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State of Ohio v. Donny A. Howard

November 3, 2011

STATE OF OHIO PLAINTIFF-APPELLEE
v.
DONNY A. HOWARD DEFENDANT-APPELLANT



T.C. NO. 10CR1682 (Criminal appeal from Common Pleas Court)

The opinion of the court was delivered by: Donovan, J.

Cite as State v. Howard,

OPINION

{¶1} This matter is before the Court on the Notice of Appeal of Donny A. Howard, filed June 13, 2011. Howard appeals from his conviction and sentence for failure to notify, in violation of R.C. 2950.05(A) and (F)(1).

{¶2} In September, 2000, Howard was convicted of rape, a felony of the first degree, and he received a four year sentence. The trial court designated Howard as a habitual sex offender *fn1 , pursuant to Ohio's version of the federal Megan's Law, which was adopted by Ohio in 1996, and codified by Am.Sub.H.B. No 180, 146 Ohio Laws, Part II, 2560, 2601. See, State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, ¶ 6.

The trial court also ordered community notification for a period of 20 years.

{¶3} In 2006, the Adam Walsh Child Protection and Safety Act was passed by Congress, which divided sex offenders into three tiers based solely upon the offense committed. Bodyke, ¶ 18. In 2007, the Ohio General Assembly enacted 2007 Am.Sub.S.B. No. 10, which replaced Megan's Law with the Adam Walsh Act ("AWA"). Bodyke, ¶ 20. The law required the Ohio Attorney General to reclassify existing offenders based on the tier system and to notify them of the reclassification. Bodyke, ¶ 22. Pursuant to the AWA, Howard was reclassified as a Tier III sex offender.

{¶4} On June 3, 2010, Howard was charged by indictment with failure to notify, a felony of the first degree, for failing to provide notice of his change of residence address to the sheriff at least 20 days prior to that change, a requirement imposed upon Howard as a Tier III sex offender. Howard pled no contest, and at the time the trial court advised him that it must impose a mandatory sentence, since Howard had a previous conviction for a felony of the first degree (rape). The State noted that it did not oppose the minimum sentence for Howard. The trial court sentenced Howard to a mandatory minimum three-year term on October 28, 2010.

{¶5} Along with his Notice of Appeal, Howard filed a Motion for Leave to File Delayed Appeal, based upon this Court's recent decision in State v. Milby, Montgomery App. No. 23798, 2010-Ohio-6344, and we granted leave for his untimely appeal over the State's objection.

{¶6} Howard asserts one assignment of error as follows:

{¶7} "THE TRIAL COURT ERRED IN CONVICTING APPELLANT OF A FIRST-DEGREE FELONY AND SENTENCING HIM ACCORDINGLY."

{¶8} In Bodyke, the Ohio Supreme Court struck down as unconstitutional the reclassification provisions in the AWA, namely R.C. 2950.031 and 2950.032, which required the Attorney General to reclassify sex offenders pursuant to the tiered scheme. Id., ¶ 60-61. The Court severed those provisions from the AWA, and the provisions "may not be applied to offenders previously adjudicated by judges under Megan's Law, and the classifications and community-notification and registration orders imposed previously by judges are reinstated." Id., at ¶ 66.

{¶9} Pursuant to Bodyke, as the State concedes, Howard's reclassification as a Tier III sex offender and the community-notification and registration orders attending that reclassification may not be applied, and his original classification as a habitual sex offender and the community-notification and registration orders attending that classification are reinstated.

{ΒΆ10} Under the former R.C. 2950.05(A), Howard was required to provide written notice to the sheriff of a change of address at least 20 days prior to changing his address. Under the former R.C. 2950.99, the penalty for failure to notify was a felony of the fifth degree. R.C. 2950.05 was amended by S.B. 10, which became effective on January 1, 2008, and the new version at issue also required Howard to provide written notification to the sheriff at least 20 days prior to changing his address of residence. After the related ...


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