[Cite as Melendez v. State, 2010-Ohio-6507.]
                          STATE OF OHIO, COLUMBIANA COUNTY

                                   IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

NICOLAS MELENDEZ,                              )
                                               )   CASE NO. 09 CO 39
        PETITIONER-APPELLANT,                  )
                                               )
        - VS -                                 )         OPINION
                                               )
STATE OF OHIO,                                 )
                                               )
        RESPONDENT-APPELLEE.                   )


CHARACTER OF PROCEEDINGS:                          Civil Appeal from Common Pleas
                                                   Court, Case No. 08 CV 178.


JUDGMENT:                                          Reversed and Remanded.


APPEARANCES:
For Petitioner-Appellant:                          Nicholas Melendez, Pro-se
                                                   # 524-209
                                                   Belmont Correctional Institution
                                                   P.O. Box 540
                                                   St. Clairsville, OH 43950-0540

For Respondent-Appellee:                           Attorney Robert L. Herron
                                                   Prosecuting Attorney
                                                   Attorney Timothy J. McNicol
                                                   Asst. Prosecuting Attorney
                                                   105 S. Market Street
                                                   Lisbon, OH 44432



JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite

                                                   Dated: December 8, 2010
[Cite as Melendez v. State, 2010-Ohio-6507.]
DeGenaro, J.
        {¶1}     Pro-se Defendant/Petitioner-Appellant, Nicolas Melendez, timely appeals
the October 30, 2009 judgment of the Columbiana County Court of Common Pleas which
denied Melendez's pro-se petition challenging his reclassification under R.C. 2950.01 et
seq., as amended by S.B. 10, also known as Ohio's Adam Walsh Act (AWA). Melendez
asserts three assignments of error, one of which is that the reclassification provisions of
the AWA are unconstitutional.
        {¶2}     The Ohio Supreme Court recently held in State v. Bodyke, 126 Ohio St.3d
266, 2010-Ohio-2424, 933 N.E.2d 753, that the reclassification provision in the AWA
does violate the separation of powers doctrine and is therefore unconstitutional.
Accordingly, the judgment of the trial court is reversed, and the case is remanded to the
trial court for further proceedings pursuant to Bodyke.
                                  Facts and Procedural History
        {¶3}     In 2007 following a guilty plea, Melendez was convicted of two counts of
rape, both first degree felonies. He was sentenced to eight years on each count, to be
served concurrently. Pursuant to then-existing R.C. 2950.01, Melendez was designated a
sexually oriented offender and notified of his corresponding registration requirements.
        {¶4}     In 2007, Ohio enacted S.B. 10, which amended the classification and
reporting requirements portions of R.C. Chapter 2950 to comply with the federal Adam
Walsh Act of 2006, and made the amendments applicable to defendants convicted and
sentenced prior to its effective date. Thus, the attorney general sent Melendez notice
informing him that he would be reclassified, which imposed a higher classification level
and more stringent reporting requirements. Melendez filed a pro se petition to contest his
reclassification and the application of Ohio's AWA, and seeking an adjudication of his
reclassified status.         Melendez raised several constitutional challenges to his
reclassification including that Ohio's AWA as applied to him violated the separation-of-
powers doctrine. Melendez also filed a motion for immediate relief from community
notification pursuant to R.C. 2950.11(F)(2). He also filed a motion for appointment of
counsel.
        {¶5}     In a September 10, 2008 judgment entry the trial court joined the Ohio
                                                                                           -2-


Attorney General and the Sheriff of Columbiana County as parties to the action;
restrained the Sheriff from enforcing the provisions of Ohio's AWA until further order of
the court; and invited all parties to file briefs regarding the constitutionality of Ohio's AWA.
The trial court also consolidated Melendez’s case with all similar cases pending on the
trial court's docket, to be decided by the Common Pleas Court sitting en banc for
purposes of determining the threshold constitutional issues.
         {¶6}   By Announcement of Decision filed on June 1, 2009, the trial court denied
all the constitutional issues raised by Melendez and other similar petitioners relative to
"violation of the separation of powers; a violation of the retroactive provision; a violation of
the ex post facto and double jeopardy clauses; impairment of contract; and violation of
due process rights." In that same Decision, the trial court permitted a time period for
hearings on non-constitutionally-based challenges. On June 15, 2009 Melendez filed a
request for hearing and again requested counsel. The trial court informed Melendez that
he would not be appointing counsel as the proceeding was regarded as civil not criminal
in nature. The judge offered to arrange for Melendez to be transported to Columbiana
County for a hearing on the matter. Alternatively, the judge stated he was willing to just
consider the matter on any written filings. Melendez filed a Written Merit Brief in Lieu of
Hearing. Therein, Melendez argued that Ohio's AWA was void for vagueness. He also
argued alternatively that the court should suspend the community notification
requirements of his reclassification status.
         {¶7}   In an October 30, 2009 Opinion and Judgment Entry, the trial court adopted
the provisions of its Announcement and Decision and upheld Melendez’s reclassification.
Melendez filed a motion for reconsideration of that order which was overruled by the trial
court.
                             Separation-of-Powers Doctrine
         {¶8}   Melendez asserts the following three pro-se assignments of error on appeal:
         {¶9}   "The civil court judge abused discretion [sic] and erred to the prejudice of
Appellant-Defendant by judicially failing to adjudicate claims on constitutional grounds
raised in a merit brief to waive an in-court hearing. (a) The judge unconstitutionally
                                                                                         -3-


adopted the court's own original decision initially failed [sic] in this case without
considering the merits nor applying any further proceedings contrary to the judge's own
procedural mandate."
       {¶10} "The civil court judge unconstitutionally failed to consider Appellant's claims
fore [sic] merit by declining to review issues whether the newly revised SORN RC Chapter
2950 provisions were unconstitutionally void-for-vagueness that prejudiced the equal
protection of the reclassification statute. (a) the judge unconstitutionally adopted the
court's own original decision filed in this case without considering the merits nor applying
any further proceedings contrary to the judge's own procedural mandate."
       {¶11} "The civil court judge prejudiced Appellant by judicially failing to adjudicate
whether the imposition of the community notification required the removal from a Tier-3
classification for relief to Appellant. (a) The judge unconstitutionally adopted the court's
own original decision initially filed in this case without considering the merits nor applying
any further proceedings contrary to the judge's own procedural mandates."
       {¶12} Melendez's second assignment of error is dispositive of this appeal.
Although not artfully drafted, Melendez argues that the trial court erred in determining that
the AWA is constitutional as applied to him. The trial court rejected several constitutional
arguments relating to the reclassification statutes, including that the act violated the
separation-of-powers doctrine.
       {¶13} On June 3, 2010, the Ohio Supreme Court issued a decision in Bodyke,
supra, regarding the constitutionality of the reclassification provisions in Ohio's AWA.
Specifically, the Court held in paragraph three of the syllabus: "R.C. 2950.031 and
2950.032, which require the attorney general to reclassify sex offenders whose
classifications have already been adjudicated by a court and made the subject of a final
order, violate the separation-of-powers doctrine by requiring the opening of final
judgments." The Supreme Court concluded that severance of those two statutory
provisions was the appropriate remedy, and, thus, the court held: "R.C. 2950.031 and
2950.032 may not be applied to offenders previously adjudicated by judges under
Megan's Law, and the classifications and community-notification and registration orders
                                                                                    -4-


imposed previously by judges are reinstated." Id. at ¶66.
      {¶14} In its brief submitted prior to the release of the Bodyke decision, the State
points to State v. Byers, 7th Dist. No. 07 CO 39, 2008-Ohio-5051, where this court held
that Ohio's AWA does not violate the separation-of-powers doctrine. Id. at ¶70-74.
However, because the Ohio Supreme Court has held the opposite in Bodyke, that portion
of Byers is no longer good law.      Thus, in accordance with the Supreme Court's
pronouncement in Bodyke, Melendez’s second assignment of error is meritorious.
      {¶15} Melendez’s remaining assignments of error present other constitutional
challenges to Ohio's AWA which are moot and need not be addressed by this court. See,
e.g. State v. Bernthold, 10th Dist. No. 09AP-642, 2010-Ohio-2775, at ¶8 (reversing per
Bodyke, concluding remaining assignments of error are moot); Dudkowski v. State, 8th
Dist. No. 93221, 2010-Ohio-2887, at ¶14 (reversing per Bodyke, and declining to address
the remaining arguments). See, also, App.R. 12(A).
      {¶16} Accordingly, the judgment of the trial court is reversed and this matter is
remanded to the trial court for further proceedings pursuant to Bodyke. Id. at ¶66, see,
also, Bernthold at ¶9 (applying this remedy).
Donofrio, J., concurs.
Waite, J., concurs.
