[Cite as State v. Nelson, 2012-Ohio-2400.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
STATE OF OHIO                                  :   W. Scott Gwin, P.J.
                                               :   William B. Hoffman, J.
                         Plaintiff-Appellee    :   Julie A. Edwards, J.
                                               :
-vs-                                           :   Case No. 2011CA00219
                                               :
                                               :
JERRY NELSON                                   :   OPINION

                     Defendant-Appellant




CHARACTER OF PROCEEDING:                            Criminal Appeal from Stark County
                                                    Court of Common Pleas Case No.
                                                    2011CR0787

JUDGMENT:                                           Affirmed

DATE OF JUDGMENT ENTRY:                             May 29, 2012

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JOHN D. FERRERO                                     STEVEN A. REISCH
Prosecuting Attorney                                Stark County Public
Stark County, Ohio                                  Defender’s Office
                                                    200 W. Tuscarawas Street, Suite 200
BY: KATHLEEN O. TATARSKY                            Canton, Ohio 44702
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South
Suite 510
Canton, Ohio 44702-1413
[Cite as State v. Nelson, 2012-Ohio-2400.]


Edwards, J.

        {¶1}     Appellant,       Jerry Nelson, appeals a judgment of the Stark County

Common Pleas Court convicting him of failing to provide notice of change of address

(R.C. 2950.05(A), (F)(1)) and sentencing him to a mandatory term of incarceration of

three years pursuant to R.C. 2950.99. Appellee is the State of Ohio.

                                    STATEMENT OF FACTS AND CASE

        {¶2}     Appellant entered a plea of guilty to corruption of a minor in 2000. He was

found to be a sexually oriented offender under Megan’s Law, the sex offender

registration statute in effect at the time of his conviction. His registration duties included

registering any change of address within twenty days prior to changing his address, and

verifying his residential address annually for ten years.

        {¶3}     In 2004 and again in 2008, appellant was convicted of violating his

registration requirements. On March 2, 2011, appellant registered his address as 4401

Louisville Street N.E., Canton, Ohio. Appellant was brought to the Stark County Jail on

a domestic violence charge on May 31, 2011. At that time, law enforcement learned

that he was sharing a residence with his girlfriend at 210 Edwin Ave. S.E., Massillon,

Ohio, an address he failed to register with the Stark County Sheriff.

        {¶4}     Appellant was indicted by the Stark County Grand Jury on one count of

failure to notify of change of address. Because he had two previous convictions for

change of address violations, his potential penalty was elevated to a mandatory three

year prison sentence.

        {¶5}     Appellant entered a plea of not guilty.      He filed a pleading entitled

“Defendant’s Objection to Mandatory Sentence,” which the trial court overruled.
Stark County App. Case No. 2011CA00219                                                   3


Appellant changed his plea to no contest and was found guilty. He was sentenced to

three years incarceration. He assigns two errors on appeal:

       {¶6}     “I. THE APPLICATION OF THE MANDATORY PRISON SENTENCE OF

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

CONSTITUTION.

       {¶7}     “II. THE IMPOSITION OF A THREE YEAR SENTENCE FOR FAILURE

TO   REGISTER         AS   A   SEXUALLY      ORIENTED       OFFENDER          IS   GROSSLY

DISPROPORATIONATE TO THE CRIME AND CONSTITUTES CRUEL AND

UNUSUAL PUNISHMENT.”

                                                 I

       {¶8}     Appellant argues that the court erred in imposing the mandatory prison

term of three years as required by R.C. 2950.99 because those penalty provisions were

not in effect at the time he was classified as a sexually oriented offender. The penalty

provision that was applied to appellant was a part of S.B.97, and the amendment was

effective January 1, 2008. Appellant argues that application of this penalty provision to

him is unconstitutionally retroactive pursuant to Section 28, Article II of the Ohio

Constitution.

       {¶9}     Appellant recognizes in his brief that this Court rejected his argument in

State v. Poling, 5th Dist. No. 2009-CA-0264, 2011-Ohio-3201, finding that the increased

penalties of R.C. 2950.99 did not violate the prohibition against retroactive laws so long

as the changes in the law were effective prior to the registration offense:

       {¶10} “In the case at bar, R.C. 2950.99 as amended in 2008 does not punish

any action that was formerly not a crime or increase the penalty for a crime already
Stark County App. Case No. 2011CA00219                                                 4


committed. In 2006 appellant was subject to the reporting requirements as a sexually

oriented offender for a period of ten years. R.C. 2950.07(B)(3) (repealed January 1,

2008). The pre-existing ten-year reporting period applicable to appellant had not expired

when he was charged and convicted of failing to provide notice of an address change

twenty days prior to the change. Appellant had a duty to report a change of address

when the statutory amendment to R.C. 2950.99 was enacted. Accordingly, appellant

could only be charged with a felony of the first degree if he failed to report an address

change after January 1, 2008.

      {¶11} “We find that the application of amended R.C. 2950.99 does not violate

the Ex Post Facto Clause. See State v. Dycus, Franklin App. No. 04AP–751, 2005-

Ohio-3990 at ¶ 21. (Citations omitted). As the Ohio Supreme Court observed in Cook,

      {¶12} “‘Even prior to the promulgation of the current version of R.C. Chapter

2950, failure to register was a punishable offense. See former R.C. 2950.99, 130 Ohio

Laws 671. Thus, any such punishment flows from a failure to register, a new violation of

the statute, not from a past sex offense. In other words, the punishment is not applied

retroactively for an act that was committed previously, but for a violation of law

committed subsequent to the enactment of the law.’ 83 Ohio St.3d at 420–421, 700

N.E.2d at 584, 1998–Ohio–291.

      {¶13} “In the case at bar, appellant was advised of his duty to report a change of

address at his sentencing hearing December 4, 2006. The penalty provisions for failure

to register a change of address were increased nearly two years later on January 1,

2008. Appellant was charged based upon his conduct in failing to register his address

change approximately seventeen months later in June–July 2009. Thus, appellant had
Stark County App. Case No. 2011CA00219                                                   5


fair warning that his conduct could be treated as a criminal offense, and that the penalty

would be classified as a felony of the first degree, well-in advance of the conduct which

led to his indictment.” Id. at ¶29-32.

        {¶14} In the instant case, appellant was sentenced pursuant to penalty

provisions which were effective January 1, 2008. He did not commit the crime until

2011.    Therefore, application of the new penalty provisions is not unconstitutionally

retroactive.

        {¶15} Appellant argues that we should revisit Poling in light of State v. Williams,

129 Ohio St. 3d 344, 2011-Ohio-3374, 952 N.E.2d 1108.              In Williams, the Ohio

Supreme Court concluded that S.B. 10, which changed the registration requirements

from Megan’s Law to the Adam Walsh Act, is unconstitutionally retroactive as applied to

defendants who committed sex offenses prior to its passage.

        {¶16} This Court has recognized that although the current R.C. 2950.99 has the

same effective date as Senate Bill 10, it was not enacted as a part of Senate Bill 10, but

rather was enacted as part of Senate Bill 97. State v. Dunwoody, 5th Dist. CT11–0029,

2011-Ohio-6360, ¶40.     Williams dealt only with the imposition of Senate Bill 10’s more

stringent registration requirements upon an offender who had committed his sex offense

prior to its enactment, not to the imposition of the penalty provisions of R.C. 2950.99 on

an offender who committed his registration offense after the effective date of the

change. Id. We thus concluded subsequent to Williams that a defendant who was

required to register under Megan’s Law and never reclassified under the Adam Walsh

Act could be sentenced pursuant to the new penalty provisions of R.C. 2950.99. Id. at

¶42.
Stark County App. Case No. 2011CA00219                                                    6

       {¶17} Like the appellant in Dunwoody, appellant was properly required to

register under Megan’s Law. His failure to register occurred after the enactment of R.C.

2950.99 and he could be sentenced pursuant to the penalty provisions in effect at the

time of his failure-to-notify offense.

       {¶18} The first assignment of error is overruled.

                                                II

       {¶19} Appellant argues that a three-year sentence violates the 8th Amendment to

the United States Constitution’s ban on cruel and unusual punishment. He argues the

sentence is disproportionate to the underlying offense for which he was required to

register because the sentence of three years is twice the maximum sentence he could

have served for the underlying offense of corruption of a minor.

       {¶20} The Tenth District Court of Appeals considered this issue in State v.

Richey, 10th Dist. 09AP-36, 2009-Ohio-4487.          In Richey, the appellant’s underlying

offense for which he was required to register was sexual imposition, a third degree

misdemeanor. In 2009, he entered a plea of guilty to attempted failure to provide notice

of a change of address, a fifth degree felony.         The Court of Appeals rejected his

argument that he was subjected to cruel and unusual punishment, holding:

       {¶21} “Appellant has also argued that R.C. 2950.99 unconstitutionally applies

felony sentencing to him because the failure to register offense is ‘of lesser gravity’ than

the third-degree misdemeanor sex offense that triggered the registration requirements.

(Dec. Tr. 3.) Appellant is incorrect. When a person commits a failure to register offense,

he exhibits recidivist behavior given that (1) he already has a prior offense that triggered

the registration requirements, and (2) the failure to register offense stems from a
Stark County App. Case No. 2011CA00219                                                   7


person's inability to follow the law and adhere to the registration requirements imposed

upon him. See, e.g., R.C. 2929.12(D) (indicating that a defendant's prior criminal record

and unfavorable response to previous sanctions demonstrates recidivism). The

individual's status as a sex offender further exacerbates this recidivist factor. See

McKune v. Lile (2002), 536 U.S. 24, 33-34, 122 S.Ct. 2017, 2024-25, 153 L.Ed.2d 47

(recognizing concerns that sex offenders have a high rate of recidivism). Severe

penalties are warranted for recidivism. See Solem, 463 U.S. at 296, 103 S.Ct. at 3013.

Given the recidivist factors, we conclude that it is not contrary to the cruel and unusual

punishment clause for a failure to register offense to carry a felony penalty, despite a

prior sex offense being a misdemeanor, just as an offender's prior misdemeanor would

not necessarily bar felony sentencing under the cruel and unusual punishment clause

for the offender's new crime of escaping the incarceration for the misdemeanor. Id. at

¶20.

       {¶22} We agree with the reasoning of the Tenth District. Appellant’s sentence

stems from his inability to follow the registration requirements imposed on him.      The

instant offense was appellant’s third conviction for registration violations since 2004. A

sentence of three years was not grossly disproportionate to appellant’s failure to register

offense.
Stark County App. Case No. 2011CA00219                                      8


      {¶23} The second assignment of error is overruled.

      {¶24} The judgment of the Stark County Common Pleas Court is affirmed.




By: Edwards, J.

Gwin, P.J. and

Hoffman, J. concur

                                                ______________________________



                                                ______________________________



                                                ______________________________

                                                           JUDGES

JAE/r0214
[Cite as State v. Nelson, 2012-Ohio-2400.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
JERRY NELSON                                      :
                                                  :
                        Defendant-Appellant       :       CASE NO. 2011CA00219




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to

appellant.




                                                      _________________________________


                                                      _________________________________


                                                      _________________________________

                                                                   JUDGES
