[Cite as State v. Alredge, 2012-Ohio-414.]




           IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                      :

        Plaintiff-Appellee                         :   C.A. CASE NO. 24755

vs.                                               :    T.C. CASE NO. 2010CR0096

JAMES T. ALREDGE                                   :   (Criminal Appeal from
                                                        Common Pleas Court)
        Defendant-Appellant                        :

                                        . . . . . . . . .

                                             O P I N I O N

                  Rendered on the 1st day of February, 2012.

                                        . . . . . . . . .

Mathias H. Heck, Jr., Pros. Attorney; Johnna M. Shia, Asst. Pros.
Attorney, Atty. Reg. No. 0067685, P.O. Box 972, Dayton, OH 45422
     Attorneys for Plaintiff-Appellee

Kristopher A. Haines, Atty. Reg. No. 0080558, Asst. State Public
Defender, 250 E. Broad Street, Suite 1400, Columbus, OH 43215
     Attorney for Defendant-Appellant

                                        . . . . . . . . .

GRADY, P.J.:

        {¶ 1} Defendant, James Alredge, appeals from his conviction

for failure to notify of a change of address.

        {¶ 2} In 2004, Alredge was adjudicated a delinquent child in

Montgomery County Juvenile Court on a finding that he engaged in

conduct which would constitute the offense of rape if committed
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by an adult.   The Juvenile Court ordered Alredge confined at the

Department of Youth Services (DYS) for a period of twelve months,

not to exceed age twenty-one, to run consecutive to other sentences

for other offenses, which resulted in a sentence of confinement

of twenty-four months.     The Juvenile Court notified Alredge that

the court would hold a sex offender classification hearing prior

to his release from DYS.    R.C. 2152.83(A). Alredge did not appeal

his delinquency adjudication and disposition.

      {¶ 3} On April 7, 2008, the Juvenile Court held a sex offender

classification hearing for Alredge.      By that time, Ohio’s version

of the Adam Walsh Act, S.B. 10, which replaced the prior Megan’s

Law   provisions   concerning   sex    offender   classification   and

registration, was in effect.          The Juvenile Court classified

Alredge as a Tier III sex offender based upon his delinquency

adjudication for rape.     That classification required Alredge to

register his address for the remainder of his lifetime and verify

his residence address with the sheriff every ninety days.          R.C.

2950.05(B)(1); 2950.06(B)(3).      Alredge did not appeal his sex

offender classification.

      {¶ 4} Between October 19, 2009, and January 9, 2010, Alredge

failed to notify the Montgomery County Sheriff’s Office of his

change of address.   Alredge was indicted on January 14, 2010, on

one count of failure to notify in violation of R.C. 2950.05(A),
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(F)(1).   The offense is a felony of the first degree under S.B.

10, because Alredge’s underlying delinquency adjudication for rape

is a first degree felony.    R.C. 2950.99(A)(1)(a)(ii). Following

a bench trial on March 23, 2010, Alredge was found guilty of failure

to notify.

     {¶ 5} On March 29, 2010, the trial court sentenced Alredge

to the minimum sentence for a first degree felony offense of three

years in prison.   Alredge did not timely perfect a direct appeal.

 On August 3, 2011, Alredge filed a motion for leave to file a

delayed appeal from his conviction and sentence for failure to

notify.   We granted Alredge’s motion for leave to file a delayed

appeal on August 26, 2011.

      ASSIGNMENT OF ERROR

     {¶ 6} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

ENTERED A JUDGMENT OF CONVICTION AND SENTENCED MR. ALREDGE TO A

THREE-YEAR PRISON TERM FOR VIOLATING THE STATUTES IMPOSING CERTAIN

RESTRICTIONS ON HIM AS A TIER III SEX OFFENDER, IN VIOLATION OF

MR. ALREDGE’S RIGHTS UNDER THE FIFTH, SIXTY, AND FOURTEENTH

AMENDMENT TO THE UNITED STATES CONSTITUTION, SECTIONS 10 AND 16,

ARTICLE I OF THE OHIO CONSTITUTION, AND SECTION 28, ARTICLE II

OF THE OHIO CONSTITUTION.”

     {¶ 7} Alredge argues that the trial court erred by both

convicting   and sentencing him to three years in prison for failure
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to provide notice of his change of address because that offense

resulted from his unconstitutional classification under S.B. 10

as a Tier III sex offender.

     {¶ 8} Initially, we note that this case does not involve an

unconstitutional reclassification of Alredge pursuant to R.C.

2950.031 and 2950.032.     Those sections required the attorney

general to reclassify under S.B. 10 sex offenders who had already

been classified by court order under the former Megan’s Law.

Alredge was never classified as a sex offender under the former

Megan’s Law by any court prior to the enactment of S.B. 10 in 2007.

 Therefore, State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424,

does not apply.

     {¶ 9} The statutory scheme in effect for the classification

of sex offenders at the time Alredge committed the offense of rape

and was adjudicated a delinquent child in 2004 was Ohio’s version

of Megan’s Law, H.B. 180, which was enacted in 1996 and amended

in 2003 by S.B.5.   The statutory scheme for the classification

of sex offenders currently in effect when Alredge was classified

a Tier III offender, Ohio’s version of the Adam Walsh Act, S.B.

10, was enacted in 2007.      It creates substantial changes by

imposing stricter reporting and registration requirements and it

imposes them for a longer period of time.

     {¶ 10} In considering whether the changes to the reporting and
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registration requirements brought about by S.B. 10 could be applied

to persons whose crime was committed prior to the enactment of

S.B. 10, the Ohio Supreme Court has held that the application of

S.B. 10 to a sex offender whose crime was committed prior to the

enactment of S.B. 10 violates Section 28, Article II of the Ohio

Constitution, which prohibits the General Assembly from passing

retroactive laws.      State v. Williams, 129 Ohio St.3d 344,

2011-Ohio-3374.   The Ohio Supreme Court subsequently applied its

holding in Williams to juvenile sex offenders whose offenses

occurred prior to the enactment of S.B. 10.      See: In re: D.J.S.,

130 Ohio St. 3d 257, 2011-Ohio-5342.

     {¶ 11} Because Alredge’s rape-based delinquency adjudication

 occurred in 2004, before the enactment of S.B. 10, the provisions

of S.B. 10 cannot be applied to Alredge.      Williams; In re D.J.S.

 Instead, Alredge’s sex offender classification must be determined

based upon the former Megan’s Law that was in effect at the time

of Alredge’s offense in 2004.     Furthermore, Williams applies to

Alredge despite his failure to challenge his classification under

S.B. 10 in a direct appeal.   See: State v. Eads, 2nd Dist. Montgomery

No. 24696, 2011-Ohio-6307 at ¶ 23.

     {¶ 12} The State argues that Alredge cannot through his present

appeal from a failure to register offense collaterally attack his

2008 classification as a Tier III sex offender because he took
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no   appeal     from    that   classification,     and    the    issue    of    his

classification is therefore barred as res judicata.                In order for

res judicata to apply, there must be a “valid” prior judgment.

Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379.                 Alredge’s 2008

classification was pursuant to a statute which the Supreme Court

 has held violates Section 28, Article II of the Ohio Constitution,

In re: D.J.S., which provides that the General Assembly “shall

have   no     power    to   pass   retroactive   laws.”         Alredge’s      2008

classification was therefore void.         State v. Pritchett, Montgomery

App.    No.    24183,       2011-Ohio-5978.       Being    void,        the    2008

classification is not a “valid” prior judgment for purposes of

res judicata.         Grava.

       {¶ 13} Per Williams, the retroactive application of S.B. 10

to Alredge is a nullity, and Alredge’s classification thereunder

as a Tier III sex offender is void.              Eads.    The prosecution of

Alredge for failure to notify the sheriff of a change of his address

was based upon that unconstitutional classification.               As a result,

Alredge cannot be prosecuted for failure to notify the sheriff

of his new address as a Tier III sex offender.                  Eads.

       {¶ 14} Finally, we cannot conclude that Alredge’s conviction

for failing to notify the sheriff of a change of address is proper

on the ground that Alredge would have been required to notify the

sheriff of a change of his address under the former Megan’s Law.
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 Pursuant to R.C. 2152.83(A), the juvenile court did not classify

Alredge   as   a   sex   offender   at    the   time   of   his     delinquency

adjudication in 2004, but rather waited until April 2008, after

Alredge’s release from confinement at DYS.              By that time, S.B.

10 was in effect and the juvenile court classified Alredge under

that law as a Tier III offender.         Unlike the sex offenders in State

v. Milby, 2nd Dist. Montgomery No. 23798, 2010-Ohio-6344; State

v. Johnson, 2nd Dist. Montgomery 24029, 2011-Ohio-2069; and State

v. Alexander, 2nd Dist. Montgomery No. 24119, 2011-Ohio-4015, but

like the juvenile offender in Eads, Alredge has never been

classified as a sexually oriented offender, habitual sex offender,

or sexual predator under Megan’s Law, by any court.               Accordingly,

the registration and reporting requirements under Megan’s Law do

not apply to Alredge.      He cannot therefore be convicted of failing

to comply with those requirements under Megan’s Law by failing

to notify the sheriff of a change of his address.           Eads.    Alredge’s

conviction for failing to notify the sheriff of a change of his

address must be reversed and vacated.            Id.

     {¶ 15} Alredge’s sole assignment of error is sustained.                The

judgment of the trial court will be reversed and vacated.
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FROELICH, J., And HALL, J., concur.




Copies mailed to:

Johnna M. Shia, Esq.
Kristopher A. Haines, Esq.
Hon. Frances E. McGee
