[Cite as Bies v. State, 2012-Ohio-5572.]
                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                           SEVENTH DISTRICT

MICHAEL BIES,                                       )
                                                    )
        PETITIONER-APPELLANT,                       )
                                                    )
V.                                                  )          CASE NO. 12 MA 3
                                                    )
STATE OF OHIO, ET AL.,                              )               OPINION
                                                    )
        RESPONDENTS-APPELLEES.                      )

CHARACTER OF PROCEEDINGS:                           Civil Appeal from Court of Common
                                                    Pleas of Mahoning County, Ohio
                                                    Case No. 08CV454

JUDGMENT:                                           Reversed and Modified

APPEARANCES:
For Petitioner-Appellant                            Randall Porter
                                                    Assistant Public Defender
                                                    250 East Broad St., Suite 1400
                                                    Columbus, Ohio 43215

For Respondents-Appellees                           Paul Gains
                                                    Prosecutor
                                                    Ralph Rivera
                                                    Assistant Prosecutor
                                                    21 W. Boardman St., 6th Floor
                                                    Youngstown, Ohio 44503




JUDGES:

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


                                                    Dated: November 29, 2012
[Cite as Bies v. State, 2012-Ohio-5572.]
DONOFRIO, J.

        {¶1}      Defendant-appellant, Michael Bies, appeals from a Mahoning County
Common Pleas Court judgment dismissing as moot his petition contesting his
reclassification under the Adam Walsh Act.
        {¶2}      Appellant was convicted in 1992 of aggravated murder, attempted rape,
and kidnapping. Appellant was later classified as a sexually oriented offender under
Megan’s Law, the sex offender registration and notification law in place at the time.
Appellant is currently serving a sentence of 46 years to life. On April 10, 2012, the
United States District Court for the Southern District of Ohio granted appellant’s
petition for a writ of habeas corpus and ordered the state to conduct a new trial. Bies
v. Bagley, S.D. Ohio No. 1:00-CV-682 (Apr. 10, 2012). A further appeal is currently
pending before the Sixth Circuit Court of Appeals. Bies v. Bagley, No. 12-3431.
        {¶3}      In January 2008, Ohio’s Adam Walsh Act (AWA), R.C. 2905.01 et seq.,
became effective.         It repealed Megan’s Law and was meant to align Ohio’s sex
offender classification system with federal law.        A few months before the AWA’s
effective date, the General Assembly directed the state attorney general to reclassify
existing offenders. The attorney general reclassified appellant under the AWA as a
Tier III sex offender.
        {¶4}      On January 30, 2008, appellant filed a petition pursuant to R.C.
2950.031(E) and R.C. 2950.11(F)(2) to contest his classification under the AWA and
request for declaratory judgment.
        {¶5}      The trial court put a stay on appellant’s motion (and those similar to it)
first pending resolution of litigation in federal court dealing with the AWA and then
pending the Ohio Supreme Court’s decision in State v. Bodyke, 126 Ohio St.3d 266,
2010-Ohio-2424, 933 N.E.2d 753.
        {¶6}      The attorney general subsequently reinstated appellant’s pre-AWA
classification.
        {¶7}      On October 21, 2011, plaintiff-appellee, the State of Ohio, filed a motion
to dismiss appellant’s petition. The state argued that because the attorney general
had already reclassified appellant to his pre-AWA sex offender classification,
appellant’s petition was moot.
                                                                                 -2-


         {¶8}   The trial court granted the state’s motion and dismissed appellant’s
petition on October 31, 2011. It charged the costs to appellant.
         {¶9}   Appellant filed a timely notice of appeal on January 6, 2012.
         {¶10} This court put an order on instructing the parties to file jurisdictional
memorandum on whether this case presented a final, appealable order. In an April
12, 2012 judgment entry, we stated that this case presented a final, appealable
order.
         {¶11} Appellant raises three assignments of error. We will address them out
of order for ease of discussion. Appellant’s second assignment of error states:

                THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
         RULED THAT APPELLANT’S PETITION WAS MOOT.

         {¶12} Here appellant contends that the trial court erroneously determined that
Bodyke, 126 Ohio St.3d 266, rendered his petition moot. Instead, he claims Bodyke
rendered his petition meritorious.
         {¶13} Appellant points out that in the trial court the state supported its
mootness argument with the argument that the attorney general had already
reclassified appellant pursuant to his pre-AWA classification. Appellant further points
out that he named the Mahoning County Prosecutor and Mahoning County Sheriff as
parties and the state’s motion to dismiss did not concede that the prosecutor and
sheriff were bound by Bodyke. Therefore, he argues that he is not protected against
future attempts to reclassify him under the AWA. He contends that this court can
implement an effective remedy by ordering all Ohio governmental entities to cease
enforcement of the AWA reclassification provisions against him.
         {¶14} In further support of his argument that his petition is not moot, appellant
points out that since Bodyke, and while this appeal has been pending, the Ohio
Supreme Court decided State v. Palmer, 131 Ohio St.3d 278, 2012-Ohio-580, 964
N.E.2d 406, where the Court held that defendants could continue to challenge their
reclassifications subsequent to Bodyke. Appellant contends that the Court would not
have reached this conclusion if such challenges were moot. Appellant further asserts
                                                                                 -3-


that in several reclassification cases subsequent to Bodyke, this court has found that
the defendants’ pre-AWA classification should be reinstated, not that the appeals
were moot. Citing, State v. Guthrie, 7th Dist. No. 09-CO-40, 2012-Ohio-1264, ¶18;
Balasz v. Ohio, 7th Dist. No. 09-CO-25, 2011-Ohio-1455, ¶22; Melendez v. Ohio, 7th
Dist. No. 09-CO-39, 2010-Ohio-6507, ¶16; Cechura v. Ohio, 7th Dist. No. 09-CO-41,
2010-Ohio-6505, ¶12.
       {¶15} The Ohio Supreme Court held in Bodyke, 126 Ohio St.3d at paragraphs
two and three of the syllabus:

              2. R.C. 2950.031 and 2950.032, which require the attorney
       general to reclassify sex offenders who have already been classified by
       court order under former law, impermissibly instruct the executive
       branch to review past decisions of the judicial branch and thereby
       violate the separation-of-powers doctrine.
              3. 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.

Consequently, the Court struck down these portions of the AWA as unconstitutional
and held that the reclassifications of sex offenders under these provisions were
invalid. The Court then reinstated the prior judicial classifications of sex offenders.
       {¶16} The Court next addressed the AWA’s constitutionality in State v.
Williams, 129 Ohio St.3d 244, 2011-Ohio-3374, 952 N.E.2d 1108. The Court held
that, as applied to defendants who committed their crimes prior to the AWA’s
enactment, the AWA violated the ban against retroactive laws. Id. at the syllabus.
       {¶17} The Ohio Supreme Court most recently elaborated on Bodyke in State
v. Palmer, 131 Ohio St.3d 278. After learning of his AWA classification as a Tier III
offender for a 1995 crime, Palmer filed a petition in the trial court challenging the
classification. The trial court ruled that the sex-offender regulations did not apply to
                                                                               -4-


Palmer and ordered the removal of Palmer’s name from any local, state, or federal
lists of sex offenders. The state appealed and the appellate court reversed. Palmer
then appealed to the Ohio Supreme Court.
       {¶18} On appeal, the state argued that the trial court’s ruling was a nullity
because Bodyke abolished the petition process. Rejecting this notion, the Court
stated, at ¶15:

       Portions of R.C. 2950.031 and 2950.032 impermissibly instructed the
       Ohio attorney general, an officer of the executive branch, to reopen final
       judgments of the judicial branch. Bodyke, 126 Ohio St.3d 266, 2010-
       Ohio-2424, 933 N.E.2d 753, at ¶ 62. That instruction violated Ohio's
       separation-of-powers doctrine. Id. at ¶ 61. To remedy the violation, in
       Bodyke we declared unenforceable “the unconstitutional component” of
       the Adam Walsh Act's reclassification provisions. However, we held
       that the component could be severed from the rest of the act, and
       accordingly, we “left in place * * * the remainder of the AWA, ‘which is
       capable of being read and of standing alone.’ ” Id. at ¶ 66, quoting State
       v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 98.

       {¶19} The Court went on to find that the petition process of R.C. 2950.031(E)
and R.C. 2950.032(E) does not violate the separation-of-powers doctrine because it
involves only one branch of government, the judiciary. Id. at ¶16.          “Therefore,
Bodyke's severance of the unconstitutional reclassification process left intact the
petition process, which ‘can be given effect without the invalid’ reclassification
provisions.” Id. at ¶17, citing R.C. 1.50.
       {¶20} The cases appellant cites to from this court in which we found that the
defendants’ pre-AWA classification should be reinstated, and not that the appeals
were moot (Guthrie, supra; Balasz, supra; Melendez, supra; and Cechura, supra),
are all distinguishable from the present case. In those cases, the defendants filed
petitions contesting their reclassifications under the AWA. The trial court upheld the
defendants’ reclassifications.     On appeal, we then reversed the trial court’s
                                                                                  -5-


judgments and either reinstated the defendants’ pre-AWA classifications or
remanded the matter to the trial court for further proceedings. In the present case,
however, the trial court did not uphold appellant’s AWA reclassification. Thus, these
cases do not necessarily support appellant’s position due to the difference in the
facts.
         {¶21} But at least one other district has addressed the issue at hand. In State
v. Edwards, 10th Dist. No. 10AP-645, 2011-Ohio-1492, the Tenth District was faced
with a situation where the defendant was reclassified under the AWA, the defendant
filed a petition in the trial court contesting his reclassification, and the trial court
dismissed the petition as moot based on Bodyke. On appeal, the defendant argued
that Bodyke rendered his petition meritorious, not moot, and that the trial court erred
in dismissing his petition. The Tenth District agreed. It reasoned that petitioners who
filed their petitions prior to Bodyke being decided were entitled to the same relief the
Ohio Supreme Court granted to Bodyke. Id. at ¶8. Thus, because the defendant
filed his petition before the Bodyke decision, the court concluded he was entitled to
the relief granted in Bodyke and the trial court erred when it denied him such relief.
Id.
         {¶22} The Tenth District has further held that defendants in such cases are
entitled to court orders directing their return to their pre-AWA classifications. See
Hosom v. State, 10th Dist. No. 10AP-671, 2011-Ohio-1494; State v. Watkins, 10th
Dist. No. 09AP-669, 2010-Ohio-4187; State v. Miliner, 10th Dist. No. 09AP-643,
2010-Ohio-6117; State v. Hazlett, 10th Dist. No. 09AP-1069, 2010-Ohio–6119; Core
v. State, 191 Ohio App.3d 651, 2010-Ohio-6292, 947 N.E.2d 250.
         {¶23} Additionally, after Palmer, supra, it is clear that the petition process for
challenging a reclassification under the AWA is still intact.
         {¶24} Furthermore, after rendering its decision in Bodyke, the Ohio Supreme
Court addressed all of the pending appeals before it involving reclassification. In re
Sexual Offender Reclassification Cases, 126 Ohio St.3d 322, 2010-Ohio-3753. It did
not declare that any of these appeals were moot on account of its holding in Bodyke.
         {¶25} Here, while the attorney general has reinstated appellant’s pre-AWA
                                                                                     -6-


classification, appellant is entitled to a court ruling that his petition for reclassification
is meritorious and to a court order that he be returned to that classification. A court
order will ensure that the sheriff will abide by the proper reporting and notification
requirements and that appellant will not be subject to future reclassification.
       {¶26} Accordingly, appellant’s second assignment of error has merit.
       {¶27} Appellant’s third assignment of error states;

              THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
       ASSESSED COSTS TO APPELLANT.

       {¶28} In this assignment of error, appellant contends that the trial court should
not have assessed the costs of bringing the petition against him because the
argument he made in his petition opposing his reclassification was found to be
meritorious in Bodyke. He asserts that his position is akin to a defendant who is
found “not guilty” because it was found that he should not have been reclassified.
Thus, appellant argues it was error for the court to impose a criminal sanction (the
court costs) against him.     Appellant further argues that as a matter of fairness and
public policy, the trial court should not have ordered him to pay court costs when he
was only trying to correct the improper classification imposed on him by the Ohio
Attorney General.
       {¶29} “In all criminal cases* * * the judge or magistrate shall include in the
sentence the costs of prosecution * * * and render a judgment against the defendant
for such costs.” R.C. 2947.23(A)(1)(a). But appellant’s petition in this case was one
in postconviction. A postconviction proceeding is a collateral civil attack on a criminal
judgment. State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994). Thus, the
civil rule for imposing court costs should apply.
       {¶30} In civil cases, unless otherwise provided by statute or rule, “costs shall
be allowed to the prevailing party unless the court otherwise directs.”        Civ.R. 54(D).
The Ohio Supreme Court has interpreted this phrase to grant the trial court discretion
to order that the prevailing party pay all or part of its own costs.               Vance v.
Roedersheimer, 64 Ohio St.3d 552, 555, 597 N.E.2d 153 (1992). The Court has also
                                                                              -7-


stated that the trial court may not award costs to the non-prevailing party. Id. “A
‘prevailing party’ is ‘one in whose favor the decision or verdict is rendered and
judgment entered.’” Hagemeyer v. Sadowski, 86 Ohio App.3d 563, 566, 621 N.E.2d
707 (11993), quoting Yetzer v. Henderson, 5th Dist. No. CA-1967, 1981 WL 6293
(June 4, 1981).
       {¶31} Based on our resolution of appellant’s second assignment of error,
appellant is now clearly the prevailing party. Consequently, the costs of appellant’s
petition are to be assessed against the state.
       {¶32} Accordingly, appellant’s third assignment of error has merit.
       {¶33} Appellant’s first assignment of error states:

              THE TRIAL COURT ERRED WHEN IT RULED ON THE
       STATE’S MOTION TO DISMISS WITHOUT AFFORDING APPELLANT
       AN OPPORTUNITY TO RESPOND.

       {¶34} Due to our resolution of appellant’s second assignment of error, his first
assignment of error is now moot.
       {¶35} For the reasons stated above, the trial court’s judgment is hereby
reversed. Appellant’s pre-AWA classification under Megan’s Law is reinstated. The
state is ordered to pay all court costs of appellant’s petition.

Waite, P.J., concurs.

DeGenaro, J., concurs.
