[Cite as State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636.]




             THE STATE OF OHIO, APPELLEE, v. RABER, APPELLANT.
          [Cite as State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636.]
Criminal law—Final judgments—Double jeopardy—Trial court lacks authority to
        reconsider a final judgment—Double Jeopardy Clause protects against
        multiple criminal punishments for the same offense in successive
        proceedings—Judgment reversed.
  (No. 2011-1383—Submitted August 21, 2012—Decided December 5, 2012.)
               APPEAL from the Court of Appeals for Wayne County,
                           No. 10CA0020, 2011-Ohio-3888.
                                  __________________
                               SYLLABUS OF THE COURT
1. A trial court lacks authority to reconsider a final judgment in a criminal case.
        (State ex rel. White v. Junkin, 80 Ohio St.3d 335, 338, 686 N.E.2d 267
        (1997), and State ex rel. Hansen v. Reed, 63 Ohio St.3d 597, 589 N.E.2d
        1324 (1992), followed.)
2. The Double Jeopardy Clause of the Fifth Amendment to the United States
        Constitution protects against the imposition of multiple criminal
        punishments for the same offense in successive proceedings. (Hudson v.
        United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), and
        United States v. Husein, 478 F.3d 318 (6th Cir.2007), followed.)
                                  __________________
        O’DONNELL, J.
        {¶ 1} Kyle Raber appeals from a judgment of the Ninth District Court of
Appeals that affirmed his classification as a Tier I sex offender based on his guilty
plea to one count of sexual imposition. At issue is whether the trial court retained
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authority to classify him as a Tier I sex offender more than a year after the entry
of a final judgment of conviction for a sexually oriented offense.
       {¶ 2} R.C. 2950.03(A)(2) directs a trial court to notify a sex offender of
the duty to register as a sex offender at the time of a sentencing for a sexually
oriented offense. However, pursuant to R.C. 2950.01(B)(2)(a), one who commits
a sexually oriented offense is not a sex offender—and has no duty to register—if
the offense involved “consensual sexual conduct or consensual sexual contact”
with a victim over 18 years old who is not under the custodial authority of the
perpetrator.
       {¶ 3} At sentencing on November 26, 2008, the parties disputed whether
the sexually oriented offense at issue here involved consensual activity. The court
afforded the state an opportunity to demonstrate a lack of consent, but the state
failed to do so, and the trial court subsequently sentenced Raber but did not order
him to register as a sex offender. Notably, the trial court did not have a duty to
order Raber to register as a sex offender pending its determination as to the
consensual nature of the conduct, and having entered its judgment without the
registration requirement, it implicitly incorporated into the judgment a finding
that Raber has no duty to register.
       {¶ 4} The court therefore lacked authority to reopen its sentencing to
reconsider its prior judgment or to find the sexual activity to be nonconsensual
and classify Raber as a Tier I sex offender more than a year after it had imposed
its original sentence.    In addition, because sex-offender registration is now
punitive in nature, double-jeopardy protections barred the court from
subsequently classifying Raber as a Tier I sex offender at a new proceeding held
more than a year after its original sentence.
       {¶ 5} Accordingly, the judgment of the court of appeals is reversed.




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                          Facts and Procedural History
       {¶ 6} On February 18, 2008, 18-year-old Kyle Raber and his 18-year-old
former girlfriend engaged in consensual intercourse in her bedroom. Raber then
asked her for anal sex. Although she denied his request, he proceeded.
       {¶ 7} A Wayne County grand jury indicted him on April 4, 2008, on one
count of sexual battery, a felony of the third degree, and on October 28, 2008,
Raber pled guilty to an amended count of sexual imposition, a third-degree
misdemeanor.
       {¶ 8} At the sentencing hearing held on November 26, 2008, the parties
disputed whether the misdemeanor conviction for sexual imposition required
Raber to register as a sex offender, because R.C. 2950.01(B)(a) does not require
registration if the offense involved consensual sexual activity with another over
the age of 18. At the sentencing hearing, only hearsay statements of Raber’s
former girlfriend were presented on the issue of consent. The parties agreed to
brief the sex-offender-registration question, and the trial court took the matter
under advisement. However, the parties never submitted briefs on the issue, and
on December 1, 2008, the court entered judgment, sentencing Raber to 60 days in
jail (30 of them suspended), imposing a $500 fine, and ordering two years of
community control.     Significantly, the court did not classify Raber as a sex
offender and did not provide him with notice of a duty to register as a sex
offender.
       {¶ 9} Thereafter, on October 19, 2009—more than ten months after
entering its judgment of conviction—the trial court, sua sponte, scheduled a
hearing for November 18, 2009. No transcript of this hearing appears in the
record. The next day, however, the judge inexplicably transferred the matter to a
different judge, who presided over an evidentiary hearing on March 2, 2010, to
determine whether Raber should be classified as a sex offender subject to Tier I
registration. At that hearing, the victim testified that she had consented to vaginal



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sex but not to anal intercourse. The second trial judge then found the sexual
conduct to be nonconsensual and classified Raber as a Tier I sex offender subject
to registration, and at another hearing on April 13, 2010, the court provided notice
of Raber’s Tier I classification, and the court journalized its judgment the next
day, more than 14 months after the original sentencing.
        {¶ 10} On August 6, 2010, the trial court released Raber from the two-
year term of community control earlier imposed.
        {¶ 11} Raber appealed his Tier I classification to the Ninth District Court
of Appeals, claiming that his December 2008 conviction was a final order, and
therefore, the court had no jurisdiction in 2010 to hear and decide the sex-
offender-registration issue. The court rejected these arguments, holding that an
order classifying a sex offender constitutes a separate judgment from the
underlying conviction and sentence, and therefore, the trial court had not modified
a final order when it imposed sex-offender registration 14 months after it had
sentenced him. State v. Raber, 9th Dist. No. 10CA0020, 2011-Ohio-3888, ¶ 7-8.
The court also concluded that Raber had forfeited any argument that the
classification as a Tier I sex offender violated due process and prohibitions
against double jeopardy and self-incrimination, because he failed to assert those
claims in the trial court. Id. at ¶ 10.
        {¶ 12} Raber now appeals to this court, urging that the trial court lacked
jurisdiction to modify his conviction and sentence, which, he asserts, became a
final judgment when the state failed to appeal. He notes that the court of appeals
relied on caselaw construing the imposition of sex-offender registration pursuant
to Megan’s Law, which is a civil, remedial law, but he maintains that those cases
do not apply to the classification of a sex offender pursuant to current R.C.
Chapter 2950, which this court has now held to be punitive. State v. Williams,
129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶ 16. Further, Raber
contends that his classification as a Tier I sex offender deprived him of due




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process by reopening a final judgment and that it violated the prohibition against
double jeopardy by imposing additional punishment at a subsequent proceeding.
       {¶ 13} The state claims that Raber agreed to delay the determination of
whether he should be classified as a sex offender to a later time and that he
benefited from this delay by not having to register. It also argues that any error is
harmless, because “even Raber agrees that he should have been adjudicated a sex
offender” and because a lack of consent is inherent in a guilty plea to sexual
imposition. Lastly, the state asserts that the trial court had jurisdiction to correct
the “clerical omission in the prior order” and impose sex-offender registration,
and it maintains that there is no violation of due process or the prohibition against
double jeopardy, because the court had authority to correct this omission.
       {¶ 14} Accordingly, the issue becomes whether the trial court had
authority to classify Raber as a sex offender 14 months after entering its judgment
of conviction.
                                 Law and Analysis
                                       S.B. 10
       {¶ 15} In January 2008, 2007 Am.Sub.S.B. No. 10 (“S.B. 10”) took
effect. It repealed Ohio’s prior sex-offender-classification scheme and replaced it
with a three-tiered system classifying sex offenders automatically, based on the
offense of conviction: an adult Tier I offender is required to register with the
county sheriff every year for 15 years; an adult Tier II offender is required to
register every 180 days for 25 years; and a Tier III offender is required to register
every 90 days for life. R.C. 2950.01(E) through (G), 2950.06(B), and 2950.07(B).
S.B. 10 requires sex offenders to personally register in the county or counties in
which they reside, attend school, and work. R.C. 2950.04(A)(2).
       {¶ 16} R.C. 2950.03(A)(2) directs the trial court to notify a sex offender
of the duty to register at sentencing for a sexually oriented offense, providing:




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              Regardless of when the person committed the sexually
       oriented offense or child-victim oriented offense, if the person is
       an offender who is sentenced on or after January 1, 2008 for any
       offense, and if division (A)(1) [offenders already under
       confinement] of this section does not apply, the judge shall provide
       the notice to the offender at the time of sentencing.


(Emphasis added.)
       {¶ 17} Notably, however, R.C. 2950.01(B)(2) states that a person who
commits a sexually oriented offense is not a sex offender


       if the offense involves consensual sexual conduct or consensual
       sexual contact and either of the following applies:
               (a) The victim of the sexually oriented offense was
       eighteen years of age or older and at the time of the sexually
       oriented offense was not under the custodial authority of the person
       who is convicted of, pleads guilty to, has been convicted of, has
       pleaded guilty to, is adjudicated a delinquent child for committing,
       or has been adjudicated a delinquent child for committing the
       sexually oriented offense.
               (b) The victim of the offense was thirteen years of age or
       older, and the person who is convicted of, pleads guilty to, has
       been convicted of, has pleaded guilty to, is adjudicated a
       delinquent child for committing, or has been adjudicated a
       delinquent child for committing the sexually oriented offense is not
       more than four years older than the victim.




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                               January Term, 2012




If the offender is not a sex offender pursuant to R.C. 2950.01(B), there is no duty
to register.
        {¶ 18} In this case, at the November 26, 2008 sentencing hearing, the state
failed to prove the lack of consent to the sexual activity, nor did it file a
supplemental brief pointing to evidence in the record demonstrating a lack of
consent. The court thereafter entered a judgment of conviction without finding
Raber to be a sex offender subject to Tier I registration and without notifying him
of a duty to register, presumably on its determination that no duty existed based
on the sexual activity’s being consensual.
        {¶ 19} A presumption of regularity attaches to all judicial proceedings.
See, e.g., State v. Edwards, 157 Ohio St. 175, 183, 105 N.E.2d 259 (1952); State
v. Sweet, 72 Ohio St.3d 375, 376, 650 N.E.2d 450 (1995); State v. Robb, 88 Ohio
St.3d 59, 87, 723 N.E.2d 1019 (2000). Here, the record is silent regarding the
trial court’s reasoning for not classifying Raber as a sex offender subject to
registration in its judgment of conviction, and therefore “[t]here is no showing of
irregularity to contradict the presumption of regularity accorded all judicial
proceedings.” Sweet at 376.
                       Reconsideration of Final Judgments
        {¶ 20} We have previously recognized that “trial courts lack authority to
reconsider their own valid final judgments in criminal cases.” State ex rel. White
v. Junkin, 80 Ohio St.3d 335, 338, 686 N.E.2d 267 (1997), citing State ex rel.
Hansen v. Reed, 63 Ohio St.3d 597, 589 N.E.2d 1324 (1992). And although trial
courts retain continuing jurisdiction to correct a void sentence and to correct a
clerical error in a judgment, State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353,
2006-Ohio-5795, 856 N.E.2d 263, ¶ 19, neither of those exceptions to the general
rule applies here.
        {¶ 21} The trial court had no mandatory duty to impose sex-offender
registration after determining the sexual activity to be consensual and considering



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the ages of those involved. The state fails to demonstrate a clerical mistake,
which, as we explained in Cruzado, “ ‘refers to a mistake or omission, mechanical
in nature and apparent on the record, which does not involve a legal decision or
judgment.’ ” Id. at ¶ 19, quoting State v. Brown, 136 Ohio App.3d 816, 819–820,
737 N.E.2d 1057 (3d Dist.2000). Nothing in the record demonstrates error by the
trial court in failing to classify Raber as a sex offender in its original judgment of
conviction.
                                 Double Jeopardy
        {¶ 22} This court previously upheld the prior sex-offender registration
statutes enacted by the General Assembly against constitutional challenge. In
State v. Williams, 88 Ohio St.3d 513, 528, 728 N.E.2d 342 (2000), we held that
because Megan’s Law did not impose punishment, it necessarily did not violate
the Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution. And in State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896
N.E.2d 110, we concluded that sex-offender registration remained a civil,
remedial regulatory scheme notwithstanding amendments to Megan’s Law
enacted by Am.Sub.S.B. No. 5, effective July 31, 2003, that increased burdens on
sex offenders, because the amended statute did not impose criminal punishment.
Id. at ¶ 39, 43.
        {¶ 23} However, in Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952
N.E.2d 1108, we determined that the registration duties imposed by S.B. 10 could
no longer be considered civil in nature, holding that “R.C. Chapter 2950 is
punitive.” Id. at ¶ 16. And In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967
N.E.2d 729, stands for the proposition that S.B. 10 violates Ohio’s constitutional
prohibition against cruel and unusual punishment by imposing an automatic,
lifetime requirement of sex-offender registration and notification on certain
juvenile offenders. Id. at ¶ 86.     Thus, our cases hold that S.B. 10 imposes
additional criminal punishment on those convicted of sexually oriented offenses.




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       {¶ 24} The Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution protects against the imposition of multiple criminal
punishments for the same offense in successive proceedings. Hudson v. United
States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997); United States v.
Husein, 478 F.3d 318, 338 (6th Cir.2007). As the United States Court of Appeals
for the D.C. Circuit has explained, “If a defendant has a legitimate expectation of
finality, then an increase in that sentence is prohibited by the double jeopardy
clause.” United States v. Fogel, 829 F.2d 77, 87 (D.C.Cir.1987).
       {¶ 25} Although we have recognized that “[w]here * * * the sentence
imposed was unlawful and thus void, there can be no reasonable, legitimate
expectation of finality in it,” State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-
1197, 884 N.E.2d 568, ¶ 36, the judgment of conviction entered in this case is
neither unlawful nor void. And although trial courts “possess inherent authority
to correct errors in judgment entries so that the record speaks the truth,” State ex
rel. Fogle v. Steiner, 74 Ohio St.3d 158, 163-164, 656 N.E.2d 1288 (1995), the
decision not to classify Raber as a Tier I sex offender was not a clerical error.
       {¶ 26} Accordingly, Raber had a legitimate expectation of finality in his
sentence when the trial court entered its judgment of conviction on December 1,
2008, and the protections of the Double Jeopardy Clause prohibited the trial court
from reopening this case, conducting a separate trial to determine whether the
sexual activity at issue here was consensual, and classifying Raber as a sex
offender subject to Tier I registration.
                                     Conclusion
       {¶ 27} The trial court lacked authority to reopen this case to reconsider
the final judgment it had entered, and the protections against double jeopardy
barred it from classifying Raber as a Tier I sex offender more than a year after it
imposed sentence. Accordingly, the judgment of the court of appeals is reversed.
                                                                 Judgment reversed.



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       PFEIFER, LUNDBERG STRATTON, CUPP, and MCGEE BROWN, JJ., concur.
       LANZINGER, J., concurs in judgment only.
       O’CONNOR, C.J., dissents.
                             ____________________
       O’CONNOR, C.J., dissenting.
       {¶ 28} As a matter of law, the sexually oriented offense for which Kyle
Raber was convicted was nonconsensual. For that reason, the trial court had no
business engaging in an evidentiary hearing on the issue of consent.
       {¶ 29} Raber was convicted of sexual imposition in violation of R.C.
2907.06(A)(1), which prohibits sexual contact if “[t]he offender knows that the
sexual contact is offensive to the other person * * * or is reckless in that regard.”
There is no factual scenario that is consistent with both a conviction under that
subsection and an exception to the definition of sex offender, contained in R.C.
2950.01(B)(2), for cases of consensual sexual contact.             Accordingly, the
imposition of sex-offender registration duties was a statutorily mandated
requirement in this case. But the trial court failed to do what the law required it to
do.
       {¶ 30} Instead, the trial court and the prosecutor got distracted by defense
counsel’s argument that because the victim had consented to some sexual contact
with Raber, the consent-exception to the registration requirement was triggered.
Both accepted the defense’s erroneous proposition that the state had the burden to
prove not only that the contact was offensive (in order to secure the conviction)
but that it was also nonconsensual (in order to secure the registration). Offensive
contact is, by its nature, nonconsensual. The exception was wholly inapplicable.
       {¶ 31} Even if the exception had been applicable, the trial court acted
unreasonably by continuing the case for consideration of the consent issue. The
evidence in the record at the time of sentencing demonstrated that Raber anally
raped the victim. At sentencing, Raber admitted that he committed the sexually




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oriented offense because he had gotten “mad.”         There was no need for an
evidentiary hearing because the factual issue of consent, or lack thereof, was
clear.
         {¶ 32} The trial court ultimately did what was required by law: impose
registration. We should affirm.
         {¶ 33} I dissent.
                               __________________
         Jason B. Desiderio, for appellee.
         David T. Eager and David M. Todaro, for appellant.
                             ______________________




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