Court of Appeals of Ohio, First District, Hamilton
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed Trial No. B-0100606.
T. Deters, Hamilton County Prosecuting Attorney, and Ernest
W. Lee, Assistant Prosecuting Attorney, for
Raymond T. Faller, Hamilton County Public Defender, and
Krista Gieske, Assistant Public Defender, for
Confronted with an erroneous sexual offender classification
from nearly two decades ago that it did not appeal, the state
sought to reach back and modify that decision by declaring it
"void." But just because a trial judge might make a
mistake, that does not render the decision "void."
The state attempts to justify this result as stemming from a
lack of subject matter jurisdiction, but that would be a
dangerous proposition for us to entertain. The trial court
certainly had underlying subject matter jurisdiction here,
and the state cannot dust off the decision many years later
and question the result unless it follows the well-trod path
of seeking post-judgment relief. Nevertheless, a successor
trial court granted the state's request and changed the
classification, but it lacked authority to do so, which
accordingly requires us to reverse its amended sentencing
In July 2001, defendant-appellant Vince Dye pleaded guilty to
three counts of rape of a minor. The court handed down a
13-year prison term and notified him of his classification as
a habitual sexual offender under former R.C. Chapter 2950,
Ohio's version of Megan's Law. As a habitual sexual
offender, Mr. Dye was obligated to register every 180 days
for 20 years. Mr. Dye did not initially appeal the judgment,
but he later had second thoughts and lodged a request for a
delayed appeal. This court denied his motion to file a
delayed appeal, and he was eventually released from prison in
From that point forward, things get a little confusing. In a
separate criminal case, the state charged Mr. Dye with
failing to notify the sheriff of an address change. Mr. Dye
argued in that case that his classification as a habitual
sexual offender was void because the trial court's
classification order had erroneously decreed him to be a
habitual sexual offender based on the number of counts in the
indictment, rather than on prior convictions for sex
offenses. Clued into some problems with the classification,
in July 2018, the state filed in this case, the original
criminal case, a request to vacate a void sex offender
classification and to enter the correct classification under
Megan's Law. Thus, at various points in time, both sides
proclaimed the classification void, but those declarations do
not make it so.
In the wake of the state's request, the trial court
ordered a release of all records from the Ohio Department of
Rehabilitation and Correction and appointed the court clinic
to evaluate Mr. Dye for risk of dangerousness and sexual
recidivism. Mr. Dye orally objected to the classification
hearing. The trial court nevertheless eventually determined
that Mr. Dye's classification as a habitual sexual
offender was void because it was based on counts in the same
indictment and not on prior sex offense convictions. The
court accordingly classified Mr. Dye anew as a sexual
predator and subsequently entered an "amended sentencing
entry" reflecting the sexual predator classification. As
a sexual predator, Mr. Dye must register every 90 days for
Mr. Dye now appeals. Although he presents two assignments of
error, we focus on his first, which we find dispositive. That
assignment claims that the trial court lacked authority to
reclassify Mr. Dye as a sexual predator under Megan's
Law, because the original order classifying him as a habitual
sexual offender was a final appealable order from which
neither party appealed, and therefore, the state was barred
by res judicata from challenging it.
Sex offender classifications under Megan's Law were civil
and remedial, and they did not constitute part of the
sentence imposed for the sexual offense. See State v.
Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d
110, ¶ 30, 36-37; State ex rel. Culgan v.
Collier, 132 Ohio St.3d 394, 2012-Ohio-2916, 972 N.E.2d
579, ¶ 1. The trial court's initial judgment
classifying Mr. Dye as a habitual sexual offender constituted
a final and appealable order. See State v. Megarry,
2018-Ohio-4242, 122 N.E.3d 220, ¶ 10 (4th Dist);
State v. Collins, 2d Dist. Montgomery No. 27939,
2018-Ohio-4760, ¶ 20. The state did not appeal the
judgment, and we denied Mr. Dye's motion to file a
In Megarry, Mr. Megarry pleaded guilty to abduction
and sexual battery under an agreement that stipulated that he
would be classified as a sexual predator and serve four years
in prison. The trial court held both a sentencing hearing and
a sexual predator hearing. At the hearing, the court decided
that it would not follow the agreement to classify Mr.
Megarry as a sexual predator because the state failed to
introduce evidence to support that classification. The trial
court entered a judgment that did not classify him as a
sexual predator or a habitual sexual offender, so by
operation of law he was a sexually-oriented offender.
Nevertheless, less than two hours later, the trial court had
a change of heart, entering an "Amended Judgment Entry
Following Sexual Predator Hearing" that classified Mr.
Megarry as a sexual predator. Neither party appealed from
either judgment entry. Over 13 years later, however, Mr.
Megarry's counsel filed a motion to vacate the amended
entry classifying him as a sexual predator.
The Fourth District held that the initial judgment entry
constituted a final appealable order under R.C. 2505.02(B)(2)
that neither party appealed, and in the absence of an
appropriate post-judgment motion under the civil rules, the
trial court lacked jurisdiction to amend the initial
classification entry. Megarry at ¶ 25. The
court explained, "[a]lthough sex-offender
classifications under Megan's Law are civil, remedial,
and separate from the criminal conviction and sentence, they
are final orders under R.C. 2505.02(B)(2) that cannot be
revisited once they are journalized." Id. at
¶ 4. In other words, a trial court does not enjoy the
right to tinker with final orders in perpetuity. Id.
at ¶ 25 ("[T]he trial court lost jurisdiction to
modify its classification entry.").
In similar vein, in Collins, 2d Dist. Montgomery No.
27939, 2018-Ohio-4760, the Second District held that where
Mr. Collins had not appealed his child-victim-predator
classification, res judicata precluded him from challenging
it ten years later. "Because Collins could have appealed
from his child-victim-predator classification but did not,
res judicata bars him from now attempting to challenge his
classification and the procedure by which he was
classified." Id. at ¶ 14.
In this case, the trial court's order classifying Mr. Dye
as a habitual sexual offender was final and appealable. The
state did not appeal the trial court's judgment, and this
court denied Mr. Dye's motion to file a delayed appeal.
Therefore, both parties are barred by res ...