[Cite as State v. Stauffer, 2016-Ohio-159.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               AUGLAIZE COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLANT,                             CASE NO. 2-15-09

        v.

ROGER J. STAUFFER,                                       OPINION

        DEFENDANT-APPELLEE.




                 Appeal from Auglaize County Common Pleas Court
                           Trial Court No. 2006-CR-0040

                        Judgment Reversed and Cause Remanded

                            Date of Decision: January 19, 2016




APPEARANCES:

        Edwin A. Pierce for Appellant

        Joseph A. Benavidez for Appellee
Case No. 2-15-09


PRESTON, J.

       {¶1} Plaintiff-appellant, the State of Ohio, appeals the May 5, 2015

judgment entry of the Auglaize County Court of Common Pleas granting

defendant-appellee’s, Roger J. Stauffer (“Stauffer”), Civ.R. 60(B) motion for relief

from judgment, vacating the trial court’s previous judgment classifying Stauffer a

sexual predator, and classifying Stauffer a sexually oriented offender. For the

reasons that follow, we reverse.

       {¶2} Under a negotiated plea agreement, Stauffer waived prosecution by

indictment, and the State, on March 8, 2006, filed a bill of information charging

Stauffer with Count One of attempted pandering obscenity involving a minor in

violation of R.C. 2923.02(A) and 2907.321(A)(1), a third-degree felony, and

Count Two of pandering obscenity involving a minor in violation of R.C.

2907.321(A)(5), a fourth-degree felony. (Doc. Nos. 8, 7, 1). The alleged events

giving rise to the bill of information took place between March 8, 2004 and

August 31, 2005. (See Doc. No. 1). Stauffer agreed to and, on March 8, 2006, did

plead guilty to the two counts in the bill of information. (Doc. Nos. 8, 9). The

trial court found Stauffer guilty of Counts One and Two. (Doc. No. 9). Also

under the plea agreement, Stauffer “stipulate[d] to findings of sexual predator

status.” (Doc. No. 8).

       {¶3} On May 1, 2006, the trial court held a sexual-offender classification

hearing and classified Stauffer a sexual predator. (Doc. Nos. 23, 70). The trial

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court also held a sentencing hearing that day, at which it sentenced Stauffer to five

years of community-control sanctions. (Id.). The trial court filed its judgment

entry of sexual-predator classification and sentence on May 1, 2006, followed by a

nunc pro tunc entry on May 5, 2010. (Id.).

       {¶4} On March 27, 2015, Stauffer filed a Civ.R. 60(B) motion for relief

from judgment, requesting “that his classification as a sexual offender be modified

from a sexual predator finding.” (Doc. No. 80). On April 30, 2015, the trial court

held a hearing on Stauffer’s Civ.R. 60(B) motion. (See Apr. 30, 2015 Tr. at 3).

       {¶5} On May 5, 2015, the trial court filed a judgment entry granting

Stauffer’s Civ.R. 60(B) motion.      (Doc. No. 87).     Specifically, the trial court

vacated its previous judgment classifying Stauffer a sexual predator and classified

him a sexually oriented offender. (Id.).

       {¶6} The State filed a notice of appeal on June 2, 2015. (Doc. No. 92). It

raises one assignment of error for our review.

                               Assignment of Error

       The trial court erred as a matter of law when it granted
       defendant/appellee’s Civil Rule 60(B) motion to reclassify
       defendant/appellee’s sex offender registration status in
       contravention of Ohio Revised Code §2950.09(D)(2), effective
       July 31, 2003.

       {¶7} In its assignment of error, the State argues that the version of R.C.

2950.09(D)(2) in effect at the time Stauffer committed the offenses and was

classified a sexual predator prohibits the trial court’s removal of Stauffer’s sexual-

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predator classification. Therefore, the State argues, the trial court lacked the

authority to remove Stauffer’s sexual-predator classification and reclassify him a

sexually oriented offender.    The State does not offer an alternative argument

concerning the merits of the trial court’s determination under Civ.R. 60(B).

Accordingly, the sole issue before us is whether the trial court had the authority to

remove Stauffer’s sexual-predator classification and reclassify him a sexually

oriented offender. We conclude that it did not.

       {¶8} The history of sexual-offender laws in Ohio is well-documented. See

State v. Blankenship, ___ Ohio St.3d ___, 2015-Ohio-4624, ¶ 9, citing State v.

Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, ¶ 3-28. Relevant to this case, R.C.

2950.09(D)(2) went into effect on July 31, 2003 as part of Am.Sub.S.B. No. 5

(“S.B. 5”), which amended R.C. Chapter 2950, the Sexual Offender Registration

and Notification Law, also known as Megan’s Law. State v. Ferguson, 120 Ohio

St.3d 7, 2008-Ohio-4824, ¶ 1, 20; State v. Williams, 129 Ohio St.3d 344, 2011-

Ohio-3374, ¶ 37. That version of R.C. 2950.09(D)(2), which was in effect at the

time Stauffer committed the offenses and was classified a sexual predator,

provided, in relevant part:

       If an offender who has been convicted of or pleaded guilty to a

       sexually oriented offense is classified a sexual predator pursuant to

       division (A) of this section or has been adjudicated a sexual predator

       relative to the offense as described in division (B) or (C) of this

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        section, * * * the classification or adjudication of the offender as a

        sexual predator is permanent and continues in effect until the

        offender’s death and in no case shall the classification or

        adjudication be removed or terminated.

R.C. 2950.09(D)(2) (2004-2006).1 Under that version of R.C. 2950.09(D)(2), “if

an offender is classified as a sexual predator, the classification remains permanent,

except in limited circumstances.”2                 Ferguson at ¶ 20, citing former R.C.

2950.09(D)(2) and (F), 150 Ohio Laws, Part IV, at 6698, 6701-6702.                                  R.C.

2950.09(D)(2) was repealed effective January 1, 2008 by Am.Sub.S.B. No. 10.

See State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, ¶ 15.

        {¶9} We first address whether the version of R.C. 2950.09(D)(2) in effect

at the time Stauffer committed the offenses and was classified a sexual predator

applies in this case. In State v. Brunning, the Supreme Court of Ohio held that

“the repeal of Megan’s Law is invalid as it affects offenders originally classified

under Megan’s Law” and that those offenders “had a continuing duty to comply

with Megan’s Law requirements.” 134 Ohio St.3d 438, 2012-Ohio-5752, ¶ 22.

Accordingly, the version of R.C. Chapter 2950 in effect at the time Stauffer

committed the underlying offenses remains in effect as to Stauffer. See id. See

1
  Division (A) and Divisions (B) and (C) of R.C. 2950.09 concern the manner in which the offender is
classified or adjudicated, respectively, a sexual predator. The manner in which Stauffer was classified or
adjudicated a sexual predator is not at issue in this appeal.
2
  The “limited circumstances” set forth in former R.C. 2950.09(F), to which the Supreme Court of Ohio
refers in Ferguson, concern offenders who were classified sexual predators outside the state of Ohio. See
State v. Forsythe, 5th Dist. Stark No. 2012CA00225, 2013-Ohio-3301, ¶ 17-18. Those “limited
circumstances” do not apply in this case.

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also State v. Howard, 134 Ohio St.3d 467, 2012-Ohio-5738, ¶ 14-17, citing

Bodyke at ¶ 66, State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, ¶ 8, and

William at ¶ 23; State v. Martin, 3d Dist. Mercer No. 10-14-12, 2015-Ohio-1339, ¶

11.   Therefore, former R.C. 2950.09(D)(2), which provides that the sexual-

predator classification “is permanent and continues in effect until the offender’s

death,” remains in effect as to Stauffer. See Brunning at ¶ 22; Howard at ¶ 14-17.

See also Ferguson at ¶ 20 (“[C]lassification as a sexual predator is unalterable

under S.B. 5. * * * Pursuant to the S.B. 5 provisions, if an offender is classified as

a sexual predator, the classification remains permanent, except in limited

circumstances. See former R.C. 2950.09(D)(2) and (F). 150 Ohio Laws, Part IV,

at 6698, 6701-6702.”); State v. Johnson, 10th Dist. Franklin No. 13AP-549, 2013-

Ohio-4990, ¶ 7 (“[T]he entry [classifying the defendant a sexually oriented

offender] is contrary to law since * * * no statutory authority exists to support the

alteration of a classification as a sexual predator in this instance.”), citing former

R.C. 2950.09(D)(2) and (F) and Ferguson at ¶ 20.

       {¶10} In this case, given that the applicable version of R.C. 2950.09(D)(2)

prohibits the removal or termination of a sexual-predator classification, but for

certain limited circumstances that do not apply here, the trial court lacked

authority to remove Stauffer’s sexual-predator classification and, therefore, erred

by doing so. See State v. Leftridge, 174 Ohio App.3d 314, 2007-Ohio-6807, ¶ 8

(8th Dist.) (holding that, based on R.C. 2950.09(D)(2)’s prohibition against

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removing or terminating a sexual-predator classification, “the trial court was

without jurisdiction to modify Leftridge’s sexual offender status”); State v. Turner,

5th Dist. Richland No. 2004-CA-36, 2004-Ohio-6573, ¶ 9 (concluding that,

because “[t]he Revised Code no longer provides a mechanism to rescind a sexual

offender designation imposed upon an adult nor to relieve such an offender from

his duty to comply with the registration requirements that result from that

designation,” “the trial court had no authority to rescind the sexual offender

designation or relieve appellee of the resulting duty to register as a sex offender

pursuant to the Revised Code”).

       {¶11} The State’s assignment of error is sustained.

       {¶12} Having found error prejudicial to the appellant herein in the

particulars assigned and argued, we reverse the judgment of the trial court and

remand for further proceedings consistent with this opinion.



                                                             Judgment Reversed and
                                                                  Cause Remanded

SHAW, P.J. and WILLAMOWSKI, J., concur.

/jlr




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