[Cite as State v. Adkins, 2011-Ohio-5308.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO

        Plaintiff-Appellee

-v.-

SCOTT ADKINS

        Defendant-Appellant

JUDGES:
Hon. W. Scott Gwin, P.J.
Hon. William B. Hoffman, J.
Hon. Sheila G. Farmer, J.

Case No. 2011CA00052

OPINION


CHARACTER OF PROCEEDING:                       Appeal from the Stark County Court of
                                               Common Pleas Court, Case No.
                                               2010CR0321

JUDGMENT:                                      Affirmed in part and Reversed in part
                                               and Remanded

DATE OF JUDGMENT ENTRY:                         October 11, 2011

APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JOHN D. FERRERO                                KRISTINA R. POWERS
PROSECUTING ATTORNEY                           Stark County Public Defender's Office
STARK COUNTY, OHIO                             200 W. Tuscarawas Street, Suite 200
                                               Canton, Ohio 44702
BY: RENEE M. WATSON
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Hoffman, J.


       (¶1)   Defendant-appellant Scott Adkins appeals the March 4, 2011 Judgment

Entry of the Stark County Court of Common Pleas denying his motion to dismiss.

Plaintiff-appellee is the State of Ohio.

                                   STATEMENT OF THE CASE

       (¶2)   In 1996, Appellant entered a plea of guilty to one count of attempted rape,

and was sentenced to prison. Appellant was classified a sexually oriented offender

upon his release from prison pursuant to Megan’s Law, requiring Appellant notify the

Stark County Sheriff of any change of address, in writing, within the twenty days prior to

the change and also to annually verify his address with the Sheriff.

       (¶3)   In August of 2009, Appellant was reclassified pursuant to the Adam Walsh

Act (AWA) as a Tier III offender under R.C. 2950.032, requiring Appellant provide

periodic verification of his address every ninety days and to continue to report any

change of address.

       (¶4)   On December 10, 2009, Appellant was placed at the Stark Regional

Community Corrections Center (SRCCC) on an unrelated case.                      Appellant

subsequently left the SRCCC facility without permission. Once leaving the facility, he

failed to register a change in his address with the Stark County Sheriff, and he was not

found at his previously registered address. Appellant did not verify an address with the

Sheriff within 90 days, but it is conceded he had verified his address within the one year

statutory requirement as previously required by Megan’s law.
        (¶5)   On April 12, 2010, Appellant entered a plea of guilty to three charges as

contained in a bill of information- two counts of failing to register a change of address,

violations of R.C. Sections 2950.05(A)(E)(1) and 2950.99(A), and one count of failing to

periodically verify his address, a violation of R.C. Sections 2950.06(F) and 2950.99(A).

At the time Appellant entered his plea of guilty in this case, he also had an escape

charge pending in another case which was resolved in conjunction with his plea herein.

The trial court sentenced Appellant to two years on each count to be served

concurrently to each other and concurrent with a three year sentence in the unrelated

case.

        (¶6)   On February 7, 20111, Appellant filed a motion to dismiss the bill of

information moving the trial court to allow him to withdraw his guilty plea as the offense

to which Appellant entered his pleas was based upon a statute found unconstitutional

by the Ohio Supreme Court on June 3, 2010 in State v. Bodyke, 126 Ohio St.3d 266,

2010-Ohio-2424.      Via Judgment Entry of March 4, 2011, the trial court denied the

motion to dismiss.

        (¶7)   Appellant now appeals, assigning as error:

        (¶8)   “I. THE TRIAL COURT ERRED BY FAILING TO ALLOW THE

APPELLANT TO WITHDRAW HIS PLEA, THEREBY SUBJECTING HIM TO TIER III

OFFENDER REGISTRATION REQUIREMENTS WHEN HE WAS SUBJECT TO

REGISTRATION UNDER MEGAN’S LAW.”




1
 The State does not assert an argument of res judicata, and we choose to not do so
sua sponte.
       (¶9)   “II. THE APPELLANT WAS DENIED HIS RIGHTS TO DUE PROCESS

AND OF ASSISTANCE OF COUNSEL BECAUSE HIS TRIAL COUNSEL PROVIDED

INEFFECTIVE ASSISTANCE.”

                                            I.

       (¶10) It is uncontested the Ohio Supreme Court in State v. Bodyke 126 Ohio

St.3d 266, 2010-Ohio-2424, deemed unconstitutional certain provisions of R.C.

2950.031 and R.C. 2950.032, the Adam Walsh Act.                     In finding the AWA

unconstitutional, the Court also found severance to be the proper remedy. The Court

did not strike the whole Act. The court held:

       (¶11) “Applying these standards, we conclude that severance of R.C. 2950.031

and 2950.032, the reclassification provisions in the AWA, is the proper remedy. By

excising the unconstitutional component, we do not ‘detract from the overriding

objectives of the General Assembly,’ i.e., to better protect the public from the recidivism

of sex offenders, and the remainder of the AWA, ‘which is capable of being read and of

standing alone, is left in place.’ Foster at ¶ 98. We therefore hold that R.C. 2950.031

and 2950.032 are severed and, that after severance, they may not be enforced. R.C.

2950.031 and 2950.032 may not be applied to offenders previously adjudicated by

judges under Megan's Law, and the classifications and community-notification and

registration orders imposed previously by judges are reinstated.”

       (¶12) Although Appellant was reclassified under the new law, he had a

continuing obligation pursuant to Bodyke to report and register any change in address

required under Megan’s law, which he failed to do. There was no lapse in Appellant’s

registration requirement created by severance of portions of the Adam Walsh Act.
       (¶13) In State v. Poling (June 27, 2011), Stark App. No. 2009-CA-00264, 2011-

Ohio-3201, this Court held:

       (¶14) “In conclusion, appellant's reclassification has no bearing on the outcome

of his prosecution. According to Bodyke, appellant's reclassification as a Tier III offender

cannot be enforced, and his original classification as a sexually oriented offender will be

reinstated. Id. at ¶ 66, 933 N.E.2d 753. However, as stated above, appellant was

required to register a change of address at least twenty days prior to changing said

address even before his reclassification from a sexually oriented offender to a Tier III

offender. He failed to do so and was appropriately prosecuted, convicted and

sentenced. The penalty enhancement provisions do not punish the past conduct;

instead, they merely increase the severity of a penalty imposed for a present violation of

the law.”

       (¶15) Accordingly, we affirm the trial court’s holding with regard to the two

counts relative to Appellant’s failure to register a change of address.

       (¶16) In State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, the Ohio

Supreme Court held an offender who is originally classified under Megan’s Law cannot

be convicted of violating the verification requirements of the AWA. The Court explained,

       (¶17) “Thus, pursuant to Bodyke, Gingell's original classification under Megan's

Law and the associated community-notification and registration order were reinstated.

Therefore, the current version of R.C. 2950.06, which requires Tier III sexual offenders

to register every 90 days, does not apply to Gingell. Since Gingell was charged after his

reclassification and before Bodyke, there is no doubt that he was indicted for a first-

degree felony for a violation of the reporting requirements under the AWA. Because the
application of the AWA was based upon an unlawful reclassification, we reverse the

judgment of the court of appeals and vacate Gingell's conviction for a violation of the

90–day address-verification requirement of R.C. 2950.06. Gingell remained accountable

for the yearly reporting requirement under Megan's Law; whether he met that

requirement is not a part of this case.”

       (¶18) As Appellant’s original classification required annual verification pursuant

to Megan’s Law, Appellant cannot now be convicted for a violation of the 90-day

address verification requirement under the AWA.

       (¶19) Based upon the Supreme Court’s holding in Gingell, the trial court’s

judgment with regard to the one count of Appellant’s failing to periodically verify his

address, a violation of R.C. Sections 2950.06(F) and 2950.99(A), is reversed.

       (¶20) Appellant’s first assignment of error is affirmed in part and reversed in

part, and remanded for resentencing.

                                               II.

       (¶21) In the second assignment of error, Appellant argues he was denied the

effective assistance of trial counsel.

       (¶22) A claim of ineffective assistance of counsel requires a two-prong analysis.

The first inquiry is whether counsel's performance fell below an objective standard of

reasonable representation involving a substantial violation of any of defense counsel's

essential duties to appellant. The second prong is whether the appellant was prejudiced

by counsel's ineffectiveness. Lockhart v. Fretwell (1993), 506 U.S. 364, 113 S.Ct. 838;

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052; State v. Bradley (1989),

42 Ohio St.3d 136, 538 N.E.2d 373. In order to warrant a finding that trial counsel was
ineffective, the petitioner must meet both the deficient performance and prejudice

prongs of Strickland and Bradley. Knowles v. Mirzayance (2009), ––– U.S. ––––, 129

S.Ct. 1411, 1419, 173 L.Ed.2d 251. We apply the Strickland test to all claims of

ineffective assistance of counsel, both trial counsel, or appellate counsel. State v.

Turner, Licking App. No.2006–CA–123, 2007–Ohio–4583; State v. Godfrey (Sept. 2,

1999), Licking App. No. 97CA0155.

      (¶23) To show deficient performance, appellant must establish that “counsel's

representation fell below an objective standard of reasonableness.” Strickland v.

Washington, 466 U.S. at 688, 104 S.Ct. at 2064. This requires showing that counsel

made errors so serious that counsel was not functioning as the “counsel” guaranteed

the defendant by the Sixth Amendment. Strickland v. Washington 466 U.S. at 687, 104

S.Ct. at 2064. Counsel also has a duty to bring to bear such skill and knowledge as will

render the trial a reliable adversarial testing process. Strickland v. Washington 466 U.S.

at 688, 104 S.Ct. 2052 at 2065.

      (¶24) Appellant must further demonstrate that he suffered prejudice from his

counsel's performance. See Strickland, 466 U .S. at 691 (“An error by counsel, even if

professionally unreasonable, does not warrant setting aside the judgment of a criminal

proceeding if the error had no effect on the judgment”). To establish prejudice, “[t]he

defendant must show that there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694. To prevail on his ineffective-assistance claim, appellant must
show, therefore, that there is a “reasonable probability” that the trier of fact would not

have found him guilty.

       (¶25) For the reasons set forth in our analysis and disposition of Appellant’s first

assignment of error, we overrule Appellant’s second assignment of error as moot as to

Appellant’s conviction for one count of failing to periodically verify his address.

       (¶26) The March 4, 2011 Judgment Entry of the Stark County Court of Common

Pleas is affirmed in part and reversed in part and remanded for resentencing in

accordance with the law and this Opinion.

By: Hoffman, J.

Gwin, P.J. and

Farmer, J. concur

                                              s/ William B. Hoffman _________________
                                              HON. WILLIAM B. HOFFMAN


                                              s/ W. Scott Gwin_____________________
                                              HON. W. SCOTT GWIN


                                              s/ Sheila G. Farmer___________________
                                              HON. SHEILA G. FARMER
             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                           :
                                        :
       Plaintiff-Appellee               :
                                        :
-v.-                                    :         JUDGMENT ENTRY
                                        :
SCOTT ADKINS                            :
                                        :
       Defendant-Appellant              :         Case No. 2011CA00052


       For the reasons stated in our accompanying Opinion, the March 4, 2011

Judgment Entry of the Stark County Court of Common Pleas is affirmed in part and

reversed in part and remanded for resentencing in accordance with the law and this

Opinion. Costs divided equally.




                                        s/ William B. Hoffman _________________
                                        HON. WILLIAM B. HOFFMAN


                                        s/ W. Scott Gwin_____________________
                                        HON. W. SCOTT GWIN


                                        s/ Sheila G. Farmer___________________
                                        HON. SHEILA G. FARMER
