The Ohio Supreme Court's Court News service last Friday carried this Cuyahoga County (8th. District) case involving another offender originally sentenced under Megan's Law but then erroneously reclassified under Adam Walsh in 2007.
Here, "Steven C. Davis was sentenced to five years probation for sexual battery and gross sexual imposition in 2004," the Court News summarized. "He was originally classified as a sexually oriented offender under Megan's Law, which required him to verify his address once a year for 10 years. After the enactment of Ohio's Adam Walsh Act in 2007, Davis was reclassified as a Tier III sex offender and required to verify his address every 90 days for life. In 2011, Davis was charged with failing to provide notice of change of address and sentenced to a mandatory three–year prison term." The Eighth District reversed & remanded the case. (Decision)
Judge Kathleen A. Keough wrote the decision noting that the appeals court previously reached a similar conclusion in another ruling (State v. Smith, 8th Dist. Nos. 96582, 96622, 96623, 2012-Ohio-261) and that previous ruling was in conflict with cases from two other appellate courts.
The decision here footnotes that the 8th. District "certified that its decision in Smith is in conflict with the decisions of the First and Fifth Appellate Districts. See State v. Freeman, 1st Dist. No. C-100389, 2011-Ohio- 4357, State v.Bowling, 1st Dist. No. C-100323, 2011-Ohio-4946, and State v. Dunwoody, 5th Dist. No. CT11-0029,2011-Ohio-6360. On May 23, 2012, the Ohio Supreme Court recognized that a conflict exists and has held the case for the decision in State v. Grunden, Supreme Court Case No. 2011-1553. [ Grunden 8th. District decision]
Judge Keough also pointed out that the Ohio Supreme Court has agreed to address the second, related, issue through State v. Howard (Case No. 2011-2126).
In that case, Howard’s attorneys write, “Ohio courts are misinterpreting the decisions of this Court in State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, and State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108. However, these decisions only addressed the retroactive application of S.B. 10 when designating a classification to an offender based upon when the offender committed his original sex offense. This Court has not addressed what penalty, pursuant to S.B. 97 and codified in R.C. 2950.99, should apply to an offender's new offense of failure to abide by the duties imposed by their classification.
“This significant issue has not been addressed by this Court, and this Court's recent decisions have made this issue the next immediate question to be addressed.”