[Cite as State v. Ortega-Martinez, 2011-Ohio-2540.]




                Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                         No. 95656



                                        STATE OF OHIO

                                                            PLAINTIFF-APPELLANT

                                                      vs.

                             ANGEL ORTEGA-MARTINEZ

                                                            DEFENDANT-APPELLEE




                                             JUDGMENT:
                                              AFFIRMED


                                         Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-534907

       BEFORE: Stewart, P.J., Sweeney, J., and Jones, J.

    RELEASED AND JOURNALIZED: May 26, 2011
ATTORNEYS FOR APPELLANT

William D. Mason
Cuyahoga County Prosecutor

BY:    Daniel T. Van
           Katherine E. Mullin
Assistant County Prosecutors
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Robert L. Tobik
Cuyahoga County Public Defender

BY:    Cullen Sweeney
           Frank Cavallo
Assistant Public Defenders
310 Lakeside Avenue, Suite 400
Cleveland, OH 44113




MELODY J. STEWART, P.J.:
       {¶ 1} In 2001, appellee Angel Ortega-Martinez was convicted of

statutory rape in Tennessee and classified under Tennessee law as a sexual

offender.1      After his release from prison, Ortega-Martinez moved to Ohio and

registered his address with the Cuyahoga County Sheriff’s Office. Pursuant

to the provisions of Chapter 2950 of the Ohio Revised Code in effect at that

time, as a sexually oriented offender, Ortega-Martinez was required to verify

his   address       annually      for    ten    years.        Beginning       in     August     2003,

Ortega-Martinez registered annually as required by law.

       {¶ 2} In July 2007, the Ohio General Assembly repealed the existing

sexual offender registration statutes and replaced them with Ohio’s version of

the Adam Walsh Act (AWA) under which a sexual offender is classified using a

three-tiered system based solely upon the offense committed.                                 Ortega-

Martinez was notified that, pursuant to R.C. 2950.031 and 2950.032, the Ohio

Attorney      General      had     reclassified      him     as    a   Tier     II   sex    offender.

Ortega-Martinez was informed that beginning in January 2008 he was

required to register every 180 days for 25 years.2



           There were only two possible sexual offender classifications available under Tennessee law
       1


at that time: sexual offender or violent sexual offender.

          On March 5, 2008, Ortega-Martinez filed a civil petition contesting his reclassification under
       2


the AWA. While this appeal was pending, the trial court granted Ortega-Martinez’s petition and found
that, pursuant to State v. Bodyke, 126 Ohio St.3d, 266, 2010-Ohio-2424, 933 N.E.2d 753,
Ortega-Martinez’s reclassification was unconstitutional. The state has appealed this decision.
      {¶ 3} On June 3, 2010, the Supreme Court of Ohio decided Bodyke, in

which it    concluded 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, was an unconstitutional violation of the

separation-of-powers doctrine.    As a remedy, the court held “that R.C.

2950.031 and 2950.032 are severed and, that after severance, they may not be

enforced.” Id. at ¶66.

      {¶ 4} Ortega-Martinez was indicted for failing to verify his address on

January 9, 2010 in violation of R.C. 2950.06(F), a fourth degree felony.

Ortega-Martinez filed a motion to dismiss the indictment on the grounds that

it was based upon the attorney general’s unconstitutional reclassification of

his sexual offender status per Bodyke.    The state opposed the motion and

argued that Bodyke applied only to offenders whose original sexual offender

classification was adjudicated by an Ohio court, not to out-of-state offenders

like Ortega- Martinez. The state also contested the use of a motion to dismiss

as a challenge to an indictment that they claimed was facially valid. The trial

court granted Ortega-Martinez’s motion to dismiss the indictment on August

27, 2010. The state timely appeals this judgment and raises two assignments

of error.
      {¶ 5} “I.      The trial court erred in finding that the defendant’s

indictment    was     based   on   the   Attorney   General’s   unconstitutional

reclassification.”

      {¶ 6} It is the state’s contention that Bodyke is limited to those cases in

which there was an adjudication of a sexual offender’s classification by an

Ohio court prior to the attorney general’s notice of reclassification. The state

maintains that with Ortega-Martinez, as with all out-of-state offenders, the

Ohio sexual offender classification arose by operation of law and not by court

order. The state argues that because there is no judicial order from an Ohio

court classifying out-of-state offenders, there can be no violation of the

separation of powers doctrine and, therefore, the attorney general is not

precluded from reclassifying the offender under the new Ohio classifications.

      {¶ 7} Shortly after Bodyke was released, this court was called upon to

determine whether that holding also applied to an out-of-state offender whose

sexual offender status had been reclassified by the Ohio Attorney General. In

 Majewski v. State, 8th Dist. Nos. 92372 and 92400, 2010-Ohio-3178, the

defendant had been convicted of sexual assault and attempted sexual assault

in Hawaii and was classified as a sexually oriented offender, the least

restrictive classification.   After release from prison, he moved to Ohio and

registered with the sheriff’s office. In 2007, he was notified that, pursuant to

the passage of S.B. 10, the Ohio Attorney General had reclassified him as a
Tier III sex offender, the most restrictive classification, which required that he

register with the sheriff’s office every 90 days for life. Majewski contested his

reclassification arguing that the AWA was unconstitutional. The trial court

upheld the reclassification.

       {¶ 8} On appeal, we reversed, stating:

       {¶ 9} “In Bodyke, the Ohio Supreme Court recently determined that the

AWA violates the separation of power doctrine, stating the following: ‘The

AWA’s provisions governing the reclassification of sex offenders already

classified by judges under Megan’s Law violates 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.’ Id. at

¶55.

       {¶ 10} “Essentially, the AWA is a legislative mechanism to reopen the

judgments on countless sex offender classifications, and reclassify those

individuals, usurping the initial judgment of the trial court. Only appellate

courts have the power to affirm, reverse, or modify a final judgment. Bodyke

at ¶58; Section 3(B)(2), Article IV, Ohio Constitution.”

       {¶ 11} The state appealed our decision in Majewski to the Ohio Supreme

Court upon the identical argument raised in this appeal. On December 15,

2010, the supreme court dismissed the appeal as not involving any substantial
constitutional   question.    Majewski    v.   State,    127    Ohio    St.3d    1462,

2010-Ohio-6008, 938 N.E.2d 364 (Table).             Accordingly, our holding that

Bodyke applies to out-of-state offenders remains controlling precedent in this

jurisdiction. The state’s first assignment of error is overruled.

      {¶ 12} We note that the Fifth District Court of Appeals has also reached

the same conclusion.         In Clager v. State, 5th Dist. No. 10-CA-49,

2010-Ohio-6074,    Clager    was   convicted   in    Texas     of   possessing   child

pornography. He then moved to Ohio in 2003. In 2007, he received notice

that he had been reclassified as a Tier II offender under the AWA.                 He

challenged the new classification, claiming that the Ohio Attorney General’s

reclassification was unconstitutional and barred by Bodyke. Clager argued

that in one of the cases reviewed by the Ohio Supreme Court, in In re

Sexual-Offender Reclassification Cases, 126 Ohio St.3d 322, 2010-Ohio-3753,

933 N.E.2d 801, ¶63, the court reversed the reclassification of an out-of-state

offender who had never been classified in Ohio under Megan’s Law on

separation of powers grounds. (“The judgments of the courts of appeals in the

following cases [including Robinson v. State, Hamilton App. No. C-090002] are

reversed as to those portions of the judgments that rejected constitutional

challenges to the Adam Walsh Act on separation-of-powers grounds, and the

causes are remanded to the trial courts for further proceedings, if any,

necessitated by State v. Bodyke.” Id. at ¶15. The appellate court agreed and
held, that “out-of-state offenders are not subject to the Ohio Attorney

General’s reclassification as it violates the separation of powers doctrine.”

Clager at ¶25.

      {¶ 13} “II.   The trial court erred in dismissing the indictment where the

indictment was valid on its face.”

      {¶ 14} The state’s second assignment of error asserts that the trial court

erred in dismissing the indictment where the indictment was valid on its face.

 The state argues that Ortega-Martinez’s motion questions the state’s ability

to prove the indictment, and therefore, dismissal is not proper.

      {¶ 15} As a general rule, “[a] pretrial motion must not involve a

determination of the sufficiency of the evidence to support the indictment. If

the indictment is valid on its face, a motion to dismiss should not be granted.”

State v. Preztak, 181 Ohio App.3d 106, 2009-Ohio-62, 907 N.E.2d 1254, ¶12,

citing State v. Eppinger, 162 Ohio App.3d 795, 2005-Ohio-4155, 835 N.E.2d

746. However, the Supreme Court of Ohio has carved out an exception to the

general rule, noting that a court may consider material outside the face of the

indictment if the “motion did not embrace what would be the general issue at

trial.” State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671,

¶18; Crim.R. 12(C). The court may consider briefs, affidavits, testimony, and

other exhibits in deciding the motion.        Id.   However, a court may not
determine a pretrial motion to dismiss if it requires the trial court to also

determine the general issue for trial. Id.

      {¶ 16} 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).

      {¶ 17} 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 convicted of the offense charged. The

trial court did not err by dismissing the indictment.                     The state’s second

assignment of error is overruled.

      Judgment affirmed.

      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 issue out of this court directing the Cuyahoga

County Court of Common Pleas 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.




MELODY J. STEWART, PRESIDING JUDGE

JAMES J. SWEENEY, J., and
LARRY A. JONES, J., CONCUR
