[Cite as State v. Barnett, 2013-Ohio-4936.]


                                        COURT OF APPEALS
                                       PERRY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :      JUDGES:
                                              :
                                              :      Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                  :      Hon. John W. Wise, J.
                                              :      Hon. Craig R. Baldwin, J.
                                              :
-vs-                                          :
                                              :
JEFFREY L. BARNETT                            :      Case No. 12-CA-00010
                                              :
                                              :
        Defendant - Appellant                 :      OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Perry County Court
                                                     of Common Pleas, Case No. 08-CR-
                                                     0070



JUDGMENT:                                            Affirmed in Part; Reversed
                                                     and Remanded in Part



DATE OF JUDGMENT:                                    November 6, 2013



APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOSEPH A. FLAUTT                                     JEFFREY L. BARNETT, PRO SE
Prosecuting Attorney                                 Inmate # 597-239
111 North High Street                                P.O. Box 5500
P.O. Box 569                                         Chillicothe, OH 45601
New Lexington, OH 43764-0569
Perry County, Case No. 12-CA-00010                                                      2

Baldwin, J.

      {¶1}    Defendant-appellant Jeffrey L. Barnett appeals his sentence issued by the

Perry County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    On September 19, 2008, the Perry County Grand Jury indicted appellant

on fifteen (15) counts of rape in violation of R.C. 2907.02(A)(2), felonies of the first

degree, fifteen (15) counts of sexual battery in violation of R.C. 2907.03(A)(5), felonies

of the third degree, and fifteen (15) counts of unlawful sexual conduct with a minor in

violation of R.C. 2907.04(A) and (B)(3), felonies of the third degree. The indictment

alleged that the offenses occurred on or about June 2004 to May 2005. At his

arraignment on September 22, 2008, appellant entered a plea of not guilty to the

charges.

      {¶3}    Subsequently, on December 3, 2008, appellant withdrew his former not

guilty plea and entered a plea of guilty to eleven (11) counts of sexual battery. The

remaining counts were dismissed. On January 14, 2009, appellant was adjudicated a

Tier II sex offender. Pursuant to a Judgment Entry filed on January 16, 2009, the trial

court sentenced appellant to a definite prison sentence of one (1) year on each count

and ordered that the sentences be served consecutively, for an aggregate prison

sentence of eleven (11) years.

      {¶4}    Appellant, on February 17, 2012, filed a Motion for Resentencing, arguing

that there was no final appealable order. After appellee filed a memorandum stating

that the January 16, 2009 Judgment Entry was not a final appealable order, the trial

court issued a Nunc Pro Tunc Judgment Entry on March 30, 2012.
Perry County, Case No. 12-CA-00010                                                      3


       {¶5}    Appellant filed a Notice of Appeal from the March 30, 2012 Judgment

Entry on April 27, 2012. After no appellant’s brief was filed, this Court, as memorialized

in a Judgment Entry filed on August 1, 2012, dismissed the appeal for want of

prosecution.

       {¶6}    On November 1, 2012, appellant filed a Motion to Reopen Appeal

pursuant to App.R. 26(B). This Court granted such motion.

       {¶7}    Appellant now raises the following assignments of error on appeal:

       {¶8}    THE TRIAL COURT’S SENTENCE IS CONTRARY TO LAW IN THAT IT

FAILED TO APPLY THE FACTORS MANDATED BY O.R.C. 2929.11 AND 2929.12(D)

AND OHIO CRIM. R. 32.

       {¶9}    THE CONSECUTIVE SENTENCES IMPOSED ON APPELLANT ARE AN

ABUSE OF DISCRETION FOR NOT PROPERLY CONSIDERING THE MITIGATING

FACTORS ALONG WITH THE ENHANCEMENT FACTORS OF R.C. 2929.11;

2929.12; AND THE MISAPPLICATION OF R.C. 2929.14( C)(4).

       {¶10}   THE TRIAL COURT ERRORED (SIC) IN SENTENCING DEFENDANT

UNDER THE REQUIREMENTS OF SENATE BILL 10 (AWA) INSTEAD OF MEGAN’S

LAW.

                                               I

       {¶11}   Appellant, in his first assignment of error, argues that his sentence is

contrary to law because the trial court failed to apply the factors mandated by R.C.

2929.11, 2929.12(D) and Crim.R. 32.

       {¶12}   R.C. 2953.08(D) provides that “[a] sentence imposed upon a defendant is

not subject to review ... if the sentence is authorized by law, has been recommended
Perry County, Case No. 12-CA-00010                                                        4


jointly by the defendant and the prosecution in the case, and is imposed by a

sentencing judge.” “In other words, * * * an agreed-upon sentence may not be

[appealable] if (1) both the defendant and the state agree to the sentence, (2) the trial

court imposes the agreed sentence, and (3) the sentence is authorized by law. R.C.

2953.08(D)(1). If all three conditions are met, the defendant may not appeal the

sentence.” State v. Underwood, 124 Ohio St.3d 365, 2010–Ohio–1, 922 N.E.2d 923, ¶

16. In Underwood, the Ohio Supreme Court held that R.C. 2953.08(D) did not prohibit

appellate review of sentence for two counts of aggravated theft that were allied offenses

of similar import and two counts of theft that were allied offenses of similar import. In so

holding, the court stated, in relevant part, as follows: “Our holding does not prevent R.C.

2953.08(D)(1) from barring appeals that would otherwise challenge the court's

discretion in imposing a sentence, such as whether the trial court complied with

statutory provisions like R.C. 2929.11 (the overriding purposes of felony sentencing),

2929.12 (the seriousness and recidivism factors), and/or 2929.13(A) through (D) (the

sanctions relevant to the felony degree) or whether consecutive or maximum sentences

were appropriate under certain circumstances.” Id at paragraph 22.

      {¶13}   Appellant's sentence was part of a negotiated plea agreement and is

authorized by law. Therefore, the sentence is not subject to review pursuant to R.C.

2953.08(D). Furthermore, the state agreed to dismiss the remaining charges. Appellant

received a benefit and the trial court sentenced appellant to what was bargained for in

the plea.

      {¶14}   Appellant’s first assignment of error is, therefore, overruled.
Perry County, Case No. 12-CA-00010                                                        5


                                                II

      {¶15}   Appellant, in his second assignment of error, argues that the trial court

erred in imposing consecutive sentences on him.

      {¶16}   As is stated above, [i]t is well-established that a sentence that is agreed

upon as part of a negotiated plea, and that does not exceed the statutory maximum

sentence applicable to the crime, and is not subject to appellate review pursuant to R.C.

§ 2953.08(D).” State v. Yeager, 7th Dist. Carroll No. 03CA786, 2004–Ohio–3640, ¶ 21

(additional citations omitted). In the case sub judice, in exchange for appellant's guilty

plea, appellant was sentenced in accordance with the plea agreement. Appellant has

thus waived his right to appeal his consecutive sentences. See State v. Davis, 5th Dist.

Muskingum No. CT2011–0033, 2012-Ohio-4922.

      {¶17}   Appellant’s second assignment of error is, therefore, overruled.

                                                III

      {¶18}   Appellant, in his third assignment of error, argues that the trial court erred

in sentencing him under the requirements of Senate Bill 10 (the Adam Walsh Act) rather

than those of Megan’s law.

      {¶19}   Appellant specifically argues that the Adam Walsh Child Protection Safety

Act (“AWA”), as enacted by the Ohio General Assembly in Am. Sub. S.B. No. 10 and

effective January 1, 2008, may not be applied retroactively to him. In 1996, the General

Assembly enacted Am. Sub. H.B. 180 (“Megan's Law”), which amended the state's sex

offender registration process. State v. Cook, 83 Ohio St.3d 404, 406, 1998–Ohio–291,

700 N.E.2d 570. In 2007, the General Assembly enacted Am. Sub. S.B. 10, which
Perry County, Case No. 12-CA-00010                                                           6


repealed Megan's Law and replaced it with Ohio's version of the Adam Walsh Act

(“S.B.10”).

      {¶20}   In State v. Williams, 129 Ohio St.3d 344, 2011–Ohio–3374, 952 N.E.2d

1108, the Ohio Supreme Court held in the syllabus that, “2007 Am. Sub. S.B. No. 10, 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.” (Emphasis added).The defendant in Williams committed

the sexually oriented offenses before the effective date of S.B. 10. He was designated a

Tier II sex offender by the trial court after the effective date of S.B. 10. Williams at ¶ 1–3.

The Ohio Supreme Court held that application to S.B. 10 to him was unconstitutional.

      {¶21}   In the case sub judice, the indictment alleged that appellant committed his

offenses in 2004 and 2005. Appellant pleaded guilty to eleven (11) counts of sexual

battery, was sentenced in 2009 for such offenses, and was adjudicated a Tier II sex

offender. Appellant, therefore, committed his offenses prior to the enactment of the

AWA and the trial court erred in applying the provisions of the Adam Walsh Act to him.

We note that appellee concurs that the trial court “improperly used the provisions

pursuant to the Adam Walsh Act rather than the provisions pursuant to Megan’s Law.”

      {¶22}   Appellant’s third assignment of error is, therefore, sustained.
Perry County, Case No. 12-CA-00010                                                7


      {¶23}   Accordingly, the judgment of the Perry County Court of Common Pleas is

affirmed in part and reversed in part. This matter is remanded for proceedings in

accordance with this Opinion.



By: Baldwin, J.

Gwin, P. J. and

Wise, J. concur.




                                      HON. CRAIG R. BALDWIN



                                      HON. W. SCOTT GWIN



                                      HON. JOHN W. WISE




CRB/dr
[Cite as State v. Barnett, 2013-Ohio-4936.]


                     IN THE COURT OF APPEALS FOR PERRY COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
        Plaintiff - Appellee                     :
                                                 :
-vs-                                             :      JUDGMENT ENTRY
                                                 :
JEFFREY L. BARNETT                               :
                                                 :
        Defendant - Appellant                    :      CASE NO. 12-CA-00010


        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Perry County, Ohio is affirmed in part and

reversed and remanded in part. Costs assessed 50% to appellant and 50% to appellee.




                                              HON. CRAIG R. BALDWIN



                                              HON. W. SCOTT GWIN



                                              HON. JOHN W. WISE
