[Cite as Sheets v. State, 2011-Ohio-4098.]


         Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                          Nos. 95876, 95877, 95878, 95879, and 95880



                               WILLIAM SHEETS, ET AL.

                                                        PLAINTIFFS-APPELLEES

                                                vs.

                                        STATE OF OHIO
                                                        DEFENDANT-APPELLANT



                                             JUDGMENT:
                                              AFFIRMED


                                      Civil Appeal from the
                               Cuyahoga County Common Pleas Court
                          Case Nos. CV-649958, CV-663683, CV-655323,
                                   CV-656992, and CV-649862

        BEFORE: E. Gallagher, J., Sweeney, P.J., and Keough, J.

        RELEASED AND JOURNALIZED:                     August 18, 2011
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ATTORNEYS FOR APPELLANT

William D. Mason
Cuyahoga County Prosecutor
By: Daniel T. Van
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEES

For William Sheets

Stuart H. Lippe
940 Leader Building
526 Superior Ave.
Cleveland, Ohio 44114

For Richard Ogletree

Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue
Suite 400
Cleveland, Ohio 44113

Karnell Johnson, pro se
464 Eddy Road
Cleveland, Ohio 44108

Fred Andrew Farley, Jr., pro se
10914 Nelson, Down
Cleveland, Ohio 44103

Otis Lockett, pro se
4681 Country Lane, Apt. 157
                                           3

Warrensville Heights, Ohio   44128


EILEEN A. GALLAGHER, J.:

      {¶ 1} In this consolidated appeal, the appellant, the state of Ohio,

appeals the trial court’s judgments granting the petitions contesting the

application of Ohio’s Adam Walsh Act (“AWA”) filed by the appellees,

William Sheets, Karnell Johnson, Fred Andrew Farley, Jr., Otis Lockett, and

Richard Ogletree, in the Cuyahoga County Court of Common Pleas. For the

following reasons, we affirm.

      {¶ 2} The Cuyahoga County Common Pleas Court convicted Sheets of

rape in 1984; Johnson of sexual battery in 1991; Farley of sexual battery in

1996; Lockett of kidnapping with the purpose to engage in sexual activity in

1986; and Ogletree of rape in 1983. At the time of the filing of the petitions

in these cases each appellee was residing in Cuyahoga County and

registering with the county sheriff pursuant to R.C. chapter 2950.                The

dockets for each of the appellees’ criminal cases reveal that the trial court in

each instance never conducted a hearing to determine the appellees’ sex

offender   classification    or   issued   a     journal   entry   designating   their

classification.1


      1
         The docket for appellee Farley’s sexual battery conviction, CR-321484-ZA,
reflects that the state requested a sexual predator adjudication and that the trial
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      {¶ 3} After the enactment of the AWA, appellees each received

notification from the Ohio Attorney General indicating their sex offender

reclassification with new reporting and notification requirements associated

with that classification.      Ogletree was reclassified as a “Tier III” sex

offender under the AWA. Johnson was reclassified as a “Tier II” offender.

The record is unclear as to the remaining appellees’ reclassifications. In

2008, each of the appellees filed petitions pursuant to R.C. 2950.031 and R.C.

2950.032, contesting their reclassification and the application of the AWA.

      {¶ 4} While appellees’ petitions were pending, the Ohio Supreme

Court issued its decision in State v. Bodyke, 126 Ohio St.3d 266,

2010-Ohio-2424, 933 N.E.2d 753, reconsideration denied, 126 Ohio St.3d

1235, 2010-Ohio-3737, 933 N.E.2d 810, in which the Supreme Court held

that, “R.C. 2950.031 and 2950.032, the reclassification provisions in the

AWA, are unconstitutional because they violate the separation-of-powers

doctrine.”     Bodyke     at   ¶2.     Because    those    sections   were   held

unconstitutional,   the   Supreme     Court   chose   to   sever   the   statutes.


court ordered appellee to appear for a hearing on the matter. However the
hearing was never held. The court further stated that “Notice of this hearing does
not negate [appellee’s] responsibility to register as a sexually oriented offender
within 7 days of release with the Sheriff’s Department.” In the case of appellee
Sheets, the docket reflects that the State declined proceedings under H.B. 180 on
July 3, 2000.
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Specifically, the Supreme Court stated, “As a remedy, we strike R.C.

2950.031 and 2950.032, hold that the reclassifications of sex offenders by the

attorney general are invalid, and reinstate prior judicial classifications of sex

offenders.” Id.

      {¶ 5} Thereafter, the trial court granted each appellee’s petition

pursuant to Bodyke and in each case stated, “Petitioner is restored to his

previous registration status under the terms and conditions of the final

decision in his criminal case.” It is from these orders that the state appeals.

      {¶ 6} The state first argues that the trial court erred in applying

Bodyke to the appellees because they were classified under Megan’s Law by

operation of law rather than by an Ohio court.        The state contends that

where there is no prior judicial order classifying a sex offender,

reclassification by the attorney general under the AWA does not violate the

separation-of-powers doctrine under Bodyke because it does not require the

opening of a final court order or a review by the executive branch of a past

decision of the judicial branch. The state argues in its second assignment of

error that the trial court erred by applying Bodyke to the appellees because

the appellees did not demonstrate by clear and convincing evidence that they

were previously classified by an Ohio court.

      {¶ 7} This court recently addressed these precise arguments in Speight
                                      6

v. State of Ohio, 2011-Ohio-2933, Cuyahoga App. Nos. 96041, 96042, 96043,

96044, 96405 and Hannah v. Ohio, 2011-Ohio-2930, Cuyahoga App. Nos.

95883, 95884, 95885, 95886, 95887, 95888, 95889.

      {¶ 8} In Hannah we stated, “[w]e recognize that the state raises a

conceivably correct interpretation of Bodyke and that the language in Bodyke

appears to limit its separation-of-powers holding to judicially classified sex

offenders and not those sex offenders classified by operation of law.

However, the remedy of Bodyke was complete and included total severance of

the provisions providing for the attorney general’s authority to reclassify sex

offenders.   The severance makes no distinction between those classified

judicially and those classified by operation of law.”     We concluded that

“offenders whose pre-AWA classification arose purely as a matter of law still

must receive the benefit of the Bodyke remedy returning those offenders to

their pre-AWA classifications because of Bodyke’s complete severance of the

statutory provisions governing reclassification by the attorney general.” Id.

      {¶ 9} Until the Ohio Supreme Court renders a decision expressly

limiting the holding in Bodyke, we will continue to apply the precedents

made by this court. In further support of this conclusion, we note the Ohio

Supreme Court’s recent decision in State v. Williams, ____ Ohio St.3d ____,

2011-Ohio-3374, wherein the Court held:
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       “When we consider all of the changes enacted by S.B. 10 in aggregate,
       we conclude that imposing the current registration requirements on a
       sex offender whose crime was committed prior to the enactment of S.B.
       10 is punitive. Accordingly, we conclude that S.B. 10, as applied to
       defendants who committed sex offenses prior to its enactment, violates
       Section 28, Article II of the Ohio Constitution, which prohibits the
       General Assembly from passing retroactive laws.” Id. at ¶20.

       {¶ 10} Accordingly, we hold that the trial court did not err in applying

Bodyke and we overrule the State’s assignments of error.

       {¶ 11} The judgment of the trial court is affirmed.

       It is ordered that appellant recover of appellee 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 lower 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.




EILEEN A. GALLAGHER, JUDGE

JAMES J. SWEENEY, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
