[Cite as State v. Campbell, 2011-Ohio-2281.]


          Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                    No. 95348



                                    STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                              ANTONIO CAMPBELL
                                                     DEFENDANT-APPELLANT




                               JUDGMENT:
                         REVERSED AND REMANDED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-530326

        BEFORE:              Boyle, P.J., Sweeney, J., and Keough, J.

        RELEASED AND JOURNALIZED:                         May 12, 2011
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ATTORNEY FOR APPELLANT

John F. Corrigan
19885 Detroit Road, #335
Rocky River, Ohio 44116


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Kristin Karkutt
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY J. BOYLE, P.J.:

       {¶ 1} Defendant-appellant, Antonio Campbell, appeals his conviction for failure to

register as a sex offender with a furthermore specification that he had previously been

convicted of failure to register.    He raises three assignments of error challenging his

conviction.   Campbell’s arguments, however, are moot because we reverse and vacate his

conviction and sentence for other reasons.
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        {¶ 2} In 2004, in Case No. CR-449346, Campbell was convicted of sexual battery, a

third-degree felony, in violation of R.C. 2907.03(A)(2).    He was labeled a sexual predator

under the 2003 amendments to Megan’s Law set forth in S.B. 5 (effective July 31, 2003).

        {¶ 3} In 2005, in Case No. CR-466775, Campbell was convicted of failure to register,

in violation of R.C. 2950.04, a third-degree felony.

        {¶ 4} Campbell was subsequently reclassified by the Ohio Attorney General as a Tier

III offender pursuant to the Adam Walsh Act (“AWA”), which became effective in January

2008.

        {¶ 5} In October 2009, in the case that is at issue in this appeal, the grand jury

indicted Campbell on two counts for events that allegedly occurred in September 2009: Count

1, failure to register, in violation of R.C. 2950.04(E), with a furthermore clause that he had

previously been convicted of failure to register in 2005; and Count 2, tampering with records,

in violation of R.C. 2913.42(A).   A jury found Campbell guilty of failure to register, with the

furthermore clause, but not guilty of tampering with records.    In April 2010, the trial court

sentenced him to four years in prison.

        {¶ 6} In June 2010, in State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933

N.E.2d 753, the Ohio Supreme Court held that R.C. 2950.031 and 2950.032, which required

the attorney general to reclassify sex offenders whose classifications had already been

adjudicated by a court and made the subject of a final order, violated the separation-of-powers
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doctrine by requiring the attorney general to open final judgments.    The Court reaffirmed the

principle that the authority to review, affirm, modify, or reverse trial courts’ judgments is

strictly limited to appellate courts under the Ohio Constitution.     Therefore, R.C. 2950.031

and 2950.032 “may not be applied to offenders previously adjudicated by judges under

Megan’s Law, and the classifications and community-notification and registration orders

imposed previously by judges are reinstated.”    Bodyke at ¶66.

       {¶ 7} Thus, after Bodyke, Campbell’s sexual predator classification was reinstated.

       {¶ 8} Since Bodyke, this court has repeatedly reversed convictions for failure to

register as a sex offender based on a violation of the sex offender registration and notification

requirements under the AWA, when the defendant was initially classified under Megan’s Law.

 In State v. Smith, 8th Dist. No. 92550, 2010-Ohio-2880, ¶29, this court held that because the

reclassification under the AWA was unlawful, “it cannot serve as the predicate for the crime

for which [the defendant] was indicted and convicted.”    See, also, State v. Patterson, 8th Dist.

No. 93096, 2010-Ohio-3715; State v. Jones, 8th Dist. No. 93822, 2010-Ohio-5004; and most

recently, State v. Page, 8th Dist. No. 94369, 2011-Ohio-83.

       {¶ 9} Since our holdings in Patterson, Jones, and Page, the Ohio Supreme Court

decided State v. Gingell, Slip Opinion No. 2011-Ohio-1481.       In Gingell, the Supreme Court

held that an offender who was originally classified under Megan’s Law could not be convicted

of violating the registration requirements of the AWA.        Id. at ¶8.   The Supreme Court
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explained:

       {¶ 10} “[P]ursuant to Bodyke, Gingell’s original classification under Megan’s Law and

the associated community-notification and registration order were reinstated.     Therefore, the

current version of R.C. 2950.06, which requires Tier III sexual offenders to register every 90

days, does not apply to Gingell.       Since Gingell was charged after his reclassification and

before Bodyke, there is no doubt that he was indicted for a first-degree felony for a violation

of the reporting requirements under the AWA.         Since the application of the AWA was based

upon an unlawful reclassification, we reverse the judgment of the court of appeals and vacate

Gingell’s conviction for a violation of the 90-day address-verification requirement of R.C.

2950.06.        Gingell remained accountable for the yearly reporting requirement under Megan’s

Law; whether he met that requirement is not a part of this case.”

       {¶ 11} The issue in Gingell, however, does not directly answer the question presented

in this case.    Gingell was originally classified as a sexually oriented offender under Megan’s

Law.    “To comply with Megan’s Law, Gingell had to verify his address once each year for

ten years.      Former R.C. 2950.06(B)(2) and 2950.07(B).           Under former R.C. 2950.99,

Gingell’s failure to properly register as a sexually oriented offender would have been a

fifth-degree felony.”     Id. at ¶1.

       {¶ 12} But “pursuant to the AWA, specifically R.C. 2950.031 and 2950.032, Gingell

was reclassified by the attorney general as a Tier III sexual offender.      R.C. 2950.06(B)(3)
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requires a Tier III offender to verify his address every 90 days for the rest of his life.

Pursuant to R.C. 2950.99(A)(1)(a), the failure to verify an address is the same degree offense

as the underlying sexual offense.     In Gingell’s case, that meant that a failure to verify his

address would be a first-degree felony.”    Id. at ¶2.

         {¶ 13} Here, unlike Gingell, Campbell was labeled a sexual predator under Megan’s

Law, and was required to register every 90 days for life, just as he would have been required

to do as a Tier III offender under the AWA.          Further, unlike Gingell, Campbell’s level of

felony did not increase for a repeat offense for failing to register.     In Campbell’s case, he

would have been charged with a third-degree felony for having a prior conviction under

Megan’s Law or the AWA.             See R.C. 2950.99 (current and former versions).            The

difference is that the AWA enhanced the penalty Campbell could have received for having a

prior conviction of failure to register — from the possibility of community control sanctions

under Megan’s Law (for a third-degree felony) to a mandatory prison term of three years.

R.C. 2950.99(A)(2)(b).

         {¶ 14} Nonetheless, this court has addressed this exact issue in Page.        Indeed, the

facts here are identical to Page.   Thus, until the Ohio Supreme Court rules otherwise, we are

constrained to adhere to our decision in Page.
                                                 1




         On February 24, 2011, the state appealed this court’s decision in Page to the Ohio Supreme
         1


Court.   See Ohio Supreme Court Case No. 2011-0305. It proposed two propositions of law:
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       {¶ 15} Accordingly, we reverse Campbell’s conviction and vacate his sentence.

       Judgment reversed, sentence vacated, and case remanded to the trial court for further

proceedings consistent with this opinion.

       It is ordered that appellant recover of appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




MARY J. BOYLE, PRESIDING JUDGE

JAMES J. SWEENEY, J., and
KATHLEEN ANN KEOUGH, J., CONCUR




        “[1.] State v. Bodyke does not require vacation of convictions where the conduct of the sex
offender, classified under Megan’s Law, would have been a violation under both Megan’s Law and
the Adam Walsh Act.
        “[2.] The application of R.C. 2950.99, Am.Sub.S.B. 97 to sex offenders previously classified
under Megan’s Law is constitutionally valid.”
        To date, the Ohio Supreme Court has not indicated whether it will accept Page for
discretionary review.
