[Cite as State v. Shelton, 2020-Ohio-1218.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Craig R. Baldwin, J.
-vs-
                                                   Case No. CT2019-0061
MATHEW E. SHELTON

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                        Criminal Appeal from the Court of Common
                                                Pleas, Case No. CR2019-0258


JUDGMENT:                                       Affirmed in Part; Reversed in Part
                                                and Remanded



DATE OF JUDGMENT ENTRY:                        March 27, 2020



APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

D. MICHAEL HADDOX                              ABIGAIL CHRISTOPHER
PROSECUTING ATTORNEY                           250 East Broad Street
TAYLOR P. BENNINGTON                           Suite 1400
ASSISTANT PROSECUTOR                           Columbus, Ohio 43215
27 North Fifth Street, P.O. Box 1187
Zanesville, Ohio 43702
Muskingum County, Case No. CT2019-0061                                                  2


Wise, J.

       {¶1}     Defendant-Appellant Mathew E. Shelton appeals his conviction and

sentence entered in the Muskingum County Court of Common Pleas on one count of

Failure to Register, following a plea of guilty.

       {¶2}     Plaintiff-Appellee is the State of Ohio.

                             STATEMENT OF THE FACTS AND CASE

       {¶3}     The relevant facts and procedural history are as follows:

       {¶4}     Appellant Mathew Shelton is a Tier III registered sex offender. Such

classification followed an adjudication for first-degree felony rape in September of 2015,

when Appellant was 16 years old. At the time of sentencing, Appellant was made aware

of the terms and conditions of such registration requirements.

       {¶5}     Pursuant to such registration requirements, Appellant had been registering

with the Muskingum County Sheriff’s Department as a sexual offender.

       {¶6}     On April 26, 2019, the Muskingum County Sheriff's Office received a

message from Offender Watch notifying them of a change of address for Appellant.

Appellant had reported to Columbiana County with a new address located in their

jurisdiction.

       {¶7}     Appellant did not advise Muskingum County prior to his move and gave no

notice of his intent to move out of county. Appellant did call the Muskingum County

Sherriff's Department after his move, stating that he was late in notifying them, and that

he had just moved to Columbiana County.

       {¶8}     Appellant was subsequently arrested.
Muskingum County, Case No. CT2019-0061                                                  3


       {¶9}   On May 8, 2019, Appellant was indicted on one count of Failure to Register

(address change), a felony of the first degree, in violation of R.C. §2950.05(A).

       {¶10} On June 17, 2019, Appellant pled guilty and waived a pre-sentence

investigation. The trial court followed the joint recommendation of the parties and

sentenced Appellant to serve a mandatory three (3) years of incarceration with a

mandatory five years of post-release control. (T. at 15; Sent. JE at 2).

       {¶11} Appellant now appeals, raising the following assignments of error for review:

                              ASSIGNMENTS OF ERROR

       {¶12} “I. THE TRIAL COURT COMMITTED PLAIN ERROR BY FINDING THAT

PRISON WAS MANDATORY BECAUSE THE STATE FAILED TO PRESENT

EVIDENCE THAT MATHEW SHELTON WAS PREVIOUSLY CONVICTED OF A PRIOR

FELONY OR FAILURE TO REGISTER. R.C. 2950.99, 2929.13(F).

       {¶13} “II. MATHEW WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

BECAUSE HIS TRIAL ATTORNEY FAILED TO INFORM THE COURT THAT

MATHEW'S THREE-YEAR PRISON SENTENCE WAS NOT MANDATORY AND

FAILED TO REBUT THE PRESUMPTION IN FAVOR OF SENDING MATHEW TO

PRISON IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS OF THE

U.S. CONSTITUTION, AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO

CONSTITUTION.

       {¶14} “III. THE TRIAL COURT ERRED BY ACCEPTING A GUILTY PLEA FROM

A PERSON WHO HAS NOT BEEN CONVICTED AS AN ADULT OF A SEX OFFENSE

IN VIOLATION OF MATHEW'S RIGHTS UNDER THE FOURTEENTH AMENDMENT TO
Muskingum County, Case No. CT2019-0061                                                 4


THE U.S. CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO

CONSTITUTION.”

                                                I., II.

      {¶15} With regard to Appellant’s first and second assignments of error, the State

concedes the trial court erred in sentencing:

             While the trial court was properly within its discretion to follow the

      joint recommendation of the parties by sentencing Appellant to the minimum

      sentence of three (3) years, the State conceded the prison sentence should

      not be mandatory.

             (Appellee’s Brief at 2).

             Upon review, the State also conceded that re-sentencing is necessary to

      comply with Senate Bill 201 “Reagan Tokes Law”. (Appellee’s Brief at 2).

      {¶16} We therefore grant Appellant's first and second assignments of error,

vacate the sentence, and remand the matter to the trial court for resentencing.

                                           III.

      {¶17} In his third assignment of error, Appellant argues the trial court erred in

accepting his guilty plea because he was not an adult convicted of a sex offense. We

disagree.

      {¶18} Three of our sister appellate districts have previously considered whether

the use of a juvenile adjudication can be used as the predicate offense for a failure-to-

register or a failure-to-notify offense committed as an adult. State v. Young, 4th Dist.

Lawrence, 2018-Ohio-4990, 125 N.E.3d 177, appeal allowed, 155 Ohio St.3d 1405, 2019-

Ohio-944, 119 N.E.3d 433; State v. Buttery, 1st Dist. Hamilton No. C-160609, 2017-Ohio-
Muskingum County, Case No. CT2019-0061                                                    5


9113, 2017 WL 6508864, appeal allowed, 152 Ohio St.3d 1462, 2018-Ohio-1795, 97

N.E.3d 499. State v. Shazier, 3rd Dist. Logan No. 8-19-12, 2019-Ohio-4409. Each of these

courts have concluded that it does not.

       {¶19} In Buttery, the First District explained the differences between R.C. 2950.04,

the duty-to-register statute:

              R.C. 2950.04 distinguishes between an adult offender convicted of a

       sexually-oriented offense and a juvenile adjudicated delinquent and

       classified for having committed a sexually-oriented offense. While both are

       required to register under the statute, the registration requirements are

       based on either an adult conviction or a juvenile adjudication. The statute

       does not treat a juvenile adjudication as a conviction; the juvenile is required

       to register based upon the juvenile adjudication and classification. The

       registration requirement does not depend on an adult conviction. Like the

       juvenile adjudication constituting the disability element in the weapons-

       under-disability cases, the juvenile adjudication for a sexually-oriented

       offense requires registration in its own right. The juvenile adjudication is not

       a penalty-enhancing element; it is an element of the crime of failing to

       register. Buttery at ¶ 20.

       {¶20} Likewise, in Young, the Fourth District reached a similar conclusion with

respect to R.C. §2950.05, the duty-to-notify statute under which Appellant was convicted.

       {¶21} In Young, the Fourth District found that “[n]one of the language in [R.C.

2950.05(F)(1)] suggests that a juvenile adjudication constitutes an adult conviction.”

Young at ¶ 12. The court found that “the duty-to-notify provision does not equate a juvenile
Muskingum County, Case No. CT2019-0061                                                       6


adjudication to an adult conviction and it does not enhance the failure-to-notify penalty

due to a prior juvenile adjudication.” Id. Moreover, the court noted that “R.C. Chapter

2950, including the failure-to-notify provision, reflects a legislative policy decision that

individuals labeled as juvenile sex offenders pose an increased risk to public safety and

that requiring these individuals to comply with the registration and notification provisions

attempts to minimize that risk.” Id. at ¶ 13, citing R.C. §2950.02 and State v. Blankenship,

145 Ohio St.3d 221, 2015-Ohio-4624, 48 N.E.3d 516, ¶ 36. Accordingly, the court

concluded that the defendant's “failure-to-notify conviction [did not] obviously violate[ ] his

due process rights.” Id. at ¶ 16.

       {¶22} The Third District agreed with the First and Fourth Districts' analyses,

finding that R.C.§ 2950.05 clearly does not treat a juvenile sex-offense adjudication as an

adult conviction. Instead, a person's duty to provide notice of a change of address can

arise from either a juvenile sex-offense adjudication or an adult conviction. State v.

Shazier, 3rd Dist. Logan No. 8-19-12, 2019-Ohio-4409, ¶¶ 14-17

       {¶23} Based on the foregoing, we conclude that use of a prior juvenile sex-offense

adjudication as an element of a failure-to-provide-notice-of-change-of-address offense is

not barred. Therefore, we conclude that Appellant’s constitutional rights to due process

were not violated when the trial court accepted his guilty plea.

       {¶24} Appellant's third assignment of error is overruled.
Muskingum County, Case No. CT2019-0061                                                    7


       {¶25} Accordingly, the judgment of the Court of Common Pleas, Muskingum

County, Ohio, is affirmed in part, reversed in part, and this matter is remanded for further

proceedings consistent with the law and this opinion.


By: Wise, J.

Gwin, P. J., and

Baldwin, J., concur.




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