[Cite as Goggans v. State, 2011-Ohio-5932.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                          JOURNAL ENTRY AND OPINION
                   Nos. 96857, 96858, 96859, 96860, 96861, and 96862


                        ANTHONY GOGGANS, ET AL.
                                                       PLAINTIFFS-APPELLEES

                                                 vs.

                                      STATE OF OHIO
                                                       DEFENDANT-APPELLANT




                                    JUDGMENT:
                                NO. 96861 AFFIRMED;
                            NOS. 96857, 96858, 96859, 96860,
                               AND 96862 DISMISSED


                                   Civil Appeals from the
                          Cuyahoga County Court of Common Pleas
                        Case Nos. CV-697300, CV-649231, CV-648415,
                           CV-647278, CV-647941, and CV-648851

        BEFORE:          Celebrezze, P.J., Jones, J., and E. Gallagher, J.

    RELEASED AND JOURNALIZED:                          November 17, 2011
ATTORNEYS FOR APPELLANT
William D. Mason
Cuyahoga County Prosecutor
BY: Daniel T. Van
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEES

Robert L. Tobik
Cuyahoga County Public Defender
BY: Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue
Suite 400
Cleveland, Ohio 44113




FRANK D. CELEBREZZE, JR., P.J.:

      {¶ 1} In this consolidated appeal, the state seeks reversal of the trial court’s

determinations that six individuals previously classified as sexual offenders under

Megan’s Law, former R.C. 2950 et seq., cannot be reclassified under the new sexual

classification scheme in the Adam Walsh Act (“AWA”), codified in current R.C. 2950 et

seq. After a thorough review of the record and law, we affirm in the case of Gilberto

Quinones (Appeal No. 96861) and dismiss the appeals in the other five cases, in

accordance with the state’s motion to dismiss.

      {¶ 2} Anthony Goggans, Randy McDowell, Antonio Stewart, Tony Robertson,

and Donald Chambers were originally classified under Megan’s Law as sexually oriented
offenders by operation of law.     Quinones was previously classified by the state of

Pennsylvania and then moved to Ohio. He was classified by operation of law as a

sexually oriented offender under provisions of Megan’s Law.           The Ohio Attorney

General reclassified these individuals and assigned new tier designations as set forth in

the AWA. Each individual successfully challenged his reclassification, and the state

appealed. All six appeals were consolidated for review. However, on October 24,

2011, the state filed a motion to dismiss the appeals of all but Quinones based on the

holding of the Ohio Supreme Court in State v. Williams, 120 Ohio St.3d 344,

2011-Ohio-3374, 952 N.E.2d 1108. We hereby grant that motion and proceed solely

with the appeal relating to Quinones.

                                        Law and Analysis

       {¶ 3} The state assigns two errors for our review:

       {¶ 4} ‘I. “The trial court erred in applying State v. Bodyke, 126 Ohio St.3d 266,

2010-Ohio-2424, [933 N.E.2d 753,] to a petitioner who was not classified under Megan’s

Law by an Ohio court because under these circumstances there is no violation of the

separation of powers doctrine.”

       {¶ 5} ‘II. “The trial court erred in applying State v. Bodyke, * * * to a petitioner

who did not demonstrate by clear and convincing evidence that they were previously

classified by an Ohio court.”

                                     Application of Bodyke
       {¶ 6} The state argues that the holding in Bodyke does not apply because there

was no prior judicial determination, and thus, no reason that appellee could not be

reclassified by the Attorney General. We disagree.

       {¶ 7} Quinones was previously classified under Megan’s Law.            On June 30,

2007, Ohio enacted its version of the AWA. In order to develop a standard classification

system for all 50 states, the federal government encouraged the states to adopt a unified

classification and registration system with the goal of being able to track sex offenders as

they moved across state lines. Ohio’s AWA adopted a three-tier classification system,

replacing the previous designations of sexually oriented offender, habitual sex offender,

and sexual predator with Tier I, II, and III sex offender labels. Bodyke at ¶21.

       {¶ 8} Megan’s Law required a trial court to make a determination of whether an

individual should be classified as a sexual predator or a habitual sexual offender. Id. at

¶22.   The AWA removed discretion from the judiciary in the classification of offenders

for all sexually oriented offenses.    Id.   Under the AWA, the general assembly has

designated crimes that fall within each of the three tiers, and offenders committing any of

these crimes are automatically labeled with their respective tier designations. Repeat

offenders receive an elevated tier label because they commit more sexually oriented

offenses.

       {¶ 9} In Bodyke, the Ohio Supreme Court held that the reclassification by an

executive agency of individuals previously classified by judicial determination violated

the separation-of-powers doctrine. Id. at paragraph three of the syllabus. The Bodyke
court severed R.C. 2950.031 and 2950.032, the provisions that allowed the state attorney

general to reclassify individuals, finding the “scheme vests the executive branch with

authority to review judicial decisions, and it interferes with the judicial power by

requiring the reopening of final judgments.” Id. at ¶ 55.

       {¶ 10} The Bodyke decision left many unanswered questions, including whether

those classified by operation of law under Megan’s Law could be reclassified under the

AWA. This court answered that question in the negative. Majewski v. State, Cuyahoga

App. Nos. 92372 and 92400, 2010-Ohio-3178; State v. Ortega-Martinez, Cuyahoga App.

No. 95656, 2011-Ohio-2540; Hannah v. State, Cuyahoga App. Nos. 95883, 95884,

95885, 95886, 95887, 95888, and 95889, 2011-Ohio-2930.

       {¶ 11} An analogous situation can be found in State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, 845 N.E.2d 470.         There, the Ohio Supreme Court severed R.C.

2929.14(B) and (C), 2929.19(B)(2), 2929.14(E)(4), 2929.41(A), 2929.14(D)(2)(b) and

(3)(b), which required a trial court to make findings before imposing more than minimum,

maximum, or consecutive sentences, or for sentences under major-drug-offender and

repeat-violent-offender specifications. Id. at ¶99. The Foster court reasoned that this

impermissibly encroached upon an individual’s right to trial by jury when the judge

replaced the jury as fact finder for these sentencing determinations. The excision of

these sections were complete even though the rationale behind their removal was not

applicable to all cases.
       {¶ 12} In a bench trial, the judge is the finder of fact and would be free to make

findings supporting enhanced sentences without implicating the individual’s right to a

jury trial.   The same is true for a sentence imposed pursuant to a plea agreement.

However, this court has not required judges in bench trials or when imposing sentence

after a guilty plea to make these findings before imposing maximum or consecutive

sentences     because    the statutes requiring such findings have been declared

unconstitutional and were completely severed by the Ohio Supreme Court. See State v.

Moore, 185 Ohio App.3d 772, 2010-Ohio-770, 925 N.E.2d 692; State v. Kaznoch,

Cuyahoga App. No. 93591, 2010-Ohio-5474; State v. Sheline, Cuyahoga App. No. 92877,

2010-Ohio-2458.

       {¶ 13} The       Ohio   Supreme   Court   has   excised   the   statutes   giving   an

executive-branch body the authority to reclassify individuals where it may review a final,

prior judicial determination.      That excision is complete even though there is the

possibility that for some individuals the justification underlying the excision is not

present. Hannah at ¶28. This court has examined the issue and determined that the

Bodyke court’s pronouncement of excision of the offending statutes is complete and that

the Ohio Attorney General no longer may reclassify individuals who were previously

classified under Megan’s Law. Id. While this view is in conflict with the First and

Twelfth Districts,1 this court continues to hold that it is the correct interpretation. We

find the state’s arguments to the contrary unpersuasive.


           See Green v. State, Hamilton App. No. C-090650, 2010-Ohio-4371; Boswell v. State,
       1
      {¶ 14} Judgment affirmed with respect to appellee Gilberto Quinones.       Appeal

dismissed with respect to appellees Anthony Goggans, Randy McDowell, Antonio

Stewart, Tony Robertson, and Donald Chambers.

      It is ordered that appellees recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said 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.



FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

LARRY A. JONES, J., and
EILEEN A. GALLAGHER, J., CONCUR




Warren App. No. CA2010-01-006, 2010-Ohio-3134.
