[Cite as State v. Ingledue, 2014-Ohio-4003.]

                           STATE OF OHIO, COLUMBIANA COUNTY

                                   IN THE COURT OF APPEALS

                                         SEVENTH DISTRICT


STATE OF OHIO,                                 )
                                               )    CASE NO.     13 CO 51
        PLAINTIFF-APPELLEE,                    )
                                               )
VS.                                            )    OPINION
                                               )
ROBERT W. INGLEDUE,                            )
                                               )
        DEFENDANT-APPELLANT.                   )


CHARACTER OF PROCEEDINGS:                           Criminal Appeal from Common Pleas
                                                    Court, Case No. 87CR80.


JUDGMENT:                                          Affirmed.


APPEARANCES:
For Plaintiff-Appellee:                             Attorney Robert Herron
                                                    Prosecuting Attorney
                                                    105 South Market Street
                                                    Lisbon, Ohio 44432


For Defendant-Appellant:                            Attorney Coleen Hall-Dailey
                                                    323 East Main Street
                                                    Alliance, Ohio 44601


JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite


                                                    Dated: September 8, 2014
[Cite as State v. Ingledue, 2014-Ohio-4003.]
VUKOVICH, J.


        {¶1}     Defendant-appellant           Robert   Ingledue   appeals   the   order   of   the
Columbiana County Common Pleas Court denying his motion for reclassification.
Appellate counsel for Ingledue filed a no-merit brief and asked to withdraw. Ingledue
then filed his own brief raising two arguments. He contended that appellate counsel
was ineffective for filing a no-merit brief and that he cannot be classified as a sexual
offender under either the Adam Walsh Act or Megan’s Law because the crimes giving
rise to the classification occurred before the enactment of those two classification
schemes.
        {¶2}     For the reasons discussed below, the arguments lack merit. Appellate
counsel’s motion to withdraw is granted and the trial court’s order denying
reclassification is affirmed.
                                         Statement of the Case
        {¶3}     In the late 1980s, Ingledue was convicted of six counts of gross sexual
imposition in violation of R.C. 2907.05(A)(3) and one count of rape, in violation of R.C.
2907.02(A)(1), for which he received an indefinite sentence of nine to twenty-five
years. Although those convictions were appealed to this court, Ingledue voluntarily
dismissed the appeal prior to our court’s review of the matter. 07/06/89 J.E. Appeal
Number 88-C-30.
        {¶4}     In 1996, Megan’s Law was enacted.                 This act provided for judicial
classification of a sex offender as a “sexually oriented” offender, a “habitual sex
offender” or a “sexual predator.” Former R.C. 2950.01. A registration requirement and
the frequency and duration of reporting were set for each category.
        {¶5}     Due to the enactment of that law, in October 1997, while Ingledue was
serving his prison sentence, the trial court held an offender classification hearing.
Following presentation of the evidence, the trial court found Ingledue to be a sexual
predator and further held that he was subject to the notification requirements in former
R.C. 2950.03. 10/10/97 J.E. Columbiana County Common Pleas Case Number 87-
CR-80. That decision was appealed to our court. State v. Ingledue, 7th Dist. No.
97CO55, 1999 WL 1279174 (Dec. 22, 1999) (1997 appeal).
                                                                                        -2-

       {¶6}     In that appeal, Ingledue argued that Megan’s Law was unconstitutionally
retroactive and that there was insufficient evidence to support the trial court’s decision
to label him a sexual predator. Id. Based on the Ohio Supreme Court’s decision in
Cook and other decisions by our court, we held that Megan’s Law was not
unconstitutionally retroactive. Id. citing State v. Cook, 83 Ohio St.3d 404, 700 N.E.2d
570 (1998).      We also found that there was clear and convincing evidence that
supported the trial court’s finding that Ingledue was likely to commit a future sexually
oriented offense and thus, the trial court did not err in labeling him a sexual predator.
Id.
       {¶7}     Ingledue did not appeal that decision to the Ohio Supreme Court.
       {¶8}     In February 2012, Ingledue filed a pro se “Motion to Vacate Sentence of
the Sex Offender Megan’s Law Registration.” 02/03/12 Motion. In that motion, he
argued that he was convicted and sentenced for crimes underlying his classification
prior to the enactment of Megan’s Law. He appeared to be asserting that Megan’s
Law cannot be applied retroactively. He also argued that he received no notice of the
sexual predator classification and had no possibility to oppose that classification.
       {¶9}     In March 2012, the trial court denied the motion. It explained that the
record did not support his allegations that he did not receive notice or the possibility to
oppose the classification. The court went on to explain that a hearing was held and
that Ingledue was informed of his right to appeal that classification determination.
03/06/12 J.E.
       {¶10} Ingledue did not file an appeal from that decision. Rather, in October
2013, he filed another pro se motion with the Columbiana County Common Pleas
Court seeking to vacate his sex offender status.           This motion focused on the
constitutionality of Megan’s Law and on the constitutionality of the new sex offender
classification act, the Adam Walsh Act. Ingledue once again asserted that Megan’s
Law cannot be applied retroactively to him because it was not in effect at the time he
was sentenced. He also asserted that the state attempted to reclassify him under the
Adam Walsh Act and argued that it is unconstitutional to apply that classification
scheme to him because it violates the “ex post facto clauses and the separation of
powers act.”
                                                                                        -3-

         {¶11} The state filed a motion in opposition to the October 2013 motion.
11/01/13 Motion.
         {¶12} After considering the motions, the trial court denied the October 21, 2013
motion. 11/18/13 J.E. The trial court stated that any challenge to Ingledue’s initial
sexual predator classification or reporting requirements are overruled because that
issue was appealed and found to be meritless. As to any attempt to apply a new
registration requirement based on the Adam Walsh Act, the trial court stated that there
is nothing in the record to demonstrate that Ingledue has been subjected to the Adam
Walsh Act’s new classification system or reporting requirements. However, it did note,
based on the Moore decision from our court, that it is unconstitutional to apply the
Adam Walsh Act retroactively. 11/18/13 J.E. citing State v. Moore, 2013-Ohio-1431,
990 N.E.2d 165, ¶ 29 (7th Dist.).
         {¶13} Ingledue timely appeals from that decision.          Columbiana County
Common Pleas Court appointed counsel for Ingledue. Counsel has filed a no-merit
brief.
                                         Analysis
         {¶14} When appellate counsel seeks to withdraw and discloses that there are
no meritorious arguments for appeal, the filing is known as a no-merit brief or an
Anders brief. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967). In this district it
has also been called a Toney brief. State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d
419 (7th Dist.1970).
         {¶15} In Toney, this court set forth the procedure to be used when counsel of
record determines that an indigent's appeal is frivolous:
               3. Where court-appointed counsel, with long and extensive
         experience in criminal practice, concludes that the indigent's appeal is
         frivolous and that there is no assignment of error which could be
         arguably supported on appeal, he should so advise the appointing court
         by brief and request that he be permitted to withdraw as counsel of
         record.
               4. Court-appointed counsel's conclusions and motion to withdraw
         as counsel of record should be transmitted forthwith to the indigent, and
                                                                                       -4-

       the indigent should be granted time to raise any points that he chooses,
       pro se.
               5. It is the duty of the Court of Appeals to fully examine the
       proceedings in the trial court, the brief of appointed counsel, the
       arguments pro se of the indigent, and then determine whether or not the
       appeal is wholly frivolous.
               ***
               7. Where the Court of Appeals determines that an indigent's
       appeal is wholly frivolous, the motion of court-appointed counsel to
       withdraw as counsel of record should be allowed, and the judgment of
       the trial court should be affirmed.
Id. at syllabus.
       {¶16} The no-merit brief was filed by counsel on February 3, 2014. Thereafter,
this court informed Ingledue of appointed counsel’s no-merit brief and granted him 30
days to file his own written brief. 02/18/14 J.E. Ingledue has filed a timely brief
arguing that appellate counsel was ineffective for filing a no-merit brief and that he
cannot be subject to Megan’s Law or the Adam Walsh Act because it violated the
separation of power and the prohibition against retroactive laws.
       {¶17} In a Toney review, we are required to independently review the record.
The order appealed in this case is the denial of a motion to vacate Ingledue’s sexual
offender classification and reporting requirements. Therefore, our focus is primarily on
whether that decision was correct.       Our review of that matter encompasses the
arguments Ingledue raises in his pro se appellate brief.
                                      Megan’s Law
       {¶18} As aforementioned, Ingledue argued to the trial court that Megan’s Law
does not apply to him because he committed his crimes prior to the law’s enactment
and that the law is unconstitutional. The trial court found no merit with this argument.
       {¶19} Although Ohio has had some form of sex offender registry since 1963,
the system remained unchanged and little used for decades. State v. Bodyke, 126
Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, at ¶ 3. The first major change
                                                                                       -5-

occurred in 1996 when the General Assembly enacted Ohio’s version of “Megan's
Law.” Id. at ¶ 6; Am.Sub.H.B. No. 180 (Effective October 16, 1996.)
       {¶20} From the outset, Ohio’s version of Megan’s Law and its later
amendments were attacked constitutionally because of its retroactive application. The
argument most often made was that it violated the prohibition against ex post facto
laws. The Ohio Supreme Court addressed this argument in Cook and held that “the
registration and notification provisions of R.C. Chapter 2950 do not violate the Ex Post
Facto Clause because its provisions serve the remedial purpose of protecting the
public.” Cook, 83 Ohio St.3d at 423. After the law was amended in 2003, the Ohio
Supreme Court once again addressed the ex post facto argument and once again
found that the 2003 version of Megan’s Law was not unconstitutionally retroactive.
State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, ¶ 41-43 (R.C.
Chapter 2950 is a civil, remedial statute and therefore it cannot be deemed
unconstitutional on ex post facto grounds because ex post facto laws concern criminal
matters solely and has no application to civil law).
       {¶21} Thus, the Ohio Supreme Court has determined that Megan’s Law can
constitutionally be applied retroactively. Offenders who committed a sex offense prior
to the enactment date of Megan’s Law in 1996 could still be subject to Megan’s Law if
the offender was released from the prison term arising from the sexual offense after
the July 1, 1997 effective date of the act. Ferguson; Cook. In fact, although the Ohio
Supreme Court has stated that the new sex offender act, the Adam Walsh Act (which
will be discussed below) cannot be applied retroactively, it has declined to reverse its
prior decisions that Megan’s Law is remedial and thus can be applied retroactively.
See State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108.
Consequently, Ingledue’s sexual predator classification does not violate the ex post
facto clause.
       {¶22} In addition to the fact that Ingledue’s ex post facto/retroactivity argument
regarding Megan’s Law fails based on the Ohio Supreme Court decisions discussed
above, it is also barred by res judicata. The principle of “res judicata may be applied to
bar further litigation of issues that were raised previously or could have been raised
previously in an appeal.” State v. Houston, 73 Ohio St.3d 346, 347, 652 N.E.2d 1018
                                                                                        -6-

(1995). Whether or not Megan’s Law violates the prohibition against ex post facto
laws was raised to this court and disposed of on the basis of Cook in the 1997 appeal.
Ingledue, 7th Dist. No. 97CO55, 1999 WL 1279174. That decision was not appealed
to the Ohio Supreme Court. Furthermore, the retroactive application of Megan’s Law
was also argued in the 2012 motion to vacate his sex offender classification. The trial
court found no merit with that decision and that decision was not appealed to this
court. Failing to appeal the issue to the Ohio Supreme Court and failing to appeal the
2012 trial court decision to this court bars any argument that Megan’s Law cannot be
applied to Ingledue; that issue could have and should have been raised in an appeal
from the decision of the 1997 appeal or an appeal from the trial court’s 2012 decision.
       {¶23} However, retroactivity is not the only argument Ingledue asserts to claim
that Megan’s Law is unconstitutional. He also asserts that it violates the doctrine of
separation-of-powers. This argument, like the above argument regarding retroactivity,
is barred by res judicata. It is not barred because it was actually raised to this court in
the 1997 appeal or to the trial court in the 2012 motion, but rather because it could
have and should have been raised in the 1997 appeal or in the 2012 motion to the
Columbiana County Common Pleas Court.
       {¶24} Regardless, the argument still fails. A separation-of-powers argument
was not presented to the Ohio Supreme Court in either Cook or Ferguson. However,
the argument was made in the Thompson case and in that case, the Ohio Supreme
Court was asked to decide whether former R.C. 2950.09 violates the separation-of-
powers doctrine because it encroaches upon the judiciary's fact-finding authority. State
v. Thompson, 92 Ohio St.3d 584, 585, 752 N.E.2d 276 (2001). Former R.C. 2950.09
is the statute that set forth the factors the trial court was to consider when determining
whether an offender was a sexual predator. The Ohio Supreme Court found that the
factors listed in R.C. 2950.09 are guidelines and do not control a judge’s discretion.
Id. at 588. Thus, the Court found that R.C. 2950.09 does not encroach upon the trial
court in its fact-finding authority, and therefore, it does not violate the separation-of-
powers doctrine. Id. Consequently, Ingledue’s argument regarding the separation-of-
powers doctrine fails.
       {¶25} In conclusion, in regards to Megan’s Law, Ingledue’s arguments fail.
                                                                                         -7-

                                     Adam Walsh Act
       {¶26} Ingledue also argued to the trial court and argues in his pro se appellate
brief to this court that the Adam Walsh Act, with its new registration and reporting
requirements, cannot be applied to him.
       {¶27} In 2006, Congress enacted the Adam Walsh Act, which created tougher
national standards for sex offender registration. Bodyke, 2010-Ohio-2424, at ¶ 18–19.
Congress encouraged the states to adopt these tougher standards. Id. In 2007, the
General Assembly enacted Senate Bill 10, which is Ohio’s version of the Adam Walsh
Act; this new law replaced the Megan's Law. Id. at ¶ 20; 2007 Am. Sub. S.B. No. 10.
       {¶28} Like Ohio’s version of Megan’s law, Ohio’s version of the Adam Walsh
Act has been attacked on constitutional grounds. In 2010, the Ohio Supreme Court
found that the provisions in the Adam Walsh Act that governs the reclassification of
sex offenders already classified by judges under Megan's Law violates the separation-
of-powers doctrine because: 1) the reclassification scheme vests the executive branch
with authority to review judicial decisions, and 2) it interferes with the judicial power by
requiring the reopening of final judgments. Bodyke at ¶ 55. Then in 2011, the Ohio
Supreme Court found that the Adam Walsh Act is punitive and it was unconstitutional
to apply the act retroactively to offenders who committed the sex offense prior to the
enactment date of the Adam Walsh Act; “2007 Am.Sub.S.B. No. 10, as applied to
defendants who committed sex offenses prior to its enactment, violates Section 28,
Article II of the Ohio Constitution, which prohibits the General Assembly from passing
retroactive laws.” Williams, 2011-Ohio-3374, syllabus.
       {¶29} Based on those decisions, Ingledue is correct that the Adam Walsh Act
cannot retroactively apply to him. The trial court noted this in its November 2013
judgment entry. However, it also noted that the record is devoid of any indication that
Ingledue has been reclassified under the Adam Walsh Act.               That statement is
accurate. A review of the file provides no indication that Ingledue is being ordered to
comply with the Adam Walsh Act’s classification and notification scheme. Rather, it
appears that he is only being subjected to the classification and notification scheme in
Megan’s Law. Therefore, although his contention that the Adam Walsh Act cannot be
                                                                                         -8-

applied to him is correct, there is no indication that it has been applied to him. Any
argument to the contrary fails.
       {¶30} That said, we note that the Adam Walsh Act superseded Megan’s Law.
However, that does not mean that Megan’s Law still does not apply to Ingledue. The
Ohio Supreme Court indicated that Megan’s Law still applies to defendants who
committed their offenses before the enactment date of the Adam Walsh Act. Id. at ¶
23. As explained above, Megan’s Law constitutionally applies retroactively and it was
applied to him. Thus, the trial court’s decision that denied Ingledue’s motion to vacate
his sexual predator classification and reporting requirements under Megan’s Law is
correct. The trial court’s November 2013 judgment is therefore affirmed.
                       Ineffective Assistance of Appellate Counsel
       {¶31} In his pro se brief, Ingledue also argues that appellate counsel was
ineffective for filing a no merit brief. This issue lacks merit for two reasons.
       {¶32} First, a claim of ineffective assistance of appellate counsel is the means
used to reopen an appeal pursuant to App.R. 26(B). A motion for reopening sets forth
that appellate counsel was deficient for failing to raise specific assignments of error or
arguments to the appellate court. In that motion, the moving party asks the appellate
court to reopen the direct appeal and allow the issue that was not raised to be briefed.
Since the filing of a no-merit brief allows appellant the opportunity to file his or her own
pro se brief and requires the reviewing court to do an independent review of the
record, there is no need to argue that appellate counsel was ineffective for filing a no-
merit brief. If during our review of the case we would find a potentially meritorious
claim, we would appoint counsel to brief that issue.
       {¶33} Second, based on our analysis of Megan’s Law and the Adam Walsh
Act, there is no basis to reverse the trial court’s decision; there are no meritorious
issues to present on appeal.        Anders and Toney specifically allow for appellate
counsel to file a no merit brief. “Counsel’s role as advocate requires that he support
his client's appeal to the best of his ability. Of course, if counsel finds his case to be
wholly frivolous, after a conscientious examination of it, he should so advise the court
and request permission to withdraw.” Anders, 386 U.S. at 744. See also Toney, 23
Ohio App.2d 203. Thus, counsel was not ineffective for filing a no merit.
                                                                                     -9-

                                      Conclusion
      {¶34} In conclusion, the trial court’s decision is hereby affirmed. The record is
devoid of any indication that Ingledue was reclassified under the Adam Walsh Act.
Thus, any argument concerning the Adam Walsh Act lacks merit. As to Megan’s Law,
the record discloses that he was found to be a sexual predator years after the
convictions of the offenses that gave rise to that classification. Ingledue challenged
that classification after it occurred by appealing to this court. Based on the Ohio
Supreme Court’s decision in Cook, we held that Megan’s Law was not
unconstitutionally retroactive and thus could be applied to him even though the crimes
giving rise to the classification were committed prior to the enactment date of Megan’s
Law. The Ohio Supreme Court’s decision that Megan’s Law is not unconstitutionally
retroactive has not been reversed. Furthermore, Ingledue is barred by res judicata
from re-raising the issues concerning Megan’s Law since those issues were raised or
could have been raised in an appeal from his sexual predator classification
determination. Therefore, for those reasons, the trial court correctly denied Ingledue’s
attempt to have his sexual predator classification removed. Appellate counsel’s motion
to withdraw is hereby granted.



Donofrio, J., concurs.
Waite, J., concurs.
