[Cite as State v. Walker, 2012-Ohio-3095.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. Sheila G. Farmer, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Julie A. Edwards, J.
-vs-
                                                  Case No. 12 CAA 02 0010
SCOTT A. WALKER

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 09 CRI 03 0116


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        July 5, 2012



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

CAROL HAMILTON O'BRIEN                         SCOTT A. WALKER
PROSECUTING ATTORNEY                           North Central Corr. Complex
MARK C. SLEEPER                                670 Marion/Williamsport Road
ASSISTANT PROSECUTOR                           Post Office Box 1818
140 North Sandusky Street, 3rd Floor           Marion, Ohio 43301
Delaware, Ohio 43015
Delaware County, Case No. 12 CAA 02 0010                                                  2

Wise, J.

      {¶1}    Appellant Scott A. Walker appeals the decision of the Court of Common

Pleas, Delaware County, which denied his post-conviction motion challenging his Tier III

sex offender classification. The relevant facts leading to this appeal are as follows.

      {¶2}    On March 4, 2009, appellant was indicted by the Delaware County Grand

Jury on four counts of rape and six counts of sexual battery.

      {¶3}    On June 19, 2009, appellant, with the assistance of trial counsel, entered

Alford guilty pleas to two counts of sexual battery, R.C. 2907.03(A)(1), felonies of the

third degree. At the time of entry of these pleas, the trial court advised appellant that he

would have the duty to register as a Tier III sex offender.

      {¶4}    On August 12, 2009, the trial court sentenced appellant to six years in

prison. Appellant at that time signed a form supplied by the court explaining his duties to

register as a sex offender.

      {¶5}    On January 18, 2012, well over two years after his sentencing, appellant

filed a pro se “Motion to Vacate Current Sexual Oriented Classification Tier and

Reclassify Defendant.”

      {¶6}    Via a judgment entry filed February 3, 2012, the trial court denied

appellant’s motion to vacate and reclassify.

      {¶7}    Appellant filed a notice of appeal on February 21, 2012. He herein raises

the following sole Assignment of Error:

      {¶8}    “I. THE TRIAL COURT ERRED IN DETERMINING THAT THE CRIME

CONVICTED FITTED THE TIER III SEXUAL OFFENDER STATUS.”
Delaware County, Case No. 12 CAA 02 0010                                                 3


                                             I.

      {¶9}    In his sole Assignment of Error, appellant challenges the trial court’s

denial of his post-conviction motion to change his Tier III sex offender status.

      {¶10} R.C. 2950.01(E), (F), and (G) create three “Tiers” of sex offender

registration and notification requirements based on the type of offenses of which a

defendant has been convicted. The most recent substantial changes to R.C. Chapter

2950 took effect on January 1, 2008.1

      {¶11} Although there was no trial in this matter and no hearing was conducted

on appellant’s motion to vacate and reclassify, appellant herein essentially argues that

his offenses and conduct would support, at most, a Tier I classification. Appellant further

contends that his trial counsel was ineffective during the 2009 events leading to his

plea, classification, and sentence.

      {¶12} As the State notes in its response brief, this case does not involve a

reclassification of an offender classified prior to the enactment in Ohio of the present

Adam Walsh Act. Instead, appellant filed a self-styled motion to vacate in the trial court

on January 18, 2012, almost two and one-half years after his sentence and

classification, seeking additional review of his sex offender classification and status. We

are thus inclined to initially hold that res judicata would have barred such review by the

trial court in these circumstances. See, e.g., State v. Stevenson, Summit App.No.

21953, 2005-Ohio-156, ¶ 7 - ¶ 8 (applying res judicata to a defendant’s attempt to

challenge his classification via a motion to correct sentence approximately six years

after such classification).

1
  There is no dispute that the offenses of which appellant was convicted in the case
sub judice were based on conduct occurring on or after December 24, 2008.
Delaware County, Case No. 12 CAA 02 0010                                                     4


      {¶13} In the alternative, even if we interpret appellant’s motion of January 18,

2012 as a petition for post-conviction relief, the pertinent jurisdictional time requirements

for such a petition are set forth in R.C. 2953.21(A)(2) as follows: “ * * * A petition under

division (A)(1) of this section shall be filed no later than one hundred eighty days after

the date on which the trial transcript is filed in the court of appeals in the direct appeal of

the judgment of conviction or adjudication * * *. If no appeal is taken, except as

otherwise provided in section 2953.23 of the Revised Code, the petition shall be filed no

later than one hundred eighty days after the expiration of the time for filing the appeal.”

Appellant herein did not timely file his motion to vacate and reclassify under R.C.

2953.21(A)(2), and he makes no attempt to justify an untimely filing pursuant to the

requirements set forth in R.C. 2953.23(A). A court has no jurisdiction to hear an

untimely petition for postconviction relief unless the movant meets the requirements in

R.C. 2953.23(A). State v. Demastry, Fairfield App. No. 05CA14, 2005–Ohio–4962, ¶ 15.

      {¶14} Moreover, even if we were to find the trial court had been required to

reach the merits of appellant’s motion to vacate and reclassify, based on appellant’s

two-count conviction of sexual battery under R.C. 2907.03, his Tier III classification

clearly was proper under R.C. 2950.01(G)(1)(a), and therefore the trial court did not err

in denying appellant’s motion to vacate and reclassify.
Delaware County, Case No. 12 CAA 02 0010                                           5


     {¶15} Appellant's sole Assignment of Error is therefore overruled.

     {¶16} For the reasons stated in the foregoing opinion, the decision of the Court

of Common Pleas, Delaware County, Ohio, is hereby affirmed.


By: Wise, J.

Farmer, P. J., and

Edwards, J., concur.



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                                                              JUDGES
JWW/d 0608
Delaware County, Case No. 12 CAA 02 0010                                       6


           IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
SCOTT A. WALKER                           :
                                          :
       Defendant-Appellant                :         Case No. 12 CAA 02 0010




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

judgment of the Court of Common Pleas of Delaware County, Ohio, is affirmed.

       Costs assessed to appellant.




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                                                             JUDGES
