State v. Vaquera

2013 Ohio 1792

• Court: Ohio Court of Appeals
• Decided: May 2, 2013
• Docket: 98706, 98707
• Status: Published

Opinion

[Cite as State v. Vaquera, 2013-Ohio-1792.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION Nos. 98706 and 98707

STATE OF OHIO PLAINTIFF-APPELLANT

vs.

RAYMUNDO VAQUERA DEFENDANT-APPELLEE

JUDGMENT: REVERSED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-557417

BEFORE: S. Gallagher, J., Boyle, P.J., and Keough, J.

RELEASED AND JOURNALIZED: May 2, 2013 ATTORNEYS FOR APPELLANT

Timothy J. McGinty Cuyahoga County Prosecutor

By: Daniel T. Van Nathaniel Tosi Assistant Prosecuting Attorneys The Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

Robert L. Tobik Cuyahoga County Public Defender

By: John T. Martin Assistant Public Defender Courthouse Square Suite 200 310 Lakeside Avenue Cleveland, Ohio 44113 SEAN C. GALLAGHER, J.:

{¶1} Appellant, the state of Ohio, appeals the judgment of the Cuyahoga County

Court of Common Pleas that sentenced appellee Raymundo Vaquera to 18 months of

community control for an offense of failure to provide notice of change of address, as a

fifth-degree felony. For the reasons stated herein, we reverse the judgment and remand

the case for resentencing as a third-degree felony in accordance with this opinion.

{¶2} In 2001, Vaquera was convicted of gross sexual imposition, a third-degree

felony, in violation of R.C. 2907.05. He was classified as a sexually oriented offender

under Megan’s Law and was subject to registration requirements. On November 3,

2011, Vaquera was indicted on a charge of failure to provide notice of change of address.

The charge included a furthermore clause that indicated Vaquera had a prior violation

for a similar offense in 2009.

{¶3} On June 12, 2012, Vaquera entered a plea of no contest. Before entering the

plea, Vaquera was advised by the court that the level of the offense was uncertain. The

state believed the crime was a second-degree felony with a mandatory, minimum prison

term of three years and a maximum prison term of eight years. Defense counsel argued

the crime was a fifth-degree felony with a possible prison term of six to twelve months.

The court advised Vaquera as to both levels of the offense and determined that Vaquera

understood the maximum penalty involved. Ultimately, the trial court sentenced Vaquera for the offense as a fifth-degree felony and imposed 18 months of community

control.

{¶4} The state obtained leave to appeal. On appeal, the state raises three

assignments of error that argue Vaquera should have been sentenced in accordance with

the version of R.C. 2950.99 in effect at the time of the registration offense, otherwise

known as the Adam Walsh Act. However, since the time the appeal was filed, the Ohio

Supreme Court decided State v. Howard, 134 Ohio St.3d 467, 2012-Ohio-5738, 983

N.E.2d 341. Pursuant to Howard, the applicable penalty provision for sex offenders

originally classified under Megan’s Law is “the version of R.C. 2950.99 in place

immediately prior to the repeal of Megan’s Law by the Adam Walsh Act.” Id. at ¶ 1.

Thus, “[f]or offenders whose underlying offense was a first-, second-, or third-degree

felony, the violation of R.C. 2950.05 was a third-degree felony.” Id. at ¶ 3.

{¶5} Accordingly, we reverse the judgment of the trial court and remand the case

with instructions for the court to vacate Vaquera’s fifth-degree felony conviction, to enter

a finding of guilt for a third-degree felony, and to resentence Vaquera in accordance with

a third-degree felony offense.

{¶6} Judgment reversed; case remanded.

This cause is reversed and remanded to the lower court for further proceedings

consistent with this opinion.

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 J. BOYLE, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR