[Cite as State v. Mestre, 2011-Ohio-5677.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 96820




                                       STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                      RAMON MESTRE
                                                       DEFENDANT-APPELLANT




                                   JUDGMENT:
                             REVERSED AND REMANDED



                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-535193

        BEFORE:           Sweeney, J., Kilbane, A.J., and Boyle, J.

        RELEASED AND JOURNALIZED:                      November 3, 2011
ATTORNEY FOR APPELLANT

Nathaniel McDonald, Esq.
Assistant Public Defender
310 Lakeside Avenue, Suite 400
Cleveland, Ohio 44113

ATTORNEY FOR APPELLEE

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




JAMES J. SWEENEY, J.:

      {¶ 1} Defendant-appellant Ramon Mestre appeals from the trial court’s denial of

his motion to withdraw his guilty plea for failure to verify his address predicate upon his

unlawful reclassification under Ohio’s Adam Walsh Act. For the reasons that follow, we

reverse and remand.

      {¶ 2} In this case, appellant was charged with violating a provision of Ohio’s

Adam Walsh Act; failure to verify address pursuant to R.C. 2950.06(F). This violation

allegedly occurred on or about January 23, 2010. The indictment alleged that appellant

had been convicted of deviate sexual intercourse under Pennsylvania state law in 1988.
       {¶ 3} On May 21, 2010, appellant pled guilty to attempted failure to verify address

pursuant to R.C. 2923.02/2950.06, which reduced the offense from a first degree felony, as

indicted, to a felony of the second degree. The court imposed a two year prison term.

       {¶ 4} On March 29, 2011, appellant moved to withdraw his guilty plea pursuant to

Crim.R. 32.1 based on the authority of the Ohio Supreme Court’s decision in Bodyke,1

which declared that the retroactive reclassification of previously convicted sexual

offenders under Ohio’s Adam Walsh Act was unconstitutional. Appellant submitted an

affidavit in support maintaining that he was initially classified under Ohio’s Megan’s Law

as a sexually oriented offender. However, appellant was indicted under the more stringent

classification provisions of Ohio’s Adam Walsh Act. The state opposed the motion and the

trial court denied it. Appellant now appeals and presents a single assignment of error:

       {¶ 5} “The trial court erred when it denied Mr. Mestre’s Motion to Withdraw

Guilty Plea because Mr. Mestre’s conviction is predicated on an unlawful reclassification

and he is actually innocent of the charges.”

       {¶ 6} The state concedes that this Court has already resolved this issue in

appellant’s favor citing State v. Ortega-Martinez, Cuyahoga App. No. 95656,
                         2
2011-Ohio-2540, ¶17;         Hannah     v. State, Cuyahoga App. Nos. 95883-95889,



        State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753.
        1



        “This court has held that an unlawful reclassification under Ohio’s AWA
        2

cannot serve as the predicate for the crime of failure to verify. State v. Smith, 8th
Dist. No. 92550, 2010-Ohio-2880, ¶29; State v. Page, 8th Dist. No. 94369,
2011-Ohio-83. Because appellant’s indictment was predicated on an unlawful
reclassification,  he   cannot     be   convicted    of   the     offense   charged.”
2011-Ohio-2930; Speight v. State, Cuyahoga App. Nos. 96041-96405, 2011-Ohio-2933.

However, the state continues to defend the trial court’s judgment on appeal in order to

preserve the issue for further review. Accordingly, this assignment of error is sustained

pursuant to the precedent in this jurisdiction.

          {¶ 7} Judgment reversed and remanded for further proceedings consistent with this

opinion.

          It is, therefore, considered that said appellant recover of said appellee his costs

herein.

          It is ordered that a special mandate be sent to said 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.




JAMES J. SWEENEY, JUDGE

MARY EILEEN KILBANE, A.J., and
MARY J. BOYLE, J., CONCUR
