[Cite as State v. Torres, 2012-Ohio-922.]



                      Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                   Nos. 96930 and 96931



                                       STATE OF OHIO

                                                     PLAINTIFF-APPELLANT

                                               vs.

                                      MIGUEL TORRES
                                                     DEFENDANT-APPELLEE



                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeals from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-517675

        BEFORE: Stewart, P.J., Jones, J., and Rocco, J.

        RELEASED AND JOURNALIZED:                    March 8, 2012
ATTORNEYS FOR APPELLANT

William D. Mason
Cuyahoga County Prosecutor

BY: Daniel T. Van
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113



ATTORNEYS FOR APPELLEE

Robert L. Tobik
Cuyahoga County Public Defender

BY: Cullen Sweeney
          Nathaniel McDonald
Assistant Public Defenders
310 Lakeside Avenue, Suite 400
Cleveland, OH 44113
MELODY J. STEWART, P.J.:

       {¶1} In this consolidated appeal, plaintiff-appellant state of Ohio appeals from the

judgments of the Cuyahoga County Common Pleas Court that granted defendant-appellee

Miguel Torres’s motion to withdraw guilty plea and motion to dismiss indictment. The

state complains that because Torres’s reclassification as a tier III sexual offender was

lawful and subjected him to registration requirements under the Adam Walsh Act

(“AWA”), the trial court erred in allowing him to withdraw his guilty plea for failing to

verify his address. The state also contends that the trial court erred when it dismissed the

underlying indictment. For the reasons stated below, we affirm.

       {¶2} Torres was convicted of sexual abuse in New York in 1992. He moved to

Ohio in 2007 and was automatically classified as a sexually oriented offender subject to

the registration and reporting requirements under Ohio’s version of Megan’s Law. This

classification required Torres to register his address with the Cuyahoga County Sheriff

annually for ten years. In July 2007, the Ohio General Assembly replaced the existing

sexual offender registration statutes with Ohio’s version of the AWA. When the AWA

became effective in January 2008, Torres was reclassified as a tier III sexual offender.

This reclassification required him to report more frequently and for a longer period of

time: every 90 days for life.

       {¶3} Torres last verified his address on May 19, 2008, and 90 days later when he

failed to report, he was indicted for failure to verify his address under the AWA. In

March 2009, Torres entered a plea of guilty to an amended indictment for attempted
failure to verify address and was sentenced to community control sanctions and continued

reporting requirements.

       {¶4} In August 2009, a capias was issued at the request of the adult probation

department because Torres had again failed to report as directed. In January 2010, the

trial court found him to be in violation of community control sanctions and sentenced him

to a two-year term of incarceration. In March 2011, Torres filed a motion to withdraw

his guilty plea, and in May 2011, he filed a motion to dismiss the indictment. The trial

court granted Torres’s motion to withdraw his plea in May 2011. In June, when his

motion to dismiss indictment was granted, the state appealed both rulings.

       {¶5} For its first assignment of error, the state argues that the trial court erred in

granting Torres’s motion to withdraw guilty plea because the underlying conviction was

based on a lawful reclassification that subjected Torres to registration under the AWA.

The state argues that Torres is not entitled to relief because his duty to register arose by

operation of law because he was convicted out-of-state, and that he had no expectation

of finality.

       {¶6} The state derives its right to appeal in criminal cases from R.C. 2945.67(A),

which “draws a distinction between an appeal as of right and an appeal by leave.” State

v. Matthews, 81 Ohio St.3d 375, 377, 691 N.E.2d 1041 (1998). R.C. 2945.67(A) defines

the circumstances under which the state has an absolute right of appeal, and states, in

pertinent part:

       A [prosecutor] * * * may appeal as a matter * * * [of] right any decision of
       a trial court in a criminal case * * * which decision grants (1) a motion to
       dismiss all or any part of an indictment, complaint, or information, (2) a
       motion to suppress evidence, or (3) a motion for the return of seized
       property or (4) grants post conviction relief * * * and may appeal by leave
       of the court to which the appeal is taken any other decision, except the final
       verdict, of the trial court in a criminal case * * *.

       {¶7} The state filed a timely notice of appeal.            However, since the state’s

challenge to the motion to withdraw guilty plea is discretionary, the state was also

required to move this court for leave to appeal. “[A] motion for leave to appeal shall be

filed with the court of appeals within thirty days from the entry of the judgment and order

sought to be appealed * * *.” App.R. 5(A). “[T]he filing of a motion for leave to

appeal by the state in a criminal case is jurisdictional, and the failure to take that action

within thirty days is fatal.” State v. Gowdy, 95 Ohio App.3d 628, 630, 643 N.E.2d 175

(2d Dist.1994); see also Garfield Hts. v. Turpin, 8th Dist. No. 74920, 1999 WL 820537

(Oct. 14, 1999) (“the court declined to grant the prosecution leave to appeal where the

prosecution did not file a motion for leave to appeal, and there were other cases which

reached the issue which the prosecution sought to raise”). Because the state did not seek

leave to appeal the issue raised in its first assigned error, we decline to address it.

       {¶8} The state, in its second assignment of error, similarly asserts that Torres is

subject to registration under the AWA, and as a result, the trial court erred by dismissing

the indictment. The state concedes that this court has held that State v. Bodyke, 126 Ohio

St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, also applies to out-of-state offenders who

have been previously classified under Ohio’s Megan’s Law, and raises this appeal only to

preserve this assignment of error for possible review. Nevertheless, we again note that
this court has held that an “unlawful reclassification under Ohio’s AWA cannot serve as

the predicate for the crime of failure to verify.” Therefore, a defendant indicted under

such an unlawful reclassification cannot be convicted of the offense charged. State v.

Ortega-Martinez, 8th Dist. No. 95656, 2011-Ohio-2540, 2011 WL 2112726, ¶ 17, citing

State v. Smith, 8th Dist. No. 92550, 2010-Ohio-2880, 2010 WL 2541371, ¶ 29; State v.

Page, 8th Dist. No. 94369, 2011-Ohio-83, 2011 WL 208290; see also Hawkins v. State,

8th Dist. Nos. 96080, 96081, 96082, 96083, 96084, 96085, 96086, 96087, 96088, 96089,

96090, 96091, 96092, 2011-Ohio-3393, 2011 WL 2651565.                   The state’s second

assignment of error is overruled.

       {¶9} Judgment affirmed.

       It is ordered that appellee recover of appellant his 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 Cuyahoga

County Court of Common Pleas 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.




MELODY J. STEWART, PRESIDING JUDGE

LARRY A. JONES, SR., J., and
KENNETH A. ROCCO, J., CONCUR
