[Cite as State v. Ogletree, 2011-Ohio-5846.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 96438




                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE
                                               vs.

                                 RICHARD OGLETREE
                                                     DEFENDANT-APPELLANT




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-535185

        BEFORE: Keough, J., Blackmon, P.J., and Cooney, J.

        RELEASED AND JOURNALIZED: November 10, 2011
ATTORNEY FOR APPELLANT

Gayl M. Berger
24100 Chagrin Blvd., #330
Cleveland, OH 44122

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
James M. Rice
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113




KATHLEEN ANN KEOUGH, J.:

       {¶ 1} Defendant-appellant, Richard Ogletree, appeals his convictions for failure

to notify the sheriff of a change of address and tampering with records. For the reasons

that follow, we reverse the trial court’s judgment and remand with instructions to enter an

order vacating Ogletree’s convictions and sentence.

                                                I
       {¶ 2} In 1983, Ogletree was convicted of rape in Case No. CR-181061. Upon

his release from prison, he was classified as a sexually oriented offender under Megan’s

Law and began reporting. As a sexually oriented offender under Megan’s Law, Ogeltree

was required to register once a year for ten years and was not subject to community

notification.

       {¶ 3} Ogletree was subsequently reclassified by the Ohio attorney general as a

Tier III sex offender under the Adam Walsh Act (“AWA”), which became effective in

January 2008. As a result of the new classification, Ogletree was required to verify his

address every 90 days for the rest of his life, and was subject to community notification

requirements, as well as restrictions on where he could lawfully reside.

       {¶ 4} In 2008, Ogletree and two other defendants filed petitions under R.C.

2950.031 and 2950.032, challenging their reclassifications and the application of the

AWA. In June 2010, while the petitions were pending, the Ohio Supreme Court issued

its decision in State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, in

which it held that the provisions of the AWA that required the attorney general to

reclassify sex offenders whose classifications had already been made the subject of a final

order were unconstitutional because they violated the separation-of-powers doctrine.

Id. at ¶2. As a remedy, the Ohio Supreme Court severed the offending provisions of the

AWA and reinstated the previously imposed judicial classifications of sex offenders and

corresponding community-notification and registration requirements. Id.        Thereafter,

the trial court granted Ogletree’s petition pursuant to Bodyke, and entered an order
restoring him to his previous status as a sexually oriented offender under Megan’s Law,

with corresponding registration requirements.1

        {¶ 5} In March 2010, before the Bodyke decision was announced and before the

trial court had reinstated his prior classification, Ogletree was indicted under the AWA

for (1) failing to verify his address with the sheriff in violation of R.C. 2950.05(F), (2)

failing to notify the sheriff of a change of address in violation of R.C. 2950.05(E)(1), and

(3) tampering with records in violation of R.C. 2913.42(A), based on an allegation that he

falsified documents by providing the sheriff with a false address. The failing-to-verify

and failing-to-notify charges both contained a furthermore specification that Ogletree had

previously committed the same crime. The offenses allegedly occurred on January 10,

2010.

        {¶ 6} The trial court subsequently denied Ogletree’s motion to dismiss the

indictment.    After a bench trial, the trial court found Ogletree not guilty of the

failing-to-verify charge, but guilty of failing to notify the sheriff of a change of address,

with the furthermore specification, and tampering with records. The court sentenced him

to an aggregate term of three years incarceration. Ogletree now appeals from these

convictions and sentence.

                                                    II




        This court recently affirmed the trial court’s order in Sheets v. State, Cuyahoga App. Nos.
        1


95876, 95877, 95878, 95879, and 95880, 2011-Ohio-4098.
      {¶ 7} In his first assignment of error, Ogletree argues that the trial court should

have dismissed the indictment because the charges were brought under the AWA, which

does not apply to him. We agree.

      {¶ 8} We note at the outset that the trial court did not have the benefit of the

Bodyke decision during the pendency of its proceedings. Nevertheless, since Bodyke,

this court has repeatedly reversed convictions for failure to register as a sex offender

based on a violation of the sex offender registration and notification requirements under

the AWA, when the defendant was initially classified under Megan’s Law. State v.

Campbell, Cuyahoga App. No. 95348, 2011-Ohio-2281, ¶8. We have reasoned that

because the reclassification under the AWA was unlawful, “it cannot serve as the

predicate for the crime for which [the defendant] was indicted and convicted.” State v.

Smith, Cuyahoga App. No. 92550, 2010-Ohio-2880, ¶29. See, also, State v. Page,

Cuyahoga App. No. 94369, 2011-Ohio-83; State v. Brunning, Cuyahoga App. No. 95376,

2011-Ohio-1936; State v. Patterson, Cuyahoga App. No. 93096, 2010-Ohio-3715; State

v. Jones, Cuyahoga App. No. 93822, 2010-Ohio-5004.

      {¶ 9} Subsequent to our decisions in Page, Patterson, and Jones, the Ohio

Supreme Court decided State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, 946

N.E.2d 192, in which it held that an offender who was originally classified under

Megan’s Law could not be convicted of violating the registration requirements of the

AWA. The Supreme Court explained:
       {¶ 10} “[P]ursuant 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. Since

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 part of this case.” Id. at ¶8.

       {¶ 11} Here, Ogletree was originally classified as a sexually oriented offender

under Megan’s Law. He was then reclassified under the AWA as a Tier III offender and,

before Bodyke was announced and his original classification reinstated, charged with

violating the reporting requirements of the AWA. But because Ogletree was originally

classified under Megan’s Law, any reporting requirements imposed on him under the

AWA were unlawfully imposed and, therefore, cannot form the basis for a reporting

violation. Because Ogletree’s convictions were predicated upon reporting requirements

held to be unconstitutional as applied to him, we vacate his convictions and sentence, and

remand to the trial court to enter an order consistent with this opinion.
       {¶ 12} Appellant’s first assignment of error is sustained. In light of our resolution

of the first assignment of error, appellant’s other assignments of error are moot and we

need not consider them. See App.R. 12(A)(1)(c).

       Reversed and remanded.

       It is ordered that appellant recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas 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.




KATHLEEN ANN KEOUGH, JUDGE

PATRICIA A. BLACKMON, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR
