        [Cite as State v. Tye, 2013-Ohio-1571.]
                IN THE COURT OF APPEALS
            FIRST APPELLATE DISTRICT OF OHIO
                 HAMILTON COUNTY, OHIO



STATE OF OHIO,                                    :   APPEAL NO. C-120562
                                                      TRIAL NO. B-1201674
    Plaintiff-Appellee,                           :

  vs.                                             :      O P I N I O N.

KEITH TYE,                                        :

    Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: April 19, 2013


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula 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



D E W INE , Judge.

          {¶1}   Keith Tye was convicted of failure to provide notice of a change of

address in violation of R.C. 2950.05, a first-degree felony.       Shortly after he was

sentenced, the Ohio Supreme Court issued its decision in State v. Howard, 134 Ohio

St.3d 467, 2012-Ohio-5738, 983 N.E.2d 316, which made clear that Mr. Tye should

only have been found guilty of a third-degree felony.      Accordingly, we reverse, and

remand this cause to the trial court.

          {¶2}   In October 1990, Mr. Tye was convicted of rape, a first-degree felony,

and sentenced to prison. While he was incarcerated, he was classified as a sexual

predator pursuant to Ohio’s Megan’s Law. In 2007, the Ohio General Assembly

repealed Megan’s law and replaced it with Ohio’s version of the federal Adam Walsh

Act (“AWA”), R.C. Chapter 2950. One effect of the AWA on someone in Mr. Tye’s

position was to increase the penalty for failure to provide notice of a change of

address from a third-degree felony to a first-degree felony. In March 2012, Mr. Tye

was, in fact, indicted for a first-degree felony for failing to provide notice of a change

of address. He entered a guilty plea and the trial court sentenced him to four years in

prison.

          {¶3}   In December 2012, while Mr. Tye’s appeal was pending, the Ohio

Supreme Court released its opinion in Howard. The Supreme Court acknowledged

that following its decision in State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424,

933 N.E.2d 753, “Ohio has, in effect, separate statutory schemes governing sex

offenders depending on when they committed their underlying offenses.” Howard at

¶ 17. “Pursuant to Bodyke, the classifications and community-notification and

registration orders imposed by judges before the Adam Walsh Act (“AWA”) were

reinstated.” Id. at ¶ 6.     For “a defendant whose sex-offender classification was



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                      OHIO FIRST DISTRICT COURT OF APPEALS



determined under Megan’s Law, the penalty for a violation of the reporting

requirements of former R.C. 2950.05 that occurs after Megan’s Law was supplanted by

the AWA is the penalty set forth in the version of R.C. 2950.99 in place just before the

effective date of the AWA.” Id. at ¶ 21.

       {¶4}     Thus, Mr. Tye should not have been convicted and sentenced under the

current version of R.C. 2950.05 and R.C. 2950.99, but instead under the scheme in place

immediately before the AWA went into effect. Id. at ¶ 29; accord State v. Washington,

1st Dist. No. C-120583, 2013-Ohio-797, ¶ 5-6. We sustain Mr. Tye’s sole assignment of

error, reverse the trial court's judgment, and remand the case with instructions for

the trial court to vacate his first-degree felony conviction, to enter a finding of guilt

for a third-degree felony, and to resentence him accordingly.


                                               Judgment reversed and cause remanded.

HENDON, P.J., and CUNNINGHAM, J., concur.


Please note:
       The court has recorded its own entry this date.




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