-YEAR PRISON SENTENCE WAS NOT MANDATORY AND
FAILED TO REBUT THE PRESUMPTION IN FAVOR OF SENDING MATHEW TO
PRISON IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS OF THE
U.S. CONSTITUTION, AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO
CONSTITUTION.
{¶14} “III. THE TRIAL COURT ERRED BY ACCEPTING A GUILTY PLEA FROM
A PERSON WHO HAS NOT BEEN CONVICTED AS AN ADULT OF A SEX OFFENSE
IN VIOLATION OF MATHEW'S RIGHTS UNDER THE FOURTEENTH AMENDMENT TO Muskingum County, Case No. CT2019-0061 4
THE U.S. CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO
CONSTITUTION.”
I., II.
{¶15} With regard to Appellant’s first and second assignments of error, the State
concedes the trial court erred in sentencing:
While the trial court was properly within its discretion to follow the
joint recommendation of the parties by sentencing Appellant to the minimum
sentence of three (3) years, the State conceded the prison sentence should
not be mandatory.
(Appellee’s Brief at 2).
Upon review, the State also conceded that re-sentencing is necessary to
comply with Senate Bill 201 “Reagan Tokes Law”. (Appellee’s Brief at 2).
{¶16} We therefore grant Appellant's first and second assignments of error,
vacate the sentence, and remand the matter to the trial court for resentencing.
III.
{¶17} In his third assignment of error, Appellant argues the trial court erred in
accepting his guilty plea because he was not an adult convicted of a sex offense. We
disagree.
{¶18} Three of our sister appellate districts have previously considered whether
the use of a juvenile adjudication can be used as the predicate offense for a failure-to-
register or a failure-to-notify offense committed as an adult. State v. Young, 4th Dist.
Lawrence, 2018-Ohio-4990, 125 N.E.3d 177, appeal allowed, 155 Ohio St.3d 1405, 2019-
Ohio-944, 119 N.E.3d 433; State v. Buttery, 1st Dist. Hamilton No. C-160609, 2017-Ohio- Muskingum County, Case No. CT2019-0061 5
9113, 2017 WL 6508864, appeal allowed, 152 Ohio St.3d 1462, 2018-Ohio-1795, 97
N.E.3d 499. State v. Shazier, 3rd Dist. Logan No. 8-19-12, 2019-Ohio-4409. Each of these
courts have concluded that it does not.
{¶19} In Buttery, the First District explained the differences between R.C. 2950.04,
the duty-to-register statute:
R.C. 2950.04 distinguishes between an adult offender convicted of a
sexually-oriented offense and a juvenile adjudicated delinquent and
classified for having committed a sexually-oriented offense. While both are
required to register under the statute, the registration requirements are
based on either an adult conviction or a juvenile adjudication. The statute
does not treat a juvenile adjudication as a conviction; the juvenile is required
to register based upon the juvenile adjudication and classification. The
registration requirement does not depend on an adult conviction. Like the
juvenile adjudication constituting the disability element in the weapons-
under-disability cases, the juvenile adjudication for a sexually-oriented
offense requires registration in its own right. The juvenile adjudication is not
a penalty-enhancing element; it is an element of the crime of failing to
register. Buttery at ¶ 20.
{¶20} Likewise, in Young, the Fourth District reached a similar conclusion with
respect to R.C. §2950.05, the duty-to-notify statute under which Appellant was convicted.
{¶21} In Young, the Fourth District found that “[n]one of the language in [R.C.
2950.05(F)(1)] suggests that a juvenile adjudication constitutes an adult conviction.”
Young at ¶ 12. The court found that “the duty-to-notify provision does not equate a juvenile Muskingum County, Case No. CT2019-0061 6
adjudication to an adult conviction and it does not enhance the failure-to-notify penalty
due to a prior juvenile adjudication.” Id. Moreover, the court noted that “R.C. Chapter
2950, including the failure-to-notify provision, reflects a legislative policy decision that
individuals labeled as juvenile sex offenders pose an increased risk to public safety and
that requiring these individuals to comply with the registration and notification provisions
attempts to minimize that risk.” Id. at ¶ 13, citing R.C. §2950.02 and State v. Blankenship,
145 Ohio St.3d 221, 2015-Ohio-4624, 48 N.E.3d 516, ¶ 36. Accordingly, the court
concluded that the defendant's “failure-to-notify conviction [did not] obviously violate[ ] his
due process rights.” Id. at ¶ 16.
{¶22} The Third District agreed with the First and Fourth Districts' analyses,
finding that R.C.§ 2950.05 clearly does not treat a juvenile sex-offense adjudication as an
adult conviction. Instead, a person's duty to provide notice of a change of address can
arise from either a juvenile sex-offense adjudication or an adult conviction. State v.
Shazier, 3rd Dist. Logan No. 8-19-12, 2019-Ohio-4409, ¶¶ 14-17
{¶23} Based on the foregoing, we conclude that use of a prior juvenile sex-offense
adjudication as an element of a failure-to-provide-notice-of-change-of-address offense is
not barred. Therefore, we conclude that Appellant’s constitutional rights to due process
were not violated when the trial court accepted his guilty plea.
{¶24} Appellant's third assignment of error is overruled. Muskingum County, Case No. CT2019-0061 7
{¶25} Accordingly, the judgment of the Court of Common Pleas, Muskingum
County, Ohio, is affirmed in part, reversed in part, and this matter is remanded for further
proceedings consistent with the law and this opinion.
By: Wise, J.
Gwin, P. J., and
Baldwin, J., concur.
JWW/d 0317