[Cite as State v. Gall, 2016-Ohio-1562.]




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

 STATE OF OHIO                                  :
                                                :
          Plaintiff-Appellee                    :     Appellate Case Nos. 26240 and 26245
                                                :
 v.                                             :     Trial Court Case Nos. 1978-CR-602
                                                :     and 1979-CR-84
 EUGENE W. GALL                                 :
                                                :     (Criminal Appeal from
          Defendant-Appellant                   :     Common Pleas Court)
                                                :

                                              ...........

                                           OPINION

                              Rendered on the 15th day of April, 2016.

                                            ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

AMY E. FERGUSON, Atty. Reg. No. 0088397, 130 West Second Street, Suite 1818,
Dayton, Ohio 45402
      Attorney for Defendant-Appellant

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




WELBAUM, J.
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       {¶ 1} Defendant-appellant, Eugene W. Gall, appeals from the decision of the

Montgomery County Court of Common Pleas designating him a sexual predator under

Megan’s Law, R.C. Chapter 2950. For the reasons outlined below, the judgment of the

trial court will be affirmed.



                                Facts and Course of Proceedings

       {¶ 2} In 1979, Gall was convicted and sentenced in Montgomery County, Ohio, for

the rape and kidnapping of a 15-year-old girl in Case No. 78-CR-602, and for the rape,

kidnapping, and aggravated murder of a 14-year-old girl in Case No. 79-CR-84. Gall

was sentenced to an aggregate prison term of 14-50 years in Case No. 78-CR-602 and

to life in prison in Case No. 79-CR-84.          These sentences were ordered to run

consecutively to each other and consecutively to sentences Gall had already received in

Kentucky. In Kentucky, Gall was sentenced to death for raping and murdering a 12-year-

old girl. He was also sentenced to a concurrent 10-year prison sentence for attempted

murder and wanton endangerment.

       {¶ 3} After Gall was sentenced in Ohio, he was sent back to Kentucky to serve his

sentences there. However, approximately 20 years later, on October 30, 2000, the

United States Sixth Circuit Court of Appeals granted a writ of habeas corpus filed by Gall

with respect to his Kentucky death sentence.          The Sixth Circuit determined that

pervasive errors at trial led to an unconstitutional conviction and that double jeopardy

prevented Kentucky from retrying him on the rape and murder charges. Gall v. Parker,

231 F.3d 265 (6th Cir.2000). Thereafter, Gall’s conviction was nullified and directed to
                                                                                         -3-

be expunged from his record. Gall v. Scroggy, E.D. Kentucky No. 2:87-56-DCR, 2008

WL 9463883 (Dec. 4, 2008).

       {¶ 4} On November 13, 2001, Gall was extradited to Ohio to begin serving his

Montgomery County sentences. According to the State, on September 27, 2013, the

Ohio Bureau of Sentence Computation (OBSC) notified the State that it had calculated

Gall’s jail-time credit and credited him with 5,807 days as a result of the time he served

in Kentucky on the invalidated conviction. Specifically, the State alleges that the OBSC

gave Gall jail-time credit from December 1985, the date Gall completed his 10-year

sentence in Kentucky for attempted murder and wanton endangerment, through

November 13, 2001. The State has challenged the OBSC’s calculation of jail-time credit

in a separate appeal.

       {¶ 5} Given that Gall may be subject to parole in the near future, on November 27,

2013, the State filed a motion in Montgomery County Case Nos. 78-CR-602 and 79-CR-

84 requesting the trial court to conduct a sexual offender classification hearing in

accordance with R.C. 2950.09(C) to determine whether Gall is a sexual predator, as he

was not classified at his sentencing in 1979. In response to the motion, the trial court

ordered Gall to undergo a psychological evaluation on March 4, 2014, and then held a

sexual offender classification hearing on April 8, 2014. During the hearing, the trial court

determined, over Gall’s objection, that it was appropriate to classify him under the

Megan’s Law version of Chapter 2950. Then, after considering Gall’s psychological

evaluation report, criminal history, victims, mental health, and the nature of his sexual

conduct, the trial court found by clear and convincing evidence that Gall was a sexual

predator and designated him as such.
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       {¶ 6} Gall now appeals from the trial court’s decision designating him a sexual

predator, raising four assignments of error for review.



                   First, Second, and Fourth Assignments of Error

       {¶ 7} For purposes of clarity, we will address Gall’s First, Second, and Fourth

Assignments of Error together. They are as follows:

       I.     THE COURT ERRED IN CLASSIFYING MR. GALL UNDER

              MEGAN’S LAW.

       II.    RETROACTIVE         APPLICATION       OF     MEGAN’S       LAW     IS

              UNCONSTITUTIONAL BECAUSE IT HAS EVOLVED FROM

              REMEDIAL TO PUNITIVE.

       IV.    THE APPLICATION OF SEXUAL PREDATOR CLASSIFICATION IS

              CONSTITUTIONALLY BARRED AS EX POST FACTO PROVISION

              RETROACTIVITY [sic].

       {¶ 8} Under the foregoing assignments of error, Gall contends the trial court

violated his statutory and constitutional rights by designating him a sexual predator under

Megan’s Law. Specifically, Gall claims that the application of Megan’s Law in this case

runs afoul of the constitutional ban on retroactive and ex post facto laws. In support of

this claim, Gall maintains that Megan’s Law cannot be applied retroactively to him

because the law is unduly punitive in that it imposes additional burdens and restrictions

on sexual offenders that are more demanding than what he would have been subject to

had he been classified at the time of his sentencing in 1979. Gall also contends the

notice provisions of Megan’s Law impermissibly intrude on his rights to maintain privacy,
                                                                                        -5-


acquire property, pursue an occupation, and maintain a favorable reputation.           We

disagree with each of Gall’s claims.

      {¶ 9} Since 1963, Ohio has had a sex offender registration statute codified under

Chapter 2950 of the Ohio Revised Code. State v. Cook, 83 Ohio St.3d 404, 406, 700

N.E.2d 570 (1998), citing former R.C. Chapter 2950, 130 Laws 669.            In 1996, the

General Assembly enacted Am.Sub.H.B. No. 180, also known as Megan’s Law, which

rewrote Chapter 2950. Id. Megan’s Law provided a new system for sexual offender

registration, classification, and community notification. Id. at 407. The classification

provision in Megan’s Law, R.C. 2950.09, became effective on January 1, 1997, while the

registration and notification requirements became effective July 1, 1997. Id. at 406.

The sexual offender classifications under R.C. 2950.09 include a “sexually oriented

offender,” a “habitual sex offender,” and a “sexual predator.” Id. at 407.

      {¶ 10} On multiple occasions, the Supreme Court of Ohio has upheld the

retroactive application of Megan’s Law against claims that it violates the ban on

retroactive laws in Article II, Section 28, of the Ohio Constitution, as well as the ban on

ex post facto laws in Article I, Section 10 of the United States Constitution. Cook at 410-

412; State v. Williams, 88 Ohio St.3d 513, 516, 728 N.E.2d 342 (2000); State v. Ferguson,

120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110.

      {¶ 11} In Cook, the Supreme Court found a clear legislative intent for Megan’s Law

to be applied retroactively and explained that purely remedial statutes, such as Megan’s

Law, may be applied retroactively without running afoul of the constitutional ban against

retroactive and ex post facto laws. Id. at 410-423. Despite the fact that Megan’s Law

increased the frequency and duration of reporting beyond what was required by prior law,
                                                                                        -6-


the Supreme Court determined its provisions only “us[ed] past events to establish current

status” and constituted “de minimis procedural requirements” that were necessary to

achieve the legislature’s remedial purpose of protecting the public from sexual offenders.

(Emphasis deleted.) Id. at 412. Accordingly, the court concluded that because the

retroactive application of Megan’s Law was not punitive, but remedial, it did not violate

the constitutional ban on retroactive and ex post facto laws.

      {¶ 12} In Ferguson, the Supreme Court considered the same claims in Cook that

were made in light of amendments to the law in 2003. Despite significant changes

wrought by the amendments, the Supreme Court rejected the claim that the amendments

were punitive and once again concluded that Megan’s Law established a remedial,

regulatory scheme that did not violate the ban on retroactive and ex post facto laws.

Ferguson at ¶ 32-39 (finding “an offender’s classification as a sexual predator is a

collateral consequence of the offender’s criminal acts rather than a form of punishment”

and “[t]he more burdensome registration requirements and the collection and

dissemination of additional information about the offender as part of the statute’s

community notification provisions were not born of a desire to punish[;]” rather, “it is a

remedial, regulatory scheme designed to protect the public rather to punish the offender”).

      {¶ 13} The Supreme Court reached a different conclusion in State v. Williams, 129

Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, wherein the court reviewed a later

version of Chapter 2950 enacted under Am.Sub.S.B. No. 10, also known as the Adam

Walsh Act (“AWA”). The AWA repealed Megan’s Law and significantly changed the

classification scheme for sexual offenders. The AWA also subjected offenders to longer

and more burdensome reporting and registration requirements than under Megan’s Law,
                                                                                          -7-

and in many cases provided for more severe penalties for violations of the statute. State

v. Montgomery, 2d Dist. Montgomery No. 24450, 2012-Ohio-391, ¶ 5.

       {¶ 14} Upon considering all the changes wrought by the AWA, the Supreme Court

in Williams concluded that imposing the AWA’s additional burdens on a sex offender

whose crime was committed prior to its enactment was unconstitutionally punitive and

violated the ban on retroactive laws. Id. at ¶ 21-22. The Supreme Court remanded the

case “for resentencing under the law in effect at the time Williams committed the offense.”

Id. at ¶ 23. In doing so, the court effectively ordered that the provisions of Megan’s Law

would apply to defendants who committed their offenses before the enactment date of

the AWA. State v. Howard, 134 Ohio St.3d 467, 2012-Ohio-5738, 983 N.E.2d 341, ¶ 16.

Therefore, it is well established that the AWA cannot be applied retroactively to sex

offenders who committed their crimes before the enactment date of the AWA and that

Megan’s Law applies to those offenders instead.

       {¶ 15} The Supreme Court in Williams implicitly reaffirmed the constitutionality of

applying Megan’s Law retroactively because it did not reverse its prior decisions in Cook

and Ferguson, which recognized that Megan’s Law is remedial in nature and can be

applied retroactively without running afoul of the United States or Ohio Constitutions.

Relying on this precedent, this court has repeatedly recognized that the retroactive

application of Megan’s Law is not a constitutional violation, as we have consistently held

that the sex offender classification, registration, and notification provisions under Megan’s

Law applies to defendants who commit their offense prior to the enactment of Megan’s

Law. State v. Lay, 2d Dist. Champaign No. 2012-CA-7, 2012-Ohio-4447, ¶ 6-8; State v.

Grimes, 2d Dist. Montgomery No. 25375, 2013-Ohio-2569, ¶ 4; State v. Czaplicki, 2d Dist.
                                                                                         -8-


Montgomery No. 25252, 2013-Ohio-1366, ¶ 4-6.

       {¶ 16} In this case, Gall attempts to rely on the Supreme Court’s holding in

Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108 to support his claim that

the trial court erred in applying Megan’s Law retroactively. Specifically, Gall is trying to

liken Megan’s Law to the AWA by claiming the former version of Chapter 2950 in effect

when he committed his offenses in the late 1970’s was less burdensome on sexual

offenders, and applying the additional burdens under Megan’s Law now is punitive.

However, as previously discussed, there is an abundance of case law from the Supreme

Court of Ohio holding otherwise. The Supreme Court has consistently held that the

requirements imposed under Megan’s Law are remedial, not punitive, and that the

retroactive application of them does not violate the United States or Ohio Constitutions.

Cook, 83 Ohio St.3d 410-423, 427, 700 N.E.2d 570; Ferguson, 120 Ohio St.3d 7, 2008-

Ohio-4824, 896 N.E.2d 110. Accordingly, we find the trial court did not err in applying

Megan’s Law in this case, even though Gall committed his sexually oriented offenses

before Megan’s Law went into effect. The law is clear that Megan’s Law may be applied

retroactively and that it is not an ex post facto law.

       {¶ 17} Gall’s additional claim that the community notification provisions in Megan’s

Law impermissibly intrude on his rights to maintain privacy, to acquire property, to pursue

an occupation, and to maintain a favorable reputation are also without merit.          The

Supreme Court rejected these exact same claims in Williams, 88 Ohio St.3d 524-527,

728 N.E.2d 342. Accord State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933

N.E.2d 753, ¶ 9.

       {¶ 18} For the foregoing reasons, Gall’s First, Second, and Fourth Assignments of
                                                                                          -9-


Error are overruled.



                               Third Assignment of Error

       {¶ 19} Gall’s Third Assignment of Error is as follows:

       RES JUDICATA BARS THE CLASSIFICATION OF MR. GALL BECAUSE

       HE COULD HAVE BEEN CLASSIFIED IN 1979 BUT THE PROSECUTOR

       DECLINED.

       {¶ 20} Under his Third Assignment of Error, Gall contends res judicata bars him

from being evaluated and classified under Megan’s Law because he should have been

classified at the time of his conviction when a prior version of Chapter 2950 was in effect.

He claims that because he underwent psychological testing for his legal matters in

Kentucky near the time of his conviction in this case that said testing should have sufficed

to classify him at the time of his conviction. Because of this, Gall contends he should

now be classified under and subject to the less burdensome restrictions of the law that

was in effect in 1979, not Megan’s Law. Although he raises a res judicata claim in this

assignment of error, Gall does nothing more than rehash his argument that Megan’s Law

is punitive and unconstitutional when applied to him retroactively, an argument which we

have already overruled. In any event, a claim of res judicata would likewise not prevail.

       {¶ 21} “Pursuant to the doctrine of res judicata, a valid final judgment on the merits

bars all subsequent actions based on any claim arising out of the transaction or

occurrence that was the subject matter of the previous action.” State v. Collins, 2d Dist.

Montgomery No. 25612, 2013-Ohio-3645, ¶ 9, citing Grava v. Parkman Township, 73

Ohio St.3d 379, 653 N.E.2d 226 (1995), at syllabus. “The bar applies to a point or a fact
                                                                                         -10-


which was actually and directly in issue in a former action and was there passed upon

and determined by a court of competent jurisdiction.”           State v. Coyle, 2d Dist.

Montgomery No. 23450, 2010-Ohio-2130, ¶ 9, citing Norwood v. McDonald, 142 Ohio St.

299, 52 N.E.2d 67 (1943), paragraph three of the syllabus, overruled in part on other

grounds, Grava at syllabus. Accordingly, “[f]or res judicata to apply, the issue under

consideration must have been ‘passed upon’ or ‘conclusively decided’ in an earlier

proceeding.” (Emphasis deleted.) Forsyth v. Dearth, 2d Dist. Clark No. 98-CA-96, 1999

WL 355193, *6 (June 4, 1994), citing Consumers’ Counsel v. Pub. Util. Comm., 16 Ohio

St.3d 9, 10, 475 N.E.2d 782 (1985). Accord State v. Mitchell, 187 Ohio App.3d 315,

2010-Ohio-1766, 931 N.E.2d 1157, ¶ 17 (6th Dist.) (res judicata inapplicable due to the

“lack of a final order”).

       {¶ 22} The record in this case reveals that Gall’s sexual offender classification had

never been determined prior to the trial court’s April 8, 2014 decision. As a result,

because Gall’s classification had not been previously passed upon, there was no final

judgment on that issue. Without a final judgment, res judicata is inapplicable and does

not bar his classification under Megan’s Law. See State v. Baird, 12th Dist. Clermont

No. CA2001-03-043, 2002 WL 649394, *2 (Apr. 22, 2002) (res judicata did not apply to

bar a sexual offender classification hearing because the offender’s classification had not

been previously determined); Pollis v. State, 11th Dist. Trumbull No. 2008-T-0055, 2009-

Ohio-5058, ¶ 39 (noting that res judicata was not at issue in Cook, 83 Ohio St.3d 404,

700 N.E.2d 570 because in that case Megan’s Law was applied retroactively to persons

who had not been previously classified as sexual offenders and, therefore, the new

burdens imposed by Megan’s Law did not impinge on any reasonable expectation of
                                                                                      -11-


finality the offenders had with respect to their convictions).

       {¶ 23} See also State v. Tate, 8th Dist. Cuyahoga No. 101112, 2015-Ohio-100, ¶ 3

and 10 (upholding a defendant’s classification under Megan’s Law where the defendant

was serving a prison term for rape charges originating in 1986 and the State did not seek

to have the defendant classified as a sexual predator or habitual sexual offender under

Megan’s Law until 2014); State v. Nelson, 8th Dist. Cuyahoga No. 101228, 2014-Ohio-

5285, ¶ 2-4, 15 (upholding a defendant’s classification under Megan’s Law where the

defendant was serving a prison term for rape charges originating in 1978 and 1989 and

the State requested a classification hearing in 2014 where defendant was classified a

sexual predator).

       {¶ 24} For the foregoing reasons, Gall’s Third Assignment of Error is overruled.



                                        Conclusion

       {¶ 25} Having overruled all assignments of error raised by Gall, the judgment of

the trial court is affirmed.

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



FROELICH, J. and HALL, J., concur.



Copies mailed to:

Mathias H. Heck, Jr.
Andrew T. French
Amy E. Ferguson
Hon. Gregory F. Singer
