[Cite as State v. Ogletree, 2013-Ohio-1538.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 96438




                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                 RICHARD OGLETREE
                                                     DEFENDANT-APPELLANT




                          JUDGMENT:
                     CONVICTIONS AFFIRMED;
            SENTENCE REVERSED IN PART AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-535185

        BEFORE: Keough, P.J., Blackmon, J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED:                    April 18, 2013
ATTORNEY FOR APPELLANT

Gayl M. Berger
30650 Pinetree Road
Suite 19
Cleveland, Ohio 44124

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
James M. Rice
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, P.J.:

       {¶1} This cause is before us on remand from the Ohio Supreme Court for further

review of our decision released November 10, 2011,1 in light of the Supreme Court’s

recent decision in State v. Brunning, 134 Ohio St.3d 438, 2012-Ohio-5752, 983 N.E.2d

316.    The Supreme Court reversed our judgment in this case, thereby reinstating

Ogletree’s convictions for failure to provide notice of a change of residence address in

violation of R.C. 2950.05(E)(1) 2 and tampering with records in violation of R.C.

2913.42(A). The court remanded the matter to us for further proceedings consistent with

its opinion, which includes consideration of Ogletree’s second, third, and fourth

assignments of error that were previously rendered moot by our decision in Ogletree I.

For clarity, we consider Ogletree’s assignments of error out of order.

       {¶2} Ogletree was classified as a sexually oriented offender under Megan’s Law;

subsequently reclassified under the Adam Walsh Act (“AWA”) as a Tier III offender, and

after the Ohio Supreme Court’s decision in State v. Bodyke, 126 Ohio St.3d 266,

2010-Ohio-2424, 933 N.E.2d 753, restored to his previous status as a sexually oriented



        State v. Ogletree, 8th Dist. No. 96438, 2011-Ohio-5846 (Ogletree I).
       1




         “[T]he statute was misnumbered in the indictment — it should have read R.C.
       2


2950.05(F)(1).” Brunning at ¶ 5. Error in the numerical designation of the statute that the
defendant is alleged to have violated is not ground for dismissal of the indictment or for reversal of a
conviction if the error did not prejudicially mislead the defendant. Crim.R. 7(B). Ogletree was not
prejudiced in his defense; although the indictment listed the misnumbered statute, the text clearly
charged that Ogletree “did fail to notify the Cuyahoga County Sheriff of a change of address * * *.”
offender under Megan’s Law, with corresponding registration requirements. He was

subsequently indicted under the AWA for (1) failing to verify his address in violation of

R.C. 2950.06(F); (2) failing to notify the sheriff of a change of address in violation of

R.C. 2950.05(E)(1) (misnumbered); and (3) tampering with records in violation of R.C.

2913.42(A). The trial court denied Ogletree’s motion to dismiss the indictment and, after

a bench trial, found him not guilty of the failing-to-verify charge, but guilty of failure to

notify of a change in address and tampering with records. The court sentenced him to

three years incarceration on the failure-to-notify conviction and one year on the

tampering-with-records conviction, to be served concurrently for an aggregate term of

three years.

       {¶3} In his third assignment of error, Ogletree contends that under Bodyke —

which held the reclassification provisions of the AWA unconstitutional, severed them

from the AWA, and reinstated the classifications and registration orders imposed

previously upon sex offenders originally classified under Megan’s Law — the provisions

of the AWA cannot be enforced against him. Therefore, he contends, the trial court

erred in not dismissing the indictment on the failure-to-notify and tampering-with-records

charges.

       {¶4} But Brunning makes clear that Bodyke does not require dismissal where the

conduct underlying the indictment constitutes a violation under both Megan’s Law and

the AWA. Brunning at ¶ 31. Even where a defendant subject to Megan’s Law is

indicted under the AWA, if the indictment describes conduct that is also a violation of
Megan’s Law, which a defendant originally classified under Megan’s Law remains

obligated to meet, the indictment is sufficient and a defendant can be convicted of the

charges. Id.

       {¶5} Here, although Ogletree was indicted for conduct that violated the AWA

version of R.C. 2950.05 (failure to notify of a change in address), the conduct described

in the indictment also constituted a violation under the Megan’s Law version of R.C.

2950.05, which Ogletree was bound to follow. Brunning at ¶ 24. Accordingly, the

indictment properly charged an offense against Ogletree, and therefore, the trial court did

not err in denying Ogletree’s motion to dismiss this count.

       {¶6} With respect to the tampering-with-records charge, R.C. 2913.42 provides

that “[n]o person * * * with purpose to defraud * * * shall (1) falsify * * * any writing * *

* or record; (2) utter any writing or record, knowing it to have been tampered with as

provided in division (A)(1) of this section.” Thus, the issue is whether Ogletree, with

purpose to defraud, falsified any writing or record. Brunning at ¶ 30. The evidence at

trial demonstrated that he filed an address-verification form with the sheriff that

contained false information. Accordingly, whether he was required to verify his address

under Megan’s Law or not, he voluntarily filed a form containing false information,

which is in itself a violation of R.C. 2913.42. Brunning at ¶ 32. Therefore, the trial

court properly denied Ogletree’s motion to dismiss this count.

       {¶7} Appellant’s third assignment of error is overruled.
       {¶8} In his second assignment of error, Ogletree contends that the trial court

erred in not applying the provisions of former R.C. 2950.99 for sentencing. We agree

with respect to Ogletree’s conviction for failure to notify. In State v. Howard, 134 Ohio

St.3d 467, 2012-Ohio-5738, 983 N.E.2d 341, the Ohio Supreme Court held that the

applicable penalty provision for convictions where a defendant is charged with a violation

of the AWA that also constitutes a violation under Megan’s Law is contained in former

R.C. 2950.99. 3 Thus, the trial court should have applied former R.C. 2950.99 when

sentencing     Ogletree    on    the   failure-to-notify     conviction;    under     former    R.C.

2950.99(A)(1)(a)(i), Ogletree’s registration offense would have been punishable as a

third-degree felony, instead of as a first-degree felony.

       {¶9} The same reasoning does not apply to Ogletree’s tampering-with-records

conviction, which is punishable as a violation of R.C. 2913.42 regardless of Ogletree’s

reporting duties under Megan’s Law.

       {¶10}     Accordingly, the second assignment of error is sustained in part and

overruled in part. We vacate Ogletree’s sentence on the failure-to-notify conviction and

remand for resentencing on that count only.

       {¶11} In his fourth assignment of error, Ogletree contends that he was denied his

Sixth Amendment right to effective assistance of counsel. To establish ineffective


         “[F]or a defendant whose sex-offender classification was determined under Megan’s Law, the
       3


penalty for a violation of the reporting requirements of former R.C. 2950.05 that occurs after Megan’s
Law was supplanted by the AWA is the penalty set forth in the version of R.C. 2950.99 in place just
before the effective date of the AWA.” Id. at ¶ 29.
assistance of counsel, a defendant must show that counsel’s representation was deficient

in that it “fell below an objective standard of reasonableness” and “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” State v. Sanders, 94 Ohio St.3d 150, 151, 2002-Ohio-350,

761 N.E.2d 18, citing Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984).       “‘A reasonable probability is a probability sufficient to

undermine confidence in the outcome.’” State v. Bradley, 42 Ohio St.3d 136, 142, 538

N.E.2d 373 (1989), quoting Strickland, 466 U.S. at 694.

       {¶12} Ogletree contends that counsel was ineffective because he (1) did not cite

appropriate case law to support the motion to dismiss; and (2) did not raise the issue of

applying former R.C. 2950.99 for sentencing. Ogletree’s arguments are without merit.

       {¶13} Our review of the motion to dismiss demonstrates that counsel argued that

the trial court should dismiss the case in light of Bodyke, the same case appellate counsel

contends the trial court should have considered and the same case this court relied upon

(albeit erroneously) in vacating Ogletree’s convictions. Furthermore, our review of the

transcript demonstrates that counsel raised the issue of applying former R.C. 2950.99 with

the trial court in both his oral Crim.R. 29 motion for acquittal and at sentencing. In fact,

our review indicates that counsel represented Ogletree well, even obtaining a not guilty

verdict on Count 1 of the indictment.

       {¶14} The fourth assignment of error is therefore overruled.
      {¶15} In light of Brunning, Ogletree’s convictions for failure to notify of an

address change in violation of R.C. 2950.05(E)(1) (misnumbered) and tampering with

records in violation of R.C. 2913.42(A) are affirmed.               The sentence on the

failure-to-notify conviction is reversed and the matter is remanded for resentencing on

that count only under former R.C. 2950.99.

      {¶16} Convictions affirmed; sentence reversed in part and remanded.

      It is ordered that the parties share equally 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. The defendant’s convictions having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, PRESIDING JUDGE

PATRICIA A. BLACKMON, J., and
EILEEN T. GALLAGHER, J., CONCUR
