[Cite as Ortega-Martinez v. State, 2011-Ohio-3069.]



          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 95930



               ANGEL L. ORTEGA-MARTINEZ, SR.
                                                      PLAINTIFF-APPELLEE

                                                       vs.

                                    STATE OF OHIO
                                                      DEFENDANT-APPELLANT


                                           JUDGMENT:
                                            AFFIRMED


                                   Civil Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CV-652952

               BEFORE:             Blackmon, P.J., S. Gallagher, J., and Rocco, J.

               RELEASED AND JOURNALIZED:                         June 23, 2011



                                                       -i-
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ATTORNEYS FOR APPELLANT

William D. Mason
Cuyahoga County Prosecutor

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


APPELLEE

Angel L. Ortega-Martinez, Sr., Pro Se
2791 East 116th Street
Cleveland, Ohio 44120



PATRICIA ANN BLACKMON, P.J.:

     {¶ 1} Appellant state of Ohio appeals the trial court’s decision

reversing Angel Ortega-Martinez’s reclassification under the Adam Walsh

Act (“AWA”). The state assigns the following errors for our review:

     “I. The trial court erred in applying State v. Bodyke, 16
     Ohio St.3d 266, 2010-Ohio-2424, to a petitioner who was not
     classified under Megan’s Law by an Ohio Court because
     under the circumstances there is no violation of the
     separation of powers doctrine.”

     “II. The trial court erred in applying State v. Bodyke, 16
     Ohio St.3d 266, 2010-Ohio-2424, to a petitioner who did not
     demonstrate by clear and convincing evidence that they
     were previously classified by an Ohio Court.”
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      {¶ 2} Having reviewed the record and pertinent law, we affirm the trial

court’s decision. The apposite facts follow.

      {¶ 3} In July 2001, Ortega-Martinez was convicted of statutory rape in

Davidson County, Tennessee, in Case No. A571, and sentenced to prison.

Upon his release from prison, Ortega-Martinez moved to Cuyahoga County,

and on August 14, 2003, he registered with the sheriff’s office. At the time,

Ortega-Martinez registered as a sexually-oriented offender, which required

registration for ten years with annual verification.

      {¶ 4} In   early   2008,    the   Ohio   Attorney   General’s   office   sent

Ortega-Martinez a letter informing him that, pursuant to the passage of S.B.

10, he had been reclassified as a Tier II sex offender, which required

registration for a period of 25 years with verification every 180 days.         On

March 5, 2008, Ortega-Martinez filed a petition contesting the application of

the AWA, alleging that it encroached on the power of the judiciary by

reopening final judgments.

      {¶ 5} On September 17, 2010, the state filed a brief in opposition to

Ortega-Martinez’s motion contesting the application of the AWA.                 On

October 20, 2010, the trial court granted Ortega-Martinez the requested

relief. The state now appeals.

                                 AWA Reclassification
                                      4
      {¶ 6} In the first assigned error, the state argues the trial court erred

when it granted the requested relief. We disagree.

      {¶ 7} The AWA classifies sex offenders using a three-tiered system,

with designation into each tier based solely on the offense committed. State

v. Page, Cuyahoga App. No. 94369, 2011-Ohio-83. In addition, the AWA

includes provisions that retroactively reclassify offenders previously classified

under prior versions of the law. See R.C. 2950.031 and 2950.032. As the

Ohio Supreme Court recently explained, “[t]he entire reclassification process

is administered by the attorney general, with no involvement by any court.

There is no individualized assessment. No consideration is given to any of

the other factors employed previously in classification hearings held pursuant

to Megan’s Law.” State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933

N.E.2d 753, ¶22.

      {¶ 8} In Bodyke, the Ohio Supreme Court held that reclassification of

sex offenders under the AWA’s R.C. 2950.031 and R.C. 2950.032, “who have

already been classified by court order under former law,” violates the

separation-of-powers doctrine and is unconstitutional. Id. at ¶60-61. The

Bodyke Court severed these provisions from the Ohio Revised Code, holding

that “R.C. 2950.031 and R.C. 2950.032 may not be applied to offenders

previously adjudicated by judges under Megan’s law, and the classifications
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and community-notification and registration orders imposed previously by

judges are reinstated.” Id. at ¶66

      {¶ 9} The state argues that Ortega-Martinez was not classified by a

court when he moved into Ohio and without a court-ordered classification,

there cannot be a violation of the separation of powers doctrine. However,

we have recently applied Bodyke to reverse convictions based on violations of

sex offender registration and notification requirements under the AWA, when

the defendant was initially classified as a sexual offender under Megan’s Law

for a conviction in another state. See Majewski v. State, Cuyahoga App. Nos.

92372 and 92400, 2010-Ohio-3178. The Ohio Supreme Court explicitly

directed that the registration obligations of the prior law are to be reinstated

in such cases. Bodyke, at ¶66.

      {¶ 10} Nonetheless, the state argues the separation of powers doctrine is

not implicated in the instant case because Ortega-Martinez’s duty to register

in Tennessee arose by operation of law and not by virtue of a court-ordered

classification. We are not persuaded.

      {¶ 11} We conclude that it was Ortega-Martinez’s conviction, which

constituted the final judgment that triggered his duty to register under

Megan’s Law.     As such, the AWA reclassification attempt would serve to

reopen a final judgment and thus violate the separation of powers doctrine.
                                         6
 Only appellate courts have the power to affirm, reverse, or modify a final

judgment.      Bodyke at ¶58; Section 3(B)(2), Article IV, Ohio Constitution.

As such, the trial court did not err when it granted Ortega-Martinez’s request

to reinstate his prior classification. Accordingly, we overrule the first assigned

error.

         {¶ 12} Because of our resolution of the state’s first assigned error, the

second assigned error is moot and we need not address the issues raised. See

App.R. 12(A)(1)(c).

         Judgment affirmed.

         It is ordered that appellee recover of appellant his costs herein taxed.

         The court finds there were reasonable grounds for this appeal.

         It is ordered that a special mandate be sent to said 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.




PATRICIA ANN BLACKMON, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
KENNETH A. ROCCO, J., CONCUR
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