[Cite as State v. Clemons, 2012-Ohio-5362.]
                            STATE OF OHIO, BELMONT COUNTY

                                  IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT

STATE OF OHIO,                                  )
                                                )
        PLAINTIFF-APPELLEE,                     )
                                                )
V.                                              )          CASE NO. 11 BE 26
                                                )
DAVIS FLOYD CLEMONS,                            )               OPINION
                                                )
        DEFENDANT-APPELLANT.                    )

CHARACTER OF PROCEEDINGS:                       Criminal Appeal from Court of Common
                                                Pleas of Belmont County, Ohio
                                                Case No. 09CR013

JUDGMENT:                                       Reversed and Remanded

APPEARANCES:
For Plaintiff-Appellee                          Thomas A. Hampton
                                                Special Prosecuting Attorney
                                                P.O. Box 310
                                                160 East Main Street
                                                Barnesville, Ohio 43913

For Defendant-Appellant                         Atty. Peter Galyardt
                                                Assistant State Public Defender
                                                250 East Broad Street, Suite 1400
                                                Columbus, Ohio 43215




JUDGES:

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro


                                                Dated: November 15, 2012
[Cite as State v. Clemons, 2012-Ohio-5362.]
DONOFRIO, J.

        {¶1}    Defendant-appellant David Clemons appeals the Belmont County
Common Pleas Court decision classifying him as a Tier III sex offender.
        {¶2}    In 2009, Clemons was indicted on eight counts of unlawful sexual
conduct with a minor for his 1998 acts of sexual conduct with his daughter’s friend.
See R.C. 2907.04(A).           The victim was thirteen and fourteen at the time of the
relationship. Clemons was also indicted on two counts of raping his daughter, who
was as young as four at the time of the first incident. See R.C. 2907.02(A)(1)(b)
(constituting the offense of rape of a child under the age of ten). It was alleged that
these rapes took place between January 1, 1994 and December 31, 1996.
        {¶3}    In an entry filed March 1, 2010, the court sentenced Clemons to three
years on each of the first eight counts and ten to twenty-five years on the two rape
counts all to run consecutively, for a total sentence of 44 to 74 years in prison. The
court also classified Clemons as a Tier III sex offender pursuant to the current
version of R.C. Chapter 2950, 2007 Am.Sub.S.B. No. 10 (S.B. 10) – Ohio’s version of
the federal Adam Walsh Act.
        {¶4}    Clemons appealed his conviction and sentence to this court in State v.
Clemons, 7th Dist. No. 10 BE 7, 2011-Ohio-1177. This court affirmed his conviction
and sentence with one exception. Clemons had argued that he should not have
been tried and convicted for third-degree felony unlawful sexual conduct with a minor
where the offense would have only constituted a fourth-degree felony at the time of
commission. The court agreed, finding a defendant must be charged with the version
of the offense in effect at the time of the crime’s commission.        Clemon’s eight
convictions of unlawful sexual conduct with a minor were amended to eight
convictions for corruption of a minor and the case was remanded to the trial court for
Clemons to be resentenced under the lower degree of felony.
        {¶5}    On remand, the trial court resentenced Clemons to seventeen months
in prison on each of the amended eight convictions for corruption of a minor to be
served consecutively to one another and consecutively to the sentences for
Clemons’s rape convictions, for a total sentence of 31 years and 4 months to 61
                                                                                  -2-


years and 4 months in prison. The court again classified Clemons as a Tier III sex
offender. This appeal followed.
       {¶6}   Clemons’s sole assignment of error states:

              The trial court violated Mr. Clemons’s right under the Ohio
       Constitution to be free from retroactive laws. Section 28, Article II, Ohio
       Constitution. (June 9, 2011 Resentencing Hearing Transcript, at 21;
       June 10, 2011 Resentencing Entry, at 8).

       {¶7}   Clemons directs this court’s attention to the Ohio Supreme Court’s
decision in State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 344, 952 N.E.2d
1108, syllabus, where it held that “2007 Am.Sub.S.B. No. 10, as applied to
defendants who committed sex offenses prior to its enactment, violates Section 28,
109 Article II of the Ohio Constitution, which prohibits the General Assembly from
passing retroactive laws.” Here, each of Clemons’s offenses occurred prior to the
enactment of S.B. 10. Therefore, Clemons contends the trial court’s classification of
him as a Tier III sex offender should be reversed and his case remanded for
reclassification under the law that existed at the time of his offenses.
       {¶8}   In response, plaintiff-appellee State of Ohio acknowledges the Ohio
Supreme Court’s Williams decision but insists that since Clemons did not contest his
sex offender classification at the trial or appellate level when he was first classified as
a Tier III sex offender he waived the ability to raise it now.
       {¶9}   The Ohio Supreme Court was asked to decide whether S.B. 10 was
unconstitutionally retroactive when it was applied to an offender who committed a sex
crime about one month prior to the enactment date of S.B. 10. Williams, 129 Ohio
St.3d 344, 2011–Ohio–3374, 952 N.E.2d 1108. In response to that question, the
Ohio Supreme Court held that S.B. 10 is punitive in nature. Id. at ¶ 15, 952 N.E.2d
1108. “The statutory scheme has changed dramatically since this court described the
registration process imposed on sex offenders as an inconvenience ‘comparable to
renewing a driver’s license.’ [State v. Cook (1998), 83 Ohio St.3d 404, 409, 418, 700
                                                                                  -3-


N.E.2d 570]. And it has changed markedly since this court concluded in [State v.
Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110] that R.C. Chapter
2950 was remedial.” Id. Senate Bill 10 has imposed new or additional burdens,
duties, obligations, or liabilities as to a past transaction. Id. at ¶ 21. Thus, the Court
held that applying S.B. 10 to any sex offender who committed an offense prior to its
enactment violates Section 28, Article II of the Ohio Constitution, the prohibition
against the enactment of retroactive laws. Id.
       {¶10} As for the state’s argument that Clemons waived the issue of his sex
offender classification, the Ohio Supreme Court has held that “[f]ailure to raise at the
trial court level the issue of the constitutionality of a statute or its application, which
issue is apparent at the time of trial, constitutes a waiver of such issue.” State v.
Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 (1986), syllabus. However, the Ohio
Supreme Court has also held that the waiver doctrine announced in Awan is
discretionary. In re M.D., 38 Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus. “Even
where waiver is clear, [a reviewing court may] consider constitutional challenges to
the application of statutes in specific cases of plain error or where the rights and
interests involved may warrant it.” Id.
       {¶11} As indicated, the Ohio Supreme Court found in Williams that S.B. 10
violated the Ohio constitution’s prohibition against retroactive laws as applied to
defendants who committed sex offenses prior to its enactment. Given that the Court
found S.B. 10 unconstitutional on the basis of the constitution’s prohibition against
retroactive laws, we find that this is a compelling reason to allow Clemons’s
constitutional challenge despite his failure to raise it below. This court has previously
exercised authority to allow relief under Williams. In State v. Weaver, 7th Dist. No.
11 BE 12, 2011-Ohio-6402, ¶18, this court allowed relief to a defendant under the
Williams decision despite his having failed to appeal the trial court’s original
sentencing decision.
       {¶12} Moreover, the Ohio Supreme Court’s own treatment of cases like this
one post-Williams further supports our decision here to reach Clemons’s
                                                                              -4-


constitutional challenge despite his having failed to raise it below. There were many
cases the Court had accepted for review which involved a defendant who had lost
their constitutional challenge at the trial or appellate court level. The Ohio Supreme
Court stayed those cases pending its decision in Williams. Following the Court’s
decision in Williams, the Court reversed and remanded those cases for application of
its Williams decision. Among those case were ones in which the defendant had
failed to raise their constitutional challenge below. See State v. Franklin, 182 Ohio
App.3d 410, 2009-Ohio-2664, 912 N.E.2d 1197 (10th Dist.).
      {¶13} Accordingly, Clemons’s sole assignment of error has merit.
      {¶14} The judgment of the trial court is hereby reversed and the case
remanded to the trial court to classify Clemons pursuant to the law that existed at the
time he committed his offenses.

Vukovich, J., concurs.

DeGenaro, J., concurs.
