[Cite as State v. Gilbert, 2011-Ohio-1928.]


          Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                 Nos. 95083 and 95084




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                               GABRIEL E. GILBERT
                                                    DEFENDANT-APPELLANT




                                   JUDGMENT:
                              REVERSED AND VACATED



                                 Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                            Case Nos. CR-533895 and CR-529118

        BEFORE:            S. Gallagher, J., Kilbane, A.J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED: April 21, 2011
ATTORNEY FOR APPELLANT

David J. Goodwin
P.O. Box 94033
Cleveland, OH 44101-6033

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: W. Mona Scott
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




SEAN C. GALLAGHER, J.:

       {¶ 1} Appellant Gabriel Gilbert appeals his convictions in Cuyahoga County

Common Pleas Court Case Nos. CR-529118 and CR-533895.                      The state indicted

Gilbert on one count for failure to verify his current address in violation of

R.C. 2950.06(F) in CR-529118 and one count for failure to provide notice of a

change of address in violation of R.C. 2950.05(E)(1) in CR-533895. 1 Both

cases present a similar issue, and we will address both appeals together. For


       1
          The indictment lists the violation pursuant to R.C. 2950.05(E)(1), the previous version of
R.C. 2950.05(F)(1), which went into effect January 2008. The version of that section in effect at the
the following reasons, we reverse Gilbert’s conviction and vacate his sentence

in both cases.

       {¶ 2} According to the state, on June 9, 2003, Gilbert pleaded guilty to

two counts of unlawful sexual conduct with a minor. He was sentenced to

three years of community control sanctions and classified as a sexually

oriented offender under Megan’s Law. Under that classification, Gilbert had

to register and verify his address annually for ten years. That obligation

expires June 9, 2013.           In June 2008, in a separate case, Gilbert pleaded

guilty to one count of failure to verify his address and was sentenced to one

year of community control sanctions.

       {¶ 3} Gilbert was indicted again in CR-529118 and CR-533895 for

failure to verify his current address and failure to notify of a change in

address. Both cases subjected Gilbert to sentencing enhancements based on

his 2008 failure-to-verify conviction. Gilbert pleaded no contest, and the trial

court found him guilty in both cases. It sentenced him to an aggregate of

four years in jail. It is from those convictions and sentence that Gilbert now

appeals.

       {¶ 4} Gilbert raises two assignments of errors for our review, as

follows:




time of the indictment was R.C. 2950.05(F)(1).   The language of the provisions is identical.
      {¶ 5} “I.   It was error for the trial court to enter judgments of

conviction against appellant by applying to him a statutory scheme (i.e.,

Ohio’s Adam Walsh Act) for the reclassification of sexual offenders that has

since been determined to be unconstitutional, and thus unenforceable, when

applied to offenders, like appellant, who were previously adjudicated and

classified by judges under Ohio’s Megan’s Law.”

      {¶ 6} “II. The trial court erred by imposing upon appellant retroactively

and enhanced, mandatory prison term penalty for violation of sexual offender

notification and verification requirements pursuant to amended Revised Code

2950.99 even though appellant’s underlying sexual offense, and original

sexual   offender classification, preceded amendment of 2950.99, and

reclassication [sic] of appellant’s offender status has since been determined to

be unconstitutional.”

      {¶ 7} In light of State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424,

933 N.E.2d 753 and State v. Gingell, Slip Opinion No. 2011-Ohio-1481, we

find that Gilbert’s first assignment of error has merit and is fully dispositive

of his appeal.

      {¶ 8} Ohio’s Adam Walsh Act (“AWA”) went into effect in January

2008. The legislature, through R.C. 2950.031 and 2950.032, authorized the

Ohio Attorney General to reclassify offenders such as Gilbert into the tier

system of the AWA. The Ohio 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.        Bodyke, 126 Ohio St.3d 266, at ¶ 22.         Further, failing to

report based on an AWA registration requirement unlawfully imposed cannot serve as the

basis of a reporting violation charge. State v. Gingell, 2011-Ohio-1481.        The Ohio Supreme

Court did not address this issue from the context of the reporting requirements being the same

under AWA and Megan’s law.

        {¶ 9} In State v. Page, Cuyahoga App. No. 94369, 2011-Ohio-83, this court held that

reporting requirements originating from the unlawful reclassification cannot serve as the basis

for a reporting violation.    Id. at ¶ 11.   The majority noted that Bodyke does not create “a

fictitious distinction between an unlawful reclassification ‘that imposes a more onerous

verification requirement’ and a reclassification that does not impose heightened verification

requirements. Bodyke deemed reclassifications under the AWA unlawful, the only condition

being that the offender has ‘already been classified by court order under former law.’”       Id. at

¶ 10, fn.1.

        {¶ 10} This distinction is important.    Once an offender was reclassified through R.C.

2950.031 and R.C. 2950.032, the offenders’ obligation to report stemmed from the AWA and

their reclassification.   Therefore, the violations for an offender’s failure to verify or notify of

a change of address pursuant to R.C. 2950.06(F) and R.C. 2950.05(F)(1) were based on the

duties imposed by the AWA.        Any attempt to deem the convictions otherwise valid would be
essentially amending the indictment after the fact to charge an offender with a violation based

on the reporting duties under Megan’s Law, which were not reinstated until the Supreme Court

issued the Bodyke decision. Bodyke, 126 Ohio St.3d at 281.

       {¶ 11} In the instant case, we first note that neither the trial court nor Gilbert had the

benefit of the Bodyke decision during the pendency of proceedings.      The state concedes that

Gilbert’s conviction must be vacated in CR-533895 based on his reclassification under AWA

and the rationale in Bodyke.     We agree, despite the fact that the record from the trial court

does not establish his reclassification.   We must presume that Gilbert was originally subject

to a reporting requirement by prior court order under Megan’s Law and reclassified when

AWA went into effect in January 2008 based on the state’s representation.        Nothing in the

record indicates otherwise.

       {¶ 12} Gilbert’s reclassification under the AWA is contrary to the law.      Adhering to

precedent in this district, convictions arising from reporting violations under the AWA for any

individual reclassified under its provisions are also contrary to law. Page, Cuyahoga App.

No. 94369, at ¶ 10; see, also, 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.

       {¶ 13} The state argues that Gilbert’s conviction in CR-529118 is valid because his

duty to notify the sheriff of a change in primary residency was the same under Megan’s Law
as it is under AWA.     The state claims R.C. 2950.05(E)(1) can be severed from the provision

declared unconstitutional in Bodyke.     We find this argument is without merit.

       {¶ 14} The state’s attempt to implicate Gilbert’s reporting requirements under Megan’s

Law by claiming that Gilbert’s violation was a violation of R.C. 2950.05(E)(1) is misplaced.

Both that section and the version in effect at the time of Gilbert’s reporting violation, R.C.

2950.05(F)(1), require those with a duty to register to provide the sheriff with notice of a

change in address.    R.C. 2950.05(A).

       {¶ 15} Gilbert’s reclassification was deemed unconstitutional and therefore cannot

serve as the predicate for the violations charged in the indictments in either case, even if the

reporting requirements under the AWA and Megan’s Law are identical.             See, e.g., Gingell,

2011-Ohio-1481; State v. Godfrey, Summit App. No. 25187, 2010-Ohio-6454 (reversing the

trial court’s conviction for failure to register and failure to notify of a change of address based

on the rationale from Bodyke).    Gilbert’s first assignment of error is sustained.

       {¶ 16} Because of our resolution of Gilbert’s first assignment of error, the second

assignment of error is moot and we need not address the issues raised.                See App.R.

12(A)(1)(c).

       Judgment reversed, and the sentences imposed are vacated.

       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.




SEAN C. GALLAGHER, JUDGE

MARY EILEEN KILBANE, A.J., and
EILEEN A. GALLAGHER, J., CONCUR
