Court of Appeals of Ohio, Eleventh District, Lake
Criminal Appeal from the Lake County Court of Common Pleas.
Case No. 2017 CR 001260.
Charles E. Coulson, Lake County Prosecutor, and Karen A.
Sheppert, Assistant Prosecutor, OH 44077 (For
Richard J. Perez, OH 44094 (For Defendant-Appellant).
TIMOTHY P. CANNON, J.
Appellant, Zachary A. Martin, appeals from the April 23, 2018
judgment entry of the Lake County Court of Common Pleas,
following a guilty plea, sentencing him on one count of
sexual battery and one count of attempted sexual battery
against a minor and classifying him a Tier III sex offender.
At issue on appeal are various constitutional challenges and
appellant's 60-month prison sentence. The judgment is
Appellant was a full-time information technology employee of
Mentor Schools and an assistant girls' basketball coach
at Mentor High School. In June 2017, on three separate
occasions, appellant engaged in sexual conduct with a female
student on his basketball team. Appellant was 28 years old;
the victim was 16 years old. The encounters took place twice
at appellant's home and once at the victim's home;
they were arranged via text message and social media.
On November 17, 2017, appellant was secretly indicted on ten
counts of sexual battery, felonies of the third degree: five
counts in violation of R.C. 2907.03(A)(7) and five counts in
violation of R.C. 2907.03(A)(9).
On March 7, 2018, appellant pled guilty, in writing and in
open court, to one count of sexual battery, a third-degree
felony, in violation of R.C. 2907.03(A)(9); and one
lesser-included count of attempted sexual battery, a
fourth-degree felony, in violation of R.C. 2907.03(A)(9)
& R.C. 2923.02(A). The state agreed to move for dismissal
of the remaining counts of the indictment at sentencing.
Sentencing was deferred for preparation of a presentence
investigation report, sexual offender evaluation, and victim
Appellant filed written objections to the statutory reporting
requirements as a Tier III sex offender under R.C. 2950.01,
arguing the statute violates the Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution, the
Separation of Powers Doctrine, and Article I, Sections 9, 10,
and 16, of the Ohio Constitution. The state filed a response
A sentencing hearing was held April 18, 2018, at which time
the trial court overruled appellant's objections to the
statutory reporting requirements. Appellant was classified a
Tier III sex offender, pursuant to R.C. 2950.01, and was
notified of his lifetime duty to register in person with the
appropriate law enforcement officials every 90 days. The
trial court sentenced appellant to 18 months in prison on the
lesser-included offense of attempted sexual battery and 60
months in prison on the offense of sexual battery, to be
served concurrent with each other.
The judgment entry of sentence was filed April 23, 2018, in
which the trial court entered a nolle prosequi on the
remaining counts in the indictment. Appellant noticed an
appeal from this entry and raises four assignments of error
for our review:
[1.] Ohio Revised Code Section 2950.01 is in violation of
appellant's constitutional rights under the Ohio and
United States Constitution, as such, R.C. 2950.01 is
[2.] Ohio Revised Code Section 2950.01 is in violation of
appellant's Due Process rights under the Ohio and United
States Constitution, as such, R.C. 2950.01 is
[3.] Ohio Revised Code Section 2950.01 is in violation of
appellant's Eighth Amendment Rights under the Ohio and
United States Constitutions, as such R.C. 2950.01 is
[4.] The trial court erred when it sentenced appellant in a
manner inconsistent and disproportionate with other, similar
Ohio cases and the sentences of [his] co-defendants.
Under his first three assignments of error, appellant argues
R.C. 2950.01, the sex offender classification statute, is in
violation of appellant's constitutional rights under both
the Ohio and United States Constitutions.
"The constitutionality of a statute is a matter of law
which an appellate court reviews de novo. Under this
standard, this court conducts an independent review, giving
no deference to the trial court's determination. Further,
we bear in mind that legislative enactments enjoy a
presumption of constitutionality. This means that courts must
avoid an unconstitutional construction where it is reasonably
possible to do so." State v. Jenson, 11th Dist.
Lake No. 2005-L-193, 2006-Ohio-5169, ¶5 (internal
Under his first assignment of error, appellant asserts R.C.
2950.01 violates the Equal Protection Clauses of the Ohio and
United States Constitutions, facially and as applied, because
the manner in which the "tiers" of sex offenders
are assigned to individuals is not rationally related to the
statute's intended purpose. Appellant asserts, under his
second assignment of error, that R.C. 2950.01 violates his
Due Process rights under the Ohio and United States
Constitutions because he was designated a Tier III sex
offender without a hearing pursuant to R.C. 2950.01
(G)(1)(a). Under his third assignment of error, appellant
asserts R.C. 2950.01 violates his constitutional Eighth
Amendment rights, proscribing all excessive and cruel and
unusual punishments, because the tier designations are not
proportioned to the offenses.
These exact arguments were raised and rejected in the recent
case of State v. Merkle, 11th Dist. Geauga
No. 2016-G-0103, 2017-Ohio-8802. The defendant in
Merkle was convicted of violations of R.C.
2907.03(A)(7); appellant was convicted of violations of R.C.
2907.03(A)(9). The statute provides:
(A) No person shall engage in sexual conduct with another,
not the spouse of the offender, when any of the following
(7) The offender is a teacher, administrator, coach, or other
person in authority employed by or serving in a school for
which the state board of education prescribes minimum
standards pursuant to division (D) of section 3301.07 of the
Revised Code, the other person is enrolled in or attends that