[Cite as State v. Williams, 2011-Ohio-6763.]



                Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 97005



                                       STATE OF OHIO
                                                        PLAINTIFF-APPELLANT

                                                  vs.

                                    JAMEL WILLIAMS
                                                        DEFENDANT-APPELLEE


                                               JUDGMENT:
                                                AFFIRMED



                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-547900

               BEFORE:           Blackmon, P.J., Celebrezze, J., and Rocco, J.

              RELEASED AND JOURNALIZED:                     December 29, 2011
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ATTORNEYS FOR APPELLANT

William D. Mason
Cuyahoga County Prosecutor

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


ATTORNEY FOR APPELLEE

Mark DeFranco
Mark A. DeFranco Law Offices
55 Public Square, Suite 1600
Cleveland, Ohio 44113




PATRICIA ANN BLACKMON, P.J.:

      {¶ 1} Appellant, the state of Ohio (“the state”), appeals the trial court’s dismissal

of the indictment against appellee Jamel Williams (“Williams”) and assigns the following

two errors for our review:

            “I. The trial court erred in dismissing the indictment because
      Jamel Williams had a duty to provide a notice of change of address
      under both Megan’s Law and the Adam Walsh Act and his underlying
      criminal conduct would have been a violation of the Megan’s Law
      requirement.”

             “II. The trial court erred in dismissing the indictment where
      the indictment was valid on its face.”
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      {¶ 2} Having reviewed the record and pertinent law, we affirm the trial court’s

dismissal of the indictment. The apposite facts follow.

                                          Facts

      {¶ 3} On November 13, 2002, Williams was convicted of importuning, a felony

of the fourth degree. Pursuant to his conviction, he was classified under Am.Sub.S.B.

No. 5, better known as Megan’s Law, as a sexually oriented offender by operation of law

and subject to yearly registration with the sheriff’s department. When Megan’s Law was

repealed in 2008 by Am.Sub.S.B. No. 10, better known as the Adam Walsh Act

(“AWA”), the attorney general reclassified Williams as a Tier I sex offender.

      {¶ 4} In February 2011, Williams was stopped for a traffic violation by the

Shaker Heights Police Department. Based on the officer’s discovery that Williams was

no longer living at the address he had registered with the Cuyahoga County Sheriff’s

Department, Williams was indicted for failure to provide a change of address pursuant to

R.C. 2950.05(F)(1) of the AWA.

      {¶ 5} On May 3, 2011, Williams filed a motion to dismiss the indictment based

on the Ohio Supreme Court’s decision in State v. Bodyke, 126 Ohio St.3d 266,

2010-Ohio-2424, 933 N.E.2d 753.         In Bodyke, the Supreme Court held that the

reclassification under the AWA was unlawful if offenders, from a prior court order, had a

duty to report under Megan’s Law. Williams also relied on the Ohio Supreme Court case

in State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, 946 N.E.2d 192, which held

that the failure to report based on an unlawfully imposed AWA registration requirement
                                            4
cannot serve as a basis of a reporting violation charge. The trial court agreed with

Williams and dismissed the indictment.

                                 Dismissal of Indictment

       {¶ 6} In its first assigned error, the state argues the trial court erred by dismissing

the indictment because under either the AWA or Megan’s Law, Williams had a duty to

verify his address with authorities.

       {¶ 7} The Ohio Supreme Court has held that the failure to report pursuant to an

unlawfully imposed AWA registration requirement cannot serve as the basis of a

reporting violation charge. Gingell. See, also, State v. Brunning, Cuyahoga App. No.

95376, 2011-Ohio-1936; State v. Smith, Cuyahoga App. No. 92550, 2010-Ohio-2880,

¶29; State v. Patterson, Cuyahoga App. No. 93096, 2010-Ohio-3715; State v. Jones,

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

       {¶ 8} Additionally, this court has held that an indictment based on the failure to

report under an unlawfully imposed AWA registration requirement cannot serve as the

basis of a reporting violation charge even if the offender would have the identical

reporting obligation under Megan’s Law. State v. Gilbert, Cuyahoga App. Nos. 95083

and 95084, 2011-Ohio-1928;             State v. Grunden, Cuyahoga App. No. 95909,

2011-Ohio-3687.

       {¶ 9} The state cites the Ohio Supreme Court’s recent decision in State v.

Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, to support its position

that offenders can be prosecuted for failure to register when the reporting requirements
                                            5
are identical under Megan’s Law and the AWA. However, our reading of Williams does

not support this interpretation. In Williams, the Supreme Court held that the AWA, “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.” Id. at syllabus. Therefore, under Williams, offenders cannot

be reclassified under the AWA. The Williams holding has no relevance to the issue

before us. Accordingly, the state’s first assigned error is overruled.

                           Indictment Facially Constitutional

       {¶ 10} In its second assigned error, the state argues the trial court erred by

dismissing the indictment because it was valid on its face.

       {¶ 11} We addressed this exact same issue in State v. Ortega-Martinez, Cuyahoga

App. No. 95656, 2011-Ohio-2540. We held that the motion to dismiss did not challenge

the indictment on its face because it did not involve a factual issue. We held:

              “In the instant case, the trial court did not impermissibly decide
       the issue for trial in ruling on Ortega-Martinez’s motion to dismiss.
       Ortega-Martinez’s motion did not address what would be the general
       factual issue for trial (whether the evidence showed Ortega-Martinez
       failed to verify his address on January 1, 2008); rather, it asserted that
       the question of whether Ortega-Martinez’s indictment for failure to
       verify was predicated on an unconstitutional reclassification by the
       Ohio Attorney General. Because Ortega-Martinez’s motion did not
       require a determination of the factual issue for trial, the trial court
       could properly consider the motion under Crim.R. 12(C).”

              “This court has held that an unlawful reclassification under
       Ohio’s AWA cannot serve as the predicate for the crime of failure to
       verify. State v. Smith, 8th Dist. No. 92550, 2010-Ohio-2880, ¶ 29; State
       v. Page, 8th Dist. No. 94369, 2011-Ohio-83. Because appellant’s
       indictment was predicated on an unlawful reclassification, he cannot be
                                           6
       convicted of the offense charged. The trial court did not err by
       dismissing the indictment.” Id. at ¶16, 17.

       {¶ 12} Likewise, in the instant case, Williams did not raise a factual issue

regarding the indictment, but asserted the indictment was invalid because it was based on

an unconstitutional reclassification.

       {¶ 13} The state acknowledges our holding in Ortega-Martinez, but argues this

court’s decision in State v. Caldwell, Cuyahoga App. No. 92219, 2009-Ohio-4881,

       {¶ 14} held that the defendant’s argument to dismiss his indictment because he had

no duty to register under the AWA questioned the state’s ability to prove the indictment.

The instant case is distinguishable from Caldwell. In Caldwell, the defendant’s motion

to dismiss argued that the defendant had no duty to register under the AWA because the

common pleas court had previously determined that he was a sexually oriented offender

who is exempt from registration.        We concluded in Caldwell that “this motion

necessarily questions the state’s ability to prove the indictment, which implicitly alleged

that appellee did have a duty to register. Appellee does not contend that the indictment,

on its face, fails to charge an offense, but rather that the state cannot prove that he

committed the offense charged.” In the instant case, Williams argued the dismissal was

warranted because the indictment was predicated on an unconstitutional classification by

the Ohio Attorney General; therefore, the indictment failed on its face to charge an

offense. A factual determination was not necessary. Accordingly, the state’s second

assigned error is overruled.

       Judgment affirmed.
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      It is ordered that appellee recover of appellant his costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said 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.



PATRICIA ANN BLACKMON, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
KENNETH A. ROCCO, J., CONCUR
