[Cite as Rollins v. State, 2011-Ohio-3264.]


          Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                               Nos. 96192, 96193, and 96194




                      BERTEENA ROLLINS, ET AL.
                                                       PLAINTIFFS-APPELLEES

                                                 vs.

                                     STATE OF OHIO
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                 Civil Appeal from the
                       Cuyahoga County Court of Common Pleas
                    Case Nos. CV-646989, CV-647275, and CV-649265

        BEFORE:            Cooney, J., Boyle, P.J., and E. Gallagher, J.

    RELEASED AND JOURNALIZED: June 30, 2011
ATTORNEYS FOR APPELLANT
                                             2


William Mason
Cuyahoga County Prosecutor

By: Daniel T. Van
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEES

For Berteena Rollins and Harold Washington

Robert L. Tobik
Chief Public Defender

By: Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113

For Antonio Orr

Antonio Orr, pro se
24411 Garden Drive, #509
Euclid, Ohio 44123



COLLEEN CONWAY COONEY, J.:

       {¶ 1} This consolidated appeal arises from the trial court’s ruling in three sex offender

reclassification cases.   Defendant-appellant, the state of Ohio (“State”), appeals the trial

court’s granting relief from reclassification for plaintiffs-appellees, Berteena Rollins
                                                  3

(“Rollins”), Harold Washington (“Washington”), and Antonio Orr (“Orr”)                     (collectively

referred to as “appellees”).
                               1




        {¶ 2} In 1998, Rollins (Appeal No. 96192) pled guilty to attempted rape.                      In

1991,Washington (Appeal No. 96193) pled guilty to three counts of sexual battery and was

sentenced to two years’ probation.           After violating his parole twice, Washington was

sentenced to prison for his original offense.      In 1999, Orr (Appeal No. 96194) was convicted

of corruption of a minor and sentenced to 18 months in prison.            The State contends that the
                                                                      2




records in these three cases contain no mention of a classification hearing or a court-ordered

classification.
                  3




        {¶ 3} Upon release from prison and pursuant to the version of R.C. Chapter 2950 then

in effect, commonly referred to as “Megan’s Law,” Rollins and Washington were classified as




           These appeals have been consolidated by this court for record, briefing, hearing, and
        1


disposition.

           Orr is not represented by the public defender and did not file a pro se brief.     No further
        2


facts about his case were stipulated by either party.

            We note that the State has failed to submit the records as part of this appeal and therefore,
        3


“[i]n the absence of a complete and adequate record, a reviewing court must presume the regularity of
the trial court proceedings and the presence of sufficient evidence to support the trial court’s
decision.” Burrell v. Kassicieh (1998), 128 Ohio App.3d 226, 714 N.E.2d 442. Thus, we must
presume regularity in the trial court’s proceedings and assume that appellees’ classification was
memorialized in the court’s journal entry and, therefore, was properly adjudicated.
                                               4

sexual offenders.   Megan’s Law, also known as House Bill 180, was written in 1996 and

became effective in 1997.

       “Under Megan’s Law, offenders who had committed a sexually oriented offense that
       was not registration-exempt were labeled a sexually oriented offender, a habitual sexual
       offender, or a sexual predator based upon the crime committed and the findings made
       by the trial court at a sexual-offender classification hearing.” State v. Green,
       Hamilton App. No. C-090650, 2010-Ohio-4371, at ¶1, citing State v. Clay, 177 Ohio
       App.3d 78, 2008-Ohio-2980, 893 N.E.2d 909.

       {¶ 4} However, a sexual offender classification hearing was only required under

R.C. 2950.09 when the trial court wished to determine whether a defendant should be

classified as a sexual predator or as a habitual sex offender.   If the court chose not to conduct

a hearing, an offender who had committed a sexually oriented offense was “automatically”

designated a sexually oriented offender by operation of law.         See State v. Hayden, 96 Ohio

St.3d 211, 2002-Ohio-4169, 773 N.E.2d 502, ¶15; see, also, State ex rel. Mason v. Griffin

(2000), 90 Ohio St.3d 299, 303, 737 N.E.2d 958.

       {¶ 5} In January 2008, Ohio’s Adam Walsh Act (“AWA”) went into effect, repealing

Megan’s Law and altering the classification, registration, and notification scheme of convicted

sex offenders.   See R.C. Chapter 2950.       The Ohio attorney general reclassified Rollins and

Washington under the AWA as Tier III sex offenders.

       {¶ 6} As     a   result,   appellees   individually   filed    petitions   contesting   their

reclassifications, arguing that it violated numerous constitutional rights.        In light of the
                                              5

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

753, the trial court agreed.   The trial court vacated the new classifications and reinstated

those previously applied under Megan’s Law.

       {¶ 7} The State now appeals, raising two assignments of error.

       {¶ 8} In the first assignment of error, the State argues that the trial court erred in

applying Bodyke to the appellees because they were not classified under Megan’s law by an

Ohio court.   The State contends that reclassifying appellees under the AWA is not a violation

of the separation of powers doctrine when their original classifications were automatic under

the law.   In the second assignment of error, the State argues that the trial court erred in

applying Bodyke to the appellees because they did not demonstrate by clear and convincing

evidence that they were previously classified by an Ohio court.      Both assignments of error

pertain to the same set of facts and applicable law and will therefore be addressed together.

       {¶ 9} The interpretation of the constitutionality of a statute presents a question of law.

 Andreyko v. Cincinnati, 153 Ohio App.3d 108, 2003-Ohio-2759, 791 N.E.2d 1025.

“Questions of law are reviewed de novo, independently and without deference to the trial

court’s decision.”   Id.

       {¶ 10} “A regularly enacted statute of Ohio is presumed to be constitutional and is

therefore entitled to the benefit of every presumption in favor of its constitutionality” and

“before a court may declare it unconstitutional it must appear beyond a reasonable doubt that
                                              6

the legislation and constitutional provisions are clearly incompatible.”   State ex rel. Dickman

v. Defenbacher (1955), 164 Ohio St. 142, 128 N.E.2d 59, paragraph one of the syllabus.

       {¶ 11} Moreover, the presumption of validity cannot be overcome unless it appears that

there is a clear conflict between the legislation in question and some particular provision or

provisions of the Constitution. Xenia v. Schmidt (1920), 101 Ohio St. 437, 130 N.E. 24,

paragraph two of the syllabus.

       {¶ 12} In Bodyke, the Ohio Supreme Court addressed the constitutionality of the

AWA, as it applies to sex offenders whose cases have been fully adjudicated prior to the

enactment of the AWA, and found that:

       “[t]he AWA’s provisions governing the reclassification of sex offenders already
       classified by judges under Megan’s Law [R.C. 2950.031 and 2950.032] violate the
       separation-of-powers doctrine for two related reasons: the reclassification scheme vests
       the executive branch with authority to review judicial decisions, and it interferes with
       the judicial power by requiring the reopening of final judgments.” Bodyke at ¶55.

       {¶ 13} As a result, the court declared R.C. 2950.031 and 2950.032 unconstitutional and

excised these sections from the statutory scheme. Bodyke at ¶66.       The court held that:

       “R.C. 2950.031 and 2950.032, which require the attorney general to reclassify sex
       offenders who have already been classified by court order under former law,
       impermissibly instruct the executive branch to review past decisions of the judicial
       branch and thereby violate the separation-of-powers doctrine.

       “R.C. 2950.031 and 2950.032, which require the attorney general to reclassify sex
       offenders whose classifications have already been adjudicated by a court and made the
       subject of a final order, violate the separation of powers doctrine by requiring the
                                                  7

        opening of final judgments.”          Bodyke, paragraph two and three of the syllabus
        (emphasis added).

        {¶ 14} The State argues that Bodyke does not apply to the appellees because they were

not “classified by court order,” nor were their classifications “adjudicated by a court and made

the subject of a final order.”     Id.   The State contends that this court should follow the First

and Twelfth Appellate Districts, and distinguish between those sex offenders who were

classified by court order and those who were automatically classified by operation of law.

The State argues that reclassifying a sexual offender who was originally classified

automatically does not violate the separation of powers doctrine and therefore, is not

unconstitutional.

        {¶ 15} In State v. Green, Hamilton App. No. C-090650, 2010-Ohio-4371, the First
                                                                                              4




District held that:

        {¶ 16} “that the Supreme Court’s decision in Bodyke does not apply to cases in which

there is no prior court order classifying the offender under a sex-offender category.             If there

is no prior judicial order classifying the sex offender, then reclassification by the attorney


            Discretionary appeal allowed in part by Green v. State, 127 Ohio St.3d 1531,
        4


2011-Ohio-376, 940 N.E.2d 985, appeal accepted on Proposition of Law Nos. I (Reclassification is
unconstitutional despite “automatic” classification as sexually oriented offender), II, III, and IV; cause
held for the decision in 2009-0088, State v. Williams, Warren App. No. CA2008-02-029,
2008-Ohio-6195.
                                                 8

general under Senate Bill 10 does not violate the separation-of-powers doctrine because it does

not require the opening of a final court order or a review by the executive branch of a past

decision of the judicial branch.”   Id. at ¶9.

       {¶ 17} In Boswell v. State, Warren App. No. CA2010–01–006, 2010-Ohio-3134, the

Twelfth District also held that reclassification by the attorney general under the AWA does not

violate the separation of powers doctrine when there is no prior court order because it does not

require the opening of a final court order or a review by the executive branch of the trial

court’s decision.

       {¶ 18} Although the Green and Boswell courts have interpreted the language of

Bodyke to limit the separation of powers violation to offenders classified by court order, this

court has consistently held that the remedy of Bodyke prevents the AWA from being applied

to any sexual offender previously classified under Megan’s Law.      The Ohio Supreme Court

remedied the violation of the separation of powers doctrine by completely severing the

provisions of the AWA that gave the attorney general the authority to reclassify sex offenders.

 “R.C. 2950.031 and R.C. 2950.032 are severed and, after severance, they may not be

enforced.”    Bodyke at ¶281.       See, also, Chojnacki v. Cordray, 126 Ohio St.3d 321,

2010-Ohio-3212, 933 N.E.2d 800, at ¶5 (“In Bodyke, we severed R.C. 2950.031 and

2950.032, the reclassification provisions of the Adam Walsh Act, and held that after

severance, those provisions could not be enforced.”).        A complete severance of these
                                               9

provisions leaves no room for interpretation.      Pursuant to Bodyke, the attorney general is

barred from reclassifying sexual offenders.

       {¶ 19} In Means v. State, Cuyahoga App. Nos. 92936-92939, 92941-92945,

2010-Ohio-3082, discretionary appeal not allowed, 126 Ohio St.3d 1619,           2010-Ohio-5101,

935 N.E.2d 856, this court found that the attorney general’s reclassification of nine appellants,

previously classified under Ohio’s Megan’s Law, was invalid.         Eight of the appellants were

classified automatically.   Regardless of their automatic classification, this court found that:

       “In accordance with the Ohio Supreme Court’s holding in Bodyke, the reclassifications
       of the within appellants by the attorney general are invalid, and the prior judicial
       classifications and community-notification and registration orders previously imposed
       by judges should be reinstated.” Means at ¶6.
       {¶ 20} In State v. Smith, Cuyahoga App. No. 92550, 2010-Ohio-2880, this court found

that Bodyke applied to a defendant whose initial classification as a sexually oriented offender

was “automatic” under Megan’s Law.

       “The record reflects that in 1988, Smith originally was convicted in CR-225337 of the
       crimes of rape, kidnapping, and gross sexual imposition. In 2001, Smith completed his
       sentence in that case and was released from prison. Pursuant to the version of R.C.
       Chapter 2950 then in effect, commonly referred to as ‘Megan’s Law,’ Smith
       ‘automatically’ was classified as a sexually oriented offender. See, State v. Hayden,
       96 Ohio St.3d 211, 2002-Ohio-1169, ¶15, 773 N.E.2d 502.”

       ***

       “The supreme court stated that these statutes ‘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
                                              10

       reinstated.’ [Bodyke] at ¶ 66.” Smith at ¶4 & 28. See, also, State v. Juergens,
       Clark App. No. 09CA0076, 2010-Ohio-6482.

       {¶ 21} We are not alone in our interpretation of Bodyke.      In State v. Hazlett, Franklin

App. No. 09AP-1069, 2010-Ohio-6119, there was no evidence that the defendant had been

classified as a sexual offender by court order.    It appeared that Hazlett’s classification arose

automatically by operation of law.    Regardless, the court found that:

       {¶ 22} “Being a court of inferior jurisdiction to the Supreme Court of Ohio, we must

follow its mandates. State v. Ryan, 10th Dist. No. 08AP–481, 2009-Ohio-3235, ¶48.              See

also State v. Land, 3d Dist. No. 2–07–20, 2007-Ohio-6963, ¶9; State v. Withers, 10th Dist.

No. 08AP–39, 2008-Ohio-3175, ¶13.         While there is much debate over what the Supreme

Court of Ohio may have meant or intended when it decided Bodyke and Chojnacki, we, as a

court of inferior jurisdiction to that of the Supreme Court, are bound to follow what it did,

which was to sever as unconstitutional R.C. 2950.031 and 2950.032.        Given that the statutory

provisions authorizing the attorney general to reclassify sex offenders have been severed and

excised from the Ohio Revised Code, we find the action taken by the Supreme Court in

Bodyke, i.e., reinstating sex offenders to their sex-offender classifications as they existed prior

to the implementation of the AWA, to be equally applicable here.”       Hazlett at ¶12.

       {¶ 23} In light of the precedent of this district and others, we find that regardless of the

manner in which appellees were originally classified, R.C. 2950.031 and 2950.032 have been
                                           11

severed and may no longer be enforced. Thus, we find that the trial court did not err in

applying Bodyke to Rollins, Washington, and Orr.

      {¶ 24} Accordingly, the State’s two assignments of error are overruled.

      Judgment affirmed.

      It is ordered that appellees recover of appellant 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.



__________________________________________
COLLEEN CONWAY COONEY, JUDGE

MARY J. BOYLE, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
