         [Cite as State v. Lawson, 2012-Ohio-5281.]


                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO



STATE OF OHIO,                                    :   APPEAL NOS. C-120077
                                                                   C-120067
        Plaintiff-Appellee,                       :   TRIAL NO. B-0710273

  vs.                                             :
                                                           O P I N I O N.
SYLVESTER LAWSON,                                 :

    Defendant-Appellant.                          :



Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed as Modified; Sentences Vacated in Part, and
                           Cause Remanded

Date of Judgment Entry on Appeal: November 16, 2012


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Sylvester J. Lawson II, pro se.




Please note: we have removed this case from the accelerated calendar.
                   OHIO FIRST DISTRICT COURT OF APPEALS



Per curiam.

       {¶1}    Defendant-appellant Sylvester Lawson appeals from the Hamilton

County Common Pleas Court’s judgment overruling his “Motion to Vacate Void

Judgment, and for a New Sentencing Hearing.” We affirm the judgment overruling

the motion, but we vacate Lawson’s sex-offender classification and remand for

resentencing under the sex-offender-classification law in effect when Lawson

committed his offenses.

       {¶2}    In January 2008, Lawson was indicted for rape in violation of R.C.

2907.02(A)(2) and kidnapping in violation of R.C. 2905.01(A)(4), based on conduct

in 2005. In August 2008, he was convicted upon guilty pleas to the charges and was

designated a Tier III sex offender under the current version of R.C. Chapter 2950,

2007 Am.Sub.S.B. No. 10 (“S.B. 10”). He unsuccessfully challenged his convictions

in direct appeals to this court and to the Ohio Supreme Court, State v. Lawson, 1st

Dist. No. C-080877 (June 17, 2009), leave to file delayed appeal denied, 123 Ohio

St.3d 1492, 2009-Ohio-6015, 916 N.E.2d 1072, affirmed following reopening, 1st

Dist. No. C-080877, 2010-Ohio-4115, and in an untimely petition under R.C. 2953.21

et seq. for postconviction relief.

       {¶3}    In November 2011, Lawson again collaterally challenged his

convictions, this time in a “Motion to Vacate Void Judgment, and for a New

Sentencing Hearing.”      The common pleas court overruled the motion, and this

appeal followed.

       {¶4}    On appeal, Lawson presents four assignments of error.            The

assignments of error essentially restate the claims advanced in his motion and may

thus fairly be read together to present a challenge to the overruling of his motion.

We overrule the assignments of error.




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                  OHIO FIRST DISTRICT COURT OF APPEALS



       {¶5}   Claims were reviewable under R.C. 2953.21 et seq. In his

motion, Lawson claimed that his convictions were “void” because the trial court’s

imposition of prison sentences for both rape and kidnapping violated R.C. 2941.25,

prohibiting sentencing on allied offenses of similar import, and because the court’s

designation of him as a Tier III sex offender under S.B. 10 violated Section 28, Article

II of the Ohio Constitution, prohibiting retroactive laws. Lawson did not specify in

his motion the statute or rule under which he sought relief. R.C. 2953.21 et seq.,

governing the proceedings upon a postconviction petition, permit a collateral attack

upon a judgment of conviction by one “who claims that there was such a denial or

infringement of his rights [in the proceedings resulting in his conviction] as to render

[his conviction] void or voidable under the Ohio Constitution or the Constitution of

the United States.” R.C. 2953.21(A)(1)(a). The postconviction statutes provide “the

exclusive remedy by which a person may bring a collateral challenge to the validity of

a conviction or sentence in a criminal case.”       R.C. 2953.21(J).    Therefore, the

common pleas court should have recast Lawson’s motion as a postconviction petition

and reviewed it under the standards provided by R.C. 2953.21 et seq. See State v.

Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12.

       {¶6}   Postconviction relief was properly denied. A postconviction

petition must be filed with the common pleas court within 180 days after the

transcript of the proceedings is filed in the direct appeal. R.C. 2953.21(A)(2). R.C.

2953.23 closely circumscribes the court’s jurisdiction to entertain a late

postconviction petition. The petitioner must show either that he was unavoidably

prevented from discovering the facts upon which his postconviction claim depends,

or that his claim is predicated upon a new or retrospectively applicable federal or

state right recognized by the United States Supreme Court since the expiration of the



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                  OHIO FIRST DISTRICT COURT OF APPEALS



time prescribed in R.C. 2953.21(A)(2). R.C. 2953.23(A)(1)(a). And he must show “by

clear and convincing evidence that, but for constitutional error at trial, no reasonable

factfinder would have found the petitioner guilty of the offense of which the

petitioner was convicted.” R.C. 2953.23(A)(1)(b).

       {¶7}    Lawson’s claims were filed well after the expiration of the time

prescribed by R.C. 2953.21(A)(2). And the record does not demonstrate either that

Lawson was unavoidably prevented from discovering the facts underlying his claims,

or that his claims were predicated upon a new or retrospectively applicable federal or

state right recognized by the United States Supreme Court since the time for filing a

postconviction petition had expired.       Because Lawson satisfied neither the time

strictures of R.C. 2953.21(A)(2) nor the jurisdictional requirements of R.C.

2953.23(A), the postconviction statutes did not confer upon the common pleas court

jurisdiction to entertain Lawson’s postconviction claims on their merits.

       {¶8}    S.B. 10 sex-offender classification was void.                But a trial

court retains jurisdiction to correct a void judgment.       State ex rel. Cruzado v.

Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 18-19.              And

Lawson’s convictions were void to the extent that the trial court applied S.B. 10 to

classify him as a Tier III sex offender.

       {¶9}    We do not reach the issue, presented by Lawson’s allied-offenses

claim, of whether a sentence imposed in contravention of R.C. 2941.25 is void. In

Lawson’s reopened direct appeal, we addressed and rejected his allied-offenses

claim. Lawson, 1st Dist. No. C-080877, 2010-Ohio-4115. Therefore, the doctrine of

the law of the case precluded the common pleas court from vacating Lawson’s

sentences on that ground. See Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410

(1984) (holding that “the decision of a reviewing court in a case remains the law of




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                   OHIO FIRST DISTRICT COURT OF APPEALS



that case on the legal questions involved for all subsequent proceedings in the case at

both the trial and reviewing levels”).

       {¶10} But the court should have vacated as void Lawson’s sex-offender

classification.   In 2005, when Lawson committed his offenses, the sex-offender

classification and registration scheme in place was Ohio’s version of the federal

Megan’s Law, 42 U.S.C. 14071. Ohio’s Megan’s Law, enacted in 1996 and amended in

2003, subjected a sex offender to registration requirements based upon his

adjudication as a sexually oriented offender, habitual sex offender, or sexual

predator.    Am.Sub.H.B. No. 180, 146 Ohio Laws, Part II, 2560, amended by

Am.Sub.S.B. No. 5, 150 Ohio Laws, Part IV, 6558.

       {¶11} By August 2008, when Lawson was convicted of his sex offenses and

classified as a Tier III sex offender, Megan’s Law had been replaced by S.B. 10.

Under S.B. 10, effective January 1, 2008, a sex offender is classified under a three-

tiered structure automatically, based upon his offense. His classification determines

his registration requirements, and those requirements are more onerous than those

provided for under Megan’s law. See State v. Bodyke, 126 Ohio St.3d 266, 2010-

Ohio-2424, 933 N.E.2d 753, ¶ 24-28.

       {¶12} By 2010, Lawson had exhausted his direct appeals. In July 2011, the

Ohio Supreme Court decided State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374,

952 N.E.2d 1108. The supreme court in Williams held that S.B. 10’s registration

requirements are part of the offender’s punishment for his conduct, id. at ¶ 10-20,

and that S.B. 10, “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.




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                  OHIO FIRST DISTRICT COURT OF APPEALS



        {¶13} The Second Appellate District, in State v. Eads, 197 Ohio App.3d 493,

2011-Ohio-6307, 968 N.E.2d 18 (2d Dist.), applied Williams retroactively to vacate

Eads’s S.B. 10 sex-offender classification as violative of Ohio’s Retroactivity Clause

and thus “void.” Id. at ¶ 24. Eads’s S.B. 10 classification was based on conduct in

2006.    He did not challenge the classification in an appeal from the 2008

delinquency adjudication upon which his classification had been based. But in his

2011 appeal from his convictions for failing to comply with S.B. 10’s verification and

notification requirements, the Second District applied Williams to vacate his

classification and, in turn, his verification and notification convictions.

        {¶14} In doing so, the court in Eads declined to follow the general rule that

“[a] new judicial ruling may be applied only to cases that are pending on the

announcement date.” Id. at ¶15 (quoting State v. Evans, 32 Ohio St.2d 185, 186, 291

N.E.2d 466 [1972]). The court reasoned that, just as Ohio’s Retroactivity Clause

effectively “nullifies,” and thus renders “void,” an unconstitutionally retroactive law,

a judicial ruling that the law is unconstitutionally retroactive “likewise applies

retroactively to any person to whom the law was retroactively applied.” Id. at ¶ 17

(quoting Bielat v. Bielat, 87 Ohio St.3d 350, 352-353, 721 N.E.2d 28 [2000], Miller

v. Hixson, 64 Ohio St. 39, 51, 59 N.E. 749 [1901], and State v. Pritchett, 2d Dist. No.

24183, 2011-Ohio-5978, ¶ 26).

        {¶15} The court also found support for its retrospective application of

Williams in the supreme court’s expression of its holding in that case. The supreme

court in Williams held that S.B. 10 was unconstitutionally retroactive “as applied to

Williams and any other sex offender who committed an offense prior to the

enactment of S.B. 10.” Williams at ¶ 22 (emphasis added). That holding, the Eads

court noted, was as “expansive” as the holding in Bodyke, 126 Ohio St.3d 266, 2010-




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                 OHIO FIRST DISTRICT COURT OF APPEALS



Ohio-2424, 933 N.E.2d 753, that S.B. 10’s reclassification provisions “may not be

applied to offenders previously adjudicated by judges under Megan’s Law.” Eads at

¶ 19 and 23 (quoting Bodyke at ¶ 66).       And the supreme court has not limited

Bodyke to pending reclassification challenges, but has extended its holding to all

unconstitutional reclassifications. See Eads at ¶ 19-23 (citing State v. Gingell, 128

Ohio St.3d 444, 2011-Ohio-1481, 946 N.E.2d 192).

       {¶16} The decision in Eads has since been reaffirmed by the Second District.

See, e.g., State v. Dudley, 2d Dist. No. 24408, 2012-Ohio-3844, ¶ 14-15; State v.

Knowles, 2d Dist. No. 2011-CA-17, 2012-Ohio-2543, ¶ 6-12; State v. Alredge, 2d Dist.

No. 24755, 2012-Ohio-414, ¶ 6-13. And other appellate districts have followed Eads

to retroactively vacate as “void” S.B. 10 sex-offender classifications based on conduct

before S.B. 10 became effective. See State v. Vertock, 8th Dist. No. 97888, 2012-

Ohio-4283, ¶ 6-14; State v. Dillon, 5th Dist. No. CT11-0062, 2012 Ohio 773, ¶ 7-19;

see also State v. Stewart, 10th Dist. No. 11AP-787, 2012-Ohio-4500, ¶ 21 (citing Eads

in holding that Bodyke applies retroactively). We also find Eads persuasive.

       {¶17} Moreover, Eads squares with our understanding of the effect of

imposing a sentence that is not authorized by law. The Ohio Supreme Court has long

held, and has continued to reaffirm, the principle that an unlawful sentence is “void.”

State v. Harris, 132 Ohio St.3d 318, 2012-Ohio-1908, 972 N.E.2d 509, ¶ 7 (citing

Colegrove v. Burns, 175 Ohio St. 437, 438, 195 N.E.2d 811 [1964]; State v. Beasley,

14 Ohio St.3d 74, 75, 471 N.E.2d 774 [1984], and State v. Fischer, 128 Ohio St.3d 92,

2010-Ohio-6238, 942 N.E.2d 332, ¶ 8). A void sentence “may be reviewed at any

time, on direct appeal or by collateral attack.” Fischer, at paragraph one of the

syllabus. Thus, regardless of a case’s procedural posture, when a trial court has

imposed a sentence that it had no authority to impose, and the matter has come to a




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                  OHIO FIRST DISTRICT COURT OF APPEALS



court’s attention, the sentence must be vacated, and the defendant must be

resentenced. See State v. Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577, 906 N.E.2d

422, ¶ 12. Accord State v. Ward, 1st Dist. No. C-110158, 2011-Ohio-6382, ¶ 5.

       {¶18} S.B. 10’s sex-offender registration requirements are part of a sex

offender’s sentence. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d

1108, at ¶ 10-20. And the imposition of S.B. 10’s registration requirements on sex

offenders who committed their offenses before the effective date of S.B. 10 runs afoul

of Ohio’s Retroactivity Clause. Id. at syllabus.     Because Lawson committed his

offenses before the effective date of S.B. 10, the trial court could not lawfully impose

upon him S.B. 10’s registration requirements. Therefore, Lawson’s classification

under S.B. 10 as a Tier III sex offender is void.

       {¶19} We affirm, but remand for resentencing. The postconviction

statutes did not confer upon the common pleas court jurisdiction to entertain

Lawson’s claims. Therefore, his postconviction motion was subject to dismissal. See

R.C. 2953.21(C) and 2953.23(A).          Accordingly, upon the authority of App.R.

12(A)(1)(a), we modify the judgment appealed from to reflect the dismissal of the

motion, and we affirm the judgment as modified.

       {¶20} But the trial court’s classification of Lawson under S.B. 10 as a Tier III

sex offender is void. We, therefore, vacate the classification and remand this case to

the common pleas court for resentencing under Megan’s Law.                See State v.

Brumbach, 1st Dist. No. C-100792, 2011-Ohio-6635, ¶ 31.

                                                                Judgment accordingly.



Please note:

       The court has recorded its own entry on the date of the release of this opinion.



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