[Cite as State v. Cook, 197 Ohio App.3d 684, 2012-Ohio-198.]




        IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

THE STATE OF OHIO,                                      :

        Appellant,                                      :            C.A. CASE NO.      24611

v.                                                      :            T.C. NO.    11CR205

COOK,                                                  :             (Criminal appeal from
                                                                     Common Pleas Court)
        Appellee.                                      :

                                                       :

                                             ..........

                                           OPINION

                         Rendered on the       20th         day of     January    , 2012.

                                             ..........

Mathias Heck, Montgomery County Prosecuting Attorney, and Johnna M. Shia, Assistant
Prosecuting Attorney, for appellant.

Rebecca Barthelemy-Smith, for appellee.

                                             ..........

        FROELICH, Judge.

        {¶ 1} Billy L. Cook pled guilty in the Montgomery County Court of Common Pleas to

failure to notify a sheriff of a change of address, in violation of R.C. 2950.05, a third-degree

felony. The trial court sentenced him to community control. The state appeals from Cook’s

conviction.

                                                   I

        {¶ 2} In 1991, Billy L. Cook was convicted of rape, and in 1997, he was classified as a
                                                                                              2

sexually oriented offender under Ohio’s version of Megan’s Law.        While Cook was still in

prison, the attorney general notified him that he would be reclassified as a Tier III sex

offender. That reclassification was unconstitutional under State v. Bodyke, 126 Ohio St.3d,

2010-Ohio-2424, 933 N.E.2d 753. In accordance with Bodyke, Cook’s original classification

as a sexually oriented offender and the registration requirements attendant thereto were

reinstated.

       {¶ 3} In January 2011, Cook was charged by complaint with failing to notify the

sheriff of a change of address, in violation of R.C. 2950.05. Cook pled guilty to the offense

with the understanding that the offense constituted a third-degree felony, pursuant to former

R.C. 2950.99, 130 Ohio Laws 669, 671-672, and State v. Milby, 2d Dist. Montgomery No.

23798, 2010-Ohio-6344. At the plea hearing, the trial court informed Cook that it would not

impose a sentence greater than two years in prison. After a presentence investigation, the

court sentenced Cook to community control. The state maintained throughout the case that

Cook’s offense constituted a first-degree felony, and the prosecutor stated at both the plea and

sentencing hearings that the state intended to appeal the trial court’s treatment of the offense

as a third-degree felony.

       {¶ 4} The state timely appealed from Cook’s conviction.

                                               II

       {¶ 5} The state’s sole assignment of error states:

       {¶ 6} “The felony sentencing statute R.C. 2950.99 is not applied retroactively when

the conduct for which a defendant is convicted and sentenced occurred after the effective date

of the statute or January 1, 2008.”

       {¶ 7} The state claims that the trial court erred in treating Cook’s violation of R.C.
                                                                                             3

2950.05 as a third-degree felony under Megan’s Law and in accordance with Milby,

2010-Ohio-6344. The state submits that “the sentencing provisions of R.C. 2950.99, which

were not amended through S.B. 10 [Ohio’s version of the federal Adam Walsh Act

(“AWA”)], are not among the classification, community-notification or registration duties

that were reinstated under Bodyke.” The state asks that we reconsider Milby and hold that the

enhanced penalty provisions in R.C. 2950.99 apply when the violation of the registration

requirements occurred after January 1, 2008.

       {¶ 8} In Milby, the defendant challenged his conviction for failure to notify, arguing,

among other things, that his reclassification from a sexual predator to a Tier III sex offender

was unconstitutional.     Following Bodyke, we agreed with Milby that his original

sexual-predator classification and the community-notification and registration orders

attending that classification must be reinstated. Id. at ¶ 30. We found, however, that his

failure-to-notify conviction was “not offended,” but held that the enhanced penalty for the

failure to notify offense may be not applied. Specifically, we stated:

               When Milby’s original sexual predator classification and registration

       requirements are applied to the facts of his case, his failure to notify conviction

       is not offended. Under former law, Milby was required to provide notice of

       an address change twenty days prior to the change. R.C. 2950.05(A). This

       requirement did not change with the enactment of S.B. 10.              Therefore,

       because Milby had an ongoing duty since his release from prison to notify

       MCSO of any change of his registered address, neither S.B. 10 nor Bodyke

       changed this requirement or his duty. See State v. Huffman, Mont.App. No.

       23610, 2010-Ohio-4755. AWA did increase the penalty for failure to notify
                                                                                             4

       to a first-degree felony. That penalty may not be applied to Milby. Under

       the former law, violation of the reporting requirement was a felony of the third

       degree.    See former R.C. 2950.99(A)(1)(a)(i).         Since the trial court

       improperly treated Milby’s conviction as a first-degree felony, we will remand

       this matter to the trial court for resentencing as a third-degree felony

       conviction.

Milby 2010-Ohio-6344, at ¶ 31.

       {¶ 9} We have had several opportunities to reconsider Milby. See State v. Johnson,

2d Dist. No. 24029, 2011-Ohio-2069 (following Milby); State v. Alexander, 2d Dist. No.

24119, 2011-Ohio-4015 (following Johnson); State v. Alltop, 2d Dist. No. 24324,

2011-Ohio-5541; State v. Howard, 2d Dist. No. 24680, 2011-Ohio-5693; State v. Pritchett, 2d

Dist. No. 24183, 2011-Ohio-5978; State v. Harrison, 2d Dist. No. 24471, 2011-Ohio-6803.

       {¶ 10} In Alltop, we discussed the changes to the registration requirements occasioned

by 2007 Am.Sub.S.B. No. 10, as well as the changes to the penalty structure for violations of

R.C. 2950.05, which were enacted in 2007 Am.Sub.S.B. No. 97 without reference to the

Adam Walsh Act. After setting forth the statutory changes in detail, we held that Alltop’s

“reliance on Milby in the matter at bar is appropriate,” vacated his sentence, and “remanded to

the trial court for resentencing as a third degree felony, consistent with the penalty for

notification violations in force in Ohio at the time [Alltop] was convicted of the underlying

offense.” Alltop. at ¶ 14-15. Similarly, in Howard, we expressly rejected the state’s request

that we reconsider Milby. We stated that “the fact that Howard had committed his offense of

failure to notify after the effective date of S.B. 97 does not affect the outcome herein as the

state asserts. Pursuant to Milby, we find that the trial court erred when it convicted Howard
                                                                                              5

of a first-degree felony * * *.” Howard at ¶ 12.

       {¶ 11} In Pritchett, 2011-Ohio-5978, the issue arose in the context of the defendant’s

appeal from the denial of his motion to withdraw his plea to failure to notify. We rejected

Pritchett’s argument that the trial court had erred in denying his motion to withdraw his plea,

noting that “Bodyke did not change the fact that Pritchett had a duty to notify the sheriff of a

change in his address of residence, and Pritchett’s defenses were the same, whether he were a

Tier III sex offender or a sexually oriented offender.” Id. at ¶ 22.

       {¶ 12} Addressing Pritchett’s sentence, however, we discussed our decisions in Milby,

Johnson, and Alexander requiring resentencing under the former version of R.C. 2950.99.

We further stated:

               Very recently, in State v. Williams, 129 Ohio St.3d 344,

       2011-Ohio-3374, 952 N.E.2d 1108, the Supreme Court of Ohio held that the

       provision of 2007 Am.Sub. S.B. 10, which imposes greater penalties on sexual

       offenders, such as Pritchett, for violations of notification and registration

       requirements than applied when they were convicted of their underlying sexual

       offense, violates the prohibition against retroactive laws in Section 28, Article

       II of the Ohio Constitution. That section provides, in pertinent part: “The

       general assembly shall have no power to pass retroactive laws.” Any law

       “passed” in violation of that section is therefore void. Further, because such a

       law purports to apply retroactively, a holding that the law violates Section 28,

       Article II likewise applies retroactively to any person to whom the law was

       retroactively applied.

               ***
                                                                                               6

                Under Megan’s law (which had been applied to Pritchett in 2005),

       Pritchett with the 2005 prior failure to notify conviction was subject to

       sentencing for a felony of the third degree. As a result of a subsequent

       amendment of the law, Pritchett was instead sentenced for a second degree

       felony offense. That amendment of the law is void, per Williams. The

       sentence the court imposed pursuant to that law is likewise void. It would be

       a manifest injustice to continue Pritchett’s incarceration on a void sentence.

Pritchett at ¶ 26, 28. We vacated Pritchett’s sentence and remanded for a new

sentencing hearing. We recently applied Pritchett to a defendant who appealed the

denial of his petition for postconviction relief following his guilty plea to failure to

register in violation of R.C. 2950.05(B)(F)(2). State v. Harrison, 2d Dist. No. 24471,

2011-Ohio-6803. We concluded that Harrison was “entitled to have his sentence

vacated since, subsequent to the Adam Walsh Act, the penalty for failure to register for

an offender like Harrison with prior convictions was increased to a mandatory

three-year term as a felony of the first degree.          R.C. 2950.99.”      Harrison,

2011-Ohio-6803, at ¶ 19. We held that Harrison’s sentence was void, vacated the

sentence, and remanded the case to the trial court for resentencing. Id. at ¶ 21.

       {¶ 13} We decline to depart from Milby and our cases following it and, instead, find

Milby to be controlling in the circumstances before us. Cook was convicted of rape in 1991

and classified as a sexually oriented offender under Ohio’s version of Megan’s Law. The

trial court did not err in following Milby and applying the prior version of R.C. 2950.99, rather

than the version enacted under S.B. 97, in sentencing Cook for failure to notify in violation of

R.C. 2950.05.
                                                                                                 7

       {¶ 14} The state’s assignment of error is overruled.

                                               III

       {¶ 15} The trial court’s judgment will be affirmed.



                                                                              Judgment affirmed.

                                          ..........

FAIN AND DONOVAN, JJ., concur.

       FAIN, J., concurring.

       {¶ 16} If this were a case of first impression, I would reverse, for the reason set forth in

Judge Hall’s separate opinion in State v. Howard, 2d Dist. No. 24680, 2011-Ohio-5693. On

January 1, 2008, long before Cook committed the offense to which he pled guilty – failure to

notify – the penalty for that offense was increased from a third-degree felony to a first-degree

felony. In my view, it is neither a violation of Ohio’s retroactive-laws prohibition (Article II,

Section 28 of the Ohio Constitution) nor a violation of the federal Ex Post Facto Clause

(Article I, Section 10 of the United States Constitution) to apply a statute increasing a penalty

for an offense to an offense that is committed after the effective date of the statute.

       {¶ 17} But this is hardly a case of first impression. Therefore, I will follow stare

decisis and join in the opinion and judgment of this court in this case.

                                          ..........
