[Cite as State v. Wheeler, 2016-Ohio-1069.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27841
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE MARK STEVEN WHEELER COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 2015 03 0902
DECISION AND JOURNAL ENTRY
Dated: March 16, 2016
WHITMORE, Presiding Judge.
{¶1} Appellant, Mark S. Wheeler, appeals from his convictions in the Summit County
Court of Common Pleas. This Court affirms.
I
{¶2} Wheeler was convicted of attempted rape in 1996. In 2000, while he was still
serving his prison sentence, the trial court held a hearing and determined that Wheeler was a
sexual predator under Megan’s Law.
{¶3} In 2013, Wheeler was charged with two counts of failing to provide notice of a
change of address, in violation of R.C. 2950.05. Wheeler moved to dismiss arguing that he was
unconstitutionally classified as a sexual predator. After his motion was denied, Wheeler pled no
contest and appealed to this Court. This Court affirmed the trial court finding, “Wheeler could
be prosecuted for violating the registration requirements that were imposed on him under 2
Megan’s Law, even though they were imposed on him retroactively.” State v. Wheeler, 9th Dist.
Summit No. 27157, 2014-Ohio-3315, ¶ 8 (“Wheeler I”).
{¶4} In 2015, Wheeler was indicted for (1) failing to provide notice of a change of
address and (2) failing to verify current address, in violation of R.C. 2950.05 and 2950.06
respectively. Both charges are third-degree felonies. Defendant pled not guilty and moved to
dismiss the indictments.
{¶5} Wheeler argued that, at the time of his conviction, the only sex offender
classification in Ohio was that of habitual sex offender, which did not apply to him as he had just
the one conviction. He further contended that his subsequent classification violated the United
States and the Ohio Constitutions’ prohibitions on ex post facto laws and double jeopardy. The
trial court noted that this Court had previously addressed these arguments in Wheeler I. The trial
court denied the motion to dismiss “[f]or the reasons stated in that decision.”
{¶6} Thereafter, Wheeler pled no contest, and the trial court found him guilty as
charged. The court sentenced Wheeler to 36 months in prison on each of the charges. The court
ordered those sentences to run concurrent with each other and concurrent with a four-year
sentence imposed in case number CR 2013 01 0113.
{¶7} Wheeler appeals raising two assignments of error for review.
Assignment of Error Number One
APPELLANT’S INDICTMENT VIOLATES OHIO LAW AS DOUBLE JEOPARDY AND APPLICATION OF A LAW EX POST FACTO AGAINST HIM.
{¶8} In his first assignment of error, Wheeler argues that Ohio’s sex offender laws, as
applied to him, violate constitutional prohibitions on ex post facto laws and double jeopardy.
The State contends that Wheeler “rehashes issues settled” in Wheeler I. We agree with the State. 3
{¶9} On appeal from a no contest plea, a defendant may assert that the trial court
prejudicially erred in a ruling on a pretrial motion. Crim.R. 12(I). In the present case, Wheeler
filed a pretrial motion to dismiss arguing that Ohio’s sex offender registration statutes could not
be applied retroactively to him under State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374 and
State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636. After that motion was denied, he pled no
contest preserving his right to appeal these issues to this Court.
{¶10} In Williams, the Ohio Supreme Court found that, following the passage of the
Adam Walsh Act, R.C. Chapter 2950 is now punitive. 2011-Ohio-3374 at ¶ 16 (noting dramatic
and marked changes to the statutory scheme). Consequently, the Court held that it violated the
Ohio Constitution’s prohibition on retroactive laws when applied to defendants who committed
offenses prior to its enactment. Id. at syllabus. In Raber, the Court again analyzed the Adam
Walsh Act and found “because sex-offender registration is now punitive in nature, double-
jeopardy protections barred the court from subsequently classifying [defendant] as a * * * sex
offender at a new proceeding held more than a year after its original sentence.” (Emphasis
added.) 2012-Ohio-5636 at ¶ 4. The Court acknowledged its earlier cases finding that Megan’s
Law was civil and remedial, but reiterated that changes made by the Adam Walsh Act were
punitive. Id. at ¶ 22-23.
{¶11} Megan’s Law became effective in Ohio in 1997 and was amended in 2003. The
Adam Walsh Act became effective in 2008. Wheeler was convicted in 1996 and classified under
Megan’s Law in 2000. There is no indication that Wheeler was ever reclassified under the Adam
Walsh Act. We find, as we did in Wheeler I, that the case law interpreting Megan’s Law, not the
Adam Walsh Act, is applicable to Wheeler. 4
{¶12} In Wheeler I, we noted differences in the Ohio Supreme Court’s treatment of
Megan’s Law and the Adam Walsh Act. 2014-Ohio-3315 at ¶ 6-7. We explained:
Prior to Raber, the Ohio Supreme Court held in State v. Williams, 88 Ohio St.3d 513, 528 (2000), and State v. Cook, 83 Ohio St.3d 404, 413 (1998), that, since Megan’s Law is civil and remedial, it may be applied retroactively without violating the Double Jeopardy Clause or prohibition on retroactive laws. Unless the Supreme Court overrules those decisions regarding Megan’s Law, this Court is bound to follow them. State v. Dickens, 9th Dist. Lorain No. 07CA009218, 2008-Ohio-4404, ¶ 25.
Id. at ¶ 7. Wheeler has not pointed to any case law overruling Williams, 88 Ohio St.3d 513, or
Cook, 83 Ohio St.3d 404, nor have we found any in our independent research.
{¶13} In his current appeal, Wheeler also references changes made to Megan’s Law in
2003, including his inability to petition to have his classification removed. We did not explicitly
address the 2003 amendments in Wheeler I. The Ohio Supreme Court, however, addressed the
2003 amendments in State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824. The Court found
“the remedial nature of R.C. Chapter 2950 was not altered by the elimination of the provision
that permitted a judge to remove the sexual-predator classification.” Id. at ¶ 33. The Court
concluded that the amended statute did not violate the retroactivity clause of the Ohio
Constitution, nor was it unconstitutional on ex post facto grounds. Id. at ¶ 40, 43. Following this
Ohio Supreme Court precedent, we reject Wheeler’s argument that the “2003 amendments
became punitive, rather than remedial.”
{¶14} Wheeler’s first assignment of error is overruled.
Assignment of Error Number Two
THE TRIAL COURT WAS IN ERROR IN SENTENCING APPELLANT TO FOUR YEARS IN HIS PRIOR CASE. 5
{¶15} In his second assignment of error, Wheeler argues that he was improperly
sentenced in his earlier 2013 case. We are without jurisdiction to address the merits of this
assignment of error.
{¶16} A notice of appeal shall designate the judgment or order appealed. App.R. 3(D).
“An appellate court ‘is without jurisdiction to review a judgment or order that is not designated
in the appellant’s notice of appeal.’” State v. Chavers, 9th Dist. Wayne No. 07CA0065, 2008-
Ohio-3199, ¶ 14, quoting State v. Dixon, 9th Dist. Summit No. 21463, 2004-Ohio-1593, ¶ 7.
{¶17} Wheeler filed a notice of appeal in case number CR 2015 03 0902 and designated
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[Cite as State v. Wheeler, 2016-Ohio-1069.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27841
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE MARK STEVEN WHEELER COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 2015 03 0902
DECISION AND JOURNAL ENTRY
Dated: March 16, 2016
WHITMORE, Presiding Judge.
{¶1} Appellant, Mark S. Wheeler, appeals from his convictions in the Summit County
Court of Common Pleas. This Court affirms.
I
{¶2} Wheeler was convicted of attempted rape in 1996. In 2000, while he was still
serving his prison sentence, the trial court held a hearing and determined that Wheeler was a
sexual predator under Megan’s Law.
{¶3} In 2013, Wheeler was charged with two counts of failing to provide notice of a
change of address, in violation of R.C. 2950.05. Wheeler moved to dismiss arguing that he was
unconstitutionally classified as a sexual predator. After his motion was denied, Wheeler pled no
contest and appealed to this Court. This Court affirmed the trial court finding, “Wheeler could
be prosecuted for violating the registration requirements that were imposed on him under 2
Megan’s Law, even though they were imposed on him retroactively.” State v. Wheeler, 9th Dist.
Summit No. 27157, 2014-Ohio-3315, ¶ 8 (“Wheeler I”).
{¶4} In 2015, Wheeler was indicted for (1) failing to provide notice of a change of
address and (2) failing to verify current address, in violation of R.C. 2950.05 and 2950.06
respectively. Both charges are third-degree felonies. Defendant pled not guilty and moved to
dismiss the indictments.
{¶5} Wheeler argued that, at the time of his conviction, the only sex offender
classification in Ohio was that of habitual sex offender, which did not apply to him as he had just
the one conviction. He further contended that his subsequent classification violated the United
States and the Ohio Constitutions’ prohibitions on ex post facto laws and double jeopardy. The
trial court noted that this Court had previously addressed these arguments in Wheeler I. The trial
court denied the motion to dismiss “[f]or the reasons stated in that decision.”
{¶6} Thereafter, Wheeler pled no contest, and the trial court found him guilty as
charged. The court sentenced Wheeler to 36 months in prison on each of the charges. The court
ordered those sentences to run concurrent with each other and concurrent with a four-year
sentence imposed in case number CR 2013 01 0113.
{¶7} Wheeler appeals raising two assignments of error for review.
Assignment of Error Number One
APPELLANT’S INDICTMENT VIOLATES OHIO LAW AS DOUBLE JEOPARDY AND APPLICATION OF A LAW EX POST FACTO AGAINST HIM.
{¶8} In his first assignment of error, Wheeler argues that Ohio’s sex offender laws, as
applied to him, violate constitutional prohibitions on ex post facto laws and double jeopardy.
The State contends that Wheeler “rehashes issues settled” in Wheeler I. We agree with the State. 3
{¶9} On appeal from a no contest plea, a defendant may assert that the trial court
prejudicially erred in a ruling on a pretrial motion. Crim.R. 12(I). In the present case, Wheeler
filed a pretrial motion to dismiss arguing that Ohio’s sex offender registration statutes could not
be applied retroactively to him under State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374 and
State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636. After that motion was denied, he pled no
contest preserving his right to appeal these issues to this Court.
{¶10} In Williams, the Ohio Supreme Court found that, following the passage of the
Adam Walsh Act, R.C. Chapter 2950 is now punitive. 2011-Ohio-3374 at ¶ 16 (noting dramatic
and marked changes to the statutory scheme). Consequently, the Court held that it violated the
Ohio Constitution’s prohibition on retroactive laws when applied to defendants who committed
offenses prior to its enactment. Id. at syllabus. In Raber, the Court again analyzed the Adam
Walsh Act and found “because sex-offender registration is now punitive in nature, double-
jeopardy protections barred the court from subsequently classifying [defendant] as a * * * sex
offender at a new proceeding held more than a year after its original sentence.” (Emphasis
added.) 2012-Ohio-5636 at ¶ 4. The Court acknowledged its earlier cases finding that Megan’s
Law was civil and remedial, but reiterated that changes made by the Adam Walsh Act were
punitive. Id. at ¶ 22-23.
{¶11} Megan’s Law became effective in Ohio in 1997 and was amended in 2003. The
Adam Walsh Act became effective in 2008. Wheeler was convicted in 1996 and classified under
Megan’s Law in 2000. There is no indication that Wheeler was ever reclassified under the Adam
Walsh Act. We find, as we did in Wheeler I, that the case law interpreting Megan’s Law, not the
Adam Walsh Act, is applicable to Wheeler. 4
{¶12} In Wheeler I, we noted differences in the Ohio Supreme Court’s treatment of
Megan’s Law and the Adam Walsh Act. 2014-Ohio-3315 at ¶ 6-7. We explained:
Prior to Raber, the Ohio Supreme Court held in State v. Williams, 88 Ohio St.3d 513, 528 (2000), and State v. Cook, 83 Ohio St.3d 404, 413 (1998), that, since Megan’s Law is civil and remedial, it may be applied retroactively without violating the Double Jeopardy Clause or prohibition on retroactive laws. Unless the Supreme Court overrules those decisions regarding Megan’s Law, this Court is bound to follow them. State v. Dickens, 9th Dist. Lorain No. 07CA009218, 2008-Ohio-4404, ¶ 25.
Id. at ¶ 7. Wheeler has not pointed to any case law overruling Williams, 88 Ohio St.3d 513, or
Cook, 83 Ohio St.3d 404, nor have we found any in our independent research.
{¶13} In his current appeal, Wheeler also references changes made to Megan’s Law in
2003, including his inability to petition to have his classification removed. We did not explicitly
address the 2003 amendments in Wheeler I. The Ohio Supreme Court, however, addressed the
2003 amendments in State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824. The Court found
“the remedial nature of R.C. Chapter 2950 was not altered by the elimination of the provision
that permitted a judge to remove the sexual-predator classification.” Id. at ¶ 33. The Court
concluded that the amended statute did not violate the retroactivity clause of the Ohio
Constitution, nor was it unconstitutional on ex post facto grounds. Id. at ¶ 40, 43. Following this
Ohio Supreme Court precedent, we reject Wheeler’s argument that the “2003 amendments
became punitive, rather than remedial.”
{¶14} Wheeler’s first assignment of error is overruled.
Assignment of Error Number Two
THE TRIAL COURT WAS IN ERROR IN SENTENCING APPELLANT TO FOUR YEARS IN HIS PRIOR CASE. 5
{¶15} In his second assignment of error, Wheeler argues that he was improperly
sentenced in his earlier 2013 case. We are without jurisdiction to address the merits of this
assignment of error.
{¶16} A notice of appeal shall designate the judgment or order appealed. App.R. 3(D).
“An appellate court ‘is without jurisdiction to review a judgment or order that is not designated
in the appellant’s notice of appeal.’” State v. Chavers, 9th Dist. Wayne No. 07CA0065, 2008-
Ohio-3199, ¶ 14, quoting State v. Dixon, 9th Dist. Summit No. 21463, 2004-Ohio-1593, ¶ 7.
{¶17} Wheeler filed a notice of appeal in case number CR 2015 03 0902 and designated
that he was appealing from the guilty verdict and sentence entered therein on May 18, 2015.
Wheeler’s notice of appeal does not designate any orders from his 2013 case.
{¶18} As Wheeler’s second assignment of error concerns an order in a case that he did
not appeal, we are without jurisdiction to review it.
III
{¶19} Wheeler’s first assignment of error is overruled. We lack jurisdiction to address
his second assignment of error. The judgment of the Summit County Court of Common Pleas is
affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27. 6
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETH WHITMORE FOR THE COURT
MOORE, J. CELEBREZZE, J. CONCUR.
(Celebrezze, J., of the Eighth District Court of Appeals, sitting by assignment.)
APPEARANCES:
RYAN RAMAGE, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.