[Cite as State v. Williams, 2019-Ohio-69.]


                 Court of Appeals of Ohio
                                    EIGHTH APPELLATE DISTRICT
                                       COUNTY OF CUYAHOGA


                                   JOURNAL ENTRY AND OPINION
                                           No. 106820



                                             STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                        JERMAINE WILLIAMS

                                                        DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED



                                        Civil Appeal from the
                               Cuyahoga County Court of Common Pleas
                                    Case No. CR-93-293419-ZA

        BEFORE: Kilbane, A.J., E.A. Gallagher, P.J., Celebrezze, J.

        RELEASED AND JOURNALIZED:                  January 10, 2019
ATTORNEYS FOR APPELLANT

Mark A. Stanton
Cuyahoga County Public Defender
John T. Martin
Cullen Sweeney
Assistant Public Defenders
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
Daniel T. Van
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113

MARY EILEEN KILBANE, A.J.:

       {¶1} Defendant-appellant, Jermaine Williams (“Williams”), appeals from his habitual sex

offender classification under Megan’s Law. For the reasons set forth below, we affirm.

       {¶2} In August 1993, Williams pled guilty to kidnapping and attempted rape. The trial

court then sentenced Williams to a total of 7 to 25 years in prison to be served concurrent to his

sentence in his other sex offense case — Case No. CR-92-287761-ZA (sexual battery). A copy

of the sentencing transcript was not part of the appeal, and the corresponding journal entry

indicates that the trial court did not classify Williams as an habitual sexual offender at

sentencing. The sentencing entry states,

       Williams is sentenced to Lorain Correctional Institution, for a term of (7) seven
       years to (25) twenty-five years on Count (1) One and for a term of (7) seven years
       to (15) fifteen years on Count (2) Two, counts to run concurrent and concurrent
       with CR 293417 and CR 287761.
       {¶3} In January 2018, the matter was set for a sexual predator hearing under H.B. 180.

At the hearing, the trial court did not find Williams to be a sexual predator, but found him to be

an habitual sex offender not subject to the community notification requirement. Williams was

notified of his obligation to personally register his address and related information with the

sheriff where he lives and works annually for the next 20 years.

       {¶4} Williams now appeals, raising the following single assignment of error for review.

                                      Assignment of Error

       [Williams] could not be found to be a[n] habitual sex offender under Megan’s
       Law because he was already a[n] habitual sex offender under the law that existed
       prior to the enactment of Megan’s Law.

       {¶5} Williams argues that because he was already an habitual sexual offender when he

was convicted in 1993 under pre-Megan’s Law sexual registration laws, he cannot now be

retroactively classified under Megan’s Law. In support of his argument, he relies on State v.

Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753.

       {¶6} Prior to Megan’s Law, R.C. Chapter 2950 was Ohio’s law governing the registration

and classification of sex offenders and the ensuing community notification requirements.

Bodyke at ¶ 3. Under these laws, an habitual sexual offender included “any person who is

convicted two or more times, in separate criminal actions, for commission of any of the sex

offenses set forth in division (B) of this section” and Williams would have been required to

register for a period of ten years after his release from prison. Former R.C. 2950.01 and

2950.06, eff. Oct. 4, 1963.

       {¶7} In Bodyke, the court recognized that these laws have evolved substantially since

their inception in 1963. See former R.C. Chapter 2950, 130 Ohio Laws 669. The court stated,

“[t]he original version of the statute was seldom used, Sears v. State, 12th Dist. Clermont No.
CA2008-07-068, 2009-Ohio-3541, ¶ 23, and it existed without amendment for three decades.”

Bodyke at ¶ 3.

       {¶8} Megan’s Law, which was effective July 1, 1997, repealed prior versions of R.C.

Chapter 2950 and created Ohio’s first comprehensive registration and classification system for

sex offenders. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, at ¶ 7, citing 146

Ohio Laws, Part II, 2560. Under Megan’s Law, a sentencing court was required to determine

whether a sex offender fell into one of three classifications: (1) sexually oriented offender, (2)

habitual sex offender, or (3) sexual predator.          State v. Cook, 83 Ohio St.3d 404, 407,

1998-Ohio-291, 700 N.E.2d 570.

       {¶9} In Bodyke, the Ohio Supreme Court reviewed the reclassification scheme of the

Adam Walsh Act, which required the attorney general to reclassify offenders who were

previously classified under Megan’s Law.            The court found that this reclassification was

unconstitutional. The court stated:

       2. 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,
       impermissibly instruct the executive branch to review past decisions of the
       judicial branch and thereby violate the separation-of-powers doctrine.

       3. R.C. 2950.031 and 2950.032, which require the attorney general to reclassify
       sex offenders whose classifications have already been adjudicated by a court and
       made the subject of a final order, violate the separation-of-powers doctrine by
       requiring the opening of final judgments.

Id., at paragraphs two and three of the syllabus.

       {¶10} The Ohio Supreme Court’s holding in Bodyke, however, is inapplicable to the

instant case. Bodyke interpreted the reclassification of sex offenders under the Adam Walsh

Act, whereas the instant case involves the classification under Megan’s Law, not a

reclassification. Additionally, the Ohio Supreme Court has repeatedly rejected claims that the
retroactive application of Megan’s Law is unconstitutional. See Cook (where the Ohio Supreme

Court upheld the application of Megan’s Law over retroactivity and ex post facto claims); State

v. Williams, 88 Ohio St.3d 513, 2000-Ohio-428, 728 N.E.2d 342 (where the Ohio Supreme Court

rejected the suggestions that Megan’s Law impermissibly intruded on the individual’s rights to

maintain privacy, to acquire property, to pursue an occupation, and to maintain a favorable

reputation); State v. Thompson, 92 Ohio St.3d 584, 2001-Ohio-1288, 752 N.E.2d 276 (where the

Ohio Supreme Court rejected a separation-of-powers argument); State v. Ferguson, 120 Ohio

St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110 (where the Ohio Supreme Court rejected assertions

that the amendments to Megan’s Law violated the Ex Post Facto Clause of the United States

Constitution and the retroactivity provision in the Ohio Constitution).

       {¶11} In the instant case, there is no evidence in the record before us that Williams was

classified as an habitual sexual offender under former R.C. 2950.06 when he was sentenced in

1993. Indeed, the journal entries do not contain language regarding his classification. As the

Bodyke court recognized, “[t]he original version of the statute was seldom used[.]” Id. at ¶ 3,

citing Sears, 12th Dist. Clermont No. CA2008-07-068, 2009-Ohio-3541. Since Williams was

not classified as an habitual sexual offender and ordered to register under the registration laws

that preceded Megan’s Law, Williams was not reclassified at the January 2018 sentencing

hearing. Based on the record before us, he was classified for the first time in 2018. Under the

established precedence, the trial court was within its authority to classify Williams as an habitual

sex offender with a 20-year registration requirement.

       {¶12} Therefore, based on the foregoing, the trial court’s classification of Williams as an

habitual sex offender under Megan’s Law is proper.

       {¶13} The sole assignment of error is overruled.
       {¶14} Judgment is affirmed.

       It is ordered that appellee recover of appellant 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.



MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE

EILEEN A. GALLAGHER, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
