[Cite as State v. Hathaway, 2017-Ohio-6925.]


STATE OF OHIO                    )                  IN THE COURT OF APPEALS
                                 )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                  )

STATE OF OHIO                                       C.A. No.       16AP0004

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
MATTHEW J. HATHAWAY, JR.                            COURT OF COMMON PLEAS
                                                    COUNTY OF WAYNE, OHIO
        Appellant                                   CASE No.   2015 CRC-I 000192

                                DECISION AND JOURNAL ENTRY

Dated: July 24, 2017



        CARR, Judge.

        {¶1}    Appellant, Matthew Hathaway, appeals the judgment of the Wayne County Court

of Common Pleas. This Court reverses and remands.

                                               I.

        {¶2}    On June 19, 2015, the Wayne County Grand Jury charged Hathaway with three

counts of sexual battery. The charges stemmed from the fact that Hathaway engaged in sexual

conduct with a 17-year old student at a high school where he was employed as an assistant

principal. After initially pleading not guilty to the charges at arraignment, Hathaway eventually

pleaded guilty to one count of sexual battery. The remaining two counts in the indictment were

dismissed. The trial court imposed a 24-month period of community control along with a 180-

day jail sentence. Hathaway was also ordered to perform 100 hours of community service.

        {¶3}    On appeal, Hathaway raises one assignment of error.
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                                                II.

                                  ASSIGNMENT OF ERROR

       THE OFFENSE-BASED SEX OFFENDER CLASSIFICATIONS UNDER
       SENATE BILL 10 CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT
       UNDER [THE] EIGHTH AND FOURTEENTH AMENDMENTS TO THE
       UNITED STATES CONSTITUTION, AND ARTICLE I, SECTION 9 OF THE
       OHIO CONSTITUTION, WHERE THE CLASSIFICATION IS GROSSLY
       DISPROPORTIONATE TO THE NATURE OF THE OFFENSE AND
       CHARACTER OF THE OFFENDER.

       {¶4}    In his sole assignment of error, Hathaway argues that his classification as a Tier

III sex offender constitutes cruel and unusual punishment in violation of the United States

Constitution and the Ohio Constitution. We are unable to address the merits of Hathaway’s

assignment of error due to a deficiency in the sentencing entry.

       {¶5}    As noted above, Hathaway was convicted of sexual battery in violation of R.C.

2907.03(A)(7). As a result of his conviction, Hathaway is a Tier III sex offender pursuant to

R.C. 2950.01(G)(1)(a). The Tier III sex offender classification is mandatory for any offender

convicted of sexual battery in violation of R.C. 2907.03. See State v. Ritchey, 3d Dist. Allen No.

1-15-80, 2016-Ohio-2878, ¶ 28. Thus, the trial court was required to provide notice to Hathaway

of his Tier III sex offender classification at the time of sentencing. R.C. 2929.19(B)(3)(a)(ii);

R.C. 2950.03(A)(2). There is no dispute between the parties that the trial court classified

Hathaway as a Tier III sex offender. Significantly, however, the December 17, 2015 sentencing

entry is devoid of any reference to Hathaway’s sex offender classification, other than to note that

he “must follow the sex offender special rules which the Adult Probation Department believes

are necessary.” While the parties do not dispute that the trial court classified Hathaway as a Tier

III sex offender at the time of sentencing, Hathaway failed to include a transcript from the
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sentencing hearing in the appellate record.1 Even if we had the benefit of a sentencing transcript,

a trial court’s oral advisement of a Tier III sex offender classification at the sentencing hearing

does not satisfy the mandates of R.C. 2929.19(B)(3). State v. Morgan, 7th Dist. Mahoning No.

13 MA 126, 2014-Ohio-2625, ¶ 20; State v. Straley, 4th Dist. Highland No. 12CA3, 2013-Ohio-

3334, ¶ 17; State v. Dalton, 8th Dist. Cuyahoga No. 99661, 2013-Ohio-5127, ¶ 12. Under these

circumstances, where the trial court failed to include Hathaway’s Tier III sex offender

classification in the sentencing entry, we are compelled to conclude that the sentencing entry is

deficient. This matter must be remanded for the trial court to comply with the mandates of R.C.

2929.19(B)(3). Dalton at ¶ 12.

       {¶6}    We cannot reach the merits of Hathaway’s assignment of error at this time as this

matter must be remanded due to the fact that the trial court failed to satisfy the requirements of

R.C. 2929.19(B)(3).

                                               III.

       {¶7}    We cannot reach the merits of Hathaway’s assignment of error due to the error

pertaining to Hathaway’s sex offender classification. The judgment of the Wayne County Court

of Common Pleas is reversed and the cause remanded for further proceedings consistent with this

decision.

                                                                              Judgment reversed,
                                                                             and cause remanded.



       1
          Because we do not have the benefit of a sentencing transcript, we cannot make a
determination regarding whether the trial court adequately notified Hathway of his Tier III sex
offender status at the hearing. See generally State v. Halsey, 12th Dist. Butler No. CA2016-01-
001, 2016-Ohio-7990, ¶ 16, citing State v. Morgan, 7th Dist. Mahoning No. 13 MA 126, 2014-
Ohio-2625 (acknowledging that a trial court may issue a nunc pro tunc entry to correct a clerical
error in the sentencing entry when the offender was properly notified of his sex offender
classification status at the sentencing hearing and the offender has not completed his sentence).
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       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     DONNA J. CARR
                                                     FOR THE COURT



HENSAL, P. J.
TEODOSIO, J.
CONCUR.


APPEARANCES:

BRYAN K. BARNARD and DAVID C. KNOWLTON, Attorneys at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellee.
