[Cite as State v. Grunden, 2011-Ohio-3687.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95909
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
THOMAS GRUNDEN
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-525977
BEFORE: Sweeney, P.J., Cooney, J., and S. Gallagher, J.
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RELEASED AND JOURNALIZED: July 28, 2011
FOR APPELLANT
Thomas L. Grunden, Pro Se
No. 574-766
Richland Correctional Institution
P.O. Box 8107
Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Daniel T. Van, Esq.
Assistant County Prosecutor
8 Floor, Justice Center
ht
1200 Ontario Street
Cleveland, Ohio 44113
JAMES J. SWEENEY, P.J.:
{¶ 1} Defendant-appellant Thomas Grunden appeals from the trial
court’s decision that denied his petition to vacate his sentence following his
conviction for violating provisions of the Adam Walsh Act (“AWA”). The
state agrees that defendant’s reclassification under the AWA was invalid but
maintains that defendant’s conviction and four-year sentence should
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nonetheless be affirmed. For the reasons that follow, we vacate defendant’s
sentence and reverse his conviction.
{¶ 2} Defendant was previously convicted of attempted rape,
determined to be a sexually oriented offender (the lowest classification), and
subjected to the reporting provisions of Megan’s Law. He was subsequently
reclassified under the AWA to a Tier III status (the highest classification)
which, in turn, increased his reporting and registration requirements from
ten years to life.
{¶ 3} In April 2009, defendant successfully obtained a restraining order
whereby the Cuyahoga Court of Common Pleas declared that he no longer
had to register under the AWA but was to comply with the requirements
under Megan’s Law. As part of that order, the court instructed, “the State
of Ohio and/or its agents are restrained from taking any steps to reclassify
the petitioner or to implement any of the provisions of Ohio’s Senate Bill 10,
including, but not limited to, its notification and registration provisions,
pending resolution on the merits of petitioner’s request for a permanent
injunction * * *.” (Emphasis added.)
{¶ 4} Despite the foregoing court order, defendant was nevertheless
charged in July 2009 with failing to provide a notice of change of address and
tampering with records under the provisions of the AWA.
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{¶ 5} Defendant pled guilty to the first count, the remaining count was
dismissed, and he was sentenced to a four-year prison term. Although
defendant filed multiple pro se motions, this appeal is related to his attempts
to vacate or set aside his sentence as being void.
{¶ 6} Defendant advances ten assignments of error; however, only the
dispositive errors will be addressed.
{¶ 7} The defendant maintains that his conviction under the AWA is
void and therefore should be vacated based primarily upon State v. Bodyke,
126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753. The precedent in this
district holds that “convictions arising from reporting violations under the
AWA for any individual reclassified under its provisions are also contrary to
law.” State v. Gilbert, Cuyahoga App. Nos. 95083 and 95084, 2011-Ohio-1928,
citing State v. Page, Cuyahoga App. No. 94369, 2011-Ohio-83, ¶10; see, also,
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} The state recognizes that defendant’s reclassification under the
AWA is invalid but maintains defendant’s conviction should be affirmed.
First, the state maintains that the conviction should be affirmed because
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defendant’s duty to provide a change of address was the same whether
applying the AWA or Megan’s Law.
{¶ 9} While it is true that defendant had to provide a change of address
under both Megan’s Law and AWA, the fact remains that a violation of that
duty can carry a significantly harsher penalty under the AWA than it would
under Megan’s Law. Compare R.C. 2950.99 (AWA) with former R.C. 2950.99
(Megan’s Law). This is significant and can mean the difference between
being indicted with a first degree felony as opposed to one of a lesser felony,
such as a third degree felony. The Ohio Supreme Court noted this distinction
when it held where the application of the AWA to an offender is based upon
an unlawful reclassification, the conviction is to be vacated, and the offender’s
prior classification and reporting requirements under Megan’s Law must be
reinstated. State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, 946 N.E.2d
192, ¶8. Pursuant to Gingell, defendant’s conviction must be vacated and his
prior classification and attendant requirements under Megan’s Law
reinstated.
{¶ 10} Notwithstanding the above authority, the state asserts that the
trial court was correct in denying defendant’s petition because it was
untimely and, therefore, left the trial court without jurisdiction to entertain it
pursuant to R.C. 2953.21(A)(1). However, because Grunden’s
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reclassification under the AWA was invalid, it rendered his conviction under
it void. We simply cannot brush over the fact that the indictment failed to
properly allege an offense against him just because he pled guilty to it and did
not timely appeal. Grunden is subject to charges for violating the provisions
of his classification under Megan’s Law, not his invalid classification under
the AWA. The law is quite clear; Grunden could not be reclassified under
the AWA, and the improper classification cannot serve as a predicate for an
offense against him. Gingell, 2011-Ohio-1481; Gilbert, 2011-Ohio-1928;
Page, 2011-Ohio-83; Smith, 2010-Ohio-2880; Patterson, 2010-Ohio-3715; State
v. Jones, 2010-Ohio-5004. As such, his conviction pursuant to his invalid
reclassification is not subject to principles of res judicata and remained
subject to collateral attack at any time.
{¶ 11} In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238,942
N.E.2d 332, the Ohio Supreme Court held:
{¶ 12} “* * * A sentence that does not include the statutorily mandated
term of postrelease control is void, is not precluded from appellate review by
principles of res judicata, and may be reviewed at any time, on direct appeal
or by collateral attack.* * *” Id. at ¶1.
{¶ 13} That logic applies equally where a sentence is imposed for a
conviction obtained as a consequence of an invalid reclassification under the
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AWA. For the foregoing reasons, the trial court erred by denying defendant’s
petition to vacate his void sentence. The remaining assignments of error are
overruled as moot.
Judgment reversed and remanded to the lower court for further
proceedings consistent with this opinion.
It is, therefore, considered that said appellant recover of said appellee
his costs herein.
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.
JAMES J. SWEENEY, PRESIDING JUDGE
COLLEEN CONWAY COONEY, J., and
SEAN C. GALLAGHER, J., CONCUR