[Cite as State v. Williams, 2011-Ohio-6763.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97005
STATE OF OHIO
PLAINTIFF-APPELLANT
vs.
JAMEL WILLIAMS
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-547900
BEFORE: Blackmon, P.J., Celebrezze, J., and Rocco, J.
RELEASED AND JOURNALIZED: December 29, 2011
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ATTORNEYS FOR APPELLANT
William D. Mason
Cuyahoga County Prosecutor
By: Daniel T. Van
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
Mark DeFranco
Mark A. DeFranco Law Offices
55 Public Square, Suite 1600
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, P.J.:
{¶ 1} Appellant, the state of Ohio (“the state”), appeals the trial court’s dismissal
of the indictment against appellee Jamel Williams (“Williams”) and assigns the following
two errors for our review:
“I. The trial court erred in dismissing the indictment because
Jamel Williams had a duty to provide a notice of change of address
under both Megan’s Law and the Adam Walsh Act and his underlying
criminal conduct would have been a violation of the Megan’s Law
requirement.”
“II. The trial court erred in dismissing the indictment where
the indictment was valid on its face.”
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{¶ 2} Having reviewed the record and pertinent law, we affirm the trial court’s
dismissal of the indictment. The apposite facts follow.
Facts
{¶ 3} On November 13, 2002, Williams was convicted of importuning, a felony
of the fourth degree. Pursuant to his conviction, he was classified under Am.Sub.S.B.
No. 5, better known as Megan’s Law, as a sexually oriented offender by operation of law
and subject to yearly registration with the sheriff’s department. When Megan’s Law was
repealed in 2008 by Am.Sub.S.B. No. 10, better known as the Adam Walsh Act
(“AWA”), the attorney general reclassified Williams as a Tier I sex offender.
{¶ 4} In February 2011, Williams was stopped for a traffic violation by the
Shaker Heights Police Department. Based on the officer’s discovery that Williams was
no longer living at the address he had registered with the Cuyahoga County Sheriff’s
Department, Williams was indicted for failure to provide a change of address pursuant to
R.C. 2950.05(F)(1) of the AWA.
{¶ 5} On May 3, 2011, Williams filed a motion to dismiss the indictment based
on the Ohio Supreme Court’s decision in State v. Bodyke, 126 Ohio St.3d 266,
2010-Ohio-2424, 933 N.E.2d 753. In Bodyke, the Supreme Court held that the
reclassification under the AWA was unlawful if offenders, from a prior court order, had a
duty to report under Megan’s Law. Williams also relied on the Ohio Supreme Court case
in State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, 946 N.E.2d 192, which held
that the failure to report based on an unlawfully imposed AWA registration requirement
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cannot serve as a basis of a reporting violation charge. The trial court agreed with
Williams and dismissed the indictment.
Dismissal of Indictment
{¶ 6} In its first assigned error, the state argues the trial court erred by dismissing
the indictment because under either the AWA or Megan’s Law, Williams had a duty to
verify his address with authorities.
{¶ 7} The Ohio Supreme Court has held that the failure to report pursuant to an
unlawfully imposed AWA registration requirement cannot serve as the basis of a
reporting violation charge. Gingell. See, also, State v. Brunning, Cuyahoga App. No.
95376, 2011-Ohio-1936; State v. Smith, Cuyahoga App. No. 92550, 2010-Ohio-2880,
¶29; State v. Patterson, Cuyahoga App. No. 93096, 2010-Ohio-3715; State v. Jones,
Cuyahoga App. No. 93822, 2010-Ohio-5004.
{¶ 8} Additionally, this court has held that an indictment based on the failure to
report under an unlawfully imposed AWA registration requirement cannot serve as the
basis of a reporting violation charge even if the offender would have the identical
reporting obligation under Megan’s Law. State v. Gilbert, Cuyahoga App. Nos. 95083
and 95084, 2011-Ohio-1928; State v. Grunden, Cuyahoga App. No. 95909,
2011-Ohio-3687.
{¶ 9} The state cites the Ohio Supreme Court’s recent decision in State v.
Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, to support its position
that offenders can be prosecuted for failure to register when the reporting requirements
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are identical under Megan’s Law and the AWA. However, our reading of Williams does
not support this interpretation. In Williams, the Supreme Court held that the AWA, “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.” Id. at syllabus. Therefore, under Williams, offenders cannot
be reclassified under the AWA. The Williams holding has no relevance to the issue
before us. Accordingly, the state’s first assigned error is overruled.
Indictment Facially Constitutional
{¶ 10} In its second assigned error, the state argues the trial court erred by
dismissing the indictment because it was valid on its face.
{¶ 11} We addressed this exact same issue in State v. Ortega-Martinez, Cuyahoga
App. No. 95656, 2011-Ohio-2540. We held that the motion to dismiss did not challenge
the indictment on its face because it did not involve a factual issue. We held:
“In the instant case, the trial court did not impermissibly decide
the issue for trial in ruling on Ortega-Martinez’s motion to dismiss.
Ortega-Martinez’s motion did not address what would be the general
factual issue for trial (whether the evidence showed Ortega-Martinez
failed to verify his address on January 1, 2008); rather, it asserted that
the question of whether Ortega-Martinez’s indictment for failure to
verify was predicated on an unconstitutional reclassification by the
Ohio Attorney General. Because Ortega-Martinez’s motion did not
require a determination of the factual issue for trial, the trial court
could properly consider the motion under Crim.R. 12(C).”
“This court has held that an unlawful reclassification under
Ohio’s AWA cannot serve as the predicate for the crime of failure to
verify. State v. Smith, 8th Dist. No. 92550, 2010-Ohio-2880, ¶ 29; State
v. Page, 8th Dist. No. 94369, 2011-Ohio-83. Because appellant’s
indictment was predicated on an unlawful reclassification, he cannot be
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convicted of the offense charged. The trial court did not err by
dismissing the indictment.” Id. at ¶16, 17.
{¶ 12} Likewise, in the instant case, Williams did not raise a factual issue
regarding the indictment, but asserted the indictment was invalid because it was based on
an unconstitutional reclassification.
{¶ 13} The state acknowledges our holding in Ortega-Martinez, but argues this
court’s decision in State v. Caldwell, Cuyahoga App. No. 92219, 2009-Ohio-4881,
{¶ 14} held that the defendant’s argument to dismiss his indictment because he had
no duty to register under the AWA questioned the state’s ability to prove the indictment.
The instant case is distinguishable from Caldwell. In Caldwell, the defendant’s motion
to dismiss argued that the defendant had no duty to register under the AWA because the
common pleas court had previously determined that he was a sexually oriented offender
who is exempt from registration. We concluded in Caldwell that “this motion
necessarily questions the state’s ability to prove the indictment, which implicitly alleged
that appellee did have a duty to register. Appellee does not contend that the indictment,
on its face, fails to charge an offense, but rather that the state cannot prove that he
committed the offense charged.” In the instant case, Williams argued the dismissal was
warranted because the indictment was predicated on an unconstitutional classification by
the Ohio Attorney General; therefore, the indictment failed on its face to charge an
offense. A factual determination was not necessary. Accordingly, the state’s second
assigned error is overruled.
Judgment affirmed.
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It is ordered that appellee recover of appellant his costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
PATRICIA ANN BLACKMON, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
KENNETH A. ROCCO, J., CONCUR