[Cite as State v. Sparks, 2011-Ohio-3245.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.      25320

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
BRYAN S. SPARKS                                      COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 02 12 3669

                                 DECISION AND JOURNAL ENTRY

Dated: June 30, 2011



        CARR, Presiding Judge.

        {¶1}     Appellant, Bryan Sparks, appeals the judgment of the Summit County Court of

Common Pleas. This Court affirms in part and reverses in part.

                                                I.

        {¶2}     Sparks was indicted on fourteen counts in 2002 and 2003. The State dismissed

two counts and the matter proceeded to a bench trial on the remaining twelve counts. The trial

court found Sparks not guilty of seven counts, but guilty of five counts, including rape in

violation of R.C. 2907.02(A)(1), a felony of the first degree; rape in violation of R.C.

2907.02(A)(2), a felony of the first degree; corruption of a minor in violation of R.C. 2907.04, a

felony of the third degree; illegal use or possession of drug paraphernalia in violation of R.C.

2925.14(C)(1); and corruption of a minor in violation of R.C. 2907.04, a felony of the fourth

degree. The trial court sentenced Sparks by judgment entry filed April 27, 2004. Sparks

appealed his conviction and sentence. This Court affirmed in part, but reversed in part and
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remanded for resentencing on the second count of rape. State v. Sparks, 9th District No. 22111,

2005-Ohio-2154.     On remand, the trial court issued a judgment entry on June 24, 2005,

resentencing Sparks as to the second count of rape only and ordering that the prior sentence

imposed in April 2004, remained in full force and effect except as to Count 2 (the second count

of rape).

       {¶3}    On January 21, 2010, the State filed a “memorandum” in which it asserted that the

trial court improperly imposed post-release control in both prior sentencing entries, thereby

rendering Sparks’ sentence void. Based on the State’s memorandum, the trial court scheduled

the matter for resentencing. Sparks was transported for resentencing hearing on March 2, 2010.

The trial court reclassified Sparks as a Tier III sex offender/child victim offender and proceeded

to resentencing. The March 5, 2010 sentencing entry mirrored Sparks’ prior sentencing entries

except that the trial court correctly imposed post-release control. Sparks filed a timely appeal in

which he raises four assignments of error for review.

                                                II.

                                 ASSIGNMENT OF ERROR I

       “THE TRIAL COURT INCORRECTLY LABELED APPELLANT A ‘TIER III’
       SEXUAL OFFENDER FOR A CRIME THAT OCCURRED PRIOR TO THE
       ENACTMENT OF THE ADAM WALSH ACT, IN VIOLATION OF ARTICLE
       ONE, SECTION TEN OF THE UNITED STATES CONSTITUTION.”

       {¶4}    Sparks argues that the trial court erred by reclassifying him as a Tier III sex

offender. This Court agrees.

       {¶5}    Sparks argues that the application of a sex offender classification to him under the

Adam Walsh Act, which was not in effect at the time of the commission of his crimes, violates

the prohibition against ex post facto laws enunciated in the United States Constitution. This
                                                3


Court has already analyzed this issue and held that it does not. State v. Honey, 9th Dist. No.

08CA0018-M, 2008-Ohio-4943, at ¶12-19.

        {¶6}    Although Sparks does not make the appropriate argument in regard to his

reclassification, this Court would be remiss for failing to point out the impropriety of the trial

court’s reclassification in this case.

        {¶7}    Under similar circumstances, this Court reversed a trial court’s sex offender

reclassification in a case in which the defendant had to be resentenced because of an earlier error

in regard to postrelease control. State v. Williams, 177 Ohio App.3d 865, 2008-Ohio-3586

(Williams II). In Williams II, the defendant was originally classified as a sexually oriented

offender in 2002.      She appealed and this Court affirmed her conviction but reversed and

remanded for resentencing to allow the trial court to place its reasons for imposing a consecutive

sentence on the record.       State v. Williams, 9th Dist. No. 02CA008112, 2003-Ohio-4639

(Williams I). In February 2008, one month after the Adam Walsh Act went into effect modifying

the sex offender classification scheme, Williams was resentenced on the authority of State v.

Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, as the law at that time held her original sentence to

be void for failure by the trial court to properly address postrelease control. Because the trial

court proceeded with resentencing, however, it conducted a de novo sex offender classification

hearing and reclassified Williams as a Tier III sex offender pursuant to the Adam Walsh Act.

The State challenged the trial court’s authority to reclassify Williams. This Court ultimately held

that the trial court lacked the authority to reclassify the defendant under those circumstances

because R.C. 2950.032 expressly authorized the attorney general, not the court, to reclassify

defendants under the new scheme. Nevertheless, we set forth alternate reasoning for our reversal

that merits restatement here, particularly in light of the Ohio Supreme Court’s holding that the
                                                   4


reclassification authority pursuant to R.C. 2950.032 is unconstitutional because it violates the

separation of powers doctrine. See State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, at

¶61.

        {¶8}    In Williams II, this Court recognized that “[s]ex-offender-classification

proceedings are civil in nature and legally distinct from the proceedings governing a defendant’s

underlying criminal conviction(s) and sentence.” Williams II at ¶10, citing State v. Wilson, 113

Ohio St.3d 382, 2007-Ohio-2202, syllabus. Moreover, sex offender classifications constitute

final, appealable orders because they affect a substantial right and arise out of a “special

proceeding.” See R.C. 2505.02(B)(2); see, also, State v. Dobrski, 9th Dist. No. 06CA008925,

2007-Ohio-3121, at ¶6.       This is true even when the sentencing entry is not itself a final,

appealable order, for example for lack of compliance with Crim.R. 32(C). See Dobrski at ¶2-4.

Accordingly, the vacation of a sentence does not result in the vacation of a legally distinct sex

offender classification. Williams II at ¶11.

        {¶9}    Recently, the Ohio Supreme Court modified its holding in Bezak to reaffirm that a

sentence is void when the trial court fails to properly include postrelease control in a sentence

“but with the added proviso that only the offending portion of the sentence is subject to review

and correction.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, at ¶27. Therefore, “[t]he

new sentencing hearing to which an offender is entitled under State v. Bezak is limited to proper

imposition of postrelease control.” Id. at paragraph two of the syllabus. This limitation on the

trial court’s authority to act upon resentencing only bolsters our reasoning in Williams II that the

trial court has no authority to revisit its prior, and legally distinct, sex offender classification only

because the matter is again before it for resentencing to correct the lone matter of the proper

imposition of post-release control.
                                                 5


       {¶10} More recently, the Second District Court of Appeals addressed the identical

situation to the one before this Court. State v. Pearson, 2d Dist. No. 23974, 2011-Ohio-245.

While our sister court earlier concluded that the validity of a sentence did not affect the validity

of a sex offender classification, State v. Gibson, 2d Dist. No. 2009 CA 47, 2010-Ohio-3447, at

¶28, the Pearson court further relied on the Ohio Supreme Court’s recent decision in Fischer to

emphasize that resentencing to correct the improper imposition of post-release control does not

authorize the trial court to revisit the issue of a defendant’s sex offender classification. Pearson

at ¶11. We are persuaded by this reasoning. Accordingly, we conclude that the trial court lacked

the authority to reclassify Sparks as a Tier III sex offender during resentencing to correct the

improper imposition of post-release control. Therefore, Sparks’ reclassification as a Tier III sex

offender is vacated and his original classification as a sexual predator is reinstated. Sparks’ first

assignment of error is sustained.

                                 ASSIGNMENT OF ERROR II

       “APPELLANT WAS DEPRIVED OF HIS DUE PROCESS AND HIS SPEEDY
       TRIAL RIGHTS WHEN HE WAS NOT GIVEN A VALID SENTENCE UNTIL
       ALMOST SIX YEARS AFTER HE WAS FOUND GUILTY, IN VIOLATION
       OF THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE
       UNITED STATES CONSTITUTION.”

       {¶11} Sparks argues that he was deprived of his rights to due process and speedy trial

because the trial court violated Crim.R. 32(A) when it finally imposed a valid sentence almost

six years after his conviction. This Court disagrees.

       {¶12} Crim.R. 32(A) states that “[s]entence shall be imposed without unnecessary

delay.” We recently wrote, however:

       “This Court has recognized that Crim.R. 32(A) does not apply in cases where an
       offender must be re-sentenced. State v. Spears, 9th Dist. No. 24953, 2010-Ohio-
       1965, at ¶19, citing State v. Huber, 8th Dist. No. 85082, 2005-Ohio-2625, at ¶8.
       ‘This logic, as it relates to Crim.R. 32(A), recognizes the distinction between a
                                                 6


       trial court refusing to sentence an offender and a trial court improperly sentencing
       an offender.’ Spears at ¶19. Furthermore, the Supreme Court of Ohio has held
       that a trial court retains continuing jurisdiction to correct a void sentence. State ex
       rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, at ¶19, citing State
       v. Beasley (1984), 14 Ohio St.3d 74, 75.” State v. Banks, 9th Dist. No. 25279,
       2011-Ohio-1039, at ¶42.

       {¶13} In this case, the trial court did not refuse to sentence Sparks. Indeed, the trial

court attempted to sentence him in April 2004, mere days after the trial court found him guilty of

several counts. After the initial appeal, on May 4, 2005, this Court reversed and remanded the

matter to the trial court for resentencing on the second count of rape. The trial court held a

resentencing hearing on June 20, 2005, and issued its resentencing entry four days later. On

January 21, 2010, the State notified the trial court of the need to resentence Sparks due to an

error in regard to post-release control. The trial court resentenced Sparks within six weeks. The

delay in sentencing between the time of the initial conviction on April 23, 2004, and the date he

was resentenced on March 5, 2010, was the result of an error in the imposition of post-release

control that was not identified until January 2010. The trial court retained continuing jurisdiction

to correct the void sentence. Accordingly, there was no unreasonable delay in sentencing

Sparks. Sparks’ second assignment of error is overruled.

                                ASSIGNMENT OF ERROR III

       “APPELLANT’S CONVICTION FOR RAPE AND CORRUPTION OF A
       MINOR WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE,
       IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS OF
       THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF
       THE OHIO CONSTITUTION.”

                                ASSIGNMENT OF ERROR IV

       “THE TRIAL COURT ERRED IN IMPOSING A LIFE SENTENCE FOR THE
       CONVICTIONS OF RAPE AS THE STATE FAILED TO ESTABLISH THE
       REQUISITE ELEMENT OF FORCE, IN VIOLATION OF THE FIFTH AND
       FOURTEENTH    AMENDMENTS      OF   THE     UNITED   STATES
                                                7


       CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO
       CONSTITUTION AND [R.C.] 2907.02.”

       {¶14} Sparks argues that his convictions are against the manifest weight of the evidence

and not supported by sufficient evidence. Sparks’ arguments are barred by the doctrine of res

judicata.

       {¶15} After Sparks filed his brief, the Ohio Supreme Court held that an error in post-

release control notification does not result in the entire sentence being void. State v. Fischer,

128 Ohio St.3d 92, 2010-Ohio-6238. In Fischer, the Supreme Court held “that when a judge

fails to impose statutorily mandated postrelease control as part of a defendant’s sentence, that

part of the sentence is void and must be set aside.” (emphasis sic.) Id. at ¶26 (footnote omitted).

The new sentencing hearing that a defendant is entitled to “is limited to proper imposition of

postrelease control.” Id. at ¶29. The high court also held that res judicata “applies to other

aspects of the merits of a conviction, including the determination of guilt and the lawful elements

of the ensuing sentence.” Id. at paragraph three of the syllabus. Applying Fischer, this Court

concludes that Sparks’ arguments are barred by res judicata. The third and fourth assignments of

error are overruled.

                                               III.

       {¶16} Sparks’ first assignment of error is sustained, his Tier III sex offender

classification is vacated and his sexual predator classification is reinstated. Sparks’ second,

third, and fourth assignments of error are overruled. The judgment of the Summit County Court

of Common Pleas is affirmed in part, reversed in part, and the cause remanded for further

proceedings consistent with this opinion.

                                                                       Judgment affirmed in part,
                                                                                reversed in part,
                                                                            and cause remanded.
                                                 8




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to both parties equally.


                                                     DONNA J. CARR
                                                     FOR THE COURT


WHITMORE, J.
MOORE, J.
CONCUR

APPEARANCES:

ADAM VAN HO, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
