Court of Appeals of Ohio, First District, Hamilton
Criminal Appeal From: Hamilton County Court of Common Pleas
TRIAL NO. B-1405941
T. Deters, Hamilton County Prosecuting Attorney, and Sean M.
Donovan, Assistant Prosecuting Attorney, for
Law Office of John D. Hill, Jr., LLC, and John D. Hill, Jr.,
On September 8, 2014, defendant-appellant Roger Hildebrand
pleaded no contest to and was convicted of misdemeanor sexual
imposition in violation of R.C. 2907.06, a Tier I offense
under Ohio's version of the Adam Walsh Act
("AWA"). The trial court imposed, and then credited
him with, 25 days' confinement. The municipal court's
sentencing entry did not include a Tier I sex-offender
classification. And no "Explanation of Duties to
Register as a Sex Offender or Child Victim Offender"
form was journalized. Hildebrand did not appeal that
Hildebrand registered with the Hamilton County Sheriff as a
Tier I sex offender on September 11, 2014. He was
subsequently indicted for failing to notify the sheriff of an
address change in violation of RC. 2950.05. At trial on the
failure-to-notify charge, the state introduced as exhibits
the municipal court's sheet memorializing
Hildebrand's September 8, 2014 sexual-imposition
conviction and an "Explanation of Duties" form,
signed by Hildebrand on September 8, 2014, but not
journalized, acknowledging his status as a "Tier I"
Hildebrand was found guilty of the failure-to-notify charge,
and on January 8, 2015, he was sentenced to three years'
community control. Hildebrand appealed his failure-to-notify
conviction, raising one assignment of error that challenged
the sufficiency of the evidence. We overruled the assignment
of error and affirmed his conviction. State v.
Hildebrand, 1st Dist. Hamilton No. C-150046 (Jan. 22,
On May 18, 2016, Hildebrand filed a motion to reopen his
appeal, arguing that his appellate counsel was ineffective
for failing to raise an assignment of error challenging the
trial court's authority to convict him of failing to
notify the sheriff of an address change where there was no
order in place requiring him to register as a sex offender.
We granted Hildebrand's motion, concluding that the
proposed assignment of error, had it been raised on appeal,
would have presented a reasonable probability of success, and
therefore, he had demonstrated a genuine issue as to whether
he had a colorable claim of ineffective assistance of counsel
on appeal. Hildebrand has raised two assignments of error in
his reopened appeal.
Hildebrand's first assignment of error alleges that his
"conviction for failing to provide notice of residence
address change was contrary to law, as he was under no legal
duty to register as a Tier I sex offender." Hildebrand
argues that because the trial court failed to include the
Tier I sex-offender classification in its sentencing entry
for the sexual-imposition offense, it did not properly impose
the Tier I sex-offender classification as a part of his
sentence; therefore, he is under no legal obligation to
register as a sex offender, and his conviction for failing to
provide notice of an address change was contrary to law.
The registration and verification requirements of the AWA are
punitive. State v. Williams, 129 Ohio St.3d 344,
2011-Ohio-3374, 952 N.E.2d 1108, ¶ 16. They are part of
the penalty imposed for the offense. State v.
Thomas, 2016-Ohio-501, 56 N.E.3d 432, ¶ 7 (1st
Dist.); State v. Lawson, 1st Dist. Hamilton Nos.
C-120067 and C-120077, 2012-Ohio-5281, ¶ 12; State
v. Jackson, 1st Dist. Hamilton No. C-110645,
2012-Ohio-3348, ¶ 6. "[A] sentence is a sanction or
combination of sanctions imposed for an individual offense,
and incarceration and postrelease control are types of
sanctions that may be imposed and combined to form a
sentence." State v. Holdcroft, 137 Ohio St.3d
526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 6. Tier
classification under the AWA is a type of sanction that may
be imposed for an offense. See Williams.
A trial court speaks through its journal entries.
Hernandez v. Kelly, 108 Ohio St.3d 395,
2006-Ohio-126, 844 N.E.2d 301, ¶ 30; State v.
Lewis, 1st Dist. Hamilton No. C-160909, 2018-Ohio-1380,
¶ 9; State v. Kirkpatrick, 2017-Ohio-7629, 97
N.E.3d 871, ¶ 16 (1st Dist.), citing State v.
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d
659, ¶ 29; State v. Hafford, 1st Dist. Hamilton
No. C-150578, 2016-Ohio-7282, ¶ 10. "A sanction is
imposed by the sentencing entry, not by what is said on the
record during the sentencing hearing." State v.
Halsey, 2016-Ohio-7990, 74 N.E.3d 915, ¶ 26 (12th
Dist.), citing Bonnell at ¶ 299.
In State v. Rucker, 1st Dist. Hamilton No. C-110082,
2012-Ohio-185, ¶ 31 and 48 ("Rucker I
"), we held that a judgment convicting the defendant of
an offense that subjects him to the AWA's registration
and notification requirements must accurately reflect his
tier classification. In Rucker, the trial
court's judgment of conviction erroneously stated that
Rucker was subject to Tier III registration requirements,
when his offense actually subjected him to Tier II
requirements. We remanded the cause for the trial court to
amend the judgment of conviction to reflect that Rucker was a
Tier II sex offender. We reaffirmed that the proper tier
classification must be included in the judgment of conviction
in State v. Rucker, 1st Dist. Hamilton No. C-150434,
2016-Ohio-5111, ¶ 11, appeal not allowed, 148
Ohio St.3d 141, 2017-Ohio-573, 69 N.E.3d 751
("Rucker II"), holding that where the
proper tier classification is not included in the judgment of
conviction "there is no order in place requiring [the
defendant] to register as a sex offender."
In State v. Arszman, 1st Dist. Hamilton No.
C-160698, 2017-Ohio-7581, ¶ 6 ("Arszman
II"), we again affirmed that in the absence of a
proper tier classification in the judgment of conviction,
"there is no order in place requiring [the defendant] to
register as a sex offender." In Arszman's first
appeal, State v. Arszman, 1st Dist. Hamilton No.
C-130133, 2014-Ohio-2727 ("Arszman I"),
the state conceded that the trial court had improperly
classified Arszman as a Tier II sex offender. We remanded the
cause for the trial court to classify Arszman as a Tier I sex
offender, but the trial court did not carry out our order on
remand. Arszman filed a motion to vacate his sex-offender
classification, which the trial court overruled. In
Arszman II, we held that there was no classification
to vacate because there was no judgment of conviction in
place classifying Arszman as a Tier I sex offender.
Arszman II at ¶ 3, 5-6.
Because the trial court did not include Hildebrand's tier
classification in the entry of conviction and sentence, that
sanction was never imposed, and there is no order in place
requiring Hildebrand to register as a sex offender.
Therefore, Hildebrand has no duty ...