State v. Smith

[Cite as State v. Smith, 2016-Ohio-3521.]

IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NOS. C-150445
C-150446
Plaintiff-Appellee, : TRIAL NOS. 04CRB-6826A
04CRB-6826B
vs. :

WILLIAM SMITH, : O P I N I O N.

Defendant-Appellant. :

Criminal Appeals From: Hamilton County Municipal Court

Judgments Appealed From Are: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: June 22, 2016

Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and
Christopher Liu, Assistant City Prosecutor, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and David Hoffmann,
Assistant Public Defender, for Defendant-Appellant.
 OHIO FIRST DISTRICT COURT OF APPEALS

STAUTBERG, Judge.

{¶1} Defendant-appellant William Smith presents on appeal a single

assignment of error challenging the Hamilton County Municipal Court’s judgments

overruling his postconviction motions to vacate his 2004 convictions for criminal

child enticement in violation of R.C. 2905.05. Because Smith was convicted under

an unconstitutional statute, we reverse the court’s judgments.

The Appeals are Not Moot

{¶2} We reject at the outset the state’s argument that Smith’s appeals from

the overruling of his motions must be dismissed as moot because he had, in August

2007, completed the sentences imposed for his convictions and failed to demonstrate

a collateral disability or loss of civil rights arising from his convictions.

{¶3} The doctrine of mootness is founded upon the “long and well

established” principle that courts have a “duty * * * to decide actual controversies

between parties legitimately affected by specific facts and to render judgments which

can be carried into effect.” Fortner v. Thomas, 22 Ohio St.2d 13, 14, 257 N.E.2d 371

(1970). Thus, a court has no duty to decide a matter that is “moot in the sense that

the court cannot provide the appellant with any meaningful relief.” State v. Carr, 1st

Dist. Hamilton No. C-140172, 2015-Ohio-2529, ¶ 9, citing Miner v. Witt, 82 Ohio St.

237, 92 N.E. 21 (1910), syllabus.

{¶4} Smith’s child-enticement offenses were first-degree misdemeanors.

R.C. 2905.05(C). An appeal challenging a misdemeanor conviction is moot, and thus

subject to dismissal, if the offender has voluntarily completed his sentence and has

failed to offer evidence permitting an “inference” that he has a “substantial stake in

the judgment of conviction,” by showing that, because of his conviction, he “will

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suffer some collateral disability or loss of civil rights.” State v. Wilson, 41 Ohio St.2d

236, 237, 325 N.E.2d 236 (1975), syllabus. Accord Cleveland Hts. v. Lewis, 129 Ohio

St.3d 389, 2011-Ohio-2673, 953 N.E.2d 278, ¶ 17-19.

{¶5} A collateral disability is “an adverse legal consequence of a conviction

or judgment that survives despite the court’s sentence having been satisfied or

served.” In re S.J.K., 114 Ohio St.3d 23, 2007-Ohio-2621, 867 N.E.2d 408, ¶ 10. An

offender suffers under a collateral disability when he “may be subject to further

penalties or disabilities under state or federal law even after a judgment has been

satisfied.” Id. at ¶ 14. A collateral disability “need not have an immediate impact or

impairment but may be something that occurs in the future.” Id. at 25. An appeal is

moot “only if it is shown that there is no possibility [of] any collateral legal

consequences.” Wilson at 237, quoted in In re S.J.K. at ¶ 14.

{¶6} In 1996, the General Assembly enacted R.C. Chapter 2950 (“Megan’s

Law”), Am.Sub.H.B. No. 180, 146 Ohio Laws, Part II, 2560, providing for the

classification and registration of sex offenders. In 2003, Megan’s Law was amended

by Am.Sub.S.B. No. 5, 150 Ohio Laws, Part IV, 6556, to provide for

the classification and registration of an offender convicted of a “child victim oriented

offense.”

{¶7} Under the version of Megan’s Law in effect in 2004, when Smith was

convicted, his child-enticement convictions were, by definition, “child-victim

oriented offense[s].” See R.C. 2950.01(S)(1)(a)(i). And he was, by operation of law,

classified as a child-victim-oriented offender for purposes of the duty to register

imposed by R.C. 2950.041(A)(1)(a). Thus, Smith was upon his August 2007 release

from confinement, and he remains until August 2017, subject to the ten-year

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registration requirements of then-effective R.C. 2950.041, along with any sanction

that might be imposed under R.C. 2950.99 for violating his duty to register. See

former R.C. 2950.041(F) and 2950.07(A)(1) and (B)(3) (effective July 31, 2003).

Accord State v. Tucker, 1st Dist. Hamilton No. C-130026, 2013-Ohio-5102 (holding

that defendant’s 2004 conviction for the child-victim-oriented offense of abduction

required him, upon his 2007 release from confinement, to register under former R.C.

2950.041(A)(1) as a child-victim-oriented offender).

{¶8} The registration and reporting requirements imposed under Megan’s

Law are not part of an offender’s sentence. State v. Cook, 83 Ohio St.3d 404, 417,

700 N.E.2d 570 (1998). Therefore, Smith completed his sentences in August 2007,

when he was released from confinement. But his duty to register as child-victim-

oriented offender, with the accompanying risk of sanctions for violating that duty,

constitutes a collateral disability that survives his completion of the sentences

imposed upon his child-enticement convictions. Accordingly, his appeals from the

overruling of his motions to vacate those convictions are not moot.

The Child-Enticement Statute and Romage

{¶9} We also hold that the municipal court erred in not granting Smith the

relief sought in his motions. Smith was convicted in 2004 on two counts of criminal

child enticement in violation of the 2001 version of R.C. 2905.05. That version of the

statute proscribed criminal child enticement as follows:

(A) No person, by any means and without privilege to do so, shall

knowingly solicit, coax, entice, or lure any child under fourteen years

of age to accompany the person in any manner, including entering into

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any vehicle or onto any vessel, whether or not the offender knows the

age of the child, if both of the following apply:

(1) The actor does not have express or implied permission of the

parent, guardian, or other legal custodian of the child in undertaking

the activity.

(2) The actor is not a law enforcement officer, medic, firefighter, or

other person who regularly provides emergency services, and is not an

employee or agent of, or a volunteer acting under the direction of,

any board of education, or the actor is any of such persons, but, at the

time the actor undertakes the activity, the actor is not acting within the

scope of the actor’s lawful duties in that capacity.

{¶10} Before it was amended in 2001, the child-enticement statute had

proscribed knowingly soliciting, coaxing, enticing, or luring a child under 14 “to enter

into any vehicle.” Am.Sub.S.B. No. 321, 140 Ohio Laws, Part I, 1192, 1211. In 1988

and 1989, we held that the pre-2001 version of the statute was not unconstitutionally

vague or overbroad. See State v. Long, 49 Ohio App.3d 1, 2, 550 N.E.2d 522 (1st

Dist.1989); State v. Kroner, 49 Ohio App.3d 133, 134-135, 551 N.E.2d 212 (1st

Dist.1988).

{¶11} The 2001 amendment broadened the statute’s proscription,

prohibiting a person from knowingly soliciting, coaxing, enticing, or luring a child

under 14 “to accompany the person in any manner, including entering into any

vehicle.” (Emphasis added.) S.B. No. 312, 148 Ohio Laws, Part V, 11668. In 2005, in

State v. Clark, 1st Dist. Hamilton No. C-040329, 2005-Ohio-1324, ¶ 8, we followed

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our decisions in Long and Kroner to hold that the 2001 version of the statute was not

overbroad.

{¶12} In 2008, R.C. 2905.05 was again amended, to additionally prohibit,

under division (B) of the statute, the act of violating division (A) of the statute “with a

sexual motivation.” S.B. No. 10, 152 Ohio Laws, Sec. 1. But division (A) of the statute

remained unchanged.

{¶13} Thereafter, R.C. 2905.05(A) was held to be unconstitutionally

overbroad by the Second Appellate District in 2008, State v. Chapple, 175 Ohio

App.3d 658, 2008-Ohio-1157, 888 N.E.2d 1121, ¶ 18 (2d Dist.); by the Tenth

Appellate District in 2012, State v. Romage, 2012-Ohio-3381, 974 N.E.2d 120 (10th

Dist.); and by the Ninth Appellate District in 2013, State v. Goode, 2013-Ohio-556,

989 N.E.2d 107 (9th Dist.). And the Eighth Appellate District, in 2009, struck down

as overbroad a substantially similar municipal ordinance. Cleveland v. Cieslak, 8th

Dist. Cuyahoga No. 92017, 2009-Ohio-4035, ¶ 16.

{¶14} In 2014, the conflict between those appellate court decisions and our

decision in Clark was resolved when the Ohio Supreme Court in State v. Romage,

138 Ohio St.3d 390, 2014-Ohio-783, 7 N.E.3d 1156, held that R.C. 2905.05(A) was

unconstitutionally overbroad. The court concluded that R.C. 2905.05(A) “sweeps

within its prohibitions a significant amount of * * * activity” protected by the First

Amendment, because it prohibits soliciting, coaxing, enticing, or luring a child

without requiring aggression toward the victim or the intent to commit an unlawful

act,1 and because the “common, ordinary meaning of the word ‘solicit’ encompasses

1 The General Assembly had, in 2013, again amended R.C. 2905.05 to additionally prohibit, under subsection

(C) of the statute, engaging in any activity described in division (A) of the statute, “for any unlawful purpose
other than, or in addition to, that proscribed in division (A).”

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‘merely asking’.” Id. at ¶ 10-11, 18. The court further determined that the statute’s

unconstitutional overbreadth could not be cured by severing or narrowly construing

the term “solicit.” Id. at ¶ 15-16. Thus, the court “invalidated” R.C. 2905.05 on the

ground that it was unconstitutionally overbroad. Id. at ¶ 8 and syllabus.

Jurisdiction to Grant Relief

{¶15} In cases on direct appeal, we have followed the Supreme Court’s

decision in Romage to reverse child-enticement convictions and order the

defendants discharged. See State v. Cobia, 1st Dist. Hamilton No. C-140058, 2015-

Ohio-331, ¶ 12; State v. Rebholz, 1st Dist. Hamilton No. C-130636, 2014-Ohio-2429,

¶ 3-4. But Smith did not appeal his convictions. Instead, in March and June 2015,

over 11 years after he had been convicted and almost eight years after he had, in

August 2007, completed the sentences imposed for his offenses, Smith filed with the

municipal court motions seeking an order vacating his convictions on the authority

of Romage. The municipal court overruled the motions, and these appeals followed.

{¶16} In his motions, Smith did not designate a statute or rule under which

relief could be granted. A court confronted with such a motion may “recast” the

motion “in whatever category necessary to identify and establish the criteria by

which the motion should be judged.” State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-

545, 882 N.E.2d 431, ¶ 12.

{¶17} No jurisdiction to grant habeas corpus, postconviction,

or Civ.R. 56(B) relief. But Smith’s motions were not reviewable under R.C.

2725.01 et seq., as petitions for writs of habeas corpus. Relief may be afforded under

the habeas corpus statutes only when the petitioner is presently in “the actual

physical custody of the state.” Harrod v. Harris, 1st Dist. Hamilton No. C-000791,

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2001 Ohio App. LEXIS 2092 (May 11, 2001), citing Tomkalski v. Maxwell, 175 Ohio

St. 377, 378, 194 N.E.2d 845 (1963). And Smith had, by August 2007, been released

from confinement.

{¶18} Nor were Smith’s motions reviewable under R.C. 2953.21 et seq.,

governing the proceedings on a petition for postconviction relief. The postconviction

statutes require that a postconviction petition be filed with the court that sentenced

the petitioner and confer jurisdiction over a postconviction petition only upon a

common pleas court. See State v. Cowan, 101 Ohio St.3d 372, 2004-Ohio-1583, 805

N.E.2d 1085; R.C. 2953.21(A)(1)(a). Smith was convicted in municipal court.

{¶19} Crim.R. 57(B) requires a court to “look to the rules of civil procedure

and to the applicable law if no rule of criminal procedure exists.” And Civ.R.

60(B)(5) permits a court to grant relief from a judgment for “any * * * reason

justifying relief.” We have held that, because the criminal rules provide no procedure

for an offender convicted in municipal court to seek relief from his conviction based

on evidence outside the record, Crim.R. 57(B) permits the offender to seek relief

under Civ.R. 60(B)(5). State v. Black, 1st Dist. Hamilton No. C-070546, 2008-Ohio-

3790. But Smith’s challenge to the constitutionality of his convictions was not

reviewable under Civ.R. 60(B)(5), because the challenge does not depend for its

resolution upon outside evidence and was thus reviewable under the procedures

provided for a direct appeal. Therefore, Crim.R. 57(B) did not require the municipal

court to review this challenge under Civ.R. 60(B).

{¶20} Jurisdiction to vacate void convictions. But a court always

has jurisdiction to correct a void judgment. State ex rel. Cruzado v. Zaleski, 111 Ohio

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St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 18-19. And Smith’s convictions were

void.

{¶21} In Romage, the Ohio Supreme Court “invalidated” the 2008 version of

the R.C. 2925.05(A) as unconstitutionally overbroad, because the statute prohibits

anyone not specifically exempted under the statute from asking any child under 14 to

accompany that person in any manner and for any reason. Romage, 138 Ohio St.3d

390, 2014-Ohio-783, 7 N.E.3d 1156, at ¶ 11. Because the 2008 amendment to R.C.

2905.05 did not alter division (A) of the statute, the 2001 version of R.C. 2905.05(A),

under which Smith was convicted, suffers from the same constitutional infirmities as

the 2008 version held to be overbroad in Romage. Thus, Smith stands convicted

under an unconstitutional statute.

{¶22} The United States Supreme Court has long held,

An unconstitutional law is void, and is as no law. An offence created by

it is not a crime. A conviction under it is not merely erroneous, but is

illegal and void * * *. It is true, if no writ of error lies, the judgment

may be final, in the sense that there may be no means of reversing it.

But * * * if, the laws are unconstitutional and void, the [trial] Court

acquired no jurisdiction of the causes [because] [i]ts authority to indict

and try the [defendants] arose solely upon these laws.

Ex parte Siebold, 100 U.S. 371, 376-377, 25 L.Ed. 717 (1880), quoted in Montgomery

v. Louisiana, ___ U.S. ___, 136 S.Ct. 718, 730-731, 193 L.Ed.2d 599 (2016). Accord

Middletown v. Ferguson, 25 Ohio St.3d 71, 80, 495 N.E.2d 380 (1986); Cincinnati,

Wilmington and Zanesville RR. Co. v. Clinton Cty., 1 Ohio St. 77, 86 (1852); Hogg v.

Zanesville Canal & Mfg. Co., 5 Ohio 410, 417 (1832); Spier v. Am. Univ. of

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Caribbean, 3 Ohio App.3d 28, 30, 443 N.E.2d 1021 (1st Dist.1981) (holding that an

unconstitutional statute is void ab initio). Nevertheless, the state insists that Smith

was not entitled to relief from his convictions based on Romage, because Romage

applied only to cases on direct review, and Smith’s convictions had become final well

before Romage was decided. We conclude, to the contrary, that the rule of Romage

applied retroactively and required Smith’s child-enticement convictions to be

vacated.

{¶23} Smith’s convictions became final in April 2004, when the time for him

to perfect a direct appeal had expired. See Teague v. Lane, 489 U.S. 288, 295, 109

S.Ct. 1060, 103 L.Ed.2d 334 (1989); Agee v. Russell, 92 Ohio St.3d 540, 2001-Ohio-

1279, 751 N.E.2d 1043 (holding that a conviction becomes final when all appellate

remedies have been exhausted). The rule of Romage—that R.C. 2905.05 is

unconstitutionally overbroad—was announced in 2014.

{¶24} A new rule of law applies to criminal cases still pending on direct

appeal, but generally does not apply to a conviction that was final when the new rule

was announced. Teague at 311; Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct.

708, 93 L.Ed.2d 649 (1987). But “courts must give retroactive effect to new

substantive rules of constitutional law.” Montgomery at 728, citing Teague at 307,

and Schriro v. Summerlin, 542 U.S. 348, 352, 124 S.Ct. 2519, 159 L.Ed.2d 442

(2004), fn. 4.

{¶25} “[A] case announces a new rule if the result was not dictated by

precedent existing at the time the defendant’s conviction became final.” Teague at

301. A holding is not dictated by then existing precedent unless it would have been

“apparent to all reasonable jurists.” Lambrix v. Singletary, 520 U.S. 518, 527-528,

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117 S.Ct. 1517, 137 L.Ed.2d 771 (1997). Applying this standard, we conclude that the

rule of Romage constituted a “new rule.”

{¶26} When, in 2004, Smith’s convictions became final, Romage’s holding

that R.C. 2905.05(A) is unconstitutionally overbroad could not be said to have been

“apparent to all reasonable jurists.” We had held in 1988 and 1989 that the pre-2001

version of R.C. 2905.05 was not overbroad. Long, 49 Ohio App.3d at 2, 550 N.E.2d

522; Kroner, 49 Ohio App.3d at 134-135, 551 N.E.2d 212. Then, in 2005, we upheld

the 2001 version of the statute, despite its amendment extending its reach to “any

manner” of enticements. Clark, 1st Dist. Hamilton No. C-040329, 2005-Ohio-1324,

at ¶ 8. Not until 2008 did an Ohio appellate court hold that R.C. 2905.05(A) was

overbroad. See Chapple, 175 Ohio App.3d 658, 2008-Ohio-1157, 888 N.E.2d 1121, ¶

18. Accord Goode, 2013-Ohio-556, 989 N.E.2d 107; Romage, 2012-Ohio-3381, 974

N.E.2d 120. See also Cieslak, 8th Dist. Cuyahoga No. 92017, 2009-Ohio-4035, at ¶

16. And the conflict among the appellate districts on the issue of overbreadth was

not resolved until 2014, when the Ohio Supreme Court decided Romage. Thus, in

2004, when Smith’s convictions became final, precedent did not dictate a holding

that the 2001 version of the statute under which he had been convicted was

unconstitutionally overbroad. Accordingly, in 2014, when it held in Romage that

R.C. 2905.05(A) was unconstitutionally overbroad, the Ohio Supreme Court

announced a new rule of constitutional law.

{¶27} A new rule of constitutional law is “substantive,” and thus not subject

to the bar on retroactive application, if it “place[s], as a matter of constitutional

interpretation, certain kinds of primary, private individual conduct beyond the

power of the criminal law-making authority to proscribe.” Montgomery, 136 S.Ct. at

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729, 193 L.Ed.2d 599, quoting Mackey v. United States, 401 U.S. 667, 692, 91 S.Ct.

1160, 28 L.Ed.2d 404 (1971) (opinion concurring in judgments in part and dissenting

in part), and citing Teague, 489 U.S. at 292, 312, 109 S.Ct. 1060, 103 L.Ed.2d 334,

and Schriro, 542 U.S. at 352, 124 S.Ct. 2519, 159 L.Ed.2d 442 (recognizing that

substantive rules are more accurately characterized as not subject to, rather than an

exception to, the retroactivity bar). The effect of the rule in Romage was to place

beyond the General Assembly’s power to punish those acts proscribed under the R.C.

2905.05(A), i.e., soliciting, coaxing, enticing, or luring a child under 14 to accompany

a person in any manner and for any purpose. Thus, the court in Romage announced

a substantive rule of constitutional law.

{¶28} A new substantive rule of constitutional law applies retroactively to a

criminal case because such rules “necessarily carry a significant risk that a defendant

stands convicted of ‘an act that the law does not make criminal.’ ” Bousley v. United

States, 523 U.S. 614, 620, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998), quoting Davis v.

United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). Accord

Montgomery, 136 S.Ct. at 734, 193 L.Ed.2d 599; Schriro, 542 U.S. at 352, 124 S.Ct.

2519, 159 L.Ed.2d 442. Therefore, when a new substantive rule of constitutional law

controls the outcome of a case, that rule must be given retroactive effect, regardless

of whether the conviction has become final. Montgomery, 136 S.Ct. at 729, 193

L.Ed.2d 599.

{¶29} The new substantive rule of constitutional law announced in

Romage—that the version of R.C. 2905.05(A) under which Smith was convicted was

unconstitutionally overbroad—controls the outcome in Smith’s case. Because the

statute was unconstitutional, it was void ab initio, and Smith’s convictions under the

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statute were void. Because Smith’s convictions were void, the municipal court had

jurisdiction to vacate his convictions and discharge him. We, therefore, hold that the

rule of Romage applies retroactively to afford Smith the relief from his 2004 child-

enticement convictions sought in his 2015 motions to vacate those convictions.

{¶30} Accordingly, we reverse the municipal court’s judgments overruling

Smith’s motions and remand to the court with instructions to vacate his convictions

and to order that he be discharged from further prosecution for those offenses.

Judgments reversed and cause remanded.

FISCHER, P.J., and MOCK, J., concur.

Please note:

The court has recorded its own entry on the date of the release of this opinion.

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