[Cite as State v. Walker, 2017-Ohio-7493.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-160764
TRIAL NO. B-0007550
Plaintiff-Appellee, :
vs. :
JEFFREY WALKER, :
Defendant-Appellant. :
STATE OF OHIO, : APPEAL NO. C-160863
TRIAL NO. B-0601085
Plaintiff-Appellant, :
vs. : O P I N I O N.
JEFFREY WALKER, :
Defendant-Appellee. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Reversed and Cause Remanded in C-160764;
Affirmed in C-160863
Date of Judgment Entry on Appeal: September 8, 2017
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for the State of Ohio,
Raymond T. Faller, Hamilton County Public Defender, and Carrie Wood, Assistant
Public Defender, for Jeffrey Walker.
OHIO FIRST DISTRICT COURT OF APPEALS
MOCK, Presiding Judge.
Facts and Procedure
1. The 1986 Case
{¶1} On July 2, 1986, Jeffrey Walker pleaded guilty to aggravated robbery,
aggravated burglary, theft and gross sexual imposition (“GSI”). He was sentenced to
one and a half years’ incarceration on the GSI, to be served concurrently with the
sentences imposed on the other offenses.
{¶2} While Walker was still serving time on the 1986 case, the General
Assembly enacted former R.C. Chapter 2950 (“Megan’s Law”). See Am.Sub.H.B. No.
180, 146 Ohio Laws, Part II, 2560, enacted in 1996, amended in 2003 by
Am.Sub.S.B. No. 5, 150 Ohio Laws, Part IV, 6556. Former R.C. 2950.04(A)(1)(a)
provided that “[r]egardless of when the sexually oriented offense [had been]
committed, an offender who [was] sentenced for the sexually oriented offense to a
prison term, a term of imprisonment, or any other type of confinement and, on or
after July 1, 1997, [was] released in any manner from the prison term, term of
imprisonment, or confinement” was required to register as a sex offender under
Megan’s Law. On July 23, 1997, Walker was brought back before the trial court for a
sexual-offender-classification hearing and was adjudicated a sexual predator.
{¶3} In 2005, the Ohio Supreme Court held in State v. Champion, 106 Ohio
St.3d 120, 2005-Ohio-4098, 832 N.E.2d 718, that former R.C. 2950.04(A)(1)(a)
required only those who were serving a prison term on or after July 1, 1997, for a
sexually oriented offense to register as sex offenders. In 2016, Walker filed a pro se
motion to vacate the registration order as void. Appointed counsel filed a
subsequent “motion for an order that Mr. Walker has no duty to register.” The
motions were based on the ground that Walker had finished serving his sentence for
GSI before July 1, 1997, and therefore, he had no duty to register as a sex offender.
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OHIO FIRST DISTRICT COURT OF APPEALS
The trial court granted the motions, vacated the sexual-predator classification, and
stated that Walker “has no duty to register in the State of Ohio because he was not
serving a prison term for a sex offense on July 1, 1997.”
2. Appeal No. C-160764
{¶4} On October 2, 2000, in the case numbered B-0007550, Walker was
indicted for failing to provide periodic verification of his address. He pleaded guilty
to and was convicted of attempted failure to provide periodic verification of his
address. On July 19, 2016, after the trial court in the 1986 case had vacated the
registration order, Walker filed a motion to withdraw his guilty plea and dismiss the
indictment in the 2000 case. The motion was denied. Walker appealed the denial of
his motion in the appeal numbered C-160764. He has raised one assignment of
error, alleging that the trial court erred in overruling his motion to withdraw his
guilty plea and dismiss the indictment, and arguing that his plea was not knowing,
intelligent and voluntary and that he demonstrated a manifest injustice, because he
had no duty to register.
3. Appeal No. C-160863
{¶5} On February 15, 2006, Walker was indicted for failing to provide
periodic verification of his address and failing to provide notice of a change of
address. He pleaded guilty to failing to verify and the failing-to-notify charge was
dismissed. Following the trial court’s order in the 1986 case vacating the registration
order, Walker filed a motion to withdraw his plea and dismiss the indictment in the
2006 case. The trial court granted Walker’s motion, and the state appealed in the
appeal numbered C-160863. The state’s sole assignment of error alleges that the
trial court erred in granting Walker’s motion to withdraw his plea and dismiss the
indictment. The state’s appeal was consolidated with Walker’s appeal for purposes of
argument and disposition.
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OHIO FIRST DISTRICT COURT OF APPEALS
Analysis
{¶6} Because Walker was not serving a sentence for a sexually oriented
offense on or after July 1, 1997, he has no duty to register as a sex offender. See
Lewis v. Leis, 1st Dist. Hamilton No. C-080216, 2009-Ohio-3096, ¶ 11 (holding that
the sex-offender registration obligations under former R.C. 2950.04 apply only to
offenders who were convicted of and sentenced to prison for a sexually oriented
offense and who were released from prison for that sexually oriented offense on or
after July 1, 1997); Champion, 106 Ohio St.3d 120, 2005-Ohio-4098, 832 N.E.2d
718. The trial court in the 1986 case correctly vacated its July 23, 1997 order
requiring Walker to register as a sexual predator and directed that Walker’s
classification be removed from the sex-offender registry.
{¶7} In State v. Ferguson, 1st Dist. Hamilton No. C-140368, 2015-Ohio-
1463, ¶ 7, quoting State v. Shirley, 1st Dist. Hamilton No. C-130121, 2013-Ohio-
5216, ¶ 8, we stated,
Crim.R. 32.1 provides that a trial court may permit a defendant to
withdraw a guilty plea after sentence “to correct manifest injustice.”
Crim.R. 32.1; State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324
(1977), paragraph one of the syllabus; State v. Akemon, 173 Ohio
App.3d 709, 2007-Ohio-6217, 880 N.E.2d 143, ¶ 8 (1st Dist.). “A
manifest injustice has been defined as a ‘clear or openly unjust act,’
evidenced by an extraordinary and fundamental flaw in a plea
proceeding.” State v. Tekulve, 188 Ohio App.3d 792, 2010-Ohio-3604,
936 N.E.2d 1030, ¶ 7 (1st Dist.), citing State ex rel. Schneider v.
Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998), and Smith at
264.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶8} It is clear that Walker does not have a duty to register as a sexual
offender and thus could not have been convicted of violating that duty. Therefore, he
could not have knowingly, intelligently or voluntarily pleaded guilty to failing to
verify his address or to attempted failure to verify. See State v. King, 2015-Ohio-
3565, 41 N.E.3d 847, ¶ 11 (1st Dist.). We hold that Walker has demonstrated
manifest injustice, and therefore, he must be permitted to withdraw his guilty pleas.
Id. Further, because Walker has no duty to register as a sex offender, the
indictments charging Walker with failing to register must be dismissed.
{¶9} The state argues that the issue of whether Walker has a duty to register
is barred by res judicata. It is not. The issue of sexual-offender classification is
distinct from the issue of the duty to register. State v. Taylor, 100 Ohio St.3d 172,
2003-Ohio-5452, 797 N.E.2d 504, ¶ 10. A sexual offender’s duty to register under
Megan’s Law arose solely under former R.C. 2950.04. Lewis at ¶ 8. “Even if an
offender has been ‘adjudicated a sexual predator [pursuant to R.C. 2950.09], he has
no duty to register [if] he does not fit with the plain language of R.C. 2950.04
describing categories of registrants.’ ” Id., citing State v. Bellman, 86 Ohio St.3d
208, 212, 714 N.E.2d 381 (1999), and State v. Jones 8th Dist. Cuyahoga No. 86251,
2006-Ohio-1338, ¶ 6. Walker’s duty to register was not adjudicated in the sexual-
predator-classification proceeding.
{¶10} Walker’s assignment of error is sustained and the state’s assignment of
error is overruled.
{¶11} The judgment of the trial court in the appeal numbered C-160764 is
reversed and the cause is remanded with instructions to the trial court to grant
Walker’s motion to withdraw his guilty plea and dismiss the indictment because he
has no duty to register as a sex offender. The judgment of the trial court in the
appeal numbered C-160863 is affirmed.
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OHIO FIRST DISTRICT COURT OF APPEALS
Judgment accordingly.
CUNNINGHAM and DETERS, JJ., concur.
Please note:
The court has recorded its own entry this date.
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