[Cite as State v. Roey, 2012-Ohio-2207.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97484



                                      STATE OF OHIO
                                              PLAINTIFF-APPELLANT

                                                 vs.

                                           ARAMIS ROEY
                                              DEFENDANT-APPELLEE




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-529307

        BEFORE:           Cooney, J., Celebrezze, P.J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED: May 17, 2012
ATTORNEYS FOR APPELLANT

William D. Mason
Cuyahoga County Prosecutor

By: Daniel T. Van
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Walter Camino
5300 Parkside Trail
Solon, Ohio 44139

Robert L. Tobik
Chief Public Defender
By: Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
COLLEEN CONWAY COONEY, J.:

       {¶1} Plaintiff-appellant, the state of Ohio (“State”), appeals the trial court’s

granting defendant-appellee, Aramis Roey’s (“Roey”), motion to withdraw his guilty plea

and to dismiss the indictment. Finding no merit to this appeal, we affirm.

       {¶2} In October 2008, Roey was found delinquent of attempted rape and

received a disposition of community control sanctions.          The act of attempted rape

occurred in August 2007.      He was classified as a juvenile sexually oriented offender

under Megan’s Law and was required to verify his address annually for ten years.

       {¶3} As a result of the Ohio General Assembly enacting S.B. 10, a.k.a. the Adam

Walsh Act (“AWA”),       Roey was reclassified by the Ohio attorney general as a Tier III

juvenile sex offender.   This new classification required Roey to verify his address every

90 days for life. R.C. 2152.82.

       {¶4} In October 2009, Roey was charged with violating a provision of the AWA

for failing to verify his address on August 5, 2009. He pled guilty and was sentenced to

community control. He subsequently violated his community control sanctions and was

sentenced to eight years in prison for his original felony conviction.

       {¶5} In 2010, the Ohio Supreme Court issued its decision in State v. Bodyke, 126

Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, declaring that the retroactive

reclassification of previously convicted sexual offenders under Ohio’s AWA was
unconstitutional. Based on the Bodyke decision, Roey filed a Crim.R. 32.1 motion to

withdraw his guilty plea. The court granted the motion and dismissed the indictment.

       {¶6} The State now appeals, raising two assignments of error.

                              Motion to Withdraw Guilty Plea

       {¶7} In its first assignment of error, the State argues that the trial court erred in

granting Roey’s motion to withdraw his guilty plea.         The State argues that Roey’s

underlying conviction was based on a lawful reclassification that subjected Roey to

registration under the AWA.

       {¶8} 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 * * *.

       {¶9} The State filed a timely notice of appeal.      However, because the State’s

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

required to seek 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”); State v. Torres, 8th Dist. Nos. 96930 and 96931,

2012-Ohio-922.

       {¶10} The State failed to seek leave to properly appeal the issue raised in its first

assignment of error, and therefore, we decline to address it.

                               Motion to Dismiss Indictment

       {¶11} In its second assignment of error, the State argues that the court erred in

granting Roey’s motion to dismiss the indictment.

       {¶12} The State concedes that this court has recently rejected this argument but

merely seeks to preserve the issue for future review. See State v. Faranda, 8th Dist. No.

96807, 2011-Ohio-6083 (“We find no distinction between adult and juvenile defendants

with respect to the Ohio Supreme Court’s holding in Williams.”).

       {¶13} Despite the State’s argument that Bodyke, 126 Ohio St.3d 266,

2010-Ohio-2424, 933 N.E.2d 753, does not apply to juvenile sex offenders, the Ohio

Supreme Court held that the AWA as applied to “any other sex offender who committed

an offense prior to the enactment of S.B. 10, violates Section 28, Article II of the Ohio
Constitution, which prohibits the General Assembly from enacting retroactive laws.”

(Emphasis added.) State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d

1108, ¶ 22.   See also State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, 946 N.E.2d

192; State v. Ortega-Martinez, 8th Dist. No. 95656, 2011-Ohio-2540; State v. Ogletree,

8th Dist. No. 96438, 2011-Ohio-5846.

       {¶14} Furthermore, the Ohio Supreme Court recently found the automatic and

lifetime sex-offender registration imposed upon juvenile offenders by the Adam Walsh

Act to be unconstitutional. In In re C.P., Slip Opinion No. 2012-Ohio-1446, the court

held that R.C. 2152.86 violated both the defendant’s right to due process of law and the

United States and Ohio constitutional prohibitions against cruel and unusual punishment.

 Thus, the trial court did not err in dismissing Roey’s indictment.

       {¶15} Accordingly, the second assignment of error is overruled.

       {¶16} Judgment affirmed.

       It is ordered that appellee recover of appellant 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 common

pleas 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.


______________________________________________
COLLEEN CONWAY COONEY, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR
