[Cite as State v. Benkoe, 2012-Ohio-1180.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. Julie A. Edwards, J.
-vs-
                                                  Case No. 2011CA00194
MATTHEW BENKOE

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Stark County Court of
                                              Common Pleas, Case No. 2011 CR 0869


JUDGMENT:                                     Affirmed


DATE OF JUDGMENT ENTRY:                        March 19, 2012


APPEARANCES:


For Plaintiff-Appellee                        For Defendant-Appellant


JOHN D. FERRERO,                              STEVEN A. REISCH
PROSECUTING ATTORNEY,                         Stark County Public Defender Office
STARK COUNTY, OHIO                            200 West Tuscarawas St., Suite 200
                                              Canton, Ohio 44702
By: KATHLEEN O. TATARSKY
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2011CA00194                                                       2

Hoffman, J.


       (¶1)      Defendant-appellant Matthew Benkoe appeals his conviction and

sentence entered in the Stark County Court of Common Pleas. Plaintiff-appellee is the

state of Ohio.

                                   STATEMENT OF THE CASE

       (¶2)      In 2003, Appellant entered a plea of guilty to a reduced charge of gross

sexual imposition, a felony of the third degree, and was declared a sexually oriented

offender under Megan’s Law, the sex offender statute in effect at the time of his

conviction, in State v. Benkoe, Geauga Co. Case No. 03C000093.              As a sexually

oriented offender under Megan’s Law, Appellant was required to register any change of

address with the sheriff of the county where he resided after his release from prison at

least twenty days prior to changing his address. He was also required to verify his

current residential address annually for a period of ten years.

       (¶3)      In 2007, Appellant moved to Stark County, and failed to register his

address. He entered a plea of guilty to failure to register in State v. Benkoe, Stark

County Court of Common Pleas Case No. 2007CR1936. In 2010, he entered a plea of

guilty to failure to provide written notice of a residence change to the Stark County

Sheriff’s Office at least twenty days prior to the change of address in State v. Benkoe,

Stark County Court of Common Pleas Case No. 2010CR0239.

       (¶4)      Effective January 1, 2008, the Ohio Legislature amended current R.C.

2950.99 directly correlating the underlying sex offense conviction to a failure to register

conviction, and requiring the trial court to impose a definite prison term of no less than
Stark County, Case No. 2011CA00194                                                        3


three years if the offender has previously been convicted of failing to register under

Ohio law.

          (¶5)   Appellant was released from prison after serving his sentence. On May 4,

2011, Appellant registered his address as Refuge of Hope, 300 Walnut Avenue N.E.,

Canton, Ohio. Appellant signed a “Notice of Registration Duties of Sexually Oriented

Offender” acknowledging he understood the notification requirements.

          (¶6)   On May 28, 2011, Appellant was removed from the Refuge of Hope for

failure to follow rules and claimed to be living on the streets. Appellant then failed to

register with the Stark County Sheriff’s Office. Accordingly, a warrant was issued for his

arrest.

          (¶7)   Appellant was indicted by the Stark County Grand Jury for failure to notify

of change of address; registration of new address, R.C. 2950.05(A)(F)(1).               The

indictment contained the two previous convictions for violations of the same statute;

elevating the penalty under R.C. 2929.13(F) to a mandatory three year prison sentence.

          (¶8)   On August 11, 2011, Appellant entered a plea of no contest to the charge

in the indictment, and orally objected to the application of the mandatory sentence. The

trial court convicted Appellant of the charge, and sentenced him to three years in prison.

          (¶9)   Appellant now appeals, assigning as error:

          (¶10) “I. THE APPLICATION OF THE MANDATORY PRISON SENTENCE OF

S.B. 9 TO THE APPELLANT VIOLATED SECTION 28, ARTICLE II OF THE OHIO

CONSTITUTION.

          (¶11) “II. THE IMPOSITION OF A THREE YEAR SENTENCE FOR FAILURE

TO    REGISTER         AS   A   SEXUALLY       ORIENTED       OFFENDER      IS   GROSSLY
Stark County, Case No. 2011CA00194                                                       4


DISPROPORTIONATE TO THE CRIME AND CONSTITUTES CRUEL AND UNUSUAL

PUNISHMENT.”

                                                I.

      (¶12) In the first assignment of error, Appellant maintains the trial court erred in

applying the mandatory prison sentence herein. Appellant argues the trial court should

have imposed the penalty provision in effect at the time he was declared a sexually

oriented offender in 2003. Specifically, Appellant argues the penalty provision violates

the retroactivity clause of the Ohio Constitution banning the passage of laws creating

new burdens not existing at the time the crime was committed. Bielat v. Bielat, 87 Ohio

St.3d 350.

      (¶13) Appellant was convicted of a new offense, failure to notify of change of

address under R.C. 2950.05 (A)(F)(1).         The penalty was enhanced because of

Appellant’s two prior convictions for failing to register. See State v. Cook, 83 Ohio St.3d

404 (holding the punishment for failure to register flows from a new violation of the

statute, not for a past sexual offense.) Here, the trial court sentenced Appellant for the

commission of a new crime, not a new punishment for the past sexually oriented

offense. Not every offender who has committed a sexually oriented offense is subject to

the new penalties imposed by R.C. 2950.99; only those who commit a new offense

under R.C. 2950.04, 2950.041, 2950.05 or 2950.06. See Bielat, supra.

      (¶14) Appellant’s assignment of error is overruled.

                                                II.

      (¶15) In the second assignment of error, Appellant argues his sentence is

grossly disproportionate to the offense and constitutes cruel and usual punishment.
Stark County, Case No. 2011CA00194                                                         5

       (¶16) Recently in State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, 896

N.E.2d 124, the Ohio Supreme Court held “trial courts have full discretion to impose a

prison sentence within the statutory range and are no longer required to make findings

or give their reasons for imposing maximum, consecutive, or more than the minimum

sentences.” Kalish at ¶ 1 and 11, 896 N.E.2d 124, citing Foster at ¶ 100, See also, State

v. Payne, 114 Ohio St.3d 502, 2007–Ohio–4642, 873 N.E.2d 306; State v. Firouzmandi,

Licking App. No.2006–CA–41, 2006–Ohio–5823, 2006 WL 3185175.

       (¶17) The Court in Kalish held appellate courts must use a two-step approach.

“First, they must examine the sentencing court's compliance with all applicable rules

and statutes in imposing the sentence to determine whether the sentence is clearly and

convincingly contrary to law. If this first prong is satisfied, the trial court's decision in

imposing the term of imprisonment shall be reviewed under an abuse of discretion

standard.” Kalish at ¶ 4, State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856, 845 N.E.2d

470.

       (¶18) Here, Appellant had two prior convictions for failure to register a

residential address. The mandatory three year prison term was provided for by statute.

While we concur with the trial court the sentence may seem harsh under the

circumstances, Appellant’s sentence is not contrary to law and we hold it does not

constitute cruel and unusual punishment.

       (¶19) The second assignment of error is overruled.
Stark County, Case No. 2011CA00194                                          6




      (¶20) Appellant’s sentence in the Stark County Court of Common Pleas is

affirmed.

By: Hoffman, J.

Gwin, P.J. and

Edwards, J. concur                    s/ William B. Hoffman _________________
                                      HON. WILLIAM B. HOFFMAN


                                      s/ W. Scott Gwin_____________________
                                      HON. W. SCOTT GWIN


                                      s/ Julie A. Edwards___________________
                                      HON. JULIE A. EDWARDS
Stark County, Case No. 2011CA00194                                                  7


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
MATTHEW BENKOE                             :
                                           :
       Defendant-Appellant                 :         Case No. 2011CA00194


       For the reasons stated in our accompanying Opinion, Appellant’s sentence in the

Stark County Court of Common Pleas is affirmed. Costs to Appellant.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ W. Scott Gwin_____________________
                                           HON. W. SCOTT GWIN


                                           s/ Julie A. Edwards___________________
                                           HON. JULIE A. EDWARDS
