[Cite as State v. Stowers, 2018-Ohio-926.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-160724
TRIAL NO. B-7800309
Plaintiff-Appellee, :
vs. : O P I N I O N.
TODD WALLACE STOWERS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: March 14, 2018
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Ohio Justice and Policy Center and David A. Singleton, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} Defendant-appellant Todd Wallace Stowers was indicted for rape and
robbery on February 4, 1978. He pleaded guilty to attempted rape and the robbery
charge was dismissed. On May 11, 1978, he was sentenced to two to 15 years’
incarceration. He was paroled on July 19, 1981. On March 4, 1982, he was convicted
of two counts of theft and sentenced to concurrent terms of two to five years. He was
returned to prison on the parole violation for the attempted rape and on the theft
convictions. Because he had committed the thefts while on parole, former R.C.
2929.14(B)(3) required that the sentences for the thefts be served consecutively to
the sentence for attempted rape.
{¶2} Effective July 1, 1997, 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 an offender who was serving a
prison term for a sexually-oriented offense on July 1, 1997, was required to register
as a sex offender. On April 7, 1997, while serving time for a parole violation, Stowers
was ordered back from prison to the trial court for a sexual-offender-classification
hearing under Megan’s Law. He was adjudicated as a sexual predator. We affirmed
his classification on appeal, overruling his constitutional challenges. State v.
Stowers, 1st Dist. Hamilton No. C-970423, 1998 WL 140097 (Mar. 27, 1998)
(“Stowers I”). After being released on parole and reincarcerated various times for
parole violations, Stowers was finally released from prison on December 3, 1997,
after serving a total of nearly 17 years.
{¶3} In 2005, the Ohio Supreme Court decided State v. Champion, 106
Ohio St.3d 120, 2005-Ohio-4098, 832 N.E.2d 718, which held that an offender
2
OHIO FIRST DISTRICT COURT OF APPEALS
whose prison term for a sex offense had been completed before July 1, 1997, was not
required to register under Megan’s Law even if the offender had been returned to
prison on a parole violation for a term to be served concurrently with the term for the
sexually-oriented offense. In 2006, Stowers filed a motion to set aside the order
requiring him to register based on Champion. Stowers argued that he had finished
serving his sentence for the attempted rape prior to July 1, 1997, and therefore,
Megan’s Law could not be applied to him. The trial court overruled the motion, but
did not order the clerk to serve Stowers with a copy of the order. Stowers did not
appeal from that judgment.
{¶4} On January 7, 2014, in a separate case, Stowers was indicted for failing
to notify the sheriff of an address change. Citing Champion, he filed a motion to
dismiss the indictment and requested an order removing his name from the sex-
offender registry. The trial court granted the motion to dismiss the indictment and
ordered that his name be removed from the registry. The state appealed. We held
that res judicata precluded Stowers from raising the Champion issue, because he had
raised that issue in the 2006 motion in the other case, it had been decided against
him, and he had not appealed from that judgment. We reversed the trial court’s
judgment dismissing the indictment and removing Stowers’s name from the sex-
offender registry and remanded the cause for further proceedings. State v. Stowers,
1st Dist. Hamilton No. C-150095, 2015-Ohio-4846 (“Stowers II”).
{¶5} After our opinion was released, Stowers filed a motion in his original
1978 attempted-rape case, the case sub judice, requesting that the trial court comply
with Civ.R. 58(B) and order the clerk to serve him with the 2006 entry overruling his
Champion motion to set aside the order requiring him to register. He cited State v.
Banks, 1st Dist. Hamilton No. C-130469 (May 2, 2014), a judgment entry from this
court, arguing that he had never been served with the 2006 judgment entry as
3
OHIO FIRST DISTRICT COURT OF APPEALS
required by Civ.R. 58(B), and therefore, the time to appeal the 2006 entry had not
run. On September 6, 2016, the trial court granted the motion and ordered the clerk
to serve Stowers with the 2006 judgment entry. Stowers filed his notice of appeal as
to the 2006 Champion motion on September 15, 2016.
{¶6} Before reaching the merits of Stowers’s appeal, we must determine
whether it is timely.
{¶7} Proceedings under Megan’s Law were civil, not criminal. State v.
Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110; State v. Wilson, 113
Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264; State v. Cook, 83 Ohio St.3d
404, 416-418, 700 N.E.2d 570 (1998); State v. Hunter, 144 Ohio App.3d 116, 121, 759
N.E.2d 809 (1st Dist.2001). In civil cases, App.R. 4(A) requires the notice of appeal
to be filed within 30 days of “service of the notice of judgment and its entry if service
is not made on the party within the three day period in Rule 58(B) of the Ohio Rules
of Civil Procedure.” App.R. 4(A); Harvey v. Hwang, 103 Ohio St.3d 16, 2004-Ohio-
4112, 812 N.E.2d 1275, ¶ 15. Civ.R. 58(B) requires the court to endorse on its
judgment “a direction to the clerk to serve upon all parties * * * notice of the
judgment and its date of entry upon the journal.” Civ.R. 58(B); Harvey at ¶ 14.
The thirty-day time limit for filing the notice of appeal does not begin
to run until the later of (1) entry of the judgment or order appealed if
the notice mandated by Civ.R. 58(B) is served within three days of the
entry of judgment; or (2) service of the notice of judgment and its date
of entry if service is not made on the party within the three-day period
in Civ.R. 58(B).
Whitehall ex rel. Fennessy v. Bambi Motel, Inc., 131 Ohio App.3d 734, 723 N.E.2d
633 (10th Dist.1998). “App.R. 4(A) contains a tolling provision that applies in civil
cases when a judgment has not been properly served on a party according to Civ.R.
4
OHIO FIRST DISTRICT COURT OF APPEALS
58(B).” In re Anderson, 92 Ohio St.3d 63, 748 N.E.2d 67 (2001); see Frazier v.
Cincinnati School of Med. Massage, 1st Dist. Hamilton No. C-060359, 2007-Ohio-
2390, ¶ 17. “Thus, regardless of whether an appellant actually knows that a
judgment has been entered, the time for appealing that judgment begins to run only
‘upon service of notice of the judgment and notation of service on the docket by the
clerk of courts.’ ” State v. Young, 1st Dist. Hamilton No. C-140236, 2015-Ohio-774, ¶
4, quoting Clermont Cty. Transp. Improvement Dist. v. Gator Milford, L.L.C., 141
Ohio St.3d 542, 2015-Ohio-241, 26 N.E.3d 806, syllabus.
{¶8} Stowers was not served with the trial court’s 2006 judgment
overruling his motion to set aside the order requiring him to register until September
9, 2016. Service was made pursuant to the court’s September 6, 2016 order to the
clerk to serve Stowers with the judgment. Stowers filed his notice of appeal on
September 15, 2016. Therefore his appeal from the 2006 judgment is timely, and we
may entertain his appeal on the merits. See State v. Reece, 1st Dist. Hamilton Nos.
C-160228 and C-160229, 2016-Ohio-7858, ¶ 4 (where the trial court had entered an
order in 2006 overruling defendant’s Champion motion to set aside the order
requiring him to register, but defendant had never been served with the 2006
judgment entry, defendant’s appeals filed in 2016 were timely).
{¶9} The state argues that Stowers’s appeal is untimely pursuant to the
Ohio Supreme Court’s decision in State v. Clayborn, 125 Ohio St.3d 450, 2010-Ohio-
2123, 928 N.E.2d 1093, which stated, “An appeal from an R.C. Chapter 2950 sexual-
offender classification judgment is an appeal in a criminal case that must be filed
pursuant to App.R. 4(A) within 30 days after judgment is entered.” Id. at syllabus.
But Clayborn is distinguishable. Clayborn involved a direct appeal from an initial
sex-offender-classification judgment. In Clayborn, the Supreme Court recognized its
line of cases holding that sex-offender-classification procedures under Megan’s Law
5
OHIO FIRST DISTRICT COURT OF APPEALS
were civil and remedial, but carved out an exception for the time for appealing a sex-
offender-classification judgment, noting that “the [sex-offender] classification and its
concomitant duties appear in the criminal judgment.” Id. at ¶ 10. The court held
that “an appeal from a sexual offender classification judgment is a civil matter within
the context of a criminal case” and that “the appeal requirements applicable to
criminal cases * * * apply.” Id. at ¶ 11. In Clayborn, as in all initial classification
hearings, the defendant was present in court when the classification was announced.
{¶10} In this case, Stowers is not appealing from the initial sex-offender-
classification judgment entered in 1997. He is appealing from the trial court’s 2006
judgment overruling his motion to vacate his sex-offender classification, which was
filed after conviction and to which Civ.R. 58(B) service rules apply. See Reece at ¶ 4.
Unlike his initial classification, Stowers was not present when the decision was
announced, nor was it part of his criminal sentencing entry. Therefore, his appeal is
timely.
{¶11} The state also argues that pursuant to our opinion in Stowers II, res
judicata precludes Stowers from raising the issue of whether the trial court had the
authority to order him to register as a sex offender. In Stowers II, Stowers had been
indicted for failing to notify the sheriff of an address change. The trial court granted
Stowers’s Champion motion to dismiss the indictment, and the state appealed. We
stated that where a jurisdictional issue has been fully litigated and decided by a court
with the authority to pass on the issue, the decision is res judicata in a collateral
action and can only be challenged in a direct appeal. We held, based on the record
before us in that case, that Stowers could not collaterally attack the trial court’s 2006
judgment where he had failed to appeal it. The parties did not raise, and we did not
address, the issue of whether the time had run for appealing the trial court’s 2006
judgment overruling Stowers’s motion to set aside the order requiring him to register
6
OHIO FIRST DISTRICT COURT OF APPEALS
in the original attempted-rape case. We hold now that it had not. Stowers has now
filed a timely appeal from that judgment, and we will address its merits.
{¶12} Stowers’s sole assignment of error alleges that the trial court erred in
denying his 2006 motion to set aside the order requiring him to register as a sexual
predator. Stowers argues that pursuant to Champion, 106 Ohio St.3d 120, 2005-
Ohio-4098, 832 N.E.2d 718, he has no duty to register because he completed his
prison sentence for attempted rape before July 1, 1997.
{¶13} On May 11, 1978, Stowers was sentenced to two to 15 years’
incarceration for attempted rape. He was paroled on July 19, 1981. While on parole,
he committed two theft offenses, for which he was sentenced on March 4, 1982, to
concurrent terms of two to five years. Stowers was returned to prison on the parole
violation for the attempted rape and on the theft convictions. Because he had
committed the thefts while on parole, former R.C. 2929.14(B)(3) required that the
theft sentences be served consecutively to the attempted-rape sentence. Following
several returns to prison for parole violations, Stowers ultimately was released from
prison on December 3, 1997. He had served a total of nearly 17 years. Therefore, he
had to have completed the 15-year maximum sentence for attempted rape well before
July 1, 1997, the effective date of Megan’s Law’s registration requirements. We note
that the state does not argue in its brief that Stowers had not completed his
attempted-rape sentence before July 1, 1997. The state argues only that res judicata
precludes Stowers from raising this issue and that Civ.R. 58(B) does not apply to
Stowers’s appeal, issues that we have resolved in Stowers’s favor.
{¶14} We hold that the trial court erred in overruling Stowers’s 2006 motion
to set aside the order requiring him to register as a sexual predator. Pursuant to
Champion, 106 Ohio St.3d 120, 2005-Ohio-4098, 832 N.E.2d 718, he has no duty to
7
OHIO FIRST DISTRICT COURT OF APPEALS
register because he completed his prison sentence for attempted rape before July 1,
1997. Stowers’s assignment of error is sustained.
{¶15} The judgment of the trial court overruling Stowers’s 2006 motion to
set aside the order requiring him to register is reversed and this cause is remanded to
the trial court with instructions to enter an order granting Stowers’s motion because
he has no duty to register as a sex offender.
Judgment reversed and cause remanded.
MILLER and DETERS, JJ., concur.
Please note:
The court has recorded its own entry this date.
8