[Cite as State v. Foster, 2012-Ohio-1431.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

STATE OF OHIO                                       :
                                                    :      Appellate Case No. 24637
        Plaintiff-Appellant                         :
                                                    :      Trial Court Case No. 2011-CR-604
v.                                                  :
                                                    :
JAMES L. FOSTER                              :      (Criminal Appeal from
                                                    :      (Common Pleas Court)
        Defendant-Appellee                   :
                                                    :

                                                 ...........

                                                 OPINION

                              Rendered on the 30th day of March, 2012.

                                                 ...........

MATHIAS H. HECK, JR., by JOHNNA M. SHIA, Atty. Reg. #0067685, Montgomery County
Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972,
301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellant

ANTHONY R. CICERO, Atty. Reg. #0065408, Cicero Law Office, LLC, 500 East Fifth
Street, Suite 100, Dayton, Ohio 45402
        Attorney for Defendant-Appellee

                                                         .............

FAIN, J.

                 {¶ 1} The State of Ohio appeals from the sentence imposed upon

defendant-appellee James L. Foster on his plea of guilty to two counts of Failure to Notify, in
                                                                                                2


violation of R.C. 2950.05(A)(1) and (F)(1). The State urges us to overrule State v. Milby, 2d

Dist. Montgomery No. 23978, 2010-Ohio-6344, and a line of subsequent cases, and hold that a

person convicted of Failure to Notify should be sentenced under the version of the statute in

effect at the time of his commission of the Failure to Notify offense, not under the version of

the statute in effect at the time of his classification as a sexually oriented offender.

                {¶ 2} We decline the invitation to overrule Milby, and affirm.



                                    I. Course of Proceedings

                {¶ 3} Foster was convicted of two counts of Rape in 1990 in Montgomery

County, and was classified as a sexually oriented offender.

                {¶ 4} In 2011, Foster was charged by indictment with two counts of Failure to

Notify, in violation of R.C. 2950.05(A)(1) and (F)(1). Specifically, he was charged with

having failed to provide written notice of a change of his residence, school, institution of

higher education, or place of employment, to the Sheriff of Montgomery County within the

time limits prescribed by the statute.

                {¶ 5} Foster pled guilty to each offense as “a felony of the 5th degree.” Over

the State’s objection, the trial court found Foster guilty, on his plea, to two counts of Failure to

Notify as felonies of the fifth degree, although it cautioned him that his plea would stand even

if the court of appeals would decide that the State’s objection was well-taken.

                {¶ 6} Foster was sentenced to community control sanctions for a period of

time not to exceed five years. From the sentence, the State appeals.
                                                                                               3


                   II. We Will Not Overrule the State v. Milby Line of Cases

                  {¶ 7} The State’s sole assignment of error is as follows:

                  {¶ 8} “THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT

SENTENCED FOSTER TO COMMUNITY CONTROL SANCTIONS BECAUSE THE

STATUTE IN EFFECT AT THE TIME HIS OFFENSE WAS COMMITTED REQUIRED

HIM TO BE SENTENCED TO A MANDATORY PRISON TERM FOR COMMITTING A

FIRST DEGREE FELONY.”

                  {¶ 9} In State v. Milby, supra, we held that under State v. Bodyke, 126 Ohio

St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, not only does it violate the Ohio Constitution to

apply the new reporting, notification, and registration requirements set forth in the Ohio Adam

Walsh Act to a person classified as a sex offender before the enactment of that act, it also

violates the Ohio Constitution to apply the enhanced penalties set forth in the new act to such

a person.   Milby, 2010-Ohio-6344, ¶ 31.         We have followed that holding in numerous

subsequent cases. E.g., State v. Johnson, 2d Dist. Montgomery No. 24029, 2011-Ohio-2069,

¶ 10; State v. Alexander, 2d Dist. Montgomery No. 24119, 2011-Ohio-4015, ¶ 38; State v.

Alltop, 2d Dist. Montgomery No. 24234, 2011-Ohio-5541, ¶ 14; and State v. Howard, 2d Dist.

Montgomery No. 24680, 2011-Ohio-5693, ¶ 12.

       {¶ 10}      The State argues that State v. Milby, supra, is incorrectly decided, and that we

should no longer follow it. The State argues that because the penalty for Foster’s offense was

enhanced before he committed that offense, there is no problem with applying the enhanced

penalty to him.

       {¶ 11}      We recently considered this argument in State v. Buelow, 2nd Dist.
                                                                                          4


Montgomery No. 24570, 2012-Ohio-832, where we applied the principle of stare decisis, and

rejected the argument. For all of the reasons set forth in Buelow, we do so again here.

       {¶ 12}     The State’s sole assignment of error is overruled.



                                       III. Conclusion

       {¶ 13} The State’s sole assignment of error having been overruled, the judgment of

the trial court is Affirmed.

                                                   .............

GRADY, P.J., and FROELICH, J., concur.



Copies mailed to:

Mathias H. Heck
Johnna Shia
Anthony R. Cicero
Hon. Barbara P. Gorman
