[Cite as Hannah v. State, 2011-Ohio-2930.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                            Nos. 95883, 95884, 95885, 95886
                               95887, 95888, and 95889


                        JAMES S. HANNAH, ET AL.
                                                   PLAINTIFFS-APPELLANTS

                                             vs.

                                    STATE OF OHIO
                                                   DEFENDANT-APPELLEE




                                JUDGMENT:
                          REVERSED AND REMANDED


                               Civil Appeal from the
                      Cuyahoga County Court of Common Pleas
                    Case Nos. CV-646974, CV-646851, CV-649573,
                  CV-648483, CV-646802, CV-676429, and CV-648566

        BEFORE: Celebrezze, J., Kilbane, A.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                     June 16, 2011
ATTORNEYS FOR APPELLANTS

Robert L. Tobik
Cuyahoga County Public Defender
BY: Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue
Suite 400
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Daniel T. Van
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




FRANK D. CELEBREZZE, JR., J.:

      {¶ 1} These consolidated appeals arise from the trial court’s rulings in

a group of sex offender reclassification cases. In Appeal Nos. 95883, 95884,

95885, 95886, 95887, 95888, and 95889, plaintiffs-appellants (collectively

referred to as “appellants”) appeal their reclassifications under S.B. 10, Ohio’s

Adam Walsh Act (“AWA”). Pursuant to the Ohio Supreme Court’s recent

decision in State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d

753, we vacate appellants’ reclassifications and remand to the trial court to
reinstate their previously imposed classifications, community-notification,

and registration orders.

        {¶ 2} All seven appellants were previously classified as sexually

oriented offenders, the least restrictive tier under Ohio’s Megan’s Law, based

on the following offenses:

        {¶ 3} James Hannah pled guilty and was convicted of rape in 1993.

        {¶ 4} Otto Hansen pled guilty and was convicted of rape in 1987.

        {¶ 5} David Wooten pled guilty and was convicted of attempted rape in

1993.

        {¶ 6} Kenneth Mason pled guilty and was convicted of sexual battery in

2003.

        {¶ 7} James Miller pled guilty and was convicted of rape in 1987.

        {¶ 8} Walter Fisher was convicted in 1983 of oral copulation in

Bakersfield, California.

        {¶ 9} Tyrus Kenney was convicted of an offense in Norfolk, Virginia in

2005 that the Ohio Attorney General determined to be substantially

equivalent to unlawful sexual conduct with a minor.

        {¶ 10} Appellants’ classification decisions were made after judicial

hearing in all but three cases, Walter Fisher, Tyrus Kenney, and David

Wooten. In Fisher’s, Kenney’s, and Wooten’s cases, each was classified as a
sexually oriented offender by operation of law based solely on their

convictions for sex offenses.

       {¶ 11} As sexually oriented offenders under Megan’s Law, appellants

were only required to register once a year for ten years and were not subject

to community notifications. See former R.C. 2950.04, 2950.05, 2950.06, and

2950.11.

       {¶ 12} In 2006, Congress passed the Adam Walsh Child Protection and

Safety Act (“AWA”), which created national standards for sexual offender

classification, registration, and community notification.   As a result, Ohio

reorganized its sexual offender registration scheme in 2007 by enacting its

version of the AWA, also known as S.B. 10, which became effective on July 1,

2007 and January 1, 2008. S.B. 10 repealed the three-level scheme set forth

under Megan’s Law (“sexually oriented offender,” “habitual sexual offender,”

and “sexual predator”), and replaced it with a new three-tier system (Tier I,

Tier II, and Tier III).

       {¶ 13} Pursuant to R.C. 2950.031 and 2950.032, the Ohio Attorney

General reclassified all seven appellants as Tier III sex offenders under the

AWA.    As a result of this new classification, appellants were required to

register every 90 days for life as Tier III sex offenders rather than annually

for ten years as sexually oriented offenders.
       {¶ 14} Appellants filed petitions in the Cuyahoga County common pleas

court to contest the application of the AWA to their respective cases. While

appellants’ cases were pending in the trial court, the Ohio Supreme Court

held that the reclassification provisions of the AWA were unconstitutional

and unenforceable. Bodyke, supra. In reliance on Bodyke, appellants each

filed a motion for summary judgment, arguing that they were entitled, as a

matter of law, to be returned to their previous classifications under Megan’s

Law.     The trial court denied appellants’ summary judgment motions and

dismissed their petitions with prejudice. On September 21, 2010, the trial

court entered the following order:

       {¶ 15} “FINAL MOTION FOR SUMMARY JUDGMENT DENIED;

FINAL.         THIS    COURT     RETAINS       JURISDICTION        OVER   ALL

POST-JUDGMENT MOTIONS.                COURT COST ASSESSED TO THE

PLAINTIFF(S).”

       {¶ 16} Appellants raise four assignments of error for review.

       {¶ 17} “I. The trial court improperly denied appellants’ claim that the

AWA violated the separation of powers doctrine and could not be applied to

them.”

       {¶ 18} “II.   The trial court erred in dismissing appellants’ AWA

petitions without ruling on all of appellants’ claims.”
      {¶ 19} “III. The trial court erred in sua sponte dismissing appellants’

petitions without proper notice.”

      {¶ 20} “IV. The trial court erred in dismissing appellants’ ex post facto,

retroactivity, double jeopardy, breach of plea and contracts clause, due

process, and community notification claims.”

                                  Law and Analysis

      {¶ 21} In their first assignment of error, appellants argue that the

application of the AWA to offenders whose crimes were committed before the

AWA’s effective dates violates numerous constitutional rights, including the

separation-of- powers doctrine.

      {¶ 22} In Bodyke, supra, the Ohio Supreme Court concluded that “R.C.

2950.031 and 2950.032, the reclassification provisions in the AWA, are

unconstitutional because they violate the separation-of-powers doctrine.” Id.

at ¶2. The court emphasized the importance of separation of powers and

noted that it has “held that ‘[t]he administration of justice by the judicial

branch of the government cannot be impeded by the other branches of the

government in the exercise of their respective powers.’” Id. at ¶45, quoting

State ex rel. Johnston v. Taulbee (1981), 66 Ohio St.2d 417, 423 N.E.2d 80,

paragraph one of the syllabus.

      {¶ 23} Concluding    that     R.C.   2950.031     and    2950.032     are

unconstitutional, the Ohio Supreme Court chose severance as a remedy.
Specifically, the court stated, “As a remedy, we strike R.C. 2950.031 and

2950.032, hold that the reclassifications of sex offenders by the Attorney

General are invalid, and reinstate prior judicial classifications of sex

offenders.” Id. at ¶2.

      {¶ 24} The state concedes that appellants Hannah, Hansen, Mason, and

Miller are entitled to have their Megan’s Law classifications reinstated

pursuant to Bodyke because they each received a court-ordered classification.

 See, e.g. Pierson, et al. v. State, Cuyahoga App. Nos. 92173-92175, 92177,

92179,   92182-92185,    92187-92188,   92199-92206,     92240,   92248-92251,

92255-92257, 92277, 92312, and 92328, 2010-Ohio-3060; Means, et al. v.

State, Cuyahoga App. Nos. 92936-92939 and 92941-92945, 2010-Ohio-3082.

      {¶ 25} However, the state argues that Bodyke does not apply to

appellants Fisher, Kenny, or Wooten because their duty to register as

sexually oriented offenders arose by operation of law.
                           Fisher, Kenney, and Wooten

      {¶ 26} The record indicates that Fisher’s and Kenney’s underlying

sexual offenses occurred outside the state of Ohio. As out-of-state offenders,

their duty to register as a sexually oriented offender arose automatically and

by operation of law because they were convicted of a sex offense and the trial

court did not make a determination that they were a sexual predator or

habitual sexual offender.      See State v. Hayden, 96 Ohio St.3d 211,

2002-Ohio-4169, 773 N.E.2d 502. Similarly, Wooten’s duty to register as a

sexually oriented offender arose by operation of law.       Although Wooten’s

underlying offense occurred in the state of Ohio, his duty to register arose by

operation of law because he did not receive a court-ordered classification.

      {¶ 27} The state argues that because Kenney’s, Fisher’s, and Wooten’s

duty to register as sexually oriented offenders arose by operation of law

rather than by judicial order, there is no separation-of-powers violation.

Therefore, the state contends that Kenney, Fisher, and Wooten do not fit

within the holding of Bodyke. We disagree.

      {¶ 28} We recognize that the state raises a conceivably correct

interpretation of Bodyke and that the language in Bodyke appears to limit its

separation-of- powers holding to judicially classified sex offenders and not

those sex offenders classified by operation of law. However, the remedy of

Bodyke was complete and included total severance of the provisions providing
for the attorney general’s authority to reclassify sex offenders.           The

severance makes no distinction between those classified judicially and those

classified by operation of law.   Moreover, after Bodyke was rendered, the

Ohio Supreme Court was asked for clarification on this very issue, but

declined to offer either reconsideration or clarification, which suggests that

the effect of severance is applicable to all sex offenders, whether classified

judicially or by operation of law.     Therefore, offenders whose pre-AWA

classification arose purely as a matter of law still must receive the benefit of

the Bodyke remedy returning those offenders to their pre-AWA classifications

because of Bodyke’s complete severance of the statutory provisions governing

reclassification by the attorney general. See Core v. Ohio, Franklin App. No.

09AP-192, 2010-Ohio-6292 (applying Bodyke to a case in which the offender’s

classification resulted from an out-of-state conviction); State v. Hazlett, 191

Ohio App.3d 105, 2010-Ohio-6119, 944 N.E.2d 1220 (applying Bodyke to a

case in which the offender was never judicially classified and whose

classification therefore arose purely as a matter of law). See, also, Robinson

v. State, Franklin App. No. 10AP-647, 2011-Ohio-1600; State v. Johnson,

Franklin App. No. 10AP-932, 2011-Ohio-2009.

      {¶ 29} Given that the statutory provisions authorizing the attorney

general to reclassify sex offenders have been severed and excised from the

Ohio Revised Code, we find that the action taken by the Ohio Supreme Court
in Bodyke, i.e., reinstating sex offenders to their sex offender classifications as

they existed prior to the implementation of the AWA, to be equally applicable

here.

        {¶ 30} Accordingly, we sustain appellants’ first assignment of error and,

in accordance with Bodyke, find that the reclassifications of these appellants

made under the severed statutes must be vacated and their prior sex offender

classifications reinstated.    In light of the foregoing, appellants’ remaining

assignments of error, all involving other constitutional challenges to S.B. 10,

are rendered moot.

        {¶ 31} This cause is reversed and remanded to the lower court for

further proceedings consistent with this opinion.

        It is ordered that appellants recover of said appellee costs herein taxed.

        The court finds there were reasonable grounds for this appeal.

        It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

        A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

MARY EILEEN KILBANE, A.J., and
SEAN C. GALLAGHER, J., CONCUR
