 [Cite as State v. Harris, 2014-Ohio-2203.]




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

 STATE OF OHIO                                    :
                                                  :     Appellate Case No. 25865
         Plaintiff-Appellee                       :
                                                  :     Trial Court Case No. 12-CR-2111
 v.                                               :
                                                  :
 PHIL E. HARRIS, JR.                              :     (Criminal Appeal from
                                                  :     (Common Pleas Court)
         Defendant-Appellant                      :
                                                  :
                                              ...........

                                              OPINION

                               Rendered on the 23rd day of May, 2014.

                                              ...........

MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant
Prosecuting Attorney, 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-Appellee

CHARLES W. MORRISON, Atty. Reg. No. 0084368, 1105 Wilmington Avenue, Dayton, Ohio
45420
      Attorney for Defendant-Appellant

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

HALL, J.

       {¶ 1}       Phil E. Harris appeals from his conviction and sentence on one count of failure to

notify the sheriff’s office of a change of address in violation of R.C. 2950.05(A).
 [Cite as State v. Harris, 2014-Ohio-2203.]
       {¶ 2}       In two related assignments of error, Harris contends the trial court erred in

convicting him where the duration of his notification obligation had expired.

       {¶ 3}       The facts underlying the present appeal are undisputed. Harris was convicted of

rape on September 21, 1998. As a result, he was required to comply with sex-offender registration

requirements for ten years. Those requirements included notifying the sheriff’s office of any

change of address. Harris completed his rape sentence on March 25, 2002 and was released. He

immediately was picked up on a detainer and began serving a federal prison sentence. He was

released from federal prison on March 13, 2003. In compliance with his sex-offender registration

obligation, Harris performed an initial address registration on March 19, 2003.

       {¶ 4}       On September 19, 2005, Harris received a nine-month prison sentence for

cocaine possession. He was released from prison for that conviction on April 6, 2006. Thereafter,

he apparently complied with his sex-offender registration obligations. On March 19, 2012, he

registered a Dayton-area address with the sheriff’s office. In June 2012, however, a detective

discovered that he had been arrested in Franklin County and had listed a Columbus-area address

as his residence. In December 2012, Harris was charged with failure to notify the sheriff’s office

of an address change in violation of R.C. 2950.05(A), a third-degree felony.

       {¶ 5}     In the proceedings below, Harris argued that his ten-year address registration

obligation had expired on September 21, 2008—ten years after his rape conviction. Alternatively,

he argued that the ten-year obligation had expired on March 25, 2012—ten years after his release

from prison on the rape conviction. Therefore, he asserted that he had no duty to notify the

sheriff’s office of a change of address between May 1, 2012 and June 14, 2012, the dates alleged in
                                                                                                                                     3


the indictment.1 The State opposed Harris’s argument, maintaining that R.C. 2950.07(D) tolled the

duration of his registration obligation while he was incarcerated on unrelated charges. As a result,

the State maintained that his duty to register remained in effect between May 1, 2012 and June 14,

2012. The trial court agreed with the State. Harris was convicted following a bench trial and

sentenced to community control.2 (Doc. #72). This appeal followed.

         {¶ 6}        In his first assignment of error, Harris contends “[t]he trial court erred in

overruling [his] motion to dismiss due to an erroneous interpretation of R.C. 2950.07(D).” His

second assignment of error asserts that “[t]he trial court erred in finding [him] guilty as it lacked

sufficient evidence to establish each element of the offense beyond a reasonable doubt.” Harris’s

legal argument under both assignments of error is the same. He claims R.C. 2950.07(D) tolled his

duty to register while incarcerated on unrelated charges, not the duration of that duty. In other

words, he argues that the statute, for obvious reasons, relieved him of the duty to visit the sheriff’s

office to register his address while incarcerated. He insists, however, that it did not toll the duration

of his registration obligation. Therefore, he maintains that his duty to register expired prior to his

alleged offense and that the charge against him should have been dismissed or he should have been

found not guilty.


            1
            Harris also filed motions to dismiss below raising an issue related to improper post-release control and a “void” sentence in
 connection with his rape conviction. He argued that these defects invalidated his failure-to-notify conviction. The trial court rejected Harris’s
 argument, and he has not raised that issue on appeal. (Appellant’s brief at 3 fn.2).
            2
              The trial court’s termination entry incorrectly states that Harris pled guilty to the offense. The record demonstrates, however, that
 he was found guilty after a bench trial. (June 25, 2013 Tr. at 48). In his statement of the case, Harris agrees and notes that “[t]he termination
 entry appears to be a scrivener’s error and should be corrected by a nunc pro tunc entry.” (Appellant’s brief at 4). Because Harris does not
 raise the termination entry’s language as an issue on appeal, however, we will not reverse based upon it. In any event, we do agree that the
 reference to a guilty plea appears to be a scrivener’s error subject to correction at any time with a nunc pro tunc entry.
                                                                                            4


       {¶ 7}    Upon review, we find Harris’s argument to be unpersuasive. The statute at issue

provides:

               The duty of an offender or delinquent child to register under this chapter is

       tolled for any period during which the offender or delinquent child is returned to

       confinement in a secure facility for any reason or imprisoned for an offense when

       the confinement in a secure facility or imprisonment occurs subsequent to the date

       determined pursuant to division (A) of this section. The offender’s or delinquent

       child’s duty to register under this chapter resumes upon the offender’s or delinquent

       child's release from confinement in a secure facility or imprisonment.

R.C. 2950.07(D).

       {¶ 8}    In State v. Hancock, 2d Dist. Montgomery No. 24653, 2012-Ohio-1435, this court

referred to R.C. 2950.07(D) as a tolling provision that extended the duration of an offender’s

registration obligation. Id. at ¶ 10. The only issue in that case, however, was whether R.C.

2950.07(D) could be applied retroactively because it was remedial. The issue now before us was

not raised, as the parties in Hancock presumed the statute tolled the duration of an offender’s

registration obligation. Likewise, in State v. Hudson, 2013-Ohio-647, 989 N.E.2d 1128 (3d Dist.),

the appellate court and the parties presumed that R.C. 2950.07(D) tolled the duration of a

registration obligation. Id. at ¶ 26. The only issue there was whether the statute could be applied

retroactively. Relying on Hancock, the Third District found the statute remedial and found

retroactive application permissible. Id. at ¶ 42-43. Finally, although not specifically addressing the

issue before us, the Tenth District has read R.C. 2950.07(D) as tolling the duration of an offender’s

registration obligation. In State v. Cundiff, 10th Dist. Franklin No. 10AP-672, 2011-Ohio-4919, the
                                                                                            5


State challenged the terms of the trial court’s entry reinstating a defendant’s prior sex-offender

classification and registration obligations. The Tenth District’s opinion includes the following

analysis:

               In its third assignment of error, the State argues the language used in the

       entry implies that defendant's ten-year duty to register will run without interruption

       beginning on July 23, 2004, and also fails to take into account the statutory tolling

       provision set forth in R.C. 2950.07(D). * * * We disagree.

               * * * The crux of the State's argument * * * seems to be that the manner in

       which the court addressed the issue of defendant’s registration period is overbroad,

       in that it does not specifically take into account the statutory tolling provision that

       applies pursuant to R.C. 2950.07(D).

               The pertinent language of the judgment entry reads as follows: “[Defendant]

       was required to register for ten years, beginning July 23, 2004, and is ORDERED to

       continue to register as a sexually oriented offender as originally required.”

               Yet, “as originally required” in 2004, defendant’s duty to register for ten

       years was always subject to the tolling provisions of R.C. 2950.07(D). That portion

       of the statute reads, in relevant part, as follows:

                       The duty of an offender * * * to register under this chapter is

               tolled for any period during which the offender * * * is returned to

               confinement * * * when the confinement * * * occurs subsequent to

               the date determined pursuant to division (A) of this section. The

               offender’s * * * duty to register under this chapter resumes upon the
                                                                                      6


       offender’s * * * release from confinement in a secure facility or

       imprisonment.

       From the moment defendant was classified as a sexually oriented offender,

defendant was subject to the tolling provisions of R.C. 2950.07(D) in the event that

he was returned to confinement. He continues to be subject to that same tolling

provision now, just as he was when it was “originally required” at his initial

classification hearing.

       The record reflects defendant was returned to confinement for a period of

time. Thus, there was a period of time that was tolled, and therefore, it logically

follows that his ten-year registration period does not run uninterrupted and will not

end ten years from the date it began. However, the entry does not definitively

provide a date on which his ten-year registration duties expire (i.e., it does not state

his duties expire on July 23, 2014, exactly ten years after his duties commenced);

rather, it simply sets forth the date on which his duties to register commenced.

       Admittedly, the entry does not include language calculating the period of

time that his registration duties will be extended beyond an uninterrupted ten-year

period, and it does not include language stating that he is subject to the tolling

provisions of R.C. 2950.07(D). Nevertheless, the fact that the entry does not

specifically account for the application of a tolling period for the period of time

when defendant’s community control was revoked is not error. Such information is

not required to be specifically included in the entry here, but the tolling provision of

R.C. 2950.07(D) is still applicable. Furthermore, should defendant again be subject
                                                                                             7


        to confinement, the date of the expiration of his registration duties would again be

        subject to change.

Id. at ¶ 17-23.

        {¶ 9}     Although the Tenth District’s language supports the State’s and the trial court’s

reading of R.C. 2950.07(D), we have not found, and the parties have not cited, any Ohio case law

specifically addressing the issue before us. After reviewing the statute and its apparent purpose,

however, we conclude that the duration of Harris’s ten-year registration obligation was tolled while

he was incarcerated on other charges. In reaching this conclusion, we note that an incarcerated sex

offender’s initial duty to register “commences on the date of the offender’s release from a prison

term[.]” R.C. 2950.07(A)(3). This makes good sense because “the primary remedial purpose

behind the sex offender registration law was to protect the public by providing notification of

potential sex offenders living in their neighborhood.” Hudson at ¶ 42. “[T]he General Assembly’s

intent of protecting the public is not served while the offender is imprisoned—the intent was to

protect the public upon the offender’s release from imprisonment when the offender is living in the

community.” Id.

        {¶ 10} By the same token, we believe the intent of R.C. 2950.07(D) was to toll Harris’s

ten-year duty to register while he was incarcerated on other charges. Although the statute perhaps

could have been worded more precisely, we see no error in the trial court’s reading of it. We agree

with the Third District that R.C. 2950.07(D)’s tolling provision furthers the remedial purpose of

sex-offender registration “by providing notification to the public when it matters most—when the

sex-offender is released from prison and living in the community. Absent the tolling provision, the

public is deprived of the safety benefit of the full ten-year registration period for sex offenders * *
                                                                                    8


* who are subsequently re-incarcerated.” Hudson at ¶ 42.

       {¶ 11} Harris’s assignments of error are overruled, and the judgment of the Montgomery

County Common Pleas Court is affirmed.

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

FAIN, J. and DONOVAN, J., concur.

Copies mailed to:

Mathias H. Heck, Jr.
Michele D. Phipps
Charles W. Morrison
Hon. Gregory F. Singer
