         [Cite as State v. Dye, 2019-Ohio-5111.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                     :   APPEAL NO. C-180624
                                                       TRIAL NO. B-0100606
        Plaintiff-Appellee,                        :

  vs.                                              :     O P I N I O N.

VINCE DYE,                                         :

    Defendant-Appellant.                           :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: December 13, 2019


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ernest W. Lee,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant
Public Defender, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS


BERGERON, Judge.
       {¶1}   Confronted with an erroneous sexual offender classification from

nearly two decades ago that it did not appeal, the state sought to reach back and

modify that decision by declaring it “void.” But just because a trial judge might make

a mistake, that does not render the decision “void.” The state attempts to justify this

result as stemming from a lack of subject matter jurisdiction, but that would be a

dangerous proposition for us to entertain. The trial court certainly had underlying

subject matter jurisdiction here, and the state cannot dust off the decision many

years later and question the result unless it follows the well-trod path of seeking

post-judgment relief. Nevertheless, a successor trial court granted the state’s request

and changed the classification, but it lacked authority to do so, which accordingly

requires us to reverse its amended sentencing entry.

       {¶2}   In July 2001, defendant-appellant Vince Dye pleaded guilty to three

counts of rape of a minor. The court handed down a 13-year prison term and notified

him of his classification as a habitual sexual offender under former R.C. Chapter

2950, Ohio’s version of Megan’s Law. As a habitual sexual offender, Mr. Dye was

obligated to register every 180 days for 20 years. Mr. Dye did not initially appeal the

judgment, but he later had second thoughts and lodged a request for a delayed

appeal. This court denied his motion to file a delayed appeal, and he was eventually

released from prison in January 2014.

       {¶3}   From that point forward, things get a little confusing. In a separate

criminal case, the state charged Mr. Dye with failing to notify the sheriff of an

address change. Mr. Dye argued in that case that his classification as a habitual

sexual offender was void because the trial court’s classification order had erroneously

decreed him to be a habitual sexual offender based on the number of counts in the

indictment, rather than on prior convictions for sex offenses.       Clued into some


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problems with the classification, in July 2018, the state filed in this case, the original

criminal case, a request to vacate a void sex offender classification and to enter the

correct classification under Megan’s Law. Thus, at various points in time, both sides

proclaimed the classification void, but those declarations do not make it so.

        {¶4}     In the wake of the state’s request, the trial court ordered a release of all

records from the Ohio Department of Rehabilitation and Correction and appointed

the court clinic to evaluate Mr. Dye for risk of dangerousness and sexual recidivism.

Mr. Dye orally objected to the classification hearing. The trial court nevertheless

eventually determined that Mr. Dye’s classification as a habitual sexual offender was

void because it was based on counts in the same indictment and not on prior sex

offense convictions.      The court accordingly classified Mr. Dye anew as a sexual

predator and subsequently entered an “amended sentencing entry” reflecting the

sexual predator classification. As a sexual predator, Mr. Dye must register every 90

days for life.

        {¶5}     Mr. Dye now appeals. Although he presents two assignments of error,

we focus on his first, which we find dispositive. That assignment claims that the trial

court lacked authority to reclassify Mr. Dye as a sexual predator under Megan’s Law,

because the original order classifying him as a habitual sexual offender was a final

appealable order from which neither party appealed, and therefore, the state was

barred by res judicata from challenging it.

        {¶6}     Sex offender classifications under Megan’s Law were civil and

remedial, and they did not constitute part of the sentence imposed for the sexual

offense. See State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110,

¶ 30, 36-37; State ex rel. Culgan v. Collier, 132 Ohio St.3d 394, 2012-Ohio-2916, 972

N.E.2d 579, ¶ 1. The trial court’s initial judgment classifying Mr. Dye as a habitual

sexual offender constituted a final and appealable order. See State v. Megarry,

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2018-Ohio-4242, 122 N.E.3d 220, ¶ 10 (4th Dist.); State v. Collins, 2d Dist.

Montgomery No. 27939, 2018-Ohio-4760, ¶ 20.            The state did not appeal the

judgment, and we denied Mr. Dye’s motion to file a delayed appeal.

       {¶7}    In Megarry, Mr. Megarry pleaded guilty to abduction and sexual

battery under an agreement that stipulated that he would be classified as a sexual

predator and serve four years in prison. The trial court held both a sentencing

hearing and a sexual predator hearing. At the hearing, the court decided that it

would not follow the agreement to classify Mr. Megarry as a sexual predator because

the state failed to introduce evidence to support that classification. The trial court

entered a judgment that did not classify him as a sexual predator or a habitual sexual

offender, so by operation of law he was a sexually-oriented offender. Nevertheless,

less than two hours later, the trial court had a change of heart, entering an “Amended

Judgment Entry Following Sexual Predator Hearing” that classified Mr. Megarry as a

sexual predator. Neither party appealed from either judgment entry. Over 13 years

later, however, Mr. Megarry’s counsel filed a motion to vacate the amended entry

classifying him as a sexual predator.

       {¶8}    The Fourth District held that the initial judgment entry constituted a

final appealable order under R.C. 2505.02(B)(2) that neither party appealed, and in

the absence of an appropriate post-judgment motion under the civil rules, the trial

court lacked jurisdiction to amend the initial classification entry. Megarry at ¶ 25.

The court explained, “[a]lthough sex-offender classifications under Megan’s Law are

civil, remedial, and separate from the criminal conviction and sentence, they are final

orders under R.C. 2505.02(B)(2) that cannot be revisited once they are journalized.”

Id. at ¶ 4. In other words, a trial court does not enjoy the right to tinker with final

orders in perpetuity. Id. at ¶ 25 (“[T]he trial court lost jurisdiction to modify its

classification entry.”).

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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶9}    In similar vein, in Collins, 2d Dist. Montgomery No. 27939, 2018-

Ohio-4760, the Second District held that where Mr. Collins had not appealed his

child-victim-predator classification, res judicata precluded him from challenging it

ten years later. “Because Collins could have appealed from his child-victim-predator

classification but did not, res judicata bars him from now attempting to challenge his

classification and the procedure by which he was classified.” Id. at ¶ 14.

       {¶10} In this case, the trial court’s order classifying Mr. Dye as a habitual

sexual offender was final and appealable. The state did not appeal the trial court’s

judgment, and this court denied Mr. Dye’s motion to file a delayed appeal.

Therefore, both parties are barred by res judicata from challenging the habitual

sexual offender classification at this point.

       {¶11} The state protests that Mr. Dye’s habitual sexual offender classification

was void, and therefore the trial court enjoyed the right to vacate it and enter a

proper classification. We disagree. First, the habitual sexual offender classification

was not part of Mr. Dye’s sentence, and therefore, it could not constitute a void

sentence. Second, the trial court possessed subject matter jurisdiction under former

R.C. 2950.09(E) to determine whether Mr. Dye was a habitual sexual offender; the

court simply erred in the exercise of that jurisdiction by classifying him incorrectly.

Therefore, the initial classification order was voidable, not void, and since neither

party appealed, res judicata precludes the state from raising the error now. See

Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 10, 24

(“There is a distinction between a court that lacks subject-matter jurisdiction over a

case and a court that improperly exercises that subject-matter jurisdiction once

conferred upon it.”); Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-

4275, 21 N.E.3d 1040, ¶ 19 (“If a court possesses subject-matter jurisdiction, any

error in the invocation or exercise of jurisdiction over a particular case causes a

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judgment to be voidable rather than void.”); In re J.J., 111 Ohio St.3d 205, 2006-

Ohio-5484, 855 N.E.2d 851, ¶ 10-11 (Subject matter jurisdiction is the power to hear

and decide a case on its merits; it is only when the trial court lacks subject matter

jurisdiction that its judgment is void.); WBCMT 2007-C33 Office 7870 v.

Breakwater Equity Partners, LLC, 2019-Ohio-3935, 133 N.E.3d 607, ¶ 8-9 (1st Dist.)

(distinguishing between subject matter jurisdiction and jurisdiction over the case).

The state’s theory on a lack of subject matter jurisdiction would pose grave risks to

the integrity of criminal convictions and sentences if parties (either the defendant or

the state) could years, even decades, later cry foul over mistakes that should have

been timely appealed.

       {¶12} The appropriate path for a party desiring to belatedly challenge such a

result would be to file an appropriate post-judgment motion under the civil rules.

See Megarry, 2018-Ohio-4242, 122 N.E.3d 220, at ¶ 22 (“[A] trial court retains

jurisdiction to modify the judgment under the appropriate civil rules.”). But the state

did not avail itself of that option in this case, and we express no opinion on the

merits of that approach today.

       {¶13} We accordingly sustain Mr. Dye’s first assignment of error. Based on

that result, we find his second assignment of error (regarding the merits of the sexual

predator classification) moot, and we therefore do not address it. The judgment of

the trial court classifying Mr. Dye as a sexual predator is reversed and this cause is

remanded with instructions to the trial court to vacate its “amended sentencing

entry” classifying Mr. Dye as a sexual predator. We point out that the original order

classifying Mr. Dye as a habitual sexual offender is still in place and that he is

required to continue to comply with the terms of that order.

                                             Judgment reversed and cause remanded.

MOCK, P.J., and CROUSE, J., concur.

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                     OHIO FIRST DISTRICT COURT OF APPEALS




Please note:
       The court has recorded its own entry this date.




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