Court of Appeals of Ohio, First District, Hamilton
Criminal Appeal From: Hamilton County Court of Common Pleas,
TRIAL No. B-0203515
T. Deters, Hamilton County Prosecuting Attorney, and Paula E.
Adams, Assistant Prosecuting Attorney, for
Raymond T. Faller, Hamilton County Public Defender, and David
Hoffmann, Assistant Public Defender, for Defendant-Appellant.
This is an appeal from a sexual-predator classification under
Ohio's Megan's Law, former R.C. Chapter 2950.
Defendant-appellant Joseph Banks was not given proper notice
of his sexual-offender-classification hearing pursuant to
former R.C. 2950.09(B)(2) before he was classified as a
sexual predator. We vacate the judgment of the trial court
classifying Banks as a sexual predator and remand the matter
for a new sexual-offender-classification hearing.
and Procedural History
On July 31, 2002, following a bench trial, Banks was
convicted of two counts of gross sexual imposition in
violation of R.C. 2907.05(A)(1). He was sentenced to two
concurrent terms of 18 months in prison and classified as a
sexual predator. On August 6, 2002, the trial court issued a
judgment entry and notice of duties to register as a sexual
predator, but did not serve the entry on Banks. On July 16,
2003, upon Banks's appeal of his convictions, we affirmed
the judgment of the trial court. See State v. Banks,
1st Dist. Hamilton No. C-020554 (July 16, 2003).
On September 20, 2010, the trial court denied Banks's
motion to reconsider his classification. On May 7, 2014, in
the case numbered C-130469, we dismissed for lack of
jurisdiction Banks's appeal of the denial of his motion
for reconsideration. We explained that, because Banks was
never provided proper notice of the sexual-predator entry
pursuant to Civ.R. 58, his time for appealing from the
judgment declaring him a sexual predator had not yet begun to
run. State v. Banks, 1st Dist. Hamilton No. C-130469
(May 2, 2014), citing Frazier v. Cincinnati School of
Med. Massage, 1st Dist. Hamilton No. C-060359,
2007-Ohio-2390, ¶ 4-5 (holding that because service of a
notice of judgment and its entry had not been made, the 30
days to appeal had not begun to run). Service of the entry
regarding his notice of duties to register was thereafter
perfected on May 31, 2018. Banks now appeals from his
original adjudication as a sexual predator.
Banks argues that the trial court erred in three respects by
classifying him as a sexual predator. First, he claims that
he did not receive proper notice of his
sexual-offender-classification hearing. Second, he claims
that the trial court failed to appoint an expert witness for
him, an indigent defendant, at the classification hearing,
when a risk evaluation was reasonably necessary. Third, he
argues that the trial court failed to specify in the
sentencing entry that the classification was pursuant to
former R.C. 2950.09(B). Banks asks us to vacate his
classification. The state concedes that Banks was not given
proper notice and argues that Banks's classification
should be vacated and the cause remanded for a new
sexual-offender-classification hearing pursuant to State
v. Gowdy, 88 Ohio St.3d 387, 2000-Ohio-355, 727 N.E.2d
579, which is directly on point. We agree with the state.
Failure to give a defendant notice of his
sexual-offender-classification hearing is reviewed for plain
error. Gowdy at 399." 'In appeals of civil
cases, the plain error doctrine is not favored and may be
applied only in the extremely rare case involving exceptional
circumstances where error, to which no objection was made at
the trial court, seriously affects the basic fairness,
integrity, or public reputation of the judicial process,
thereby challenging the legitimacy of the underlying judicial
process itself" Id., quoting Goldfuss v.
Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997),
Proceedings under former R.C. Chapter 2950 were civil
proceedings, not criminal. State v. Cook, 83 Ohio
St.3d 404, 416-418, 700 N.E.2d 570 (1998); State v.
Hunter, 144 Ohio App.3d 116, 121, 759 N.E.2d 809 (1st
Dist.2001). Therefore, the rules of civil procedure applied
to sexual-predator determinations. State v.
Marshall, 2d Dist. Montgomery No. 18587, 2001 WL
1468893, *5 (Nov. 16, 2001).
In Gowdy, the Supreme Court held that the trial
court erred in conducting a sexual-offender-classification
hearing on the same day as sentencing without having provided
notice of the sexual-offender-classification hearing. The
[I]t is imperative that counsel have time to adequately
prepare for the hearing. At the hearing, the defendant is
entitled to "testify, present evidence, call and examine
witnesses and expert witnesses, and cross-examine witnesses
and expert witnesses regarding the determination as to
whether the offender is a sexual predator." Former R.C.
[D]ecisions are made regarding classification,
registration, and notification that will have a profound
impact on a defendant's life. Defendants must have
notice of the hearing in order to "have an opportunity
to testify, present evidence, call and examine witnesses
and expert witnesses, and cross-examine ...