         [Cite as State v. Love, 2013-Ohio-3096.]

                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO                                       :   APPEAL NO. C-120642
                                                        TRIAL NO. B-9601201
        Plaintiff-Appellee,                         :
                                                            O P I N I O N.
  vs.                                               :

JAMES LOVE,                                         :

    Defendant-Appellant.                            :



Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: July 17, 2013

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

William Gallagher, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                        OHIO FIRST DISTRICT COURT OF APPEALS


HENDON, Presiding Judge.

       {¶1}   Defendant-appellant James Love appeals from the trial court’s judgment

adjudicating him a sexual predator under the Megan’s Law version of R.C. Chapter

2950. We affirm.

                                            Facts

       {¶2}   In 1996, Love was found guilty of four counts of rape, with force, of a

child under the age of 13. The trial court sentenced Love to consecutive life sentences

on each count. While he was incarcerated on these charges, Love was never returned to

Hamilton County for a sexual-offender-classification hearing under Megan’s Law.

       {¶3}   Following a series of appeals, Love was granted a new trial that

ultimately culminated in Love pleading guilty in September 2012 to two counts of gross

sexual imposition that had occurred in 1989. The trial court imposed an agreed

sentence of eight to ten years’ incarceration on each count, ordered the sentences to run

concurrently, credited Love with 5,932 days of time served, and wrote on the

sentencing entry that the entire sentence was considered served upon entry of the

court’s judgment. During Love’s sentencing hearing, Love indicated that he understood

that he would be credited with time served on these counts and that the time served

would be counted from June 5, 1996—the date that he had initially been incarcerated.

       {¶4}   At the time that Love was sentenced in September 2012, the trial court

conducted a sexual-offender-classification hearing under the Megan’s Law version of

R.C. Chapter 2950, and adjudicated Love a sexual predator. This appeal followed.

       {¶5}   In his first assignment of error, Love contends that the trial court erred

when it classified him under Megan’s Law because neither his crimes nor his

convictions occurred when Megan’s Law was in effect. In his second assignment of

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error, Love argues that, even if Megan’s Law does apply, he is a “sexually oriented

offender” by operation of law, and the trial court did not have jurisdiction to reclassify

him. Neither argument has merit.

                             Love is Subject to Megan’s Law

       {¶6}    The Megan’s Law version of R.C. Chapter 2950 was in effect from 1997

until 2008. In State v. Wood, 1st Dist. Hamilton No. C-120598, 2013-Ohio-2724, we

recently held that Megan’s Law applies to those defendants incarcerated for a sex

offense during this time, regardless of when the offense had been committed. See State

v. Cook, 83 Ohio St.3d 404, 700 N.E.2d 570 (1998).

       {¶7}    Love contends that since his crimes occurred before Megan’s Law was in

effect and because his sentencing occurred after Megan’s Law had been repealed, he is

subject to the reporting requirements in effect when he committed his crimes in 1989.

       {¶8}    Love’s argument ignores the record in this case. At Love’s sentencing

hearing, the trial court determined, and Love agreed, that he had been incarcerated for

5,932 days on two counts of gross sexual imposition commencing June 5, 1996. Love

may not simultaneously claim the benefit of 5,932 days of “time served” and also claim

that he did not serve time during those years. And because Love was incarcerated for

sex offenses at the time that Megan’s Law was in effect, he is subject to that law.

                        The Classification Hearing was Proper

       {¶9}    Love next contends that, even if Megan’s Law does apply to him, since he

was never adjudicated as a sexual predator while incarcerated on the rape charges, he is

a “sexually oriented offender” as a matter of law. See Wood; Snyder v. State, 10th Dist.

Franklin No. 11AP-1026, 2012-Ohio-2529. And Love further asserts that because his

convictions for rape were vacated by this court, but not his claimed status as a sexually

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oriented offender, the trial court had no authority on remand to conduct a sexual-

offender-classification hearing.

        {¶10} Love cites State v. Williams, 177 Ohio App.3d 865, 2008-Ohio-3586,

896 N.E.2d 725 (9th Dist.) in support of his argument that his alleged former

classification as a sexually oriented offender remains intact. In Williams, the state

appealed the trial court’s judgment reclassifying Williams as a sexual offender on

remand after Williams’s sentence had been reversed on appeal for the trial court’s

failure to notify Williams of postrelease control. The Williams court held that the trial

court had had the authority to correct Williams’s void sentence, only. In pertinent part,

the court reasoned that because Williams’s sexual-offender classification had been the

result of a separate civil proceeding that had not been appealed, this classification had

remained untouched by Williams’s void sentence. Id. at ¶ 11-12. Specifically, the court

found that the “status of her [Williams’s] sentence did not impact the status of her

classification. That is, the vacation of her sentence did not result in the vacation of her

legally distinct sexual offender classification.” Id. at ¶ 11.

        {¶11} Williams is distinguishable from the present case. Here, we vacated the

underlying findings of guilt on Love’s sex offenses as well as Love’s sentences. The

commission of a sex offense is a necessary predicate to a sexual-offender classification

under Megan’s Law. See former R.C. 2950.01, repealed by 2007 Am.Sub.S.B. No. 10.

So, unlike in Williams, when we reversed and vacated the findings of guilt on Love’s

rape offenses, the classification that Love contends had attached to him as a matter of

law as a result of these offenses was also necessarily reversed and vacated.           We

therefore reject Love’s argument that the trial court acted beyond the scope of this

court’s remand when it conducted a sexual-offender-classification hearing in this case.


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                        OHIO FIRST DISTRICT COURT OF APPEALS


       {¶12} Finally, Love claims that the trial court did not have the authority to

conduct a hearing under Megan’s Law because those code provisions allowing the Ohio

Department of Rehabilitation and Correction to recommend to the trial court that an

inmate be adjudicated a sexual predator have been repealed. We decline to address this

argument because Love was not before the trial court pursuant to such a notification.

And in State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶ 22,

the Ohio Supreme Court clearly indicated that a trial court may conduct a classification

hearing under Megan’s Law even after the effective date of the Adam Walsh Act.

Further, the Megan’s Law version of R.C. 2950.09(B)(1)(a)(i) provides that a trial court

has the authority to conduct a sexual-offender-classification hearing at the time of

sentencing. This is precisely what occurred in this case.

                                         Conclusion

       {¶13} For these reasons, we overrule both of Love’s assignments of error. The

trial court’s judgment adjudicating Love a sexual predator under the Megan’s Law

version of R.C. Chapter 2950 is affirmed.

                                                                   Judgment affirmed.

DINKELACKER and DEWINE, JJ., concur.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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