[Cite as Ortega-Martinez v. State, 2011-Ohio-3069.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95930
ANGEL L. ORTEGA-MARTINEZ, SR.
PLAINTIFF-APPELLEE
vs.
STATE OF OHIO
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-652952
BEFORE: Blackmon, P.J., S. Gallagher, J., and Rocco, J.
RELEASED AND JOURNALIZED: June 23, 2011
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ATTORNEYS FOR APPELLANT
William D. Mason
Cuyahoga County Prosecutor
Daniel T. Van
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
APPELLEE
Angel L. Ortega-Martinez, Sr., Pro Se
2791 East 116th Street
Cleveland, Ohio 44120
PATRICIA ANN BLACKMON, P.J.:
{¶ 1} Appellant state of Ohio appeals the trial court’s decision
reversing Angel Ortega-Martinez’s reclassification under the Adam Walsh
Act (“AWA”). The state assigns the following errors for our review:
“I. The trial court erred in applying State v. Bodyke, 16
Ohio St.3d 266, 2010-Ohio-2424, to a petitioner who was not
classified under Megan’s Law by an Ohio Court because
under the circumstances there is no violation of the
separation of powers doctrine.”
“II. The trial court erred in applying State v. Bodyke, 16
Ohio St.3d 266, 2010-Ohio-2424, to a petitioner who did not
demonstrate by clear and convincing evidence that they
were previously classified by an Ohio Court.”
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{¶ 2} Having reviewed the record and pertinent law, we affirm the trial
court’s decision. The apposite facts follow.
{¶ 3} In July 2001, Ortega-Martinez was convicted of statutory rape in
Davidson County, Tennessee, in Case No. A571, and sentenced to prison.
Upon his release from prison, Ortega-Martinez moved to Cuyahoga County,
and on August 14, 2003, he registered with the sheriff’s office. At the time,
Ortega-Martinez registered as a sexually-oriented offender, which required
registration for ten years with annual verification.
{¶ 4} In early 2008, the Ohio Attorney General’s office sent
Ortega-Martinez a letter informing him that, pursuant to the passage of S.B.
10, he had been reclassified as a Tier II sex offender, which required
registration for a period of 25 years with verification every 180 days. On
March 5, 2008, Ortega-Martinez filed a petition contesting the application of
the AWA, alleging that it encroached on the power of the judiciary by
reopening final judgments.
{¶ 5} On September 17, 2010, the state filed a brief in opposition to
Ortega-Martinez’s motion contesting the application of the AWA. On
October 20, 2010, the trial court granted Ortega-Martinez the requested
relief. The state now appeals.
AWA Reclassification
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{¶ 6} In the first assigned error, the state argues the trial court erred
when it granted the requested relief. We disagree.
{¶ 7} The AWA classifies sex offenders using a three-tiered system,
with designation into each tier based solely on the offense committed. State
v. Page, Cuyahoga App. No. 94369, 2011-Ohio-83. In addition, the AWA
includes provisions that retroactively reclassify offenders previously classified
under prior versions of the law. See R.C. 2950.031 and 2950.032. As the
Ohio Supreme Court recently explained, “[t]he entire reclassification process
is administered by the attorney general, with no involvement by any court.
There is no individualized assessment. No consideration is given to any of
the other factors employed previously in classification hearings held pursuant
to Megan’s Law.” State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933
N.E.2d 753, ¶22.
{¶ 8} In Bodyke, the Ohio Supreme Court held that reclassification of
sex offenders under the AWA’s R.C. 2950.031 and R.C. 2950.032, “who have
already been classified by court order under former law,” violates the
separation-of-powers doctrine and is unconstitutional. Id. at ¶60-61. The
Bodyke Court severed these provisions from the Ohio Revised Code, holding
that “R.C. 2950.031 and R.C. 2950.032 may not be applied to offenders
previously adjudicated by judges under Megan’s law, and the classifications
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and community-notification and registration orders imposed previously by
judges are reinstated.” Id. at ¶66
{¶ 9} The state argues that Ortega-Martinez was not classified by a
court when he moved into Ohio and without a court-ordered classification,
there cannot be a violation of the separation of powers doctrine. However,
we have recently applied Bodyke to reverse convictions based on violations of
sex offender registration and notification requirements under the AWA, when
the defendant was initially classified as a sexual offender under Megan’s Law
for a conviction in another state. See Majewski v. State, Cuyahoga App. Nos.
92372 and 92400, 2010-Ohio-3178. The Ohio Supreme Court explicitly
directed that the registration obligations of the prior law are to be reinstated
in such cases. Bodyke, at ¶66.
{¶ 10} Nonetheless, the state argues the separation of powers doctrine is
not implicated in the instant case because Ortega-Martinez’s duty to register
in Tennessee arose by operation of law and not by virtue of a court-ordered
classification. We are not persuaded.
{¶ 11} We conclude that it was Ortega-Martinez’s conviction, which
constituted the final judgment that triggered his duty to register under
Megan’s Law. As such, the AWA reclassification attempt would serve to
reopen a final judgment and thus violate the separation of powers doctrine.
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Only appellate courts have the power to affirm, reverse, or modify a final
judgment. Bodyke at ¶58; Section 3(B)(2), Article IV, Ohio Constitution.
As such, the trial court did not err when it granted Ortega-Martinez’s request
to reinstate his prior classification. Accordingly, we overrule the first assigned
error.
{¶ 12} Because of our resolution of the state’s first assigned error, the
second assigned error is moot and we need not address the issues raised. See
App.R. 12(A)(1)(c).
Judgment affirmed.
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
SEAN C. GALLAGHER, J., and
KENNETH A. ROCCO, J., CONCUR
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