[Cite as State v. Davis, 2012-Ohio-5913.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 25221
v. : T.C. NO. 10CR497
CLARENCE P. DAVIS : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
..........
OPINION
Rendered on the 14th day of December , 2012.
..........
MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
CLARENCE P. DAVIS, 627874, Chillicothe Correctional Institute, P. O. Box 5500,
Chillicothe, Ohio 45601
Defendant-Appellant
..........
FROELICH, J.
{¶ 1} Clarence P. Davis appeals from a judgment of the Montgomery County
Court of Common Pleas denying his “Motion to Vacate Sentence” for failing to notify the
2
sheriff of a change of address, in violation of R.C. 2950.05(A) and (F)(1). The trial court
denied the motion as an untimely petition for post-conviction relief and, alternatively,
because Davis was required to provide notice of a change of address “at all times, whether
under Adam Walsh Act or Megan’s Law.” For the following reasons, the trial court’s
judgment will be affirmed in part and vacated in part, and the matter will be remanded for
resentencing under the former law.
I.
{¶ 2} In 1989, Davis was convicted of rape of a child under the age of 13 and
gross sexual imposition. He was sentenced to five to 25 years in prison. In 1999, while
still incarcerated, Davis was classified as a sexually oriented offender under Megan’s Law.
As a sexually oriented offender, Davis was required, upon his release from prison, to register
annually for ten years and to notify the sheriff of any change of address during that period.
{¶ 3} Davis was released from prison in 2002. In 2007, the Ohio General
Assembly enacted 2007 Am.Sub.S.B. No. 10, which replaced Megan’s Law with Ohio’s
version of the federal Adam Walsh Act. Davis was reclassified as a Tier III sex offender,
which required him to register every 90 days for life and to notify the sheriff of any change
of address.
{¶ 4} In February 2010, Davis was indicted for failure to notify the sheriff of his
change of address between December 30, 2009 and February 11, 2010, in violation of R.C.
2950.05(A) and (F)(1) of the Adam Walsh Act. Davis pled guilty to the charge, and the
court sentenced him to three years in prison. Davis did not challenge the constitutionality of
the Adam Walsh Act in the trial court, and he did not appeal from his conviction.
3
{¶ 5} Nearly two years later, on March 15, 2012, Davis filed a “Motion to Vacate
Sentence,” arguing that his reclassification under the Adam Walsh Act was unconstitutional
pursuant to State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753. Davis
also claimed that his continued incarceration violated the Retroactivity Clause of the Ohio
Constitution.
{¶ 6} The trial court construed Davis’s motion as a petition for post-conviction
relief, and it found that the petition was untimely and that Davis had not demonstrated that
any of the exceptions to the time limitation applied. The court further noted that Davis was
indicted for failure to provide notice of a change of address, a requirement that was
“unaffected” by Davis’s reclassification. It stated: “Defendant, at all times, whether under
Adam Walsh Act or Megan’s Law, was under a requirement to notify the Montgomery
County Sheriff’s Office of any change to a registered address. Defendant pled guilty to this
charge.”
{¶ 7} Davis appeals from the denial of his motion.
II.
{¶ 8} Davis raises two assignments of error, which we will address together.
They state:
I. “WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY
ASSERTING MOTION WAS UNTIMELY.”
II. “WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY
SENTENCING APPELLANT TO RETROACTIVE LAW.”
{¶ 9} In his assignments of error, Davis claims that the trial court erred in treating
4
his motion as a petition for post-conviction relief. He asserts that Bodyke and recent case
law regarding the Retroactivity Clause apply to his conviction, that his conviction is void,
and that he was entitled to challenge his conviction at any time.
{¶ 10} In Bodyke, the Ohio Supreme Court concluded that “R.C. 2950.031 and
2950.032, which require the attorney general to reclassify sex offenders who have already
been classified by court order under former law, impermissibly instruct the executive branch
to review past decisions of the judicial branch and thereby violate the separation-of-powers
doctrine. In addition, R.C. 2950.031 and 2950.032 violate the separation-of-powers
doctrine by requiring the opening of final judgments.” Bodyke, 126 Ohio St.3d 266,
2010-Ohio-2424, 933 N.E.2d 753, ¶ 67. The court severed the reclassification provisions
from S.B. 10, ordered that they may not be applied to offenders previously adjudicated by
judges under Megan’s Law, and reinstated the classifications and community-notification
and registration orders previously imposed by judges. Id. at ¶ 66. The supreme court has
applied Bodyke to all sex offenders who were reclassified by the attorney general under R.C.
2950.031 and 2950.032. See State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, 946
N.E.2d 192.
{¶ 11} In July 2011, the Supreme Court of Ohio rendered its decision in State v.
Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108. In that case, Williams
was indicted in 2007 for unlawful sexual conduct with a minor, and he pled guilty to the
charge. At his plea hearing, Williams was informed that he would not be subject to
reporting requirements. Williams subsequently requested that he be sentenced under
Megan’s Law, rather than S.B. 10, which was in effect at the time of Williams’s sentencing
5
in 2008. The trial court applied S.B. 10 and informed Williams that he would be designated
a Tier II sex offender. Williams appealed, arguing that S.B. 10 could not constitutionally be
applied retroactively to a defendant whose offense occurred prior to the effective date of that
statute. The supreme court agreed with Williams, holding that “S.B. 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.” Williams at ¶ 21.
{¶ 12} We have addressed Bodyke and Williams in several cases with different
procedural postures. We summarized some of those cases in State v. Blanton, 2d Dist.
Montgomery No. 24295, 2012-Ohio-3276, as follows:
We have applied Bodyke and Williams in a variety of contexts. In
State v. Eads, 2d Dist. Montgomery No. 24696, 2011-Ohio-6307, the
defendant did not appeal from his classification under S.B. 10, but he
challenged that classification on appeal after he was subsequently convicted
for failing to verify his residential address. On direct appeal from that
conviction, we recognized that the defendant's classification under S.B. 10
was void under Williams, and we vacated his conviction for failing to verify
his address.
In State v. Montgomery, 2d Dist. Montgomery No. 24450,
2012-Ohio-391, the defendant pled guilty to failure to verify his address in
accordance with S.B. 10 and did not file a direct appeal. He later moved to
vacate his conviction and sentence, arguing that the trial court should have
6
applied Bodyke. We noted that Montgomery could not use Civ.R. 60(B) to
vacate his conviction, and that he did not meet the procedural requirements of
a petition for post-conviction relief, if his motion were construed as such.
However, we declined to determine whether Civ.R. 60(B) or R .C. 2953.21
were properly invoked, because his motion could “more correctly be
characterized as a Crim.R. 32.1 motion to withdraw his guilty plea.”
Montgomery at ¶ 15. Construed as such, we held that the trial court erred in
failing to grant the motion. We ordered that Montgomery’s conviction and
sentence be vacated, and we remanded to the trial court.
However, in State v. Caldwell, 2d Dist. Montgomery No. 24333,
2012-Ohio-1091, we held that the defendant's motion to vacate his conviction
for failing to verify his address was properly construed as a petition for
post-conviction relief. Like Blanton, Caldwell was convicted, after a bench
trial, of failure to verify after he had been reclassified under S.B. 10. A year
later, Caldwell moved to vacate his conviction, based on Bodyke. The trial
court treated the motion as a petition for post-conviction relief and dismissed
it as untimely.
Upon review, we held that the trial court properly reviewed
Caldwell’s motion as a petition for post-conviction relief. We stated,
“Caldwell’s motion was filed after his direct appeal could have been taken,
claimed a constitutional violation based on Bodyke, sought to render his
judgment of conviction void, and asked the trial court to vacate the judgment
7
and sentence. Since Caldwell's motion meets the statutory definition of a
postconviction-relief petition, the trial court properly treated it as such.” Id.
at ¶ 3. We agreed with the trial court that Caldwell’s petition was untimely
and, even if it were timely, Caldwell could have raised his constitutional
challenges on direct appeal and thus his arguments were barred by res
judicata.
We also rejected Caldwell's argument that his conviction was void
and thus the trial court had inherent authority to vacate the conviction. We
distinguished Eads on the ground that Eads was a direct appeal from a
conviction for failing to verify the defendant’s address, whereas Caldwell
presented a collateral attack on the conviction. Caldwell at ¶ 13. We stated,
“[b]ecause Caldwell’s pre- Bodyke, pre- Williams conviction for violating the
AWA's registration requirements is, at best, an erroneous exercise of
jurisdiction, meaning a legal error, it may not be collaterally attacked.” Id. at
¶ 14. We also distinguished Montgomery, noting, in part, that it had been
resolved under Crim.R. 32.1. See Caldwell at ¶ 15–18. We affirmed
Caldwell’s conviction; for reasons not relevant to [Blanton’s] appeal, we
reversed Caldwell’s sentence and remanded for resentencing.
{¶ 13} In Blanton, the defendant also failed to comply with S.B. 10’s registration
requirements after his reclassification. Blanton was convicted after a bench trial, and he did
not timely appeal his conviction. He later filed a petition for post-conviction relief, which
the trial court denied. On appeal from that ruling, we concluded that Blanton’s
8
circumstances were governed by Caldwell, and we affirmed the denial of his petition.
{¶ 14} Davis cites to an additional case, State v. Pritchett, 2d Dist. Montgomery
No. 24183, 2011-Ohio-5978, in which the defendant appealed from the denial of his motion
to withdraw his plea to failure to notify of a change of address. We rejected Pritchett’s
argument that the trial court had erred in denying his motion to withdraw his plea, noting
that “Bodyke did not change the fact that Pritchett had a duty to notify the sheriff of a change
in his address of residence, and Pritchett’s defenses were the same, whether he were a Tier
III sex offender or a sexually oriented offender.” Id. at ¶ 22. However, we held that
Pritchett should have been convicted of failure to notify as a third-degree felony under
Megan’s Law, rather than as a second-degree felony under the Adam Walsh Act. Id. at
¶ 28. We vacated Pritchett’s “void” sentence and remanded for a new sentencing hearing.
Id. at ¶ 28, ¶ 30. (We vacated the defendant’s sentence in Caldwell based on the same
reasoning.)
{¶ 15} The trial court treated Davis’s Motion to Vacate Sentence as a petition for
post-conviction relief, but it could have been construed as a motion to withdraw his plea, as
was done in Montgomery, 2d Dist. Montgomery No. 24450, 2012-Ohio-391. Regardless of the
approach taken, we agree with the trial court that Davis was not entitled to have his
conviction vacated.
{¶ 16} As a threshold matter, Davis’s reclassification under the Adam Walsh Act
was nullified by Bodyke and Williams, but his conviction for failing to notify the sheriff of a
change of address was merely voidable. See Caldwell, supra. Accordingly, we reject
Davis’s assertion that his conviction was void and was subject to attack at any time.
[Cite as State v. Davis, 2012-Ohio-5913.]
{¶ 17} Davis’s motion to vacate, if treated as a petition for post-conviction relief,
was clearly untimely under R.C. 2953.21(A)(2), which requires petitions to be filed no later
than 180 days after the expiration of the time for filing an appeal from a conviction. Davis
has not established a basis for filing an untimely petition, i.e., that he was unavoidably
prevented from discovering facts upon which he relies or that the United States Supreme
Court has recognized a new federal or state right that applies retroactively to his situation.
See R.C. 2953.23(A).
{¶ 18} Even if the trial court had explicitly treated Davis’s motion as a motion to
withdraw his guilty plea, the trial court did not err in rejecting Davis’s motion. Withdrawal
of a guilty plea after sentencing is permitted only in the most extraordinary cases. State v.
Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). A defendant who files a
post-sentence motion to withdraw his guilty plea bears the burden of establishing manifest
injustice. Crim.R. 32.1; State v. Harris, 2d Dist. Montgomery No. 19013, 2002-Ohio-2278,
¶ 7, citing Smith at paragraph one of the syllabus. Consideration of “[t]he motion is
‘addressed to the sound discretion’ of the trial court.” Id., citing Smith at paragraph two of
the syllabus. Thus, an appellate court reviews the trial court’s decision under an abuse of
discretion standard. Id., citing State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144
(1980). An abuse of discretion means “that the court’s attitude is unreasonable, arbitrary or
unconscionable.” Id.
{¶ 19} The trial court stated that “[Davis], at all times, whether under Adam Walsh
Act or Megan’s Law, was under a requirement to notify the Montgomery County Sheriff’s
Office of any change to a registered address. Defendant pled guilty to this charge.”
Davis’s defenses were the same, whether he were a Tier III sex offender or a sexually
10
oriented offender. And his indictment was sufficient to allege a violation of the notification
requirements under Megan’s Law, even though it cited to the Adam Walsh Act provision,
R.C. 2950.05(F)(1). See State v. Brunning, Slip Opinion No. 2012-Ohio-5752, ¶ 31. Thus,
as in Pritchett, Davis did not demonstrate that a manifest injustice existed so as to justify the
vacation of his conviction.
{¶ 20} Nevertheless, we conclude that the trial court did err in failing to vacate
Davis’s sentence. The judgment entry in this case reflects that Davis was convicted of
failure to notify as a first-degree felony, the offense level under the Adam Walsh Act.
Effective January 1, 2004, after Megan’s Law but prior to the Adam Walsh Act
amendments, the failure to notify of a change of address (where the underlying offense was a
first-degree felony) was a felony of the third degree. Former R.C. 2950.99(A)(1)(a)(i). See
State v. Howard, Slip Opinion No. 2012-Ohio-5738, ¶ 21, ¶ 29 (holding that a defendant
subject to Megan’s Law should be sentenced under the version of former R.C. 2950.99 in
place when Megan’s Law was repealed).
{¶ 21} We held in Pritchett that the trial court erred in sentencing the defendant
for a second-degree felony under the Adam Walsh Act, rather than for a third-degree felony
under prior law, stating:
Under Megan’s law (which had been applied to Pritchett in 2005),
Pritchett with the 2005 prior failure to notify conviction was subject to
sentencing for a felony of the third degree. As a result of a subsequent
amendment of the law, Pritchett was instead sentenced for a second degree
felony offense. That amendment of the law is void, per Williams [, 129 Ohio
11
St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108]. The sentence the court
imposed pursuant to that law is likewise void. It would be a manifest
injustice to continue Pritchett’s incarceration on a void sentence.
“[A] trial court is authorized to correct a void sentence.” State ex rel.
Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, ¶ 19. An
appellate court has inherent authority to vacate the void judgment and remand
the case to the trial court to conduct a new sentencing hearing. State v.
Miller, Summit App. No. 24692, 2009-Ohio-6281, ¶ 6,7.
Pritchett at ¶ 28-29, following State v. Milby, 2d Dist. Montgomery No. 23798,
2010-Ohio-6344.
{¶ 22} Pritchett applies to this case. See, e.g., Caldwell, 2d Dist. Montgomery No. 24333,
2012-Ohio-1091, ¶ 20. Accordingly, we must vacate Davis’s sentence and remand so
that Davis can be resentenced under the version of former R.C. 2950.99 that was in
place at the time that Megan’s Law was repealed.
{¶ 23} Davis’s assignments of error are sustained in part and overruled in part.
III.
{¶ 24} The trial court’s judgment will be affirmed in part and vacated in part, and
the matter will be remanded for resentencing under the former law.
..........
GRADY, P.J. and HALL, J., concur.
Copies mailed to:
Michele D. Phipps
12
Clarence P. Davis
Hon. Frances E. McGee