[Cite as State v. Sturgill, 2017-Ohio-2736.]


                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                               ATHENS COUNTY

STATE OF OHIO,                 :
                               :    Case No. 16CA21
     Plaintiff-Appellee,       :
                               :
     vs.                       :    DECISION AND JUDGMENT
                               :    ENTRY
NATHANIEL D. STURGILL          :
                               :
    Defendant-Appellant.       :    Released: 05/01/17
_____________________________________________________________
                         APPEARANCES:

Nathaniel D. Sturgill, Lancaster, Ohio, Pro Se Appellant.

Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M.
Saunders, Athens County Assistant Prosecuting Attorney, Athens, Ohio, for
Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} Nathaniel D. Sturgill appeals the “Entry Overruling

Jurisdictional Motion,” dated September 21, 2016, in the Athens County

Court of Common Pleas. In 2009, Sturgill was indicted on six counts which

included rape and unlawful sexual conduct with a minor. In 2010, he

pleaded to two counts of rape, R.C. 2907. 02(A)(2), felonies of the first

degree, and was sentenced to a five-year mandatory prison term. He served

his term and was released in 2014. On appeal, Sturgill asserts because he

has served his prison sentence and has been released from custody, the trial
Athens App. No. 16CA21                                                                                   2

court did not have jurisdiction to hold a sex offender reclassification hearing,

pursuant to the dictates of Megan’s Law. However, we find no merit to

Sturgill’s sole assignment of error. Accordingly, we overrule the assignment

of error and affirm the judgment of the trial court.

                                                FACTS

        {¶2} Appellant was indicted by the Athens County Grand Jury in Case

Number 09CR0296, as follows: two counts of rape, in violation of R.C.

2907.02(A)(1)(b), and felonies of the first degree; three counts of rape, in

violation of R.C. 2907.02(A)(2), and felonies of the first degree; and one

count of unlawful sexual conduct with a minor, in violation of R.C.

2907.04(A), and a felony of the fourth degree.

        {¶3} On March 30, 2010 Appellant pleaded to two counts of rape,

R.C. 2907.02(A)(2).1 In exchange for his guilty plea, the State of Ohio

dismissed the remaining counts and there was a joint recommendation that

Appellant be sentenced to a mandatory term of five (5) years in prison; that

Appellant be ordered to register as a Tier III sexual predator with

community notifications; and that Appellant have no direct or indirect



1
  According to the Athens County Clerk of Courts’ website, Appellant was previously indicted on July 27,
2009 of two counts: unlawful sexual conduct with a minor, R.C. 2907.04(A), and rape, R.C. 2907.02(A)(2),
Athens County Common Pleas Court case number 09CR0265. However, this indictment was dismissed on
March 31, 2010. An appellate court can take judicial notice of public records accessible from the internet.
See State v. Bailey, 4th Dist. Highland No. 16CA1, 2016-Ohio-7249, Fn. 4, citing In re Helfrich, 5th Dist.
Licking No. 13CA20, 2014-Ohio-1933.
Athens App. No. 16CA21                                                                                      3

contact with the victims or victims’ family.2 Appellant served his five-year

prison sentence and was released from the custody of the Ohio Department

of Rehabilitation and Corrections on September 4, 2014.

        {¶4} On September 25, 2015, Appellant filed a Motion to Remove

Void Sex Offender Classification. Within the motion, Appellant argued that

his sex offender classification as a Tier III sexual predator with community

notification is void because his offenses occurred prior to the enactment of

the Adam Walsh Act (S.B. 10).3 He further argued that once an offender has

been released from prison, he cannot be subjected to another sentencing to

correct a trial court’s flawed imposition of the sex offender classification.

        {¶5} On October 25, 2015, the State filed its response. The State

conceded that Appellant was incorrectly classified under the Adam Walsh

Act, but argued that the trial court did have jurisdiction to vacate his Tier III

prior classification and advise him that he was now classified under Megan’s

Law.4 On February 2, 2016, Appellant filed an objection to jurisdiction.

The State filed a response and the trial court ultimately denied Appellant’s

objection.




2
  On April 2, 2010, the judgment entry of sentence was journalized.
3
  The Adam Walsh Act, or S.B. 10, was enacted in 2007 creating the three tier sex offender classification
system.
4
  Megan’s Law was in effect at the time of Appellant’s offenses.
Athens App. No. 16CA21                                                          4

      {¶6} On September 20, 2016, Appellant appeared for a sex offender

classification hearing. The trial court proceeded to inform Appellant of his

requirements to register, pursuant to Megan’s Law, as a habitual sex

offender subject to community notification. On September 21, 2016, the

court journalized its entry overruling Sturgill’s jurisdictional motion. This

timely appeal followed.

                          ASSIGNMENT OF ERROR

      “I. THE TRIAL COURT ERRED AND ABUSED ITS
      DISCRETION BY FINDING THAT IT POSSESSED
      JURISDICTION TO PROCEED WITH A SEX OFFENDER
      CLASSIFICATION HEARING UNDER MEGAN’S LAW
      TWO YEARS AFTER APPELLANT WAS RELEASED
      FROM PRISON.”

                            LEGAL ANALYSIS

      {¶7} Ohio's current sex offender registration requirements are codified

in R.C. Chapter 2950. State v. Straley, 4th Dist. Highland No. 13CA30,

2014-Ohio-5110, ¶ 16. In 1996, the General Assembly enacted Megan's

Law, which revised R.C. Chapter 2950 and established a comprehensive

system of classifying sex offenders into three categories: sexually oriented

offenders, habitual sex offenders, and sexual predators. Former R.C.

2950.09, 146 Ohio Laws, Part II, 2618; In re Von 146 Ohio St.3d 448, 2016

Ohio-3020, 57 N.E.3d 1158, ¶ 14.

      {¶8} Then, in 2007, the General Assembly enacted S.B. 10, also
Athens App. No. 16CA21                                                          5

known as the “Adam Walsh Act,” which repealed Megan's Law, effective

January 1, 2008, and replaced it with new standards for sex-offender

classification and registration pursuant to the federal Adam Walsh Child

Protection and Safety Act, Section 16901 et seq., Title 42, U.S. Code. In re

Von, supra, at ¶ 15, quoting Bundy v. State, 143 Ohio St.3d 237, 2015-Ohio-

2138, 36 N.E.3d 158, ¶ 5. This scheme, which the General Assembly

codified in R.C. Chapter 2950, divides sex offenders into Tier I, Tier II, and

Tier III sex or child-victim offenders. R.C. 2950.01(E) through (G). State v.

Stidam, 4th Dist. Adams No. 15CA1014, 2016-Ohio-7906, ¶ 12.

      {¶9} Then, in State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374,

952 N.E.2d 1108, the Supreme Court of Ohio considered whether the Adam

Walsh Act could constitutionally be retroactively applied to an offender who

committed a sex offense prior to its enactment. Id. at 16. The High Court

concluded that the Adam Walsh Act, part of which was expressly made

retroactive, is punitive, and “as applied to defendants who committed sex

offenses prior to its enactment, violates Section 28, Article II of the Ohio

Constitution, which prohibits the General Assembly from passing retroactive

laws.” Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, at

¶ 16 and at the syllabus. The Court subsequently clarified that only persons

who commit their underlying offense on or after the effective date of the
Athens App. No. 16CA21                                                           6

Adam Walsh Act can be constitutionally subjected to its requirements.

Williams, at ¶ 17; In re Bruce S., 134 Ohio St.3d 477, 2012-Ohio-5696, 983

N.E.2d 350. State v. Straley, at ¶ 16.

      {¶10} In the sole assignment of error, Appellant argues the trial court

lacked jurisdiction to hold the sex offender classification hearing due to the

fact he has served his sentence and his been released from incarceration for

approximately two years. In particular, Appellant argues that the trial court

must have classified him as a sex offender “before or at the time of

sentencing.” Former R.C. 2905.09(B)(1) directed a court to hold a sex

offender classification hearing prior to or at the time of sentencing.

      {¶11} The jurisdictional question was raised in State v. Miller, 8th

Dist. Cuyahoga No. 100768, 2014-Ohio-4568. There, Miller was convicted

in May 2009 of five counts of gross sexual imposition and one count of

kidnapping with a sexual motivation. The convictions stemmed from

multiple incidents occurring in August, 2007. He was sentenced to

concurrent sentences and was classified as a Tier II sex offender under the

Adam Walsh Act. Miller completed his sentences and was released from

custody in 2011.

      {¶12} In 2012, Miller filed motions to correct and amend the

registration requirements. He argued that the trial court’s classification of
Athens App. No. 16CA21                                                         7

him as a Tier II Sex Offender was void because his crimes were committed

prior to the effective date of the Adam Walsh Act. Based on the Supreme

Court’s decision in Williams, supra, the Miller court ordered that a sex-

offender reclassification hearing be conducted.

      {¶13} During his hearing Miller objected to reclassification as a sex

offender because he had completed his prison sentence for the underlying

offenses. As such, he argued the court was without jurisdiction to conduct a

reclassification hearing. The State, however, argued that Miller’s status as a

sexually oriented offender under Megan’s Law attached by operation of law

and therefore the court had the authority to notify him of this status. The

trial court agreed and advised he would be classified as a sexually oriented

offender by operation of law under the version of Megan’s law that was in

effect at the time of the offense. The court proceeded to provide the

pertinent notification and registration requirements.

      {¶14} On appeal, Miller again made the jurisdictional argument. The

appellate court observed at ¶ 8:

      “Ohio courts have consistently held that a sex-offender
      classification proceeding under Megan's Law is civil in nature
      and ‘distinct from the proceedings governing a defendant's
      underlying criminal conviction and sentence.’ Id. at ¶ 8, quoting
      State v. Williams, 177 Ohio App.3d 865, 2008-Ohio-3586, 896
      N.E.2d 725, ¶ 10 (9th Dist.), citing State v. Wilson, 113 Ohio
      St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, syllabus; see
      also State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, 982
Athens App. No. 16CA21                                                                                    8

         N.E.2d 684, ¶ 12 (describing Megan's Law as ‘a civil, remedial
         law’).”

         {¶15} Citing State v. Hayden, 96 Ohio St.3d 211, 2002-Ohio-4169,

773 N.E.2d 502, ¶ 18, the Miller court went on to find that Miller’s

classification as a sexually oriented offender under Megan’s Law

retroactively attached to his conviction in 2009 by operation of law.5 The

Miller court found no merit to his argument that the court lacked jurisdiction

to impose his classification.

         {¶16} In the case sub judice, the State has also directed us to a recent

decision of the Twelfth District Court of Appeals, State v. Bell, 12th Dist.

Clermont No. CA2015-10-077, 2016-Ohio-7363. Bell, a foster parent

convicted of sexual battery and imposition of two teenage boys committed to

his care, was sentenced to a five-year prison term in April 2008. He was

also designated a Tier III sexual offender pursuant to the Adam Walsh Act.

Given the sentencing date, the trial court followed the sexual classification

requirements set forth in S.B. 10 rather than applying the prior version,

known as Megan’s Law, in effect at the time of Bell’s crimes.

         {¶17} However, prior to Bell’s release from prison, he was

“automatically” reclassified as a sexually-oriented offender pursuant to


5
 Hayden held that “if a defendant has been convicted of a sexually oriented offense as defined in R.C.
2950.01(D) and is neither a habitual sex offender nor a sexual predator, the sexually oriented offender
designation attaches as a matter of law [,] and a hearing to make that determination was not required.
Athens App. No. 16CA21                                                                                      9

Megan’s Law, but did not receive a hearing before his reclassification.6

Approximately one year after Bell’s release from prison, the State moved to

reclassify him a sexual predator, asserting his prior classification pursuant to

S.B. 10 was an improper retroactive application. Bell opposed

reclassification and argued that the trial court lacked jurisdiction reclassify

him once he was released from prison. Ultimately, the trial court determined

jurisdiction was proper and the trial court held a hearing at which time both

parties presented evidence and the trial court concluded by designating Bell

a sexual predator.

        {¶18} On appeal, Bell raised the jurisdictional argument.

Recognizing that Bell’s initial classification was invalid by virtue of the

Supreme Court’s determination in Williams, the appellate court, however,

disagreed with Bell’s argument that the trial court lost jurisdiction at the

moment he completed his prison sentence. Acknowledging the Supreme

Court’s decision in State v. Holdcraft, 137 Ohio St.3d 526, 2013-Ohio-5014,

1 N.E.3d 382, which held that a trial court does not have jurisdiction to

correct a void sentence once the prison term is complete, the Bell court

found at ¶ 12:


6
 In Bell, the State suggested to the court that Bell was “essentially reclassified” by the Ohio Attorney
General’s Office once he was to be released from prison. However, the appellate court found it clear that
Bell was not judicially classified by the attorney general’s office as the trial court never reversed the
application of S.B. 10 and never classified Bell pursuant to Megan’s Law.
Athens App. No. 16CA21                                                         10

      “[U]nlike correcting a sentence already served, addressing
      classification and registration requirements according to
      Megan's Law is different because such requirements are
      ‘collateral consequence[s] of the offender's criminal acts rather
      than a form of punishment per se.’ State v. Ferguson, 120 Ohio
      St.3d 7, 2008-Ohio-4824, ¶ 34. As such, and unlike S.B. 10,
      the Ohio Supreme Court noted several times that the
      registration and classification requirements pursuant to Megan's
      Law were remedial and civil in nature. Williams, 2011-Ohio-
      3374; Ferguson, 2008-Ohio-4824; and State v. Raber, 134 Ohio
      St.3d 350, 2012-Ohio-5636.”

      {¶19} The Twelfth District Court of Appeals further held at ¶ 13:

      “The classification requirements inherent in Megan's Law were
      determined by the Ohio Supreme Court to be civil and
      remedial, and thus are not a punishment within the defendant's
      sentence. Therefore, the disposition of Bell's challenge to the
      trial court's jurisdiction to reclassify him must be determined
      upon rules specific to classification pursuant to Megan's Law,
      rather than rules that pertain to sentencing or punishment. As
      such, and because the trial court never classified Bell according
      to Megan's Law and its civil and remedial classification
      requirements, the trial court had jurisdiction to hold the hearing
      despite Bell's release from prison.”

      {¶20} The Bell court cited various decisions in which court had

addressed reclassification issues despite the defendant having been released

from prison. See State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424;

State v. Ogden, 10th Dist. Franklin No. 09AP-640, 2011-Ohio-1589; and

State v. Ortega-Martinez, 8th Dist. Cuyahoga No. 95656, 2011-Ohio-2540.

The Bell court recognized that in those cases, the appellate court reversed

retroactive application of S.B. 10 and instead reinstated the prior judicial
Athens App. No. 16CA21                                                                                     11

classification. However, Bell had never been judicially classified according

to Megan’s Law, and was entitled to a hearing at which the court would

consider various statutory factors in making its determination as to whether

Bell was a sexual predator.

         {¶21} The Bell court also recognized that, as cited by Appellant

herein, former R.C. 2905.09(B)(1) directed a court to hold the hearing prior

to or at sentencing. However, the Bell court did not find the language

jurisdictional and referenced the Supreme Court’s decision in State v.

Bellman, 86 Ohio St.3d 208, 209, 1999-Ohio-95, 714 N.E.2d 381, finding

“the statutory requirement regarding the timing of a sexual predator hearing

is not jurisdictional and a defendant may waive it.”7 The Bell court cited

other decisions in which classification hearings were heard after appellants

had been released from prison. State v. Wyant, 12th Dist. Madison No.

CA2003-08-029, 2005-Ohio-6663; State v. Wilson, 1123 Ohio St.3d 282,

2007-Ohio-2202; and In re Von, supra. Bell concluded:

         “We find no statutory authority that divested the trial court’s
         jurisdiction to hold this required hearing, and the fact that Bell
         had been released from prison does not change the analysis.”




7
  In the context of jurisdictional matters of the juvenile courts, Bellman has been distinguished by State ex
rel. Jean-Baptiste v. Kirsch, 134 Ohio St.3d 421, 2012-Ohio-5697, 983 N.E. 2d 302, wherein the Supreme
Court held that the Scioto County juvenile court lacked jurisdiction to conduct a juvenile-offender
registration hearing after the alleged juvenile had turned 21 and had been released from disposition.
Athens App. No. 16CA21                                                           12

      {¶22} Turning to the case sub judice, we adopt the reasoning set forth

by our sister districts in Miller and Bell. First, we reiterate our previous

finding in State v. Straley, supra, that sexual offender classifications are civil

in nature, State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d

1264, syllabus, and thus constitute separate proceedings when not coupled

with an initial conviction and sentence. Straley, supra, at ¶ 10; State v.

Garabrandt, 6th Dist. Lucas No. L–06–1400, 2008-Ohio-4128. The sexual

offender classification proceedings are separate and distinct from the

criminal conviction and sentence. See State ex rel. Culgan v. Collier, 132

Ohio St.3d 394, 972 N.E.2d 579, 2012-Ohio-2916, ¶ 1, and State v. Gibson,

2nd Dist. Champaign No.2009CA47, 2010-Ohio-3447, ¶ 25 (appeal from

sex-offender classification is legally distinct from an appeal from the

underlying sentence).

      {¶23} As in Bell, “the disposition of [Appellant’s] challenge to the

trial court’s jurisdiction to reclassify him must be determined upon rules

specific to classification pursuant to Megan’s Law, rather than rules that

pertain to sentencing or punishment.” Bell, at 13. And as in Bell, because

the trial court had not classified Appellant according to Megan’s Law, the

trial court had jurisdiction to hold the classification hearing. Like Bell, we

find no statutory authority that divested the trial court’s jurisdiction to hold
Athens App. No. 16CA21                                                         13

the required hearing, despite Appellant’s release from prison over two years

ago.

       {¶24} Further, based on the Bell court’s interpretation of the decision

in State v. Bellman, we agree with the Bell court’s finding that the language

of former R.C. 2905.09(B)(1), directing the court to hold the classification

hearing “prior to or at the time of sentencing,” and cited by Appellant herein,

is not language that is jurisdictional. Bell stated at ¶ 19:

       “There is no indication in the statute regarding sexual predator
       designation hearings that the legislature intended to limit the
       court’s authority, and rather, the purpose of holding the hearing
       before or during sentencing was to ensure procedural
       efficiency. As such, nothing in the statute divested the trial
       court of its jurisdiction simply because the required hearing did
       not occur prior to or at sentencing.”

       {¶25} For the foregoing reasons, we find no merit to Appellant’s

argument that the trial court did not have jurisdiction to conduct the

reclassification hearing after he had served his prison sentence and had been

released for approximately two years. As such, we hereby overrule the sole

assignment of error and affirm the judgment of the trial court.

                                                   JUDGMENT AFFIRMED.
Athens App. No. 16CA21                                                         14

                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and that costs be
assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Athens County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Harsha, J. & Abele, J.: Concur in Judgment and Opinion.

                                        For the Court,


                                 BY: ______________________________
                                     Matthew W. McFarland, Judge

                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
