[Cite as Hawkins v. State, 2016-Ohio-8016.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Tayrone L. Hawkins,                                 :

                Petitioner-Appellee,                :
                                                                    No. 15AP-979
v.                                                  :             (C.P.C. No. 08MS-45)

State of Ohio,                                      :           (REGULAR CALENDAR)

                Respondent-Appellant.               :


                                              D E C I S I O N

                                   Rendered on December 6, 2016


                On brief: Yeura R. Venters, Public Defender, and David L.
                Strait, for appellee.

                On brief: Ron O'Brien, Prosecuting Attorney, and Steven L.
                Taylor, for appellant.

                  APPEAL from the Franklin County Court of Common Pleas

HORTON, J.
        {¶ 1} Petitioner-appellee, Tayrone L. Hawkins ("Hawkins"), filed a petition under
R.C. 2950.031(E) to contest his sex offender classification in the Franklin County Court of
Common Pleas. After the trial court granted Hawkins the relief he sought, the state
appealed. For the following reasons, we find that the trial court's entry exceeded the scope
of relief allowed by the statute and therefore reverse and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
        {¶ 2} Hawkins was convicted of assault with intent to commit rape under
Cal.Penal Code 220 on June 22, 1989, in the Superior Court of the State of California, San
Diego County. He was given a 4-year sentence, but was initially placed on probation. After
probation was revoked, the sentence was imposed on May 18, 1990. Because Hawkins was
given 321 days of credit for previous time in custody, his sentence roughly ended around
No. 15AP-979                                                                                          2

July 1, 1993. (June 22, 1989 Information Summ. and May 23, 1990 Abstract of Jgmt.,
attached to Jan. 28, 2008 Pl.'s Mot. for Leave to File Memo. and Memo. Opposing
Petition Contesting Reclassification.)
        {¶ 3} By 2008, Hawkins was living in Franklin County, Ohio.1 (Jan. 4, 2008
Petition to Contest Reclassification, hereinafter "Petition.") On January 3, 2008, the
Franklin County Sheriff sent Hawkins a notification that he had been classified as a Tier
III sex offender under the revised version of Ohio's sex offender registration and
notification law, the Adam Walsh Act ("AWA"), which subjected him to a lifetime
registration requirement. (Petition.)
        {¶ 4} On January 4, 2008, Hawkins filed a petition under R.C. 2950.031(E) in the
Franklin County Court of Common Pleas, invoking the statutory process for contesting his
classification as a Tier III sex offender under the AWA. (Petition.)
        {¶ 5} The trial court originally scheduled a hearing for February 22, 2008, but
stayed the matter a number of times until finally ruling on the motion on May 29, 2012. In
the entry granting Hawkins the relief he requested, the trial court stated the following:
                For good cause shown, the Court hereby GRANTS Defendant-
                Petitioner's relief requested in his PETITION TO CONTEST
                RECLASSIFICATION and declares that Defendant-Petitioner
                is not subject to Revised Code Chapter 2950 based on his
                1989 conviction. Furthermore, the defendant is not under any
                statutory duty to verify his current address or to register as
                required by R.C. 2950.04 through 2950.06. It is hereby
                ordered that Defendant-Petitioner's name be removed from
                all sexually oriented lists maintained pursuant to Revised
                Code Chapter 2950 by the local or state agencies.

(May 29, 2012 Entry.)
        {¶ 6} The state now appeals, asserting three assignments of error:
                [I.] THE COMMON PLEAS COURT ERRED IN GRANTING
                RELIEF IN THIS PETITION-CONTEST PROCEEDING
                THAT WENT BEYOND VACATING THE TIER III
                CLASSIFICATION IMPOSED BY THE ADAM WALSH ACT.

                [II.] THE COMMON PLEAS COURT ERRED IN GRANTING
                RELIEF THAT PURPORTED TO EXEMPT PETITIONER
1 The exact date that Hawkins moved to Ohio is unknown. On January 4, 2008, the date that he filed the

Petition, he stated that he "now resides in Franklin County," where he "registers as a sexually oriented
offender" with the Franklin County Sheriff. (Petition at ¶ 2.)
No. 15AP-979                                                                              3

              FROM ANY REGISTRATION REQUIREMENT, AS THE
              RECORD DID NOT CLEARLY AND CONVINCINGLY
              SUPPORT SUCH A CONCLUSION.

              [III.] THE COMMON PLEAS COURT ERRED IN GRANTING
              RELIEF WITHOUT HOLDING THE HEARING REQUIRED
              BY R.C. 2950.031(E).

       {¶ 7} After the parties filed their briefs on the merits, Hawkins filed motions in
this court on February 19 and March 14, 2016: a motion to dismiss the appeal on grounds
of res judicata, and a "MOTION TO TAKE JUDICIAL NOTICE AND SUPPLEMENT
RECORD ON APPEAL."
II. ANALYSIS
       {¶ 8} After a brief discussion of the background of Ohio's sex offender registry
and notification law, we will discuss the assignments of error in turn and then rule on the
motions Hawkins has filed.
       {¶ 9} In 1996, the General Assembly "created Ohio's first comprehensive
registration and classification system for sex offenders" with the passage of Am.Sub.H.B.
No. 180, commonly known as Megan's Law. State v. Bodyke, 126 Ohio St.3d 266, 2010-
Ohio-2424, ¶ 7. "Under Megan's Law, sex offenders fell into one of three classifications,
sexually oriented offenders, habitual sexual offenders, or sexual predators, based upon the
crime committed and the findings made by the trial court at a sexual-classification
hearing." State v. Hazlett, 191 Ohio App.3d 105, 2010-Ohio-6119, ¶ 3 (10th Dist.).
       {¶ 10} In 2007, Megan's Law was replaced with the AWA, 2007 Am.Sub.S.B. No.
10, which set forth a "tier system" that automatically classified sex offenders according to
their crime. Bodyke at ¶ 20. As originally enacted, the AWA included an automatic
reclassification scheme that would have retroactively applied to offenders previously
classified under Megan's Law. See R.C. 2950.031. The scheme required the attorney
general to "determine for each offender" what "new classification" under the AWA's tier
system applied to each offender that had previously been classified under Megan's Law.
R.C. 2950.031(A)(1). After the reclassification, the attorney general was to notify the
offender of the new classification by registered mail. R.C. 2950.031(A)(2).
       {¶ 11} The AWA also included a process for offenders to file a petition challenging
the attorney general's reclassification:
No. 15AP-979                                                                               4

              An offender or delinquent child who is in a category described
              in division (A)(2) or (B) of this section may request as a
              matter of right a court hearing to contest the application to
              the offender or delinquent child of the new registration
              requirements under Chapter 2950 of the Revised Code as it
              will exist under the changes that will be implemented on
              January 1, 2008. The offender or delinquent child may
              contest the manner in which the letter sent to the offender or
              delinquent child pursuant to division (A) or (B) of this section
              specifies that the new registration requirements apply to the
              offender or delinquent child or may contest whether those
              new registration requirements apply at all to the offender or
              delinquent child. To request the hearing, the offender or
              delinquent child not later than the date that is sixty days after
              the offender or delinquent child received the registered letter
              sent by the attorney general pursuant to division (A)(2) of this
              section shall file a petition with the court specified in this
              division.

              ***

              If at the conclusion of the hearing the court finds that the
              offender or delinquent child has proven by clear and
              convincing evidence that the new registration requirements
              do not apply to the offender or delinquent child, the court
              shall issue an order that specifies that the new registration
              requirements do not apply to the offender or delinquent child.

R.C. 2950.031(E).
       {¶ 12} After the passage of the AWA, the Supreme Court of Ohio held that its
reclassification provision violated the separation-of-powers doctrine because it "vest[ed]
the executive branch with authority to review judicial decisions, and it interfere[d] with
the judicial power by requiring the reopening of final judgments" that had previously
classified offenders under Megan's Law. Bodyke at ¶ 55. In a subsequent decision, the
court held that application of the AWA to defendants who had committed offenses before
its enactment violated the prohibition on passing retroactive laws in Article II, Section 28,
of the Ohio Constitution. State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374,
paragraph one of the syllabus.
III. FIRST ASSIGNMENT OF ERROR
       {¶ 13} Citing State v. Bowling, 10th Dist. No. 15AP-36, 2015-Ohio-3123, and State
v. Chapman, 10th Dist. No. 15AP-70, 2015-Ohio-4042, the state argues that the relief
No. 15AP-979                                                                               5

granted by the trial court exceeded the "narrow relief" that a petition-contest proceeding
under R.C. 2950.031(E) allows. (Appellant's Brief at 6.) The state argues that the trial
court went beyond the limited statutory authority for reclassification when it declared that
Hawkins was not under any statutory duty to register. Under Bowling and Chapman, the
state argues the only relief allowed by R.C. 2950.031(E) is a declaration stating whether
the AWA applies to the petitioner.
       {¶ 14} Hawkins' only response to the state's first assignment of error is to assert
that he is not subject to classification as a Tier III sex offender under the AWA because
such retroactive application is void as a matter of law under Williams. (Appellee's Brief at
5-8.) However, the state concedes that the trial court "correctly overturned the Tier III
AWA classification," as Williams prevents Hawkins from being subject to a classification
created by the newer law. (Reply Brief at 1.) Hawkins' response does not address the
state's argument that the trial court's entry exceeded the scope of relief allowed under
Bowling and Chapman.
       {¶ 15} In Bowling, an out-of-state offender moved to Ohio and registered as a
"sexually oriented offender" under Megan's Law. Bowling at ¶ 2. After passage of the
AWA and notification that he had been reclassified as a Tier III sex offender, the offender
filed a petition under R.C. 2950.031(E) to contest the reclassification. Id. The trial court
granted the petition, reinstated the offender's classification as a "sexually oriented
offender," and declared that the requirements imposed upon the offender by the AWA
were "a nullity." Id. at ¶ 3. The state appealed, arguing that because the offender had
actually been classified a "sexual predator" by another state, the trial court erred by
reinstating the classification of the offender as a "sexually oriented offender" under
Megan's Law rather than a "sexual predator." Id. at ¶ 5.
       {¶ 16} We rejected the state's attempt to use the R.C. 2950.031(E) petition
proceeding as "a vehicle for the state to challenge [the offender's] original classification"
under Megan's Law. Bowling at ¶ 10. We observed that R.C. 2950.031(E) does not
"authorize the trial court or [a court of appeals] to interpret Florida (or any other state)
law for purposes of determining whether the original classification applied by Ohio is
correct." Id. at ¶ 7. Rather, "the statute authorizes only a determination of whether the
new Ohio 'Tier' classification [under the AWA] applies to the offender." Id. Accordingly,
No. 15AP-979                                                                                               6

we affirmed the trial court's restoration of the offender to his prior Megan's Law
classification as a "sexually oriented offender." Id. at ¶ 11.
          {¶ 17} Chapman also involved an out-of-state offender who moved to Ohio,
registered as a sexually oriented offender under Megan's Law, and filed a petition under
R.C. 2950.031(E) to contest a subsequent reclassification under the AWA. Chapman at
¶ 1-5. Applying Bowling and Bodyke, we again rejected the state's argument that the trial
court should instead have reclassified the offender as a "sexual predator" under Megan's
Law, as the petition process is not an opportunity to litigate a pre-AWA classification. Id.
at ¶ 9.
          {¶ 18} The facts of this case are nearly identical to Bowling and Chapman.
Hawkins committed an offense in another state, moved to Ohio, registered as a sexually
oriented offender under Megan's Law, and subsequently challenged his AWA
reclassification by filing a petition under R.C. 2950.031(E). Like those offenders, Hawkins
is entitled to the remedy allowed by the statute: a declaration that the AWA does not apply
to him and reinstatement of his previous classification.
          {¶ 19} However, in a petition proceeding under R.C. 2950.031(E), Hawkins is not
entitled to a declaration that he has no duty to register, or an order declaring his name be
removed from any sex offender registry maintained by state or local authorities.2 The
language employed by the trial court is broad enough to suggest that it applies to both
Hawkins' classification under the AWA as well as his status as a "sexually oriented
offender" under Megan's Law, and that he is free from any duty or obligation under either
law. As Bowling and Chapman make clear, such a determination is outside the bounds of
a permissible inquiry under R.C. 2950.031(E). Thus, the trial court erred insofar as its
entry can be read as a determination that no Megan's Law classification applies to
Hawkins. Accordingly, we sustain the first assignment of error, reverse and remand with
instructions to the trial court to vacate the entry and conform any declaratory ruling on



2 The fact that Hawkins may not litigate his status under Megan's Law with a petition for reclassification
under R.C. 2950.031(E) does not foreclose him from seeking broader relief in another proceeding. See,
e.g., State v. King, 1st Dist. No. C-140534, 2015-Ohio-3565 (reversing convictions for failing to register as
a sex offender under former R.C. 2950.04 and allowing defendant to withdraw guilty pleas under Crim.R.
32.1 where defendant did "not have a duty to register in Ohio as a sex offender [under Megan's Law] and
thus could not have been convicted of violating that duty").
No. 15AP-979                                                                                  7

Hawkins' petition to the scope of relief allowed by R.C. 2950.031(E), as described in
Bodyke, Chapman, and Bowling.
IV. SECOND ASSIGNMENT OF ERROR
       {¶ 20} In the second assignment of error, the state asserts that the trial court
"erred in granting relief that purported to exempt petitioner from any registration
requirement, as the record did not clearly and convincingly support such a conclusion."
(Appellant's Brief at 14.) As discussed in the first assignment of error, the trial court erred
insofar as its entry can be read as a determination that no Megan's Law classification
applies to Hawkins. Under Bowling and Chapman, the trial court did not have the
authority to declare that Hawkins was not subject to any registration requirement when
granting his R.C. 2950.031(E) petition, as this language suggests that the trial court
considered Hawkins' registration obligations under both Megan's Law and the AWA.
Insofar as the state's second assignment of error challenges the evidentiary support for
the trial court's determination of Hawkins' status under Megan's Law, the issue is
rendered moot by the resolution of the first assignment of error, as we have reversed the
trial court and it must vacate the entry in question. We, therefore, overrule the second
assignment of error as moot.
V. THIRD ASSIGNMENT OF ERROR
       {¶ 21} In its third assignment of error, the state argues that it was error for the trial
court to grant Hawkins relief without holding the hearing required by R.C. 2950.031(E),
asserting that a hearing is "mandatory." (Appellant's Brief at 29.)
       {¶ 22} We have previously rejected the state's attempts to characterize a hearing on
an R.C. 2950.031(E) petition as mandatory. Jackson v. State, 10th Dist. No. 10AP-644,
2011-Ohio-2047, ¶ 14 (holding that the state is not "entitled to a statutorily-mandated
hearing to present various arguments" on an R.C. 2950.031(E) petition, only the
petitioner); Hosom v. State, 10th Dist. No. 10AP-671, 2011-Ohio-1494, ¶ 11 (holding that
because of Bodyke's severance of R.C. 2950.031 "any issues relating to that petition
process, including whether the statute provides the state with the same right to a hearing
as a petitioner, no longer constitute any justiciable controversy and are therefore moot").
The trial court is only required to hold a hearing on an R.C. 2950.031(E) petition if it is
going to deny the petitioner the relief he seeks.
No. 15AP-979                                                                                  8

       {¶ 23} Furthermore, where the state admits that the AWA does not apply to the
petitioner, as it does here, it is not prejudiced by the trial court's failure to hold a hearing
because that is "the sole issue the hearing could address." Chapman at ¶ 13 (holding that
the lack of a hearing on an R.C. 2950.031(E) petition does not prejudice the state where it
concedes that the AWA does not apply to the petitioner). Accordingly, the third
assignment of error is overruled.
VI. HAWKINS' MOTION TO DISMISS AND MOTION TO SUPPLEMENT THE
RECORD
       {¶ 24} Hawkins has filed a motion to dismiss this appeal, in which he asserts that
the state's appeal is barred by the doctrines of res judicata and issue preclusion. He argues
that the trial court declared, in an April 19, 2012 entry dismissing charges brought against
him under R.C. 2950.05 for failing to provide a change of address, that he had no duty to
register as a sex offender under R.C. Chapter 2950, and that the state never appealed from
that determination. Hawkins has also filed a motion to supplement the record on appeal,
requesting that this court take judicial notice of that case.
       {¶ 25} We denied Hawkins' motion to dismiss the appeal, noting that res judicata
does not bar the state from appealing. (Mar. 9, 2016 Journal Entry.) Accordingly, we deny
the "MOTION TO TAKE JUDICIAL NOTICE AND SUPPLEMENT RECORD ON
APPEAL."
VII. CONCLUSION
       {¶ 26} For the foregoing reasons, we sustain the first assignment of error, overrule
the second assignment of error as moot, and overrule the third assignment of error.
Hawkins motions to take judicial notice and to supplement the record are denied. We
reverse the trial court and remand with instructions to vacate the entry granting Hawkins'
petition, and to conform any future relief granted under R.C. 2950.031(E) to the scope
defined by the Supreme Court of Ohio in Bodyke, as well as this court in Chapman and
Bowling.
                                    Motion to take judicial notice and supplement the record
                                                denied; judgment reversed; case remanded.

                           DORRIAN, P.J. and TYACK, J., concur.
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