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State of Ohio v. Joseph Alltop

October 28, 2011

STATE OF OHIO PLAINTIFF-APPELLEE
v.
JOSEPH ALLTOP
DEFENDANT-APPELLANT



(Criminal Appeal from Common Pleas Court) Trial Court Case No. 10 CR 02316

Cite as State v. Alltop,

OPINION

WAITE, J. (Sitting by Assignment)

{¶1} Appellant Joseph Lee Alltop was originally classified as a sex offender under Florida law. He now appeals his post-Adam Walsh Act sentence for failure to notify the Montgomery County Sheriff's Department of his change of address. Appellant argues that the penalty in force in Ohio when he was convicted and classified in Florida as a sexual offender in 2006 must be applied to his 2010 violation of notification requirements pursuant to State v. Milby, Montgomery App. No. 23798, 2010-Ohio-6344. Appellant also argues that his conviction should be reversed because the trial court failed to rule on pending motions to dismiss and for a directed verdict prior to entering the guilty verdict. For the following reasons, the judgment of the trial court is affirmed in part, Appellant's sentence is reversed and the matter is remanded to the trial court for resentencing and for clarification of the appropriate sex offender classification for Appellant under Ohio's version of Megan's Law.

FACTUAL AND PROCEDURAL HISTORY

{¶2} On April 16, 2004, in Pasco County Florida, Appellant pleaded guilty to lewd or lascivious molestation, a second degree felony, Sixth District Case No. CR0303951CFAS. On August 6, 2007, Appellant either pleaded guilty to or was convicted of failure to register as a sex offender in Ohio, Muskingum County Common Pleas Case No. 2006-CR-0384. The 2007 violation was either a fourth degree felony, according to the record, or a third degree felony, pursuant to the version of R.C. 2950.99(A)(1)(a)(i) effective between January 1, 2004 and January 1, 2008. On August 4, 2010 the Montgomery County Grand Jury indicted Appellant on one count of failure to register, a violation of R.C. 2950.041 occurring on or about July 2, 2010. This violation was a second degree felony, under the version of R.C. 2950.99(A)(1)(a)(ii) effective January 1, 2008. A bench trial was held on October 20, 2010 and Appellant was found guilty. Due to Appellant's 2007 violation, he was sentenced to the statutory minimum of three years in prison. Appellant filed his timely appeal on November 3, 2010. On appeal, Appellant did not dispute the court's finding that he was a sex offender required to register, that he had established a residence, and that he was guilty of the violation charged. Appellant instead argues that the court erred in sentencing him according to the provisions of S.B. 97. Senate Bill 97, effective January 1, 2008, changed the sentencing provisions for violations of R.C. 2950.05. Senate Bill 97 was passed at the same time as, but was separate from, S.B. 10, which codified the Adam Walsh Act in Ohio. Appellant also argues that the trial court erred in not explicitly ruling on his motion to dismiss and motion for directed verdict, which he verbally renewed at the closing of proceedings on October 20, 2010.

{¶3} At trial, prior to opening statements, counsel for appellant argued that the registration provisions Appellant was charged under were not applicable to him and cited caselaw in support of his argument. The court examined both cases and found that they applied to the reclassification of sex offenders, not to violations of the notification requirements which apply to all classes of offenders. The trial court instructed counsel that Appellant's motion for dismissal could be renewed at "the appropriate time for a directed verdict," and cautioned, "although my decision may be the same." (Tr., p. 12.) When the defense concluded, the state waived rebuttal. The court took the matter under advisement, setting proceedings to continue on October 26, 2010. After concluding the defense, but before the court concluded the proceeding, defense counsel verbally renewed the motion to dismiss and made a motion for directed verdict. On October 26, 2010 the court reopened proceedings in the bench trial. The trial court noted that it was merely required to enter a general verdict, but decided to make specific findings on the record:

{¶4} " * * * I want to indicate that the defendant was beyond a doubt previously adjudicated in the state of Florida as a sex offender. And as a sex offender in the state of Florida when he moved to Ohio, under Ohio Revised Code [2950.01(A)(11)], a violation of any former law of this state, any existing or former municipal ordinance or law of another state * * * qualifies him as a sexual offender required to register in the state of Ohio, because he had that conviction out of the state of Florida.

{¶5} "Furthermore, the requirements of 2950.05 require that he register with the sheriff if he changes his address, shall provide written notice at least 20 days prior to changing the residence address * * * no person who is required to notify a sheriff of the change of address shall fail to notify the appropriate sheriff in accordance with that division. That section requires that he register and if he does not or fails to, that is a violation of law." (Tr., pp. 143-144.)

{¶6} The trial court discussed the penalty section and the applicable minimum term of three years, found that Appellant was living at the address indicated, and found that he was required by Ohio law to have reported that address to the sheriff's office. (Tr., p. 144.) The court then offered Appellant the opportunity to delay sentencing so that a pre-sentencing report could be prepared. Appellant waived this report, and the court proceeded directly to sentencing. Pursuant to then-current Ohio law, the court sentenced Appellant to three years in prison with three years of post-release control. Appellant's timely appeal was filed one week later.

ASSIGNMENT OF ERROR NO. 1

{¶7} "THE TRIAL COURT ERRED WHEN IT SENTENCED HIM ACCORDING TO THE SENATE BILL 10 [sic] SENTENCING PROVISIONS, AND NOT ACCORDING TO THE PENALTIES THAT EXISTED AT THE TIME OF HIS ORIGINAL SEX OFFENDER REGISTRATION IN THE STATE OF FLORIDA."

{¶8} Appellant invokes a variety of caselaw concerning the unconstitutionality of the reclassification of sex offenders under the Adam Walsh Act, passed by Congress in 2006 and codified in Ohio as R.C. 2950.031 and .032. Appellant argues that his sentence for failure to notify the sheriff's department of his change in address, which reflects the penalties enacted at the same time as the unconstitutional portions of S.B. 10, is invalid. Appellant cites our decision in State v. Milby, supra, in support of the contention that he should instead be sentenced under the provisions that were in force when he was originally classified as a sexual offender in Florida. In Milby, we revised the reclassification of the defendant as a Tier III sex offender by the Ohio Attorney General. Milby, who was originally convicted of rape in 1983, was convicted in 2009 of failing to register his actual address. We found that Milby's reclassification was a violation of the separation of powers clause of the Ohio Constitution. Although reclassification was improper, Milby's conviction was not dependent upon his classification and the conviction was upheld. However, Milby's sentence, which reflected sentencing enhancements put in place after his conviction, was improper and we remanded the matter for resentencing under the former version of R.C. 2950.99(A). In the instant appeal, we will address Appellant's reclassification argument and the applicability of registration and notification requirements in this matter, before considering the impact of Milby on Appellant's arguments.

{ΒΆ9} Appellant attempts to place the argument concerning his sentence in the context of the type of reclassification declared unconstitutional in State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424. While he is correct, as the state concedes, that he should not be classified as a Tier III offender pursuant to S.B. 10 and should instead be classified under Megan's Law, which was in place both in Ohio and in Florida when he was convicted, his classification does not impact his sentence or alter the nature of his violation. Registration and notification requirements were originally imposed on him in Florida under that state's version of Megan's Law. The notification provision Appellant was convicted of violating existed in Ohio, again under Megan's Law, both when he was convicted in Florida and when he failed to register in Muskingum ...


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