[Cite as Mitchell v. State, 2011-Ohio-3256.]



          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                 JOURNAL ENTRY AND OPINION
                                          No. 95617



                                       JAMES MITCHELL
                                                 PLAINTIFF-APPELLANT

                                                  vs.


                                         STATE OF OHIO

                                                 DEFENDANT-APPELLEE



                                               JUDGMENT:
                                                AFFIRMED


                                        Civil Appeal from the
                               Cuyahoga County Court of Common Pleas
                                        Case No. CV-649960

        BEFORE: Kilbane, A.J., Jones, J., and S. Gallagher, J.
       RELEASED AND JOURNALIZED: June 30, 2011

ATTORNEYS FOR APPELLANT

Robert L. Tobik
Chief Public Defender
Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue
Suite 400
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason
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} Plaintiff-appellant, James Mitchell, appeals from the order of the trial court that

rejected his request to be reclassified as a Tier I offender under the Adam Walsh Act

(“AWA”), reclassified him as a Tier II sex offender, then sua sponte restored his original
sexual predator classification under Megan’s Law.         For the reasons set forth below, we

affirm.

          {¶ 2} On October 3, 1988, Mitchell pled guilty in Case No. CR-219878 to one count

of attempted gross sexual imposition in violation of R.C. 2907.05 and was sentenced to six

months of incarceration.

          {¶ 3} On October 14, 2004, Mitchell pled guilty in Case No. CR-452531 to one count

of drug trafficking, in violation of R.C. 2925.03, and one count of gross sexual imposition, in

violation of R.C. 2907.05, and was sentenced to a total of two years of imprisonment.    On the

same day, following a sexual predator hearing, the parties stipulated that Mitchell is a sexual

predator under Megan’s Law, R.C. Chapter 2950.        Under this classification, he was required

to register every 90 days for life. State v. Cook, 83 Ohio St.3d 404, 1998-Ohio-291, 700

N.E.2d 570, citing former R.C. 2950.06 and 2950.07.

          {¶ 4} In 2006, Mitchell completed his prison term in Case No. CR-452531, then

began registering as a sexual predator in accordance with the various mandates of Megan’s

Law, R.C. Chapter 2950.

          {¶ 5} In 2006, Congress passed the AWA, which established Tier I, Tier II, or Tier III

sex offender classifications based solely on the offender’s offense.      State v. Bodyke, 126

Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753.         Thereafter, the Ohio General Assembly

enacted the 2007 Am.Sub.S.B. No. 10, which replaced the Megan’s Law categories of the
offender and established the tier system in conformance with the AWA.            Under the tier

system, sexual offenders are assigned to a particular tier based upon the offense for which they

were convicted.      Id.

       {¶ 6} Pursuant to R.C. 2950.031 and R.C. 2950.032, the attorney general was

required to reclassify all sexual offenders under Tier I, Tier II, or Tier III, and to notify the

offenders accordingly by December 1, 2007.

       {¶ 7} In a letter dated November 26, 2007, the Ohio Attorney General’s office

advised Mitchell that, beginning January 1, 2008, he would be reclassified as a Tier III sex

offender under the AWA, the most restrictive classification, and would therefore be required to

register with the sheriff’s office every 90 days for life.      Community notification is also

required.

       {¶ 8} On February 5, 2008, Mitchell filed a petition to contest application of the

AWA.        He asserted that the AWA violates prohibitions against ex post facto and retroactive

laws and violates due process.     He further asserted that he should be reclassified as a Tier I

offender — in light of his offenses and the ages of the victims (adult women, rather than

children under the age of 13) — and not a Tier III offender that was derived from the 2004

stipulation that he is a sexual predator.       On April 6, 2008, the trial court stayed the

proceedings.
       {¶ 9} On February 11, 2009, Mitchell filed a motion for a reclassification hearing

under R.C. 2950.01(G) and to have this issue determined apart from his constitutional

challenges that he asked to have stayed, “pending the decision of a higher court.”

       {¶ 10} The trial court held a reclassification hearing on June 19, 2009.        Mitchell

argued that a sexual predator hearing had not been held in Case No. CR-452531 and that the

sexual predator determination was based upon a stipulation rather than a judicial

determination.   Therefore, Mitchell argued that the trial court had discretion to determine the

proper tier classification for his offenses and, under R.C. 2950.01(E)(1), he should be

classified as a Tier I offender since his victim was over 13 years old.     Counsel additionally

asserted that Mitchell is a Tier I offender because he is 63 years old, he has resolved his

substance abuse issues, and he presented numerous reference letters.

       {¶ 11} In opposition, the State presented information about Mitchell’s offenses.     The

State presented the victim’s statement in Case No. CR-291878.      According to this statement,

Mitchell met the woman at a bar and gave her a ride home.              He gave her a marijuana

cigarette that she smoked in the car.   After she smoked it, Mitchell drove her to a motel and

struck her in the face when she refused to go inside.      He then dragged her into the room,

threatened to kill her, and inserted his penis into her.     The victim reported that she felt

paralyzed after smoking the marijuana he had given her.
       {¶ 12} The State also presented the victim’s statement in the second matter, Case No.

CR-452531.       According to that statement, Mitchell met the victim at a bar.    They went to

his apartment, and he got her a glass of water.       The victim indicated that the water had a

funny taste.    She next remembered waking up in his bedroom, naked from the waist down.

At this time, he was taking pictures of her.     She felt ill and repeatedly passed out and woke

up.

       {¶ 13} The State then asserted that although the offenses Mitchell committed were not

Tier III offenses, he was in fact a Tier III offender based upon the record and his prior sexual

predator stipulation in Case No. CR-452531.

       {¶ 14} On July 1, 2009, the trial court reclassified Mitchell as a Tier II offender under

the AWA.       The court’s journal entry provided in relevant part as follows:

       “Petitioner has been convicted of gross sexual imposition October 14, 2004
       and of attempted gross sexual imposition on October 3, 1988. As petitioner
       has been convicted of two Tier I offenses on two different occasions,
       petitioner is reclassified as a Tier II sex offender.

       Pursuant to Civ.R. 54(B), there is no just cause for delay.”

       {¶ 15} Neither party appealed the July 1, 2009 ruling.       Thereafter, on July 26, 2010,

following the Ohio Supreme Court’s June 3, 2010 decision in Bodyke, the trial court issued a

sua sponte order that provided in relevant part as follows:

       “[P]laintiff is hereby restored to his previous registration status under the
       terms and conditions of the final decision in [Mitchell’s] criminal case. The
       within order is a final judgment pursuant to R.C. 2505.02.”
       {¶ 16} Mitchell now appeals and assigns three errors for our review:

       ASSIGNMENT OF ERROR ONE

       “The trial court lacked jurisdiction to reconsider its final judgment.”

       ASSIGNMENT OF ERROR TWO

       “The trial court lacked authority to grant ‘relief’ that was not requested by
       [Mitchell].”

       ASSIGNMENT OF ERROR THREE

       “The trial court erred in applying State v. Bodyke to disturb a judicial Adam
       Walsh Act classification.”

       {¶ 17} In these assignments of error, Mitchell maintains that because neither party

appealed the trial court’s July 1, 2009 order reclassifying him as a Tier II offender, this order

became final, and not subject to later modification.       He also contends that once the trial

court issued its July 1, 2009 order reclassifying him as a Tier II offender, it “granted the relief

sought in the petition” so the court had no authority to restore Mitchell to his prior Megan’s

Law classification.   Finally, Mitchell argues that Bodyke has no application to this matter

since it involved a judicial redetermination of Mitchell’s sex offender status so there was no

violation of the separation-of-powers doctrine.    In Bodyke, the court held:

       “1.   The power to review and affirm, modify, or reverse other courts’
       judgments is strictly limited to appellate courts. (Section 3(B)(2), Article IV,
       Ohio Constitution, applied.)
       “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 one, two, and three of the syllabus.

       {¶ 18} The Supreme Court severed R.C. 2950.031 and 2950.032 from the AWA, and

held that those sections “may not be applied to offenders previously adjudicated by judges

under Megan’s Law, and the classifications and community-notification and registration orders

imposed previously by judges are reinstated.”     Id.   The Supreme Court additionally noted

that “[c]ourts also condemn legislative encroachments that violate the separation of powers by

vesting officials in the executive branch with the power to review judicial decisions or by

commanding that the courts reopen final judgments.”            Id.   The court explained that

judgments cannot be deprived of their finality through statutes that were enacted after the court

gave its last word in the particular matter.

       {¶ 19} Later, in Chojnacki v. Cordray, 126 Ohio St.3d 321, 2010-Ohio-3212, 933

N.E.2d 800, the Ohio Supreme Court held that after severance of R.C. 2950.031 and 2950.032

announced in Bodyke, R.C. 2950.031 and 2950.032 may not be enforced and may not be

applied to offenders previously adjudicated by judges under Megan’s Law.
       {¶ 20} In this matter, following a sexual predator hearing, the State and Mitchell

stipulated in Case No. CR-452531 that Mitchell is a sexual predator under Megan’s Law, R.C.

Chapter 2950, and he began registering as a sexual predator under Megan’s Law in 2006.

Thereafter, in a letter dated November 26, 2007, the Ohio Attorney General’s office

reclassified Mitchell as a Tier III sex offender under the AWA, effective January 1, 2008, and

thereby reopened and modified a final judgment and replaced it with the Attorney General’s

classification of Mitchell under AWA.

       {¶ 21} Mitchell challenged the reclassification and on July 1, 2009, the trial reclassified

Mitchell as a Tier II offender, following a hearing under R.C. 2950.031 and 2950.032.      Later,

on July 26, 2010, the trial court issued a sua sponte order that restored Mitchell to his previous

registration in conformance with Bodyke.

       {¶ 22} Mitchell maintains that the trial court disturbed a final order by vacating the

July 1, 2009 reclassification.    Under Bodyke, however, the original classification under

Megan’s Law is deemed the final order.       The Attorney General’s November 26, 2007 letter

reopened that final judgment, and the reclassification took place under the now-severed

provisions of R.C. 2950.031 and R.C. 2950.032.      See Chojnacki.

       {¶ 23} Mitchell additionally complains that the trial court was without authority to

issue the sua sponte order once the July 1, 2009 AWA reclassification occurred.                In
accordance with Bodyke, however, the classifications made under Megan’s Law                            are
                                                                                                   1




reinstated.   Bodyke, at ¶66.       See, also, State v. Lipscomb, Cuyahoga App. No. 92189,

2010-Ohio-4104; Majewski v. State, Cuyahoga App. No. 92372, 2010-Ohio-3178; State v.

Godfrey, Summit App. No. 25187, 2010-Ohio-6454; State v. Miliner, Franklin App. No.

09AP-643, 2010-Ohio-6771; State v. Robins, Montgomery App. No. 23437, 2010-Ohio-2842.

        {¶ 24} Finally, Mitchell asserts the additional proposition, with which the State agrees,

that Bodyke is inapplicable to this matter since Mitchell sought judicial review of the AWA

classification under R.C. 2950.30 and R.C. 2950.31, so there is no separation-of-powers

violation.    We note, however, that in this case, there was a 2004 judicial order finding

Mitchell to be a sexual predator, and this was a final judgment.          The court’s reclassification

hearing followed the Attorney General’s improper 2007 reopening of a final determination and

improper reclassification of Mitchell under the AWA.               Further, the reclassification was

conducted pursuant to R.C. 2950.031 and R.C. 2950.032, which have been severed in their



        1
         Various challenges to Megan’s Law were rejected by the courts. In State v. Cook, 83 Ohio
St.3d 404, 1998-Ohio-291, 700 N.E.2d 570, the Ohio Supreme Court ruled that the registration and
address verification portions of Megan’s law, i.e., R.C. 2950.09 do not violate retroactivity clause or
the ex post facto clause of the Ohio Constitution. In State v. Williams, 88 Ohio St.3d 513, 516,
2000-Ohio-428, 728 N.E.2d 342, the Ohio Supreme Court rejected additional claims that Megan’s
Law violates the prohibitions against double jeopardy, bills of attainder, and vagueness and also
rejected claims that it violates equal protection guarantees, an individual’s rights to maintain privacy,
to acquire property, to pursue an occupation, and to maintain a favorable reputation. In State v.
Thompson, 92 Ohio St.3d 584, 2001-Ohio-1288, 752 N.E.2d 276, the court rejected a
separation-of-powers challenge to Megan’s Law.
entirety. State v. Ogden, Franklin App. No. 09AP-640, 2011-Ohio-1589.           In severing those

provisions, the Supreme court did not distinguish between individuals who were classified

judicially and those classified by operation of law. State v. Johnson, Franklin App. No.

10AP-932, 2011-Ohio-2009; State v. Page, Cuyahoga App. No. 94369, 2011-Ohio-83 (Bodyke

does not carve out exceptions where some reclassifications under the AWA remain lawful).

       {¶ 25} In light of the foregoing, the trial court properly determined that Mitchell’s

reclassification under the severed statute must be vacated and his prior judicial classification

must be reinstated.   The assignments of error are without merit.

       Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said 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

LARRY A. JONES, J., and
SEAN C. GALLAGHER, J., CONCUR
