[Cite as State v. Lechuga, 2019-Ohio-3425.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                             CASE NO. 11-19-04

        v.

RUDOLFO LECHUGA,                                        OPINION

        DEFENDANT-APPELLANT.




                Appeal from Paulding County Common Pleas Court
                           Trial Court No. CR-97-515

                       Judgment Reversed and Cause Remanded

                            Date of Decision: August 26, 2019




APPEARANCES:

        Timothy C. Holtsberry for Appellant

        Joseph R. Burkard for Appellee
Case No. 11-19-04


SHAW, J.

       {¶1} Defendant-Appellant, Rudolfo Lechuga (“Lechuga”) appeals the April

2, 2019 judgment of the Paulding County Court of Common Pleas overruling his

Motion for Reclassification to change his sex offender classification under the

Adam Wash Act (“AWA”). On appeal, Lechuga claims he was never given notice

of his sex offender reclassification from “Megan’s Law” to the AWA, and therefore

could not properly challenge the reclassification by requesting a hearing under R.C.

2950.031(E) within 60 days.

                                Procedural History

       {¶2} On July 24, 1997, Lechuga was found guilty of committing one count

of Gross Sexual Imposition, in violation of R.C. 2907.05(A)(1), a felony of the

fourth degree. Lechuga was classified as a sexual predator and ordered to comply

with the sex offender registration requirements under Megan’s Law. Lechuga was

also sentenced to a non-mandatory term of seventeen months in prison.

       {¶3} On January 28, 2019, Lechuga filed a “Motion for Reclassification”

under R.C. 2950.031(E) claiming that he had been improperly reclassified as a Tier

III sex offender under the AWA. Lechuga requested a hearing on his motion. The

State filed a response opposing the motion.

       {¶4} On April 2, 2019, the trial court issued a judgment entry overruling the

motion. Specifically, the trial court stated the following in its judgment entry:


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      Upon review of the Motion and Response and the court file, the
      Court finds that the Defendant was convicted of Gross Sexual
      Imposition, in violation of R.C. 2907.05(A)(1), a felony of the
      fourth degree, on or about July 23, 1997. At that time, the court
      classified him as a sexual predator. Following the passage of the
      Adam Walsh Act and presumably in accordance with R.C.
      2950.031, he was classified as a Tier III sex offender.

      The Defendant is classified as a Tier III offender based upon his
      prior designation as a sexual predator. The court notes, however,
      that if this Defendant were convicted of the same offense when the
      Adam Walsh Act was in place, it appears that he may have been
      classified as a Tier I offender due to his conviction under R.C.
      2907.05(A)(1). R.C. 2950.031(E) provides that a reclassified
      offender may request a hearing with the Court to challenge his or
      her reclassification by filing a petition with the court within sixty
      (60) days after receiving the registered letter from the attorney
      general. There is no evidence in the present case that the
      Defendant requested such a hearing.

      Upon due consideration and for good cause shown, this Court sees
      no provision in the statute, beyond the (60) day window
      referenced above, that would allow the court to reclassify this
      Defendant following an initial classification by the Court and a
      reclassification after the passage of the Adam Walsh Act.

      Upon due consideration and for good cause shown, the Court
      ORDERS that Defendant’s Motion for Reclassification is
      overruled.

(Doc. No. 27).

      {¶5} Lechuga filed this appeal, asserting the following assignment of error.

      THE    TRIAL    COURT’S  DENIAL   OF   THE
      RECLASSIFICATION PETITION IS NOT COMPLIANT
      WITH R.C. CHAPTER 2950.




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       {¶6} In his sole assignment of error, Lechuga claims that the trial court erred

when it overruled his petition for a reclassification hearing under R.C. 2905.031(E).

                            Relevant Legal Background

       {¶7} In 1996, the General Assembly “created Ohio’s first comprehensive

registration and classification system for sex offenders,” commonly known as

Megan’s Law. State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, ¶ 7. “Under

Megan’s Law, sex offenders fell into one of three classifications, sexually oriented

offenders, habitual sexual offenders, or sexual predators, based upon the crime

committed and the findings made by the trial court at a sexual-classification

hearing.” State v. Hazlett, 191 Ohio App.3d 105, 2010-Ohio-6119, ¶ 3 (10th Dist.)

(emphasis added).

       {¶8} In 2007, Megan’s Law was replaced with the AWA, which set forth a

“tier system” that automatically classified sex offenders according to their crime.

Bodyke at ¶ 18. Unlike sex offender classifications under Megan’s Law, AWA

assigns sex offenders to one of three tiers based solely on the offense of conviction

with no consideration of the offenders’ risk to the community or likelihood of

reoffending. State v. Rodgers, 5th Dist. Stark No. 2009-CA-00177, 2010-Ohio-140,

¶ 5.

       {¶9} As originally enacted, the AWA included an automatic reclassification

scheme that would have retroactively applied to offenders previously classified


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under Megan’s Law. See R.C. 2950.031. The scheme required the Attorney

General to “determine for each offender” what “new classification” under the

AWA’s tier system applied to each offender that had previously been classified

under Megan’s Law. R.C. 2950.031(A)(1). After the reclassification, the Attorney

General was to notify the offender of the new classification by registered mail. R.C.

2950.031(A)(2).

       {¶10} The AWA also included a process for offenders to file a petition

challenging the Attorney General’s reclassification:

       An offender or delinquent child who is in a category described in
       division (A)(2) or (B) of this section may request as a matter of
       right a court hearing to contest the application to the offender or
       delinquent child of the new registration requirements under
       Chapter 2950 of the Revised Code as it will exist under the
       changes that will be implemented on January 1, 2008. The
       offender or delinquent child may contest the manner in which the
       letter sent to the offender or delinquent child pursuant to division
       (A) or (B) of this section specifies that the new registration
       requirements apply to the offender or delinquent child or may
       contest whether those new registration requirements apply at all
       to the offender or delinquent child. To request the hearing, the
       offender or delinquent child not later than the date that is sixty
       days after the offender or delinquent child received the registered
       letter sent by the attorney general pursuant to division (A)(2) of
       this section shall file a petition with the court specified in this
       division.
                                        ***
       If at the conclusion of the hearing the court finds that the offender
       or delinquent child has proven by clear and convincing evidence
       that the new registration requirements do not apply to the
       offender or delinquent child, the court shall issue an order that
       specifies that the new registration requirements do not apply to
       the offender or delinquent child.

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R.C. 2950.031(E).

       {¶11} After the passage of the AWA, the Supreme Court of Ohio held that

the AWA’s reclassification provision violated the separation-of-powers doctrine

because it “vest[ed] the executive branch with authority to review judicial decisions,

and it interfere[d] with the judicial power by requiring the reopening of final

judgments” that had previously classified offenders under Megan’s Law. Bodyke at

¶ 55. Consequently, the Supreme Court declared the offending portions of the AWA

to be unconstitutional and severed those provisions from the Act. Id. at ¶ 66.

Notably, the Supreme Court left intact the petition process set forth in R.C.

2950.031(E). See State v. Palmer, 131 Ohio St. 3d 278, 280, 2012-Ohio-580, ¶ 15.

       {¶12} In a subsequent decision, the Supreme Court of Ohio held that

application of the AWA to defendants who had committed their offenses before its

enactment violated the prohibition on passing retroactive laws in Article II, Section

28, of the Ohio Constitution. State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-

3374, paragraph one of the syllabus. Specifically, the Supreme Court determined

that the retroactive application of the AWA registration burdens was

unconstitutional and as a result, the offender could only be classified according to

the laws in effect during the time of his crimes. Id. at ¶ 21; see also, State v. Sheriff,

3d Dist. No. 8-11-14, 2012-Ohio-656, ¶ 14.



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                                      Discussion

       {¶13} Turning now to the issue raised in the case sub judice. As the basis

for filing the petition for a hearing on his sex offender classification, Lechuga claims

he “is classified as a Tier III [sex offender], due to the sole label under the old law

that Defendant was a sexual predator.” (Doc. No. 24). It appears from the record

that Lechuga believes that this alleged “reclassification” was erroneous because the

offense for which he was convicted would require him to be classified as a Tier I

sex offender under the AWA. Lechuga maintains his registration requirements

would have ceased in 2012, if he were “properly” reclassified as a Tier I sex

offender.

       {¶14} However, as previously mentioned, the Supreme Court held in

Williams that the AWA does not apply to offenders, such as Lechuga, who had

committed their offenses before its enactment. State v. Williams, supra, 2011-Ohio-

3374, paragraph one of the syllabus. Rather, Lechuga must be classified according

to the laws in effect during the time of his crime, which in this case is Megan’s Law.

Id. at ¶ 21. Incidental to the issue raised on appeal, we note that former R.C.

2950.09(D) under Megan’s Law provided a mechanism for an adult offender to

petition a court to make a determination that the offender is no longer a sexual

predator. However, that provision was removed when the statute was amended by

S.B. 5, eff. 7-31-03, stating that “the classification or adjudication of the offender


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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). See also, State v. Stauffer, 3d Dist. Auglaize No. 2-15-09,

2016-Ohio-159.

       {¶15} This notwithstanding, in reviewing the record there is no evidence that

Lechuga is currently reclassified under the AWA, aside from his unsupported

assertion in his motion. Accordingly, we conclude it was error for the trial court to

make the specific finding in its judgment entry overruling his motion that Lechuga

was indeed classified under the AWA when there is no competent, credible evidence

in the record to support this finding. On this basis, we reverse the trial court’s

judgment overruling Lechuga’s motion and remand the matter to the trial court for

further proceedings consistent with this opinion.

       {¶16} For reasons other than those asserted by the appellant, we sustain the

assignment of error and the judgment of the trial court is reversed and the cause

remanded.

                                                           Judgment Reversed and
                                                                Cause Remanded

ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.

/jlr




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