[Cite as State v. Byers, 2011-Ohio-2845.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                HARDIN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 6-10-14

        v.

JESSIE L. BYERS,                                         OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Hardin County Common Pleas Court
                           Trial Court No. 20042150 CRI

                       Judgment Reversed and Cause Remanded

                              Date of Decision: June 13, 2011




APPEARANCES:

        Todd A. Workman for Appellant

        Bradford W. Bailey for Appellee
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PRESTON, J.

       {¶1} Defendant-appellant, Jessie L. Byers (hereinafter “Byers”), appeals

the Hardin County Court of Common Pleas’ judgment entry of sentence

reclassifying him as a Tier III sexual offender under the Adam Walsh Act

following a post-release control resentencing hearing. We reverse.

       {¶2} On December 15-16, 2004, the Hardin County Grand Jury indicted

Byers on counts one and two of rape, violations of R.C. 2907.02(A)(1)(b), first

degree felonies, and both with a specification that the victim was under the age of

10; count three of kidnapping, a violation of R.C. 2905.01(A)(4), a first degree

felony; and count four of intimidation of an attorney, victim, or witness in a

criminal case, a violation of R.C. 2921.04(B), a third degree felony. (Doc. No. 1).

       {¶3} On January 10, 2005, Byers was arraigned and entered pleas of not

guilty to all counts of the indictment. (Doc. No. 9).

       {¶4} On March 1, 2005, the trial court held a change of plea hearing. (Doc.

No. 29). Byers pled guilty to count one, and the State dismissed the remaining

charges. (Id.). The trial court found Byers guilty based upon his plea and ordered

a pre-sentence investigation, a psychological evaluation, and social history. (Doc.

No. 31); (Mar. 1, 2005 Tr. at 18); (Mar. 15, 2005 JE, Doc. No. 34).

       {¶5} On May 18, 2005, the trial court held a joint sentencing and sexual

classification hearing.   The trial court sentenced Byers to life in prison and

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classified him as a sexual predator under former R.C. 2950.01(E)(1), also known

as Megan’s Law. (May 18, 2005 Tr. at 33-34, 39); (June 9, 2005 JE, Doc. No. 38).

       {¶6} On July 6, 2005, Byers appealed the trial court’s sexual predator

classification, but we affirmed on November 21, 2005. (Doc. Nos. 43, 51); State v.

Byers, 3d Dist. No. 6-05-07, 2005-Ohio-6169.

       {¶7} On August 12, 2010, the State filed a motion for re-sentencing

pursuant to State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124, 2010-Ohio-

2671, 931 N.E.2d 110 and R.C. 2929.191 for the trial court to properly impose the

mandatory five-year term of post-release control upon Byers. (Doc. No. 52).

       {¶8} On October 12, 2010, the trial court held a resentencing hearing, and

the trial court resentenced Byers to the same mandatory term of life imprisonment

as it had previously imposed. (Oct. 12, 2010 Tr. at 7); (Oct. 20, 2010 JE, Doc. No.

62). The trial court also advised Byers that he was subject to five years of

mandatory post-release control and the consequences of violating post-release

control. (Id. at 7-8); (Id.). The trial court then reclassified Byers as a Tier III

sexual offender under the current version of R.C. 2950.01, also known as the

Adam Walsh Act. (Id. at 8); (Id.).

       {¶9} On November 5, 2010, Byers filed a notice of appeal. (Doc. No. 63).

Byers now appeals raising one assignment of error for our review.



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                          ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED WHEN IT RECLASSIFIED
       APPELLANT AS A TIER THREE SEX OFFENDER UNDER
       THE ADAM WALSH ACT WHEN APPELLANT WAS
       ORIGINALLY SENTENCED IN MARCH 2005 UNDER
       MEGAN’S LAW AS A SEXUAL PREDATOR AND SUCH
       RECLASSIFICATION     IS     UNCONSTITUTIONAL AS
       DETERMINED BY THE OHIO SUPREME COURT IN
       STATE V. BODYKE (2010), 128 OHIO ST.3D 366.

       {¶10} In his sole assignment of error, Byers argues that the trial court erred

by reclassifying him as a Tier III sexual offender under the Adam Walsh Act in

light of the Ohio Supreme Court’s holding in State v. Bodyke, 126 Ohio St.3d 266,

2010-Ohio-2424, 933 N.E.2d 753. Byers further argues that his 2005 sexual

offender classification was final, and that the trial court was only permitted to

correct the post-release control portion of his sentence under State v. Fischer, 128

Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332.

       {¶11} The Ohio Supreme Court in State v. Bodyke held that R.C. 2950.031

and 2950.032, which required the attorney general to reclassify sex offenders who

had already been classified by court order under former law, violated the

separation-of-powers doctrine by impermissibly instructing the executive branch

to review past decisions of the judicial branch and by requiring the opening of

final judgments. 2010-Ohio-2424, at ¶¶60, 61, 67. The Ohio Supreme Court

severed R.C. 2950.031 and 2950.032 from the Adam Walsh Act and concluded


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that “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.”

Id. at ¶66.

       {¶12} This case is distinguishable from Bodyke, however, because Byers

was not reclassified by the attorney general pursuant to R.C. 2950.031 or

2950.032—those sections declared unconstitutional and severed from Chapter

2950 in State v. Bodyke, 2010-Ohio-2424. Rather, Byers was notified by the trial

court that he would be a Tier III sexual offender at a resentencing hearing held for

the purpose of properly imposing a mandatory five-year term of post-release

control as required by McCormick, 2010-Ohio-2671. Therefore, Bodyke is not

controlling here as Byers argues.

       {¶13} Since the trial court here failed to impose the mandatory term of

post-release control as required under R.C. 2967.28(B)(1) and Byer’s original

sentencing was prior to the effective date of R.C. 2929.191, the trial court was

required to conduct a “de novo sentencing hearing in accordance with decisions of

the Supreme Court of Ohio” to properly impose post-release control. State v.

Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, paragraph one

of the syllabus. At a de novo sentencing hearing, “the trial court may not merely

inform the offender of the imposition of postrelease control and automatically

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reimpose the original sentence. Rather, the effect of vacating the trial court’s

original sentence is to place the parties in the same place as if there had been no

sentence. Therefore, the decision to vacate [the offender’s] void sentence []

require[s] the trial court to resentence [the offender] as if there had been no

sentence.” State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961,

¶13 (emphasis in original). See, also, State v. Simpkins, 117 Ohio St.3d 420, 2008-

Ohio-1197, 884 N.E.2d 568, ¶22; State v. Boswell, 121 Ohio St.3d 575, 2009-

Ohio-1577, 906 N.E.2d 422, ¶10. Thus, under Ohio Supreme Court precedent in

effect at the time of Byers’ resentencing hearing, the trial court was required to

sentence Byers “as if there had been no sentence.” Bezak at ¶13. This would

include providing Byers notice of his Tier III sexual offender status under the

Adam Walsh Act, which was in effect at the time of Byers’ resentencing hearing.

R.C. 2950.01(G)(1)(1) (Tier III sex offenders include offenders, like Byers, who

pled guilty to a violation of R.C. 2907.02); R.C. 2929.19(B)(4)(a)(ii) (trial court

required to give notice that offender is a Tier III sex offender).

       {¶14} After the March 12, 2010 resentencing hearing and while Byers’

appeal was pending, however, the Ohio Supreme Court released State v. Fischer,

which changed the scope of the post-release control resentencing hearings for

those defendants who were originally sentenced prior R.C. 2929.191’s effective

date. 2010-Ohio-6238. The Court in Fischer held, in pertinent part:

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        * * * that when a judge fails to impose statutorily mandated
        postrelease control as part of a defendant’s sentence, that part of
        the sentence is void and must be set aside. Neither the
        Constitution nor common sense commands anything more.

        This principle is an important part of the analysis of void
        sentences that we have not focused upon in prior cases involving
        postrelease control, including Bezak, 114 Ohio St.3d 94, 2007-
        Ohio-3250, 868 N.E.2d 961. Thus, we reaffirm the portion of the
        syllabus in Bezak that states “[w]hen a defendant is convicted of
        or pleads guilty to one or more offenses and postrelease control
        is not properly included in a sentence for a particular offense,
        the sentence for that offense is void,” but with the added proviso
        that only the offending portion of the sentence is subject to review
        and correction.

        However, we now modify the second sentence in the Bezak
        syllabus as ill-considered. That sentence states that the offender
        is entitled to a new sentencing hearing for the offense for which
        postrelease control was not imposed properly. 114 Ohio St.3d 94,
        2007-Ohio-3250, 868 N.E.2d 961. It does not recognize a
        principle that we overlooked in Bezak: when an appellate court
        concludes that a sentence imposed by a trial court is in part void,
        only the portion that is void may be vacated or otherwise amended.

        Therefore, we hold that the new sentencing hearing to which an
        offender is entitled under Bezak is limited to proper imposition of
        postrelease control.

2010-Ohio-6238, at ¶¶26-29 (emphasis added).1                      Although Fischer was not

released prior to the resentencing hearing, this Court has an obligation to apply

Ohio Supreme Court precedent released during the pendency of an appeal—an

obligation the State concedes in its brief. (Appellee’s Brief at 7); State v. Lynn


1
  This writer fails to fully comprehend the concept of a “partially void judgment” but has attempted to
follow the law as currently created by the Ohio Supreme Court.

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(1966), 5 Ohio St.2d 106, 108, 214 N.E.2d 226; State v. Evans (1972), 32 Ohio

St.2d 185, 186, 291 N.E.2d 466; State v. Gonzalez (2000), 138 Ohio App.3d 853,

859, 742 N.E.2d 710.

       {¶15} In light of Fischer, we must agree with Byers that there is error as a

result of the resentencing hearing, which classified him as a Tier III sexual

offender under the Adam Walsh Act, because a resentencing hearing is now

limited to the proper imposition of post-release control. Therefore, Byers’s 2005

classification as a sexual predator under Megan’s Law turns out to be final and not

subject to review. Several other districts have similarly concluded that a trial court

may not reclassify sexual offenders under the Adam Walsh Act at a post-release

control resentencing hearing. State v. Gimbrone, 2d Dist. No. 23810, 2011-Ohio-

632; State v. Gibson, 2d Dist. No. 2009 CA 47, 2010-Ohio-3447; State v. Hudson,

2d Dist. No. 23776, 2010-Ohio-5386; State v. Pearson, 2d Dist. No. 23974, 2011-

Ohio-245; State v. Jenkins, 2d Dist. No. 24117, 2011-Ohio-634; State v. Possiant,

5th Dist. No. 08 CA7, 2009-Ohio-4235; State v. McArtor, 5th Dist. No. 10 CA 13,

2010-Ohio-5803; State v. Williams (9th Dist.), 177 Ohio App.3d 865, 2008-Ohio-

3586, 896 N.E.2d 725.

       {¶16} For all these reasons, Byers’ assignment of error is, therefore,

sustained.



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       {¶17} Having found error prejudicial to the appellant herein in the

particulars assigned and argued, we reverse the judgment of the trial court and

remand for further proceedings consistent with this opinion.

                                                          Judgment Reversed and
                                                               Cause Remanded

ROGERS, P.J. and WILLAMOWSKI, J., concur.

/jlr




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