[Cite as State v. Caldero, 2012-Ohio-11.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96719
STATE OF OHIO
PLAINTIFF-APPELLANT
vs.
WILLIAM A. CALDERO
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-522121
BEFORE: Keough, J., Kilbane, P.J., and Blackmon, A.J.
RELEASED AND JOURNALIZED: January 5, 2012
ATTORNEYS FOR APPELLANT
William D. Mason
Cuyahoga County Prosecutor
BY: Daniel T. Van
James M. Price
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Robert L. Tobik
Chief Public Defender
BY: Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Plaintiff-appellant, the state of Ohio, appeals the trial court’s decision
granting the motion to withdraw guilty plea filed by defendant-appellee, William A.
Caldero (“Caldero”). For the reasons that follow, we affirm.
{¶ 2} In 2003, Caldero pled guilty to sexual battery; the trial court sentenced him
to three years in prison and classified him as a sexually oriented offender under Megan’s
Law. As a sexually oriented offender, Caldero was required to verify his address
annually for ten years upon his release from prison. At the time of his classification and
under former R.C. 2950.99, failure to properly register as a sexually oriented offender
was a felony of the fifth-degree.
{¶ 3} As of January 1, 2008, the Ohio General Assembly repealed Megan’s Law
and through S.B. 10 enacted a new sex offender law, the Adam Walsh Act (“AWA”).
As a result of the AWA, Caldero was reclassified by the Ohio attorney general as a Tier
III sex offender. This new classification required Caldero to verify his address every 90
days for life.
{¶ 4} On April 10, 2008, Caldero registered with the Cuyahoga County Sheriff’s
Office as ordered under the new AWA provisions. The “Notice of Registration,” which
was presented as State’s exhibit 1 at the motion hearing, provided that Caldero’s next
registration date was January 13, 2009, which was less than one year from his April 10,
2008 registration, but was on the one-year anniversary of when he would have been
required to register under Megan’s Law.
{¶ 5} Caldero did not register on January 13, 2009, and was subsequently charged
with violating a provision of the AWA, i.e., failure to verify his address pursuant to R.C.
2905.06(F), a felony of the third degree. He pled guilty to the charge and the trial court
imposed a four year prison term.
{¶ 6} Subsequently, the Ohio Supreme Court issued its decision in State v.
Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, declaring that the
retroactive reclassification of previously convicted sexual offenders under Ohio’s AWA
was unconstitutional.
{¶ 7} In March 2011, Caldero filed a motion to withdraw his guilty plea pursuant
to Crim.R. 32.1 based on the authority of the Bodyke decision. Following a hearing, the
trial court granted Caldero’s motion. The State appeals from this judgment.
{¶ 8} A post-sentence motion to vacate a guilty plea is addressed to the sound
discretion of the trial court and an appellate court’s review of a trial court’s denial of a
post-sentence motion to withdraw a guilty plea is limited to a determination of whether
the trial court abused its discretion. State v. Blatnik (1984), 17 Ohio App.3d 201, 202,
478 N.E.2d 1016. The term “abuse of discretion” connotes more than an error of law or
judgment; it implies that the court’s decision is unreasonable, arbitrary or unconscionable.
Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. Absent an
abuse of discretion on the part of the trial court in making the ruling, its decision must be
affirmed. State v. Xie (1992), 62 Ohio St.3d 521, 527, 584 N.E.2d 715.
{¶ 9} In its sole assignment of error, the State contends that the trial court erred
when it granted Caldero’s motion to withdraw his guilty plea. The State claims that
Caldero was not prosecuted under the AWA, but argues that because Caldero did not
register his address pursuant to Megan’s Law, his conviction was proper under Megan’s
Law.
{¶ 10} Although the State argues that the Caldero was prosecuted for violating
Megan’s Law, we find the only law governing registration for sexual offenders in effect
at the time of Caldero’s indictment was the AWA.1 Therefore, the AWA was the basis
for his prosecution. In State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, 946
N.E.2d 192, the Ohio Supreme Court held that a defendant “charged [with failing to
register] after his reclassification and before Bodyke” was prosecuted under the AWA.
Id. at ¶8.
{¶ 11} In this case, Caldero was originally classified as a sexually oriented
offender under Megan’s Law. He was then reclassified under the AWA as a Tier III
offender. Before Bodyke was announced and his original classification was reinstated,
he was charged with violating the reporting requirements of the AWA. However,
because Caldero was originally classified under Megan’s Law, any reporting
requirements imposed on him under the AWA were unlawfully imposed, and therefore,
cannot form the basis for a reporting violation.
{¶ 12} Moreover, the penalty Caldero faced further evidences that he was charged
with violating the AWA and not Megan’s Law. For Caldero, under the AWA, failure to
verify is a felony of the third degree, whereas, under Megan’s Law, in effect at the time of
Caldero’s original classification, failure to verify was a fifth degree felony. In State v.
Page, 8th Dist. No. 94369, 2011-Ohio-83, this court interpreted Bodyke to mean that the
AWA provisions, including the enhanced penalty provisions, cannot apply to Megan’s
1
The parties reference the preliminary injunction imposed in Cuyahoga County Court of Common Pleas
Case Number CV-648938, which prohibited the State from applying the AWA to Caldero. The order further
required Caldero to register under Megan’s Law “as if Megan’s Law was still in effect after January 1, 2008.”
Irrespective of the order, Megan’s Law had been repealed and could not be revived by a court order to serve as the
basis for prosecution for failure to verify.
Law offenders. Id. at ¶12; see, also, State v. Grunden, 8th Dist. No. 95909,
2011-Ohio-3687 (enhanced penalties under the AWA provides an additional reason for
vacating an unlawful registration-related conviction). When Caldero entered his guilty
plea, he pled guilty to a third degree felony and received a four-year sentence, in
accordance with the penalty guidelines under the AWA. Accordingly, the AWA was the
basis for Caldero’s prosecution.
{¶ 13} The State’s final argument is that the trial court abused its discretion in
granting Caldero’s motion to withdraw his guilty plea because he was not in compliance
with the reporting requirements under Megan’s Law when he failed to register on his
anniversary date pursuant to former R.C. 2950.06.
{¶ 14} Whether Caldero was in compliance with Megan’s Law is a question of fact
before the trial court, not this court. The only issue before us is whether the trial court
abused its discretion in granting Caldero’s motion to withdraw his guilty plea. Our
review of the trial court’s decision is for an abuse of discretion — whether it is
unreasonable, arbitrary, or unconscionable. In light of the facts and circumstances of the
case, we find that the trial court did not abuse its discretion in allowing the guilty plea to
be withdrawn.
{¶ 15} Accordingly, the State’s assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant 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.
KATHLEEN ANN KEOUGH, JUDGE
MARY EILEEN KILBANE, P.J., and
PATRICIA ANN BLACKMON, A.J., CONCUR