[Cite as State v. Howard, 195 Ohio App.3d 802, 2011-Ohio-5693.]




       IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

THE STATE OF OHIO,                                      :

        Appellee,                                       :         C.A. CASE NO.   24680

v.                                                      :         T.C. NO.   10CR1682

HOWARD,                                                 :         (Criminal appeal from
                                                                    Common Pleas Court)
        Appellant.                                      :

                                         ..........

                                         OPINION

                        Rendered on the 3rd day of November, 2011.

                                         ..........

     Mathias Heck Jr., Montomery County Prosecuting Attorney, and
Johnna M. Shia, Assistant Prosecuting Attorney, for appellee.

        Marshall G. Lachman, for appellant.

                                         ..........



        DONOVAN, Judge.

        {¶ 1} This matter is before the court on the notice of appeal of

Donny A. Howard.            Howard appeals from his conviction and sentence for

failure to notify, in violation of R.C. 2950.05(A) and (F)(1).

        {¶ 2} In September 2000, Howard was convicted of rape, a felony
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of the first degree, and he received a four-year sentence.               The trial court

designated Howard a habitual sex offender,1 pursuant to Ohio’s version

of the federal Megan’s Law, which was adopted by Ohio in 1996, and

codified by Am.Sub.H.B. No 180, 146 Ohio Laws, Part II, 2560, 2601.

See State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, ¶ 6.                         The

trial court also ordered community notification for a period of 20 years.

      {¶ 3} In 2006, the Adam Walsh Child Protection and Safety Act was

passed by Congress, which divided sex offenders into three tiers based

solely upon the offense committed.            Bodyke, ¶ 18.        In 2007, the Ohio

General Assembly enacted 2007 Am.Sub.S.B. No. 10, which replaced

Megan’s Law with the Adam Walsh Act (“AWA”).                     Bodyke, ¶ 20.        The

law required the Ohio Attorney General to reclassify existing offenders

based on the tier system and to notify them of the reclassification.

Bodyke, ¶ 22.      Pursuant to the AWA, Howard was reclassified a Tier III

sex offender.

      {¶ 4} On June 3, 2010, Howard was charged by indictment with

failure to notify, a felony of the first degree, for failing to provide notice

of his change of residence address to the sheriff at least 20 days prior to

that change, a requirement imposed upon Howard as a Tier III sex

offender.    Howard pleaded no contest, and at the time, the trial court



         1
            We note that Howard and the state erroneously assert that Howard was originally
  classified as a sexually oriented offender.
                                                                          3

advised him that it must impose a mandatory sentence, since Howard

had a previous conviction for a felony of the first degree (rape).      The

state noted that it did not oppose the minimum sentence for Howard.

The trial court sentenced Howard to a mandatory minimum three-year

term on October 28, 2010.

      {¶ 5} Along with his notice of appeal, Howard filed a motion for

leave to file a delayed appeal, based upon this court’s recent decision in

State v. Milby, Montgomery App. No. 23798, 2010-Ohio-6344, and we

granted leave for his untimely appeal over the state’s objection.

      {¶ 6} Howard asserts one assignment of error as follows:

      {¶ 7} “The trial court erred in convicting appellant of a first-degree

felony and sentencing him accordingly.”

      {¶ 8} In Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, the Ohio

Supreme Court struck down as unconstitutional the reclassification

provisions in the AWA, namely R.C. 2950.031 and 2950.032, which

required the attorney general to reclassify sex offenders pursuant to the

tiered scheme.   Id., ¶ 60-61.   The court severed those provisions from

the AWA, and the provisions “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. at ¶ 66.

      {¶ 9} Pursuant to Bodyke, as the state concedes, Howard’s
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reclassification as a Tier III sex offender and the community-notification

and registration orders attending that reclassification may not be applied,

and his original classification as a habitual sex offender and the

community-notification      and   registration   orders     attending   that

classification are reinstated.

      {¶ 10} Under the former R.C. 2950.05(A), Howard was required to

provide written notice to the sheriff of a change of address at least 20

days prior to changing his address.    Under the former R.C. 2950.99, the

penalty for failure to notify was a felony of the fifth degree.         R.C.

2950.05 was amended by S.B. 10, which became effective on January 1,

2008, and the new version at issue also required Howard to provide

written notification to the sheriff at least 20 days prior to changing his

address of residence.     After the related amendment of R.C. 2950.99

(2007 Am.Sub.S.B. 97), the penalty for failure to notify was a felony of

the first degree. R.C. 2950.99(A)(1)(a)(i).

      {¶ 11} In State v. Milby, which the state asks us to reconsider, this

court on similar facts held that because the prohibited conduct in failing

to give the required prior notification did not change when R.C. 2950.05

was amended, the defendant had an ongoing duty that neither the

amendment of that section nor the holding in Bodyke had changed.

Accordingly, Milby could be found guilty for failure to notify, based upon

the original classification to which he was reinstated.   However, since the
                                                                            5

related amendment of R.C. 2950.99(A)(1)(a) changed the violation from

a felony of the third degree to a first-degree felony, of which Milby was

convicted, this court reversed Milby’s conviction and remanded the case

for resentencing.

      {¶ 12} As in Milby, when Howard’s original classification and

registration requirements are applied, his conviction for failure to notify is

not offended.    There is no dispute that under former law, Howard was

required to provide written notice of a change of address at least 20 days

prior to changing his address of residence.    See former R.C. 2950.05(A).

 However, the amendment of R.C. 2950.99 changed the penalty for

failure to notify from a felony of the fifth degree to a felony of the first

degree, based upon the penalty for the underlying offense of rape, and

Howard was subject to a mandatory term of incarceration.         As in Milby,

the fact that Howard had committed his offense of failure to notify after

the effective date of S.B. 97 does not affect the outcome herein as the

state asserts.   Pursuant to Milby, we find that the trial court erred when

it convicted Howard of a first-degree felony and sentenced him

accordingly, instead of finding him guilty of a fifth-degree felony.      See

also State v. Johnson, Montgomery App. No. 24029, 2011-Ohio-2069;

State v. Alexander, Montgomery App. No. 24119, 2011-Ohio-4015.

      {¶ 13} Because Howard’s sole assigned error has merit, his sentence

will be reversed and the matter remanded to the trial court for
                                                                            6

resentencing.

                                                         Judgment affirmed.

                                   ..........

      FROELICH, J., concurs.

      HALL, J., concurs in part and dissents in part.

      HALL, J., concurring in part and dissenting in part.

      {¶ 14} I agree that this case should be remanded to the trial court

for resentencing, but conclude that the defendant should be sentenced

for a felony of the third degree and not a fifth degree as determined by

the majority.   For clarity, I will refer to the various felony levels as F(5)

through F(1)

      {¶ 15} Donny Howard’s conviction for rape, F(1), was in September

2000, and he was classified as a habitual sex offender under Ohio’s

version of Megan’s Law.        Sometime after Ohio’s version of the Adam

Walsh Act (“AWA”) went into effect on January 1, 2008, Howard was

reclassified as a Tier III offender.   The instant case stems from the June

3, 2010 charge of failure to notify the sheriff of a change of address.

      {¶ 16} Failure to notify was an F(5) when Howard was originally

convicted of rape in 2000. R.C. 2950.99.       This level had been in effect

since January 1, 1997, with adoption of Ohio’s Megan’s law.      Before that,

the first offense of failure to comply with pre-Megan’s Law registration

requirements was a misdemeanor, and a subsequent offense was an
                                                                                     7

F(4).    Effective January 1, 2004, failure to notify, when the basis for

registration was for murder or an F(1), (2) or (3) was modified to an

F(3). R.C. 2950.99 (A)(1)(b)(i). As part of the adoption of Ohio’s AWA,

R.C. 2950.99 was amended, effective January 1, 2008.                       When the

underlying felony that was the basis for the registration was an F(1)

through F(4), failure to notify became a felony of the same degree as the

basis for registration.     Thus, in Howard’s case, the underlying felony was

an F(1), so the new offense was an F(1).

        {¶ 17} In State v. Bodyke, 126 Ohio St. 3d 266, 2010-Ohio-2424,

the Ohio Supreme Court struck down the reclassification provisions of the

AWA, R.C. 2950.031 and 2950.032, and severed them from the

remainder of the act.         Registration requirements under Megan’s Law

were reinstated. Nothing in Bodyke had addressed or vacated the

amended penalty provisions of R.C. 2950.99.             Nevertheless, this court

has held that the penalty section applicable for violation of reinstated

Megan’s law registration violations is the penalty that existed prior to

adoption of the AWA.         This court has held, in three cases, that where

defendants      have   been       improperly   reclassified,    a     failure-to-notify

conviction would still be upheld when the reinstated Megan’s Law

registration requirements were essentially the same as the improperly

reclassified AWA requirements, but the violation is a pre-AWA F(3).

        {¶ 18} In   State    v.    Milby,   Montgomery         App.     No.    23798,
                                                                               8

2010–Ohio–6344, the defendant had been convicted of rape in 1983.

While still incarcerated in 2003, Milby was designated as a sexual

predator.     He was reclassified as a Tier III offender under the AWA.

Eventually he was charged and convicted of failing to register at his new

address during July 2009.          This court said, “AWA did increase the

penalty for failure to notify to a first-degree felony. That penalty may not

be applied to Milby.       Under the former law, violation of the reporting

requirement was a felony of the third degree.” Id, ¶ 31.           The case was

remanded for resentencing as an F(3).           I believe this conclusion was

wrong. As stated, nothing in Bodyke had addressed or vacated the

amended penalty provisions of R.C. 2950.99. But Milby is part of the

jurisprudence of this court, and stare decisis precludes simply ignoring it.

       {¶ 19} In   State   v.   Johnson,    Montgomery      App.    No.   24029,

2011–Ohio–2069, Johnson had been designated a sexually oriented

offender in 1994.       His classification was changed to a Tier III under

AWA.    In 2009, he was charged with an F(1) failure to provide notice of

his change-of-residence address.       Johnson’s case was also remanded for

resentencing.      This court said, “[P]er Milby, we find that the trial court

erred when it convicted Defendant of a first degree felony and sentenced

him accordingly, instead of finding Defendant guilty of a third degree

felony.”    Again, I believe this result is incorrect, but it follows Milby.

       {¶ 20} Finally, on similar facts, in State v. Alexander, Montgomery
                                                                             9

App. No. 24119, 2011-Ohio-4015, Alexander had been convicted of rape,

an F(1), and designated a sexually oriented offender in 2004.         He was

reclassified under AWA in 2008 as a Tier III offender.      He was charged

with failing to notify the sheriff of his new address in 2010, an F(1).   This

court’s decision, in which the undersigned concurred, stated, “[L]ike in

Johnson [and Milby], appellant should have been found guilty of a

third-degree felony and not a first-degree felony.”

      {¶ 21} Based on Milby, as followed in Johnson and Alexander, this

court has held that when a failure-to-notify case is reversed after an

improper AWA reclassification, the penalty for violation of failure to notify

reverts to that penalty that was in effect before the “offending” AWA

legislation, which was effective January 1, 2008.     Prior to enactment of

AWA, the penalty for failure to notify for underlying F(1) through F(3)’s

was a felony of the third degree.      Consequently, I would remand this

case for resentencing of the defendant for a conviction of an F(3).

                               ..........
