Plaintiff-Appellant, - sconet.state.oh.us IN THE SUPREME COURT OF OHIO 2014 STATE OF OHIO,...
Transcript of Plaintiff-Appellant, - sconet.state.oh.us IN THE SUPREME COURT OF OHIO 2014 STATE OF OHIO,...
IN THE SUPREME COURT OF OHIO2014
STATE OF OHIO,
Plaintiff-Appellant,
-vs-
Case No.f``f
On Appeal from the
Franklin County Courtof Appeals, TenthAppellate District
JEREMIAH HOLLEY,
Defendant-AppelleeCourt of AppealsCase No. 14AP-134
MEMORANDUM OF PLAINTIFF-APPELLANT STATE OF OHIOSUPPORTING JURISDICTION
RON O'BRIEN 0017245Franklin County Prosecuting Attorney373 South High Street, 13th FloorColumbus, Ohio 43215Phone: 614-525-3555Fax: 614-525-6103E-mail: [email protected]
and
STEVEN L. TAYLOR 0043876 (Counsel of Record)Chief Counsel, Appellate Division
COUNSEL FOR APPELLANT STATE OF OHIO
Jeremiah Holley#597-152Chillicothe Correctional Inst.P.O. Box 5500Chillicothe, Ohio 45601
Pro se .;... .,
„^., :^^^:^,
TABLE OF CONTENTS
EXPLANATION OF WHY THIS COURT SHOULD ACCEPTJURISDICTION
STATEMENT OF FACTS
ARGUMENT 6
Proposition of Law No. 1: Constitutional challenges to AWA Tierclassifications are not jurisdictional, and the failure to timely raise suchchallenges results in the waiver and forfeiture of the challenges and resultsin the application of res judicata and other finality doctrines. 6
Proposition of Law No. 2: The AWA made only minimal, non-punitivechanges as to sex offenders who were or would have been aggravatedsexually oriented offenders under Megan's Law. Such changes do notviolate the prohibition against retroactive laws as to such offenders. 13
CERTIFICATE OF SERVICE
APPENDIX
6-3-14 Memorandum Decisioii A-1
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6-3-14 Judgment A-7
EXPLANATION OF WHY THIS COURT SHOULD ACCEPT JURISDICTION
The present case should be considered as a companion case here to State v. Salser
(filed the same day).
The initial question presented is the applicability of res judicata and other finality
doctrines. The Tenth District and other appellate districts are treating challenged AWA
Tier classifications as "void," regardless of the sex offender's failure to timely raise the
challenge in the trial court, regardless of the offender's failure to timely appeal, and
regardless of the many months (and sometime years) of delay. In effect, the Tenth
District and other districts are contending that this Court's decision in Williams cut a wide
swath through all finality doctrines and allows retroactive-law challenges years later.
Treating the classification as "void" raises at least two problems. First, nothing in
State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, addressed
issues of finality, since the sex offender therein had raised his retroactive-law challenge in
a timely manner in the trial court and on direct appeal. Williams is simply not dispositive.
Second, and more importantly, this Court itself has held that constitutional
challenges are not jurisdictional, even on direct appeal. State v. Awan, 22 Ohio St.3d
120, 121-22, 489 N.E.2d 277 (i986). When this Courtheld in In re Nf.D., 38 Ohio St.3d
149, 527 N.E.2d 286 (1988), that the Awan doctrine is discretionary on direct appeal,
such "discretion" necessarily meant that the challenge would not be "jurisdictional." If
the challenge were truly "jurisdictional," the appellate court would have no "discretion."
In State v. Salser, an earlier Tenth District panel had attenzpted to straddle both
the "jurisdictional" and "discretionary" approaches. On the one hand, the Salser panel
had repeatedly referred to the classification as being "void," thereby emphasizing the
"jurisdictional" approach (as did the later Holley panel).
On the other hand, when the State sought reconsideration in Salser, the State
pointed out that the court had failed to address Awan's "not jurisdictional" holding. In
denying reconsideration, the Salser panel now emphasized (twice) that the Awan doctrine
"is discretionary." Salser 5-22-14 Memo Decision, ¶¶ 6-7.
These are polar-opposite conclusions, and the Tenth District (and the other
districts) have failed to appreciate that fact. A waived/forfeited constitutional challenge
cannot be both "jurisdictional" and "discretionary," especially in a collateral attack.
The conflict between these two concepts is heightened by the overall failure of
these courts to actually address the Awan holding that constitutional challenges are not
jurisdictional. In the present case and Salser, the State specifically relied on the "not
jurisdictional" language from pages 121-22 of the Awan opinion, but the Tenth District
never addressed it. In denying reconsideration, the Salser panel at least acknowledged the
Awan syllabus but never acknowledged Awan's underlying "not jurisdictional" premise.
The Holley panel never even acknowledged Awan.
Nothing in YVilliams compels the conclusion that untimely retroactive-law
challenges must be treated as "jurisdictional." Under Awan, such challenges are not
jurisdictional, and a Tier classification entered long ago is not "void." Res judicata
applies to bar a "motion" filed years later. Under the Ali non-retroactivity doctrine,
Williams would not even apply to long-final Tier classifications. Time limits on post-
conviction review also should apply.
Williams does not create its own exception to these finality doctrines. "There is
no merit to [the] claim that res judicata has no application where there is a change in the
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law due to a judicial decision of this court." State v. Szefcyk, 77 Ohio St.3d 93, 95, 671
N.E.2d 233 (1996) (subsequent appellate decision in another case does not overcome res
judicata bar); State v. Reynolds, 79 Ohio St.3d 158, 161-62, 679 N.E.2d 1131 (1997)
(same); Doe v. TNunabull Cty. Children Services, 28 Ohio St.3d 128, 131, 502 N.E.2d 605
(1986), syllabus. A constitutional challenge does not magically become "jurisdictional"
because a merits ruling has eventuated in another challenger's favor in a later case.
By allowing sex offenders to file motions years later, the Tenth District and other
appellate courts have ensured that this issue will not be going away. But the appellate
courts have not cogently squared their "void" conclusions with Awan's "not
jurisdictional" holding. This Court should intervene to enforce stare decisis as to Awan.
This dynamic is not unusual. When this Court issues a constitutional ruling like
Williams, lower courts are often wont to overlook finality principles in order to apply the
new ruling. In follow-on litigation, however, this Court will establish exactly how far the
new constitutional ruling will reach in terms of its application to old, already-final cases.
One helpful example is this Court's Foster ruling invalidating certain provisions
allowing judicial fact-finding in sentencing. Some appellate courts applied the Foster
ruling even though the issue was not preserved in the trial court. It eventually took a
ruling from this Court to rein in the lower courts on this point, holding that the issue had
been forfeited. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306. A
similar dynamic occurred when this Court enforced res judicata in Szefcyk and Reynolds.
Questions of finality are important. Having loose standards for vacating
unappealed judgments many months or years later encourages the often-endless post-
judgment litigation that occurs.
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The State has fully preserved these finality issues. It is important for this Court to
address whether these finality doctrines apply to old cases that became final before
Williams. This Court should enforce Awan rather than let lower courts disregard it.
The present case includes an important second proposition of law not involved in
Salser. Convicted of rape by force, defendant would have been an "aggravated sexually
oriented offender" under Megan's Law. As such, he would have been already subject to
the highest levels of registration and community notification. The AWA made only
minimal, non-punitive changes as to such offenders. But vvhen the State argued under its
proposed fifth assignment of error that it should prevail on the merits, the Holley panel
wrongly treated this merits issue as disposed by Salser. In fact, Salser did not involve
this merits question. The State should at least receive a fair hearing on this merits issue.
Finally, the posture of this case should not deter review. Although courts of
appeal can exercise discretion on whether to grant leave to appeal, the Tenth District here
was not purporting to exercise discretion. Rather, the Tenth District relied strictly on a
legal analysis in denying the State's motion. Questions of law are governed by a de novo
standard of review. State v. Codeluppi, _ Ohio St.3d , 2014-Ohio- 1574 ¶ 9. "When
a court's judgment is based on an erroneous interpretation of the law, an abuse-of-
discretion standard is not appropriate." State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-
5590, 918 N.E.2d 497, ¶ 6, quoting Med lVlut. of Ohio v. Schlotterer, 122 Ohio St.3d 181,
2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13. Even under an "abuse of discretion" standard, an
abuse of discretion occurs when the court fails to exercise sound, reasonable, and legal
decision-making. State v. Beechler, 2nd Dist. No. 09-CA-54, 2010-Ohio-1900, ¶ 62.
Because the Tenth District denied the motion for leave based solely on a legal
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analysis, the case receives de novo review here. Review would not be hindered by any
abuse-of-discretion standard, especially since the State claimed an appeal of right on the
legal question of whether defendant's "motion" should be treated as a time-barred post-
conviction petition.
This felony case presents questions of public and great general interest, warrants
granting leave to appeal, and presents a substantial constitutional question.
STATEMENT OF FACTS
Defendant was indicted in 2004 on single counts of rape and gross sexual
imposition for acts committed on May 14, 2004. The indictment alleged the same victim
in each count and further alleged that the victim was less than thirteen, i.e., four years old.
The arrest warrant was executed in January 2008, and defendant eventually
pleaded guilty to forcible rape under R.C. 2907.02(A)(2) under count one on January 12,
2009. The parties jointly recommended an eight-year prison sentence. The Entiy of
Guilty Plea noted that the plea would result in a "Tier 3 sex offender classification."
The common pleas court imposed the recommended eight-year sentence. The
court also recognized that defendant is a "Tier III" sex offender with lifetime registration,
verification every 90 days, and community notification. The court's judgment was
entered on January 15, 2009. Defendant did not appeal.
Over 57 months later, on October 17, 2013, defendant filed a "petition to
invalidate the classification, registration, and notification requirements of Ohio Revised
Code, Chapter 2950; under the A.W.A. and Megan's Law." Defendant contended that
the 'I`ier III classification under the Adam Walsh Act ("AWA") was uncoiYstitutional
under the Bodyke and Williams decisions. Defendant also contended that, since the AWA
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repealed the Megan's Law scheme, he would not be subject to Megan's Law either.
On October 18, 2013, the State filed a memorandum opposing the petition,
preserving all of the arguments being made here.
On January 16, 2014, the common pleas court filed a decision and entry sustaining
the "motion" in part and overruling the "motion" in part. The court concluded that, under
the Tenth District's decision in State v. Salser, the Tier III classification under AWA was
"void" in light of Williams and must be vacated. The court rejected defendant's argument
that he was not subject to any registration requirements at all. The court vacated the Tier
III classification and ordered that defendant would be reclassified under Megan's Law.
The State sought to appeal by filing a motion for leave to appeal, contending that
it possessed an appeal of right and that leave to appeal was warranted based on five
proposed assignments of error. The court denied the motion and dismissed the appeal.
ARGUMENT
Proposition of Law No. 1: Constitutional challenges to AWA Tierclassifications are not jurisdictional, and the failure to timely raise suchchallenges results in the waiver and forfeiture of the challenges and resultsin the application of res judicata and other finality doctrines.
Various finality doctrines should have led to the rejection of defendant's tardy
retroactive-law challenge.
A.
It was too late for defendant to raise the retroactive-law challenge. "Failure to
raise at the trial court level the issue of the constitutionality of a statute or its application,
which issue is apparent at the time of trial, constitutes a waiver of such issue and a
deviation from this state's orderly procedure, and therefore need not be heard for the first
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time on appeal." Awan, syllabus. Such claims of unconstitutionality are not
jurisdictional, even on direct appeal. Id. at 121-22. Nor would it be jurisdictional that the
statute under which defendant was sentenced was unconstitutional. Payne, ¶¶ 27-29.
The defense could have raised the retroactive-law issue in the trial court before
coiiviction or on direct appeal from the entry classifying him as a Tier III offender. State
v. Clayborn, 125 Ohio St.3d 450, 2010-Ohio-2123, 928 N.E.2d 1093. But defendant
failed to challenge the new scheme in the trial court and failed to pursue any appeal.
The issue was therefore waived/forfeited, as it was not timely presented. "[T]he
question of the constitutionality of a statute must generally be raised at the first opportunity
and, in a criminal prosecution, this means in the trial court." Awan, 22 Ohio St.3d at 122.
"Constitutional rights may be lost as finally as any others by a failure to assert them at the
proper time." State v. Childs, 14 Ohio St.2d 56, 62, 236 N.E.2d 545 (1968). The waiver
rule is "strict." State v. Long, 53 Ohio St.2d 91, 96, 372 N.E.2d 804 (1978).
B.
The Tenth District and other courts have contended that the retroactive-law
challenge makes the classification "void." But that argument was long ago discarded by
Awan and its progeny, wliich reject the notion that constitutional challenges are
perpetually raisable because they affect the jurisdiction of the court.
As the Tenth District conceded in State v. Richey, 10th Dist. No. 09AP-36, 2009-
Ohio-4487: "In Awan, the Supreme Court of Ohio held that whether a statute used to
prosecute a defendaiit is constitutional is not a question that relates to the trial court's
jurisdiction, and it can be forfeited." Id. ¶ 12. "Awan `is a repudiation' of the contention
that the constitutionality of a statute used to prosecute a defendant is never forfeited." Id.,
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citing State v. 1981 Dodge Ram Van, 36 Ohio St.3d 168, 171, 522 N.E.2d 524 (1988).
C.
The Tenth District referenced the fact that Williams is a new decision. But, as
stated supra, this Court has recognized that the issuance of a new decision does not create
an exception to res judicata and other finality doctrines. The newness or novelty of a
legal claim can be grounds for excusing a failure to object if the legal claim was so novel
that its legal basis was not reasonably available at the time the objection should have been
made. See, e.g., Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140
L.Ed.2d 828 (1998); Engle v. Isaac, 456 U.S. 107, 133, 102 S.Ct. 1558, 71 L.Ed.2d 783
(1982). But defendant's retroactive-law claim is hardly novel. Retroactive-law
challenges had been raised against the prior Megan's Lativ scheme and were repeatedly
being raised against the AWA Tier scheme.
D.
Although an issue is waived through lack of objection, the Criminal Rules provide
that "[p]lain errors or defects affecting substantial rights may be noticed although they were
not brought to the attention of the court." Crim.R. 52(B). But this rule represents a narrow
exception to the waiver/forfeiture doctrine. State v. Wamsley, 117 Ohio St.3d 388, 2008-
Ohio-1195, 884 N.E.2d 45,^, 19. Moreover, review under the plain-error standard is only
available on direct appeal. United States v. Frady, 456 U.S. 152, 163, 164, 102 S.Ct. 1584,
71 L.Ed.2d 816 (1982).
Plain-eiror review does not aid defendant anyway. Plain error will justify reversal
only if: ( 1) there was error; (2) the error was plain at the time it was committed; and (3) the
error affected substantial rights. State v. Barnes, 94 Ohio St.3d 21, 27-28, 759 N.E.2d 1240
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(2002). Under the last criterion, the error must have clearly affected the outcome of the
proceeding. Id. at 27, citing Long, paragraph two of the syllabus.
Defendant's retroactive-law challenge would not satisfy the plain-error standard.
The error to be recognized under a retroactive-law challenge "was not `plain' at the time
that the trial court committed it." Barnes, 94 Ohio St.3d at 28. The law was unsettled, and
it was not plain at the time of defendant's sentencing in 2008 that Williams eventually
would sustain a retroactive-law challenge. In the absence of error reversible as plain error,
there would be no discretion to disregard the waiver/forfeiture, even on direct review.
E.
The waiver/forfeiture doctrine applies with extra force here because it is likely that
the defense saw that treating defendant as a Tier III offender under the AWA would make
no material difference in comparison to the Megan's Law scheme. Defendant was
convicted of forcible rape under R.C. 2907.02(A)(2), which meant that, at the very least, he
would have been an aggravated sexually oriented offender under the Megan's Law scheme
because the offense occurred after July 31, 2003. Former R.C. 2950.01(O). Even under
Megan's Law, defendant faced lifetime registration, quarterly verification, and
community notification as a matter of law regardless of whether he was found to be a
"sexual predator." Former R.C. 2950.06(B)(l); former R.C. 2950.07(B)(l); former R.C.
2950.11(F)(l)(c). By going along with the Tier III classification, the defense also avoided
the possibility of defendant being classified as a "sexual predator" because of a likelihood
to reoffend.
The defense likely preferred to accept the label of "Tier III" in lieu of the being
labeled in as a "predator" or "aggravated sexually oriented offender." Even on direct
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appeal, the defense cannot obtain reversal based on a waivedlforfeited issue when the
failure to object was tactical. State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189 (1980).
F.
Another ground for rejecting defendant's "motion" is res judicata. "Res judicata is
applicable in all postconviction relief proceedings." Szefcyk, 77 Ohio St.3d at 95. It
applies to any claim that could have been raised by the defendant in the trial court before
conviction or on timely direct appeal thereafter. State v. Perry, 10 Ohio St.2d 175, 226
N.E.2d 104 (1967). "[A]ny issue that could have been raised on direct appeal and was
not is res judicata and not subject to review in subsequent proceedings." State v. Saxon,
109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 16.
A defendant wishing to challenge his AWA Tier requirements can do so by direct
appeal. Clayborn, supra. As a result, if defendant was going to challenge the Tier
designation, he should have done so by raising a timely challenge before conviction or by
making a timely direct appeal. As stated earlier, the Tier classification is not rendered
"void" by the constitutional challenge.
G.
The decision in Williams does not apply retroactively to cases that already became
final before the announcement of that decision. As stated in Ali v. State, 104 Ohio St.3d
328, 2004-Ohio-6592, 819 N.E.2d 687, ¶ 6, "[a] new judicial ruling may be applied only
to cases that are pending on the announcement date. * * * The new judicial ruling may
not be applied retroactively to a conviction that has become final, i.e., where the accused
has exhausted all of his appellate remedies." The present case becaine final in 2009 when
defendant failed to appeal; it was "final" by the time Williams was decided in July 2011.
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H.
Defendant's "motion" should have been construed to be a post-conviction
petition. Such a "petition" would have been time barred, having been filed a number of
years after the post-conviction deadline, which expired in 2009, 180 days after the time
for direct appeal expired. R.C. 2953.21(A)(2).
Defendant cannot rely on the narrow exception that would allow untimely filing if
he was unavoidably prevented from discovering the facts supporting his retroactive-law
claim. R.C. 2953.23(A)(1)(a). The timing of AWA in relation to defendant's offenses
was apparent at the time of sentencing. Moreover, this exception does not apply to new
legal developments. State v. Gulertekiyz, 10th Dist. No. 99AP-900 (2000).
Defendant also cannot rely on the narrow exception that would allow untimely
filing if the United States Supreme Court recognized a new federal or state right that
applies retroactively. R.C. 2953.23(A)(1)(a). Defendant does not rely on any United
States Supreme Court decision that post-dated the time for timely filing a post-conviction
petition. See State v. Rutledge, 10th Dist. No. I lAP-853, 2012-Ohio-2036, ¶ 11.
Moreover, Williams is not retroactively applicable to defendant's case. Ali, supra.
Even if defendant could show that a retroactive right had been recognized after
the deadline, defendant could not make the further showing required under R.C.
2953.23(A)(1)(b). This provision does not allow a court to entertain a tardy post-
conviction challenge to a non-capital sentence. State v. Martin, l Oth Dist. No. 06AP-
798, 2007-Ohio- 1844, ¶ 10. If AWA is considered to be "punitive," as Williams
contends, then defendant's motion constituted a challenge to his sentence, and therefore
his motion could not be entertained at that point.
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I.
The Awan doctrine or res judicata cannot be avoided by the contention that
Williams created an exception to those doctrines. Williams arose on direct appeal, and the
retroactive-law issue had been fully preserved in the lower courts in that case. Williams,
¶¶ 2-4. As a result, Williams naturally had nothing to say about whether a future
Williams-based retroactive-law challenge would be immune from the Awan doctrine,
whether such a challenge would be retroactive to previously-final cases, or whether such
a challenge would be immune from res judicata. Williams emphasized that it was only
addressing a"narrow" issue. Williams, ¶ 6. Later, in In re Bruce S., 134 Ohio St.3d 477,
2012-Ohio-5696, 983 N.E.2d 350, the Court emphasized that Williams was not
dispositive of an issue not directly addressed in that case. Id. at ¶ 6 (Williams "never
addressed the discrete issue presented here"). In short, nothing in Williams compels its
application to defendant's long-final Tier II classification. Nothing in Willianis contends
that the constitutional challenge was "jurisdictional" or "void."
Nor did the summary disposition in State v. Lees, 135 Ohio St.3d 136, 2012-Ohio-
5909, 984 N.E.2d 1056, indicate any overruling of the Awan doctrine. This Court has
specifically rejected the concept of "implicit" precedent in Payne, which held that the
"perceived implications" of its Foster decision were not binding and that later summary
dispositions were "entitled to no consideration whatever as settling * * * a question not
passed upon or raised at the time of the adjudication." Payne, ¶¶ 10-12; see, also, B.F
Goodrich v. Peck, 161 Ohio St. 202, 118 N.E.2d 525 (1954), paragraph four of the
syllabus; State v. Lester, 123 Ohio St.3d 396, 2009-Ohio-4225, 916 N.E.2d 1038, ¶ 31
("summary-remand decision of this court does not settle for future cases unaddressed
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issues"); State ex r°el. United Auto., Aerospace & Agricultural Implement Workers ofAm.
v. Bur. of WoNkers' Comp., 108 Ohio St.3d 432, 2006-Ohio-1327, 844 N.E.2d 335, ¶ 46.
Nothing in Lees actually overruled the Awan doctrine.
To be sure, the merits ruling in Williams was that an AWA Tier classification
resulting in material changes to registration requirements cannot be applied to offenders
who committed their offenses before the effective date of AWA. But the merits ruling in
Williams should not be confused with the separate procedural-default questions of
whether such challenges would be immune from the Awan doctrine, whether Williams
would be retroactive to previously-final cases, or whether Williams would be immune
from res judicata.
If a favorable merits ruling were an exception to these doctrines, then these
doctrines would be rendered entirely ineffectual, as it would always be necessary to rule
on the merits before finding the constitutional challenge waived/forfeited/barred. But a
court applying Awan or res judicata does not decide the merits first. Instead, it simply
avoids ruling on the merits.
Proposition of Law No. 2: The AWA made only minimal, non-punitivechanges as to sex offenders who were or would have been aggravatedsexually oriented offenders under Megan's Law. Such changes do notviolate the prohibition against retroactive laws as to such offenders.
As stated earlier, Williams would not be applicable to defendant's Tier III
classification, which became final long before Williams was decided. A retroactive-law
challenge does not create a jurisdictional problem that can be raised over 57 months after
conviction and classification.
Even if Williams is applicable, however, defendant failed to demonstrate beyond
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a reasonable doubt that Williams would compel the constitutional invalidation of his Tier
III classification. The retroactive-law holding of Williams was based on the view that
the AWA is "punitive" in applying a Tier classification to pre-AWA offenders. But
Williams did not involve a forcible rape victimizing a young child. Nor did it involve a
sex offender who, even under Megan's Law, would have automatically faced lifetime
registration, quarterly verification, and comniunity notification as at least an "aggravated
sexually oriented offender." Williams said it was addressing offenders who were
appreciably worse off under AWA, contending that, under AWA, "an offender is now
subject to additional reporting and registration requirements and is subject to those
requirements for a longer time." Williams, ¶ 7. The Court emphasized that "[t]he issue
before us is whether these changes, when applied to a person whose crime was
committed prior to the enactment of S.B. 10, violate * * * the prohibition against
retroactive laws * * *." Id. ¶ 7 (emphasis added). The Court characterized the issue
before it as "narrow." Id. ¶ 6. The Court based its ruling on "all the changes enacted by
S.B. 10 in aggregate". Id. ¶ 21.
The State asserts that the AWA changes were not "punitive" as applied to rapists
of young children who would automatically qualify for the highest registration level
under prior law. The differences in being treated as a Tier III offender under AWA and
as an aggravated sexually oriented offender under Megan's Law are minimal and are
fully justified by the remedial and regulatory purposes of the law in seeking to provide
some measure of protection from offenders like defendant who raped a four-year-old
child. The same remedial and regulatory purposes that underlay Megan's Law, which
are discussed in cases like State v. Cook, 83 Ohio St.3d 404, 418, 700 N.E.2d 870
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(1998), readily justify the minimal AWA changes as to this offender and other sex
offenders victimizing young children. Indeed, the regulatory and remedial justifications
for AWA are at their zenith in such cases and should serve to avoid invalidation of AWA
on retroactive-law grounds in such cases. The minimal changes are not "punitive" as
applied to this defendant, and therefore the logic of Williams is inapplicable.
Defendant would likely contend that the syllabus of Williams is broad in holding
that AWA Tier classifications would be invalid as to sex offenders whose crimes
predated AWA. But it must be kept in mind that the Williams Court itself characterized
its focus as "narrow" on the question of whether the AWA changes in aggregate were
punitive. Given the minimal AWA changes involved here, that logic is inoperative as to
rapists like defendant who victimized a young child.
It is noteworthy too that the Williams syllabus as written actually would have
been dispositive in the Bruce S. decision but was disregarded in Bruce S. The issue in
Bruce S. was whether the June 2007 enactment date controlled in the legal analysis or
whether the January 2008 effective date controlled. The Williams syllabus expressly
said "enactment," but the Court in Bruce S. found that such language was not controlling
because Williams "never addressed the discrete issue presented here". Bruce S., T 6.
Given that the Court has already narrowly construed Williams, it would make little sense
to broadly apply the Williams syllabus to a fact pattern that was not before it.
Respectfully submitted,
STEVEN L. TAYLOR 043876 (Counsel of Record)Chief Counsel, Appellate Division
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CERTIFICATE OF SERVICE
A true and accurate copy of the foregoing was sent by regular U. S. Mail on June
30, 2014, to Jeremiah Holley, #597-152, P.Q. Box 5500, Chillicothe, Ohio 45601, pro se.
STEVEN L. TAYLO
16
AllO - 065
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio,
V.
Defendant-Appellee.
No. 14AP-134(C.P.C. No. 04CR-05-3425)
(REGULAR CALENDAR)
MEMORANDUM DECISION
Rendered on June 3, 2014
Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, forappellant.
Jeremiah Holley, pro se.
ON MOTION FOR LEAVE TO APPEAL
Plaintiff-Appellant,
Jeremiah Holley,
SADLER, P.J.
{¶ 1} Plaintiff-appellant, State of Ohio, has filed a motion, pursuant to App.R.
5(C), for leave to appeal from a judgment of the Franklin County Court of Common Pleas
sustaining in part and overruling in part the motion of defendant-appellee, Jeremiah
Holley, to invalidate his sex offender classification under the Adam Walsh Act.
1. FACTUAL AND PROCEDURAL BACKGROUND
{¶ 2} Appellee was indicted in 2004 on one count of rape and one count of gross
sexual imposition related to acts that occurred on May 14, 2004. An arrest warrant was
executed in January 2oo8, and in January 2009, appellee pleaded guilty to one count of
rape in violation of R.C. 2907.o2(A)(2). The trial court imposed the jointly recommended
A-001
A11C3 - 066
No. 14AP-134 2
eight-year sentence, and appellee was classified as a Tier III sex offender. No appeal was
taken.
}¶ 3} On October 17, 2013, appellee filed a "Petition to Invalidate the
Classification, Registration, and Notification Requirements of Ohio Revised Code,
Chapter 2950; tinder the A.W.A. and Megan's Law." In said motion, appellee argued that,
pursuant to State v. Williams, 129 Ohio St.3d 344, 2011-01lio-3374, retroactive
application of Am.Sub. S.B. No. 1o ("S.B. 1o"), also known as the Adam Walsh Act, was in
error such that his sex offender classification was void, and he should not be classified as a
sex offender. The state asserted appellee's arguments had been waived, were untimely,
and were barred by the doctrine of res judicata.
{¶ 4} By decision and entry filed on January 16, 2014, appellee's motion was
sustained in part and ovei-ruled in part. The trial court agreed with appellee that,
pursuant to Williams, he could not be classified as a Tier III offender for conduct that
occurred in 2004. However, the trial court rejected appellee's contention that he should
not be subject to any sex offender classification and, instead, concluded that appellee was
entitled to a classification hearing in accordance with the law in effect at the time the
offense was committed. The state now seeks to appeal from the trial court's decision.
II. THE STATE'S RIGHT TO APPEAL
{¶ 5} The state's right to appeal a trial court's decision is governed by R.C.
2945.67(A), which provides, in relevant part:
A prosecuting attorney * * * may appeal as a matter of rightany decision of a trial court in a criminal case * * * whichdecision grants a motion to dismiss all or any part of anindictment, complaint, or information, a motion to suppressevidence, or a motion for the return of seized property orgrants post conviction relief pursuant to sections 2953.21 to2953.24 of the Revised Code, and may appeal by leave of thecourt to which the appeal is taken any other decision, exceptthe final verdict, of the trial cotirt in a criminal case.
{¶ 6} This statute grants the state a substantive, but limited, right of appeal. State
v. Slatter, 66 Ohio St.2d 452, 456-57 (1981). The state's absolute right of appeal is only
available where the trial court's decision falls within one of four categories stated in the
statute: (i) a motion to dismiss all or part of an indictment, complaint or information,
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(2) a motion to suppress evidence, (3) a motion for the return of seized property, or (4) a
petition for postconviction relief pursuant to R.C. 2953.21 to 2953.24. State v. Matthews,
$1 Ohio St.3d 375, 377-78 (1998).
{¶ 7} The state first argues the trial court's decision, in essence, granted appellee
postconviction relief, and, therefore, the decision is appealable as a matter of right
pursuant to R.C. 2945.67(A). We disagree.
{¶ S} In State v. Salser, loth Dist. No. 12AP-792, 2014-Ohi0-$7, this court
reviewed the trial court's denial of a 2012 "motion to correct registration and
classification" of a defendant who was classified as a Tier II sex offender under S.B. lo,
though the acts giving rise to his convictions occurred in 2007. Id. at ¶ 3. In rejecting the
state's argument that said motion should be construed as a petition for postconviction
relief, this court stated "where a defendant seeks recognition by the trial court that his
purported classification under the Adam Walsh Act is void, 'which the trial court has
inherent authority to do, independently of the provision in R.C. 2953.21 for petitions for
post-conviction relief,' a trial court 'may substitute the correct classification under the sex
offender classification law preceding enactment of the Adam Walsh Act.' " Id. at ¶ 11,
quoting State v. Knowles, 2d Dist. No. 2o11-CA-17, 2012-Ohio-2543, ¶ 12. Accordingly,
we reject the state's invitation to treat appellee's motion as a motion for PostconvictionL relief, pursuant to R.C. 2953.21, such that the state's appeal should proceed as an appeal
of right.
{¶ 9} Pursuant to R.C. 2954.67(A), the state may also appeal "any other decision"
of the trial court, such as the present decision, only if the state first obtains leave from the
appellate court to take the appeal. The decision to grant or deny leave for the state to
appeal rests solely within the discretion of the court of appeals. State v. Fisher, 35 Ohio
St.3d 22, 23 (1988); State U. Caulley, loth Dist. No. 12AP-100, 2012-Ohio-2649; State U.
Johnson, ioth Dist. No. 95APAlo-138o (Apr. 4, 1996). The state must demonstrate a
probability that the claimed errors did, in fact, occur. App.R. 5(C); Caulley; State v.
Burke, loth Dist. No. o6AP-656, 2oo6-Ohio-4597; State v. Garcia, loth Dist. No.
94APA11-1646 (May 2, 1995)•
{¶ 10} The state has presented five claimed assignments of error:
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[I.] The trial court erred and abused its discretion inconcluding that defendant's untimely retroactive-lawchallenge to his Tier III classification rendered theclassification "void."
[II.] The trial court erred and abused its discretion in failingto apply res judicata to bar defendant's untimely retroactive-law challenge.
[III.] The trial court erred and abused its discretion in findingthat the decision in State v. Williams, 129 Ohio St.3d 344,2o11-Ohio-3374, 952 N.E.2d 11o8, applied to defendant'slong-final classification.
[IV.] The trial court erred and abused its discretion in failingto treat defendant's "petition" as a time-barred post-conviction petition.
4
[V.] The trial court erred and abused its discretion in applyingWilliams to invalidate a Tier III classification as applied to asex offender who committed forcible rape against a four-year-old child.
A. First Claimed Error
{¶ 11} In its first claimed error, the state contends the trial court erred in
concluding that appellee's Tier III classification was void. In Salser, this court rejected a
similar proposition and recognized that, "[i]n applying Williams, Ohio appellate courts
have held that a retroactive classification of a sex offender under S.B. io for an offense
committed before the effective date of that act is 'void.' " Salser at ¶ 8, citing State v.
Lawson, 1st Dist. No. G-120077, 2012-Ohio-5281, ¶ 18 ("Because Lawson committed his
offenses before the effective date of S.B.1o, the trial court could not lawfully impose upon
him S.B. 1o's registration requirements. Therefore, Lawson's classification under S.B. io
as a Tier III sex offender is void."); see also State v. Eads, 197 Ohio App.3d 493, 2011-
Ohio-63o7, 118 (2d Dist.) (construiiig Williams to hold that retroactive application of
S.B. 1o to persons who committed sex offenses prior to the effective date of that statute "is
a nullity" and, therefore, such classification "is void"); State v. Alsip, 8th Dist. No. 98921,
2013-Ohio-1452, ¶ 8("Where a defendant whose offenses were committed prior to the
effective date of the Adam Walsh Act is improperly classified under the Act in violation of
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No. 14AP-134 5
Williams, such classification is void."); State v. Carr, 4th Dist. No. 11CA3256, 2012-Ohio-
5425, ¶ 11 ("Because Carr committed his sex offense prior to S.B. lo's enactment, his Tier
III sex offender classification under S.B. lo violates Ohio's Retroactivity Clause and is
void.").
{¶ 12} Accordingly, we conclude the state has not sufficiently demonstrated a
probability that its first claimed error did, in fact, occur.
B. Second Claimed Error
{¶ 13} In its second claimed error, the state contends appellee's arguments are
barred by the doctrine of res judicata. Both of these contentions were recently rejected by
this court in Salser, wherein we stated "we fmd unpersuasive the state's contention that
waiver and/or res judicata bar appellant's attempt to benefit from Williams because of his
failure to directly appeal his classification." Id. at 1I lo, citing Eads at ¶ 23; In re M.D., 38
Ohio St.3d 149 (1988); State v. Clemons, 7th Dist. No. ii BE 26, 2012-Ohio-5362; State v.
Dudley, 2d Dist. No. 244o8, 2012-Ohio-3844.
{¶ 14} Accordingly, we conclude the state has not sufficiently demonstrated a
probability that its second claimed error did, in fact, occur.
C. Third Claimed Error
,
{¶ 15} In its third claimed error, the state contends the trial court erred in
concluding that Williams applies to appellee's case. Here, the state argues Williams does
not apply retroactively to cases that already became final before the announcement of that
decision.
{¶ 16} This argument, like those in the state's first and second claimed errors, was
rejected by this court in Salser. In Salser, this court applied I47illiams to a defendant who
was convicted in March 2oo8, prior to when Williams was decided.
{¶ 17} Accordingly, we conclude the state has not sufficiently demonstrated a
probability that its third claimed error did, in fact, occur.
D. Fourth Claimed Error
{¶ 18} In its fourth claimed error, the state contends the trial court erred in failing
to treat appellee's motion as a time-barred postconviction petition. Again, Salser is
dispositive on this issue. As discussed supra, the court in Salser rejected the state's
position that motions such as the one by appellee shotild be construed as petitions for
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No. 14AP-134 6
postconviction relief. Moreover, as stated in Salser, "[f]urther, even assuming [the
defendant's] motion should be construed as a petition for post-conviction relief, 'a trial
court retains jurisdiction to correct a void judgment.' " Id. at ¶ 12, quoting Lawson at ¶ 8.
{¶ 19} Accordingly, we conclude the state has not sufficiently demonstrated a
probability that its third claimed error did, in fact, occur.
E. Fifth Claimed Error
{¶ 20} In the final claimed assignment of error, the state argues the trial court
erred in applying Williams to invalidate appellee's Tier III classification.
{¶ 21} Despite the state's claims to the contrary, Salser undoubtedly applied
W%lliams to vacate a sex offender classification imposed under S.B. 1o, but regarding
conduct that occurred prior to the effective date of the same. As held in Salser,
"[p]ursuant to Williams, 'the remedy for improper classification is to remand the matter
to the trial court for a classification hearing in accordance with the law in effect at the time
the offense was committed.' Alsip at ¶ 1o. Accordingly, the trial court's classification of
appellant as a Tier II offender under S.B. zo is vacated, and this matter is remanded to the
trial court for the limited purpose of holding a hearing to classify appellant pursuant to
the law that existed at the time he committed his offenses." Id. at ¶ 13.
{¶ 22} Here, appellee was classified as a Tier III sex offender in 2009 with respect
to conduct that occurred in 2004. Pursuant to Williams, the trial court vacated appellee's
Tier III classification and ordered that appellee would be returned to the court for a
reclassification hearing. Given this court's holding in Salser and the authority cited
therein, we conclude the state has not sufficiently demonstrated a probability that its fifth
claimed error did, in fact, occur.
ITI. CONCLUSION
{¶ 23} Because the state has failed to demonstrate a probability that its claimed
dismissed.
errors did, in fact, occur, the motion for leave to appeal is denied, and the appeal is
Moiion for leave to appeal denied;appeal dismissed.
TYACK and CONNOR, JJ., concur.
A-006
A11o P30
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio,
Plaintiff-Appellant,
V.
Jeremiah Holley,
Defendant-Appellee.
No.14AP-1S4(C.P.C. No. 04CR-o5-3425)
(REGULAR CALENDAR)
^
{
JUDGMENT ENTRY
For the reasons stated in the memorandum decision of this court rendered
herein on June 3, 2014, it is the judgment and order of this court that appellant's motion
for leave to file to appeal is denied, and the appeal is dismissed. Costs shall be assessed.
against appellant.
SADLER, P.J., TYACK, and CONNOR, JJ.
/S/ JUDGE
A-007