         [Cite as State v. Arszman, 2017-Ohio-7581.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                    :    APPEAL NO. C-160689
                                                       TRIAL NO. B-1205912
        Plaintiff-Appellee,                       :

  vs.                                             :      O P I N I O N.

TOBY ARSZMAN,                                     :

    Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed and Cause Remanded

Date of Judgment Entry on Appeal: September 13, 2017


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

Raymond T. Faller, Hamilton County Public Defender, and Christine Y. Jones,
Assistant Public Defender, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS




CUNNINGHAM, Judge.
       {¶1}     In 2013, defendant-appellant Toby Arszman pleaded guilty to gross

sexual imposition, in violation of R.C. 2907.05(A)(1).       He was sentenced to 17

months’ incarceration and classified as a Tier II sex offender under Ohio’s version of

the Adam Walsh Act.        On appeal, the state conceded that the trial court had

improperly classified Arszman as a Tier II sex offender. We remanded the cause for

the trial court “to classify Arszman as a Tier I sex offender.” See State v. Arszman,

1st Dist. Hamilton No. C-130133, 2014-Ohio-2727. The trial court never carried out

our order on remand.

       {¶2}     On August 9, 2016, after Arszman was released from prison, he filed a

“Motion to Vacate Tier I Sex Offender Classification,” arguing that because the trial

court had failed to journalize an entry classifying him as a Tier I sex offender, and he

had been released from prison, the trial court had no authority to classify him as a

sex offender.

       {¶3}     The trial court overruled Arszman’s motion. Arszman has appealed.

We point out that the trial court has never entered an order classifying Arszman as a

Tier I sex offender; therefore, there is no order in place requiring Arszman to register

as a sex offender.

                                 Sex-Offender Notification

       {¶4}     Arszman’s sole assignment of error alleges that the trial court erred

“when it refused to grant [Arszman’s] motion to vacate his Tier I sex offender

classification.” Arszman argues that the trial court has no authority to classify him as

a Tier I sex offender because he has been released from prison. Arszman argues that

he was never properly notified of his Tier I classification and registration

requirements prior to his release from prison. He contends that because tier sex-


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offender registration requirements are punitive, State v. Williams, 129 Ohio St.3d

344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶ 15, 20 (following the enactment of Senate

Bill 10, R.C. Chapter 2950 is punitive), tier sex-offender notification should be

subject to the same standard applied in postrelease control—that the court is without

authority to notify the offender of and impose sex-offender registration requirements

once the offender has served the prison term for that offense. Arszman cites to State

v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382 (the trial court does

not have the authority to resentence the defendant for the purpose of adding a term

of postrelease control as a sanction for a particular offense after the defendant has

already served the prison term for that offense), and State v. Bloomer, 122 Ohio

St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254 (any correction of a sentence that is

void for failure of the trial court to comply with the statutory mandates concerning

postrelease control must be accomplished before the offender is released from

prison).

       {¶5}   Arszman also cites to our opinion in State v. Rucker, 1st Dist.

Hamilton No. C-150434, 2016-Ohio-5111. Rucker was convicted in 2011 of unlawful

sexual conduct with a minor. We affirmed his conviction on appeal, but noted that

the trial court had incorrectly classified Rucker as a Tier III sex offender.        We

remanded the cause for the trial court to “amend its judgment entry to reflect that

Rucker is a Tier II sex offender.” The trial court never carried out our order on

remand. After Rucker was released from prison, he filed in the trial court a motion

“for relief from sanctions,” arguing that because he had been released from prison,

the trial court had no authority to classify him as Tier II sex offender. The trial court

overruled Rucker’s motion, determining that it was bound by our order of remand to

modify Rucker’s sex-offender classification to Tier II. The court stated that Rucker’s

classification would be modified by a separate entry to Tier II, but the court never

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entered an order modifying Rucker’s classification. We noted that there was no

order in place requiring Rucker to register as a sex offender. We reversed the portion

of the trial court’s entry overruling Rucker’s motion on the basis that it was bound by

our order of remand to classify Rucker as Tier II sex offender, but we affirmed the

judgment in all other respects and we remanded the cause to the trial court for it to

determine whether it had the authority to notify Rucker of and impose upon him Tier

II sex-offender registration requirements after he had been released from his term of

imprisonment.

       {¶6}     Arszman is in the same position as Rucker. The trial court never

journalized an entry classifying Arszman as a Tier I sex offender.          Arszman’s

assignment of error is overruled, because the trial court has never entered an order

classifying Arszman as a Tier I sex offender, and therefore, there is no order in place

requiring Arszman to register as a sex offender and no classification to vacate. But,

on the authority of Rucker, we remand this cause to the trial court for it to determine

whether it has the authority to notify Arszman of and impose upon him Tier I sex-

offender registration requirements after he has been released from his term of

imprisonment.

                                        Conclusion

       {¶7}     The judgment of the trial court overruling Arszman’s motion is

affirmed. We remand this cause to the trial court for it to determine whether it has

authority to notify Arszman of and impose upon him Tier I sex-offender registration

requirements.

                                             Judgment affirmed and cause remanded.

MOCK, P.J., and DETERS, J., concur.




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                     OHIO FIRST DISTRICT COURT OF APPEALS


Please note:
       The court has recorded its own entry this date.




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