[Cite as State v. Mullins, 2015-Ohio-3250.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                       :

                 Plaintiff-Appellant,                :
                                                                         No. 14AP-480
v.                                                   :               (C.P.C. No. 12CR06-2860)

Buster A. Mullins,                                   :              (REGULAR CALENDAR)

                 Defendant-Appellee.                 :



                                              D E C I S I O N

                                      Rendered on August 13, 2015


                 Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for
                 appellant.

                 Yeura R. Venters, Public Defender, and Timothy E. Pierce, for
                 appellee.

                   APPEAL from the Franklin County Court of Common Pleas

KLATT, J.
        {¶ 1} Plaintiff-appellant, the State of Ohio, appeals from a judgment of conviction
entered by the Franklin County Court of Common Pleas in which the trial court declined
to require defendant-appellee, Buster A. Mullins, to register as an arson offender. For the
following reasons, we affirm that judgment.
I. Factual and Procedural Background
        {¶ 2} On June 8, 2012, a Franklin County Grand Jury indicted Mullins with one
count of arson in violation of R.C. 2909.03. Mullins initially entered a not guilty plea to
the charge. On July 18, 2012, Mullins withdrew that plea and entered a guilty plea to the
count of arson, a felony of the fourth degree. The trial court accepted Mullins' plea and
found him guilty. It ordered the preparation of a presentence investigation and scheduled
No. 14AP-480                                                                                2

a sentencing hearing for September 6, 2012. Mullins was released from custody pending
sentencing on a recognizance bond. However, on August 23, 2012, the trial court issued a
capias for Mullins because he did not comply with the trial court's order and referrals
regarding the presentence investigation. The trial court also revoked his bond.
          {¶ 3} Almost two years later, Mullins filed a motion to withdraw his guilty plea in
the trial court. At the time, he was incarcerated in Ohio for a theft offense that occurred in
Licking County. He was returned to Franklin County and, on May 16, 2014, the trial court
sentenced him to a six-month prison term for his arson conviction, to be served
consecutively to the prison term he had been serving.1 At the sentencing, the state
requested the trial court to notify Mullins of his duty to register as an arson offender
under Ohio's arson-offender registration scheme, R.C. 2909.13 to 2909.15, which became
effective July 1, 2013, almost one year after Mullins entered his guilty plea. The trial court
denied the state's request.
II. The State's Appeal
          {¶ 4} The state appeals that decision and assigns the following errors:
                  [1.] The trial court erred in construing the arson-registration
                  scheme not to apply to a defendant who committed his arson
                  offense in May 2012 and who was convicted for that offense
                  on or after July 1, 2013.

                  [2.] The trial court erred in concluding that application of the
                  arson-registration scheme would violate the Ohio
                  Constitution's prohibition against retroactive law.

          A. Does Ohio's Arson Offender Registration Scheme Apply to
          Mullins?

          {¶ 5} The state's first assignment of error contends that Ohio's arson-offender
registration scheme applies to Mullins because he is an arson offender as that term is
defined in R.C. 2909.13(B)(1). We disagree.
          {¶ 6} Ohio's arson-offender registration scheme is contained in R.C. 2909.13,
2909.14, and 2909.15. Those sections list the registration requirements and the persons
subject to those requirements, provide guidelines for notifying offenders of the duty to



1   He withdrew his motion to withdraw guilty plea.
No. 14AP-480                                                                                3

register and for maintaining the registry, and impose penalties for the failure to register.
Under the scheme, registration is mandatory for all "arson offenders." R.C. 2909.14(A).
       {¶ 7} R.C. 2909.13(B) defines an arson offender as:
              (1) A person who on or after the effective date of this section
              is convicted of or pleads guilty to an arson-related offense;

              (2) A person who on the effective date of this section has been
              convicted of or pleaded guilty to an arson-related offense and
              is confined in a jail, workhouse, state correctional institution,
              or other institution, serving a prison term, term of
              imprisonment, or other term of confinement for the offense;

              (3) A person who on or after the effective date of this section
              is charged with committing, attempting to commit, conspiring
              to commit, or complicity in committing a violation of section
              2909.02 or 2909.03 of the Revised Code and who pleads
              guilty to a violation of any provision of Chapter 2909. of the
              Revised Code other than section 2909.02 or 2909.03 of the
              Revised Code.

       {¶ 8} Because Mullins was not incarcerated for an arson-related offense on the
effective date of the law and was not charged on or after the effective date of the law, the
state argues that he is an arson offender because he was convicted of or pleaded guilty to
an arson-related offense on or after the effective date of the law, July 1, 2013. R.C.
2909.13(B)(1). The state's argument focuses on the term "convicted" because Mullins
entered his guilty plea before July 1, 2013. The state points out that the usual definition of
conviction includes both a finding of guilt and the imposition of a sentence. State ex rel.
Watkins v. Fiorenzo, 71 Ohio St.3d 259, 260 (1994); State v. Henderson, 58 Ohio St.2d
171 (1979). Accordingly, the state argues that even though Mullins entered a guilty plea
before July 1, 2013, he was not "convicted" of the arson-related offense until his
sentencing, which occurred after the effective date of the law. We disagree.
       {¶ 9} The state is correct that the term conviction normally includes both the
finding of guilt and the imposition of sentence. However, the Supreme Court of Ohio and
other appellate courts, including this court, have deviated from this principle, particularly
when the word "convicted" is used in the phrase "convicted of or pleads guilty to."
       {¶ 10} The Supreme Court in Fiorenzo and this court in State v. Maye, 129 Ohio
App.3d 165, 169 (10th Dist.1998), have interpreted the word "convicted," when used in the
No. 14AP-480                                                                             4

phrase "convicted of or pleads guilty to," to mean only the determination of guilt–not the
imposition of sentence. See also Columbus v. D'Andrea, 10th Dist. No. 11AP-207, 2011-
Ohio-6132, ¶ 12 (when statutory language places a conviction on equal footing with a
guilty plea by requiring proof of either, the Supreme Court defines the term "conviction"
to refer only to a determination of guilt and does not include sentencing upon that
determination); State v. Polen, 3d Dist. No. 6-08-14, 2009-Ohio-3313, ¶ 13-18 (same).
Although these cases reach this conclusion in different statutory contexts, the rationale
expressed therein would seem to apply to the arson registration scheme at issue here,
which contains the same phrase "convicted of or pleads guilty to."
       {¶ 11} Accordingly, we interpret the word "convicted" as used in R.C.
2909.13(B)(1) to mean the determination of guilt and not the imposition of sentence.
Here, Mullins' determination of guilt occurred when the trial court accepted his guilty
plea and found him guilty, both of which occurred before the effective date of the statute.
Accordingly, Mullins is not an arson offender as defined in R.C. 2909.13(B)(1) and Ohio's
arson-offender registration scheme does not apply to him. We overrule the state's first
assignment of error.
       B. The Retroactivity of the Statutory Scheme
       {¶ 12} Our conclusion that Ohio's arson-offender registration scheme does not
apply to Mullins renders moot the state's second assignment of error, which addressed the
retroactivity of the scheme. App.R. 12(A).
III. Conclusion
       {¶ 13} We overrule the state's first assignment of error, which renders moot the
state's second assignment of error. Accordingly, we affirm the judgment of the Franklin
County Court of Common Pleas.
                                                                      Judgment affirmed.

                               SADLER, J., concurs.
                           BRUNNER, J., concurs separately.
No. 14AP-480                                                                                          5

BRUNNER, J., concurring separately.
        {¶ 14} I concur with the decision of the majority but do so based upon the
following analysis, which includes examination of the facts and procedural history as
follows.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 15} Plaintiff-appellant, State of Ohio, appeals the trial court's decision declining
to require defendant-appellee, Buster A. Mullins, to register as an "arson offender" under
a recently enacted registration scheme contained in R.C. 2909.13 through 2909.15.2
        {¶ 16} On June 8, 2012, a Franklin County Grand Jury indicted Mullins for one
count of arson, in violation of R.C. 2909.03. On May 29, 2012, at approximately 1:00
a.m., fire fighters of the City of Columbus Division of Fire extinguished a vehicle fire. In
investigating its cause, they found evidence that an accelerant had been used and found a
wallet with contents that indicated it belonged to Mullins. According to both Mullins and
the state, Mullins was siphoning gas from a pickup truck when someone who was with
Mullins lit a cigarette and accidentally ignited the gasoline fumes and the truck. The state
recited the facts at Mullins' hearing on his guilty plea, including the following:
                [W]hat Mr. Mullins really is is a thief. * * * This is essentially a
                theft gone about as bad as a theft can go, * * * when his co-
                thief lit a cigarette, thereby igniting the gasoline fumes.

(July 18, 2012 Tr. 14-15.)
        {¶ 17} Despite the state's characterization of the nature of Mullins' activity, Mullins
pled guilty to arson on July 18, 2012.             The trial court granted him bond pending
sentencing, but Mullins failed to appear for sentencing, admitting to being a habitual user
of methamphetamines, which apparently distracted him from meeting his obligation to
appear. Mullins appeared nearly two years later for sentencing on May 13, 2014, at which
time the trial court sentenced Mullins to six-months incarceration at the Ohio
Department of Rehabilitation and Correction, filing its sentencing entry on May 16, 2014.



2 The 129th Ohio General Assembly enacted these provisions in Am.Sub.S.B. No. 70 ("S.B. No. 70"). In
separate legislation, the General Assembly in Am.Sub.H.B. No. 86 modified the language in R.C. 2909.03,
increasing the value of the property or amount of physical harm involved from five hundred to one
thousand dollars or more as a fourth-degree felony. All other language setting forth the elements of the
crimes in R.C. 2909.02 (aggravated arson) and 2909.03 (arson) have been in effect since July 1, 1996.
No. 14AP-480                                                                               6

       {¶ 18} The state requested that the trial court inform Mullins of his duty to register
as an arson offender under a law that had taken effect between the time he pled guilty,
July 18, 2012, and his date of sentencing, May 13, 2014, pursuant to R.C. 2909.14; the trial
court declined to do so and further declared that the warden of the prison was not
required to provide notice of registration to Mullins either. The trial court stated the
following during the sentencing hearing concerning its decision:
              The first issue let's address is this request by the state to treat
              Mr. Mullins as an arson offender required to register under
              Ohio Revised Code Section 2909.14. This is part of the law
              that became effective on July 1st, 2013. An "arson offender"
              must register much as do sex offenders.

              The law was part of Senate Bill 70 which enacted the 2909.13,
              .14 and .15, brand new sections. This enactment came roughly
              a year after Mr. Mullins pleaded guilty to an arson charge in
              this case in July, 2012. This section at issue, 2909.13 to .15 did
              not exist in the Ohio Revised Code at the time Mr. Mullins
              pleaded guilty.

              New Section 2909.13(B) defines an, "arson offender", that two
              words in quotations, "arson offender" is a person who on or
              after the effective date of the section, July 1st, 2013, is
              convicted of or pleads guilty to an arson offense. That could
              include people who committed the crime before July 1st, but
              pled guilty after July 1st, 2013, it is as those words are written.
              It could also include this defendant who was not convicted
              until after July 1, 2013, because he capiased from the
              sentencing and no judgment was in place in 2012.

              However, in looking closely at the statute and the definitions,
              the court notes that an, "arson offender", is tied to the words,
              "arson-related offense". That second phrase is also specifically
              defined for the first time in the new 2013 statutes. "Arson-
              related offense", means a violation of 2909.02 or .03, the
              generic arson statutes and criminal code or any attempt or
              complicity to violate.

              However, at the time Mr. Mullins pleaded guilty, there was no
              such concept in Ohio statutory law as an, "arson-related
              offense". That did not exist because until July 1st, 2013, no
              one could commit an, "arson-related offense", as defined in
              2909.13(A). Strictly speaking, Mr. Mullins could not have
              committed such a crime in May, 2012.
No. 14AP-480                                                                              7

              Therefore, having not committed an, "arson-related offense",
              he cannot be an, "arson offender" who was obligated to
              register.

              Another way to analyze the same situation turns to the
              provisions of the Ohio Constitution that will prohibit the
              General Assembly from enacting retroactive laws. State v.
              Williams, 129 Ohio St. 3d, 344, 2011-Ohio-3374, applied that
              constitutional provision and invalidated retroactive
              application to the sex offender list law. In doing so Williams
              commented upon the fact that there was additional
              punishment implicit in the sex offender list [sic] here, failure
              to register as an arson offender under the 2013 law is a felony
              level five crime pursuant to Section 2909.15(H). Accordingly,
              this situation is subject to the same analysis as applied in
              Williams.

              To interpret the arson offender registration laws as retroactive
              would raise the same constitutional question under the State
              Constitution and this court declines to suggest that that's what
              the legislature intended when it passed a law which had some
              retroactivity that was unconstitutional.

              Accordingly, for these two reasons, both because the statutory
              language doesn't require it, and because the constitution
              prohibits retroactive laws, particularly those that add
              penalties, the court rules that Mr. Mullins need not be subject
              to the 2013 registration statutes for his crime committed more
              than -- or almost a year before the application of the new
              statutes.

(May 13, 2014 Tr. 10-14.)
       {¶ 19} The state sought and obtained leave to appeal the trial court's decision to
not require Mullins to register with the state as an arson offender.
II. DISCUSSION
       {¶ 20} For ease of discussion, I reiterate the state's two assignments of error:
              [I.] THE TRIAL COURT ERRED IN CONSTRUING THE
              ARSON-REGISTRATION SCHEME NOT TO APPLY TO A
              DEFENDANT WHO COMMITTED HIS ARSON OFFENSE
              IN MAY 2012 AND WHO WAS CONVICTED FOR THAT
              OFFENSE ON OR AFTER JULY 1, 2013.

              [II.] THE TRIAL COURT ERRED IN CONCLUDING THAT
              APPLICATION OF THE ARSON-REGISTRATION SCHEME
No. 14AP-480                                                                              8

              WOULD VIOLATE THE OHIO CONSTITUTION'S
              PROHIBITION AGAINST RETROACTIVE LAW.

       {¶ 21} The trial court based its decision denying the state's request that Mullins be
required to register as an "arson offender" on two independent reasons, "both because the
statutory language doesn't require it, and because the [C]onstitution prohibits retroactive
laws, particularly those that add penalties." (May 13, 2014 Tr. 13.) The state's two
assignments of error address each one of these reasons.
   A. First Assignment of Error – Whether the Arson Registration Scheme
      Applies to Mullins

       {¶ 22} The trial court found that R.C. 2909.13 through 2909.15, which became
effective on July 1, 2013, do not apply to Mullins. The amendments at issue to the arson
and related offenses chapter of the Revised Code (Chapter 2909) impose a registration
requirement for "arson offenders." R.C. 2909.13(B) defines an "arson offender" as:
              (1) A person who on or after the effective date of this section is
              convicted of or pleads guilty to an arson-related offense;

              (2) A person who on the effective date of this section has been
              convicted of or pleaded guilty to an arson-related offense and
              is confined in a jail, workhouse, state correctional institution,
              or other institution, serving a prison term, term of
              imprisonment, or other term of confinement for the offense;

              (3) A person who on or after the effective date of this section is
              charged with committing, attempting to commit, conspiring
              to commit, or complicity in committing a violation of section
              2909.02 or 2909.03 of the Revised Code and who pleads
              guilty to a violation of any provision of Chapter 2909. of the
              Revised Code other than section 2909.02 or 2909.03 of the
              Revised Code.

As the trial court noted, the legislature defined in statute for the first time an "arson-
related offense" as:
              (1) A violation of section 2909.02 or 2909.03 of the Revised
              Code;

              (2) Any attempt to commit, conspiracy to commit, or
              complicity in committing either offense listed in division
              (A)(1) of this section.
No. 14AP-480                                                                                9

R.C. 2909.13(A)(1) and (2).
       {¶ 23} The trial court found that "arson offenders" commit "arson-related offenses"
and that, since no law defining an "arson-related offense" existed at the time Mullins pled
guilty, he could not, by definition, be found to be an "arson offender." However, R.C.
2909.02 and 2909.03 have been, for all intents and purposes, in effect in their current
form since July 1, 1996 (see fn. 2.). While R.C. 2909.13(A)(1) may now define a violation
of R.C. 2909.02 or 2909.03 as an "arson-related offense," a violation of either of these
sections before the enactment of S.B. No. 70 has never been without consequence because
the underlying law on which "arson-related offense" is based has changed little in the last
nearly two decades. The trial court's reliance on "arson-related offense" not existing in
the Revised Code at the time of Mullins' plea appears to be the basis for its finding that the
arson registration law does not apply to him. I would not adopt or affirm the trial court's
reasoning that, because "arson-related offense" did not exist in the law at the time Mullins
pled guilty, he is not an "arson offender." I believe that the analysis must go further in
determining whether Mullins was required to register as an "arson offender" because "a
criminal offense shall be construed as referring to existing or former laws of this state."
State v. Chappell, 127 Ohio St.3d 376, 2010-Ohio-5991, ¶ 24. R.C. 2901.04(D).
       {¶ 24} Under the statutory scheme for registration, "arson offenders" can be
defined in three ways. The legal application of each category is affected by an accused's or
offender's status on the effective date of the new law (R.C. 2909.13(B)(2))—July 1, 2013,
and in particularized situations on or after that date (R.C. 2909.13(B)(1) and (3)). The
three types of "arson offenders" required to register under the amended law are: (i) those
persons who are "convicted of or plead[] guilty" to arson or aggravated arson or any
attempt, conspiracy, or complicity to the same on or after July 1, 2013 (R.C. 2909.13(A)(1)
and (2), (B)(1)), (ii) those persons who on the effective date of the new law who are
"convicted of or plead[] guilty" to an arson-related offense and are incarcerated for an
arson-related offense as of July 1, 2013 (R.C. 2909.13(B)(2)), and (iii) those persons who
on or after the effective date of the new law are charged with violating R.C. 2909.02 or
2909.03 (or of attempted violation, conspiracy, or complicity regarding R.C. 2909.02 or
2909.03) and who plead guilty to an offense contained in R.C. Chapter 2909 other than
R.C. 2909.02 or 2909.03 after July 1, 2013. (R.C. 2909.13(B)(3)). To be classified for the
No. 14AP-480                                                                                    10

purposes of registration as an "arson offender" (and subject to the new registration law),
just one of these enumerated circumstances must apply.
       1. Definition of "arson offender" under R.C. 2909.13(B)(1) and
          pleading guilty

       {¶ 25} Under the first circumstance, in R.C. 2909.13(B)(1), to be an "arson
offender" Mullins would have had to "on or after the effective date of this section" be
"convicted of or plead[] guilty to an arson-related offense." I would begin the analysis
considering first a guilty plea.
       {¶ 26} Mullins was charged with arson under R.C. 2909.03 before July 1, 2013,
having been indicted on June 8, 2012 for a single count of arson, a felony of the fourth
degree. He pled guilty to the indictment on July 18, 2012. Under the "pleads guilty"
language of R.C. 2909.13(B)(1), Mullins would have had to plead guilty on or after the
effective date of the law (July 1, 2013) to an "arson-related offense," neither of which was
the case. Under that portion of R.C. 2909.13(B)(1) concerning "pleaded guilty" on or after
the effective date of the law, Mullins is not an "arson offender." Whether having been
"convicted" makes him one is separately discussed.
       2. Definition of "arson offender" under R.C. 2909.13(B)(2)
       {¶ 27} Under the second circumstance contained in R.C. 2909.13(B), to be an
"arson offender" Mullins would have had to "on the effective date of" the new law "been
convicted of or pleaded guilty to an arson-related offense and [be] confined in a jail,
workhouse, state correctional institution, or other institution, serving a prison term, term
of imprisonment, or other term of confinement for the offense." R.C. 2909.13(B)(2).
While Mullins "on the effective date of this section" (July 1, 2013) had pled guilty to R.C.
2909.03 (substantively, an "arson-related offense"), he was not at the time confined or
imprisoned for the offense to which he pled guilty "on the effective date" of the new law.3
Under R.C. 2909.13(B)(2) he is not an "arson offender." Again, whether having been
"convicted" of arson makes Mullins an arson offender is separately discussed.




3Mullins was not imprisoned for arson under R.C. 2909.03 until after his sentencing hearing held in
2014.
No. 14AP-480                                                                              11

       3. Definition of "arson offender" under R.C. 2909.13(B)(3)
       {¶ 28} Under the third circumstance in R.C. 2909.13(B), to be an "arson offender"
Mullins would have had to "on or after the effective date of" the new law "been charged
with committing, attempting to commit, conspiring to commit, or complicity in
committing a violation of section 2909.02 or 2909.03 of the Revised Code" and "plead[]
guilty to a violation of any provision of Chapter 2909. of the Revised Code other than
section 2909.02 or 2909.03 of the Revised Code." R.C. 2909.13(B)(3). In other words,
Mullins would had to have been charged with committing or being involved in
committing aggravated arson (R.C. 2909.02) or arson (R.C. 2909.03), but pled guilty to
some other crime contained in R.C. Chapter 2909 other than aggravated arson or arson.
Mullins was indicted for a violation of R.C. 2909.03, arson, on June 12, 2012; he pled
guilty to the indictment, R.C. 2909.03 on July 18, 2012; all of which took place before the
enactment of R.C. 2909.13(B)(3). Moreover, he pled guilty to committing arson under
R.C. 2909.03, which is excepted from the third circumstance that defines an "arson
offender" in R.C. 2909.13(B)(3).
       4. Definition of "arson offender" under R.C. 2909.13(B)(1) and (2) as it
          applies to being "convicted"

       {¶ 29} The state argues that being "convicted" under the law includes sentencing
(since Mullins' sentencing occurred after the effective date of the law, while his plea
hearing took place before the law took effect on July 1, 2013). Whether "conviction"
includes sentencing is the linchpin of our analysis in applying the registration law to
Mullins. If Mullins can be said under the law to be "convicted" of R.C. 2909.03 "after the
effective date" of the new law, then he is required to receive notice and to register as an
"arson offender." R.C. 2909.13(B)(1).
       5. The meaning of "convicted" in R.C. 2909.13(B)(1) and (2)
       {¶ 30} In determining whether Mullins is an "arson offender" pursuant to R.C.
2909.13(B), the meaning of "convicted" as used in R.C. 2909.13(B)(1) and (2) must first
be determined. The record reflects the trial court made a specific finding of Mullins' guilt
at the hearing held July 18, 2012 when Mullins pled guilty to the indictment of a single
count of arson, a felony of the fourth degree. The state argues that Mullins was "after the
effective date * * * convicted of * * * an arson-related offense," (R.C. 2909.13(B)(1)) and
No. 14AP-480                                                                                       12

that, because Mullins was sentenced and incarcerated after the effective date of the law,
either or both R.C. 2909.13(B)(1) and (2) apply to require him to receive notice and to
register. The state would have this court determine that "convicted of or pleads guilty to"
an arson-related offense, includes not just the legal ascertainment of guilt of a criminal
defendant who commits arson, but also the imposition of his or her sentence for the
particular crime. The state asserts in its first assignment of error that the trial court
should have required Mullins to register as an arson offender because the trial court
imposed sentence for his guilty plea to the crime of arson after the effective date of the
new law.
          {¶ 31} An examination of case law on the meaning of "convicted of or pleads guilty
to" shows more than one application and that the meaning of these words depends on the
type of criminal case in which the term is applied.                       This is consistent with R.C.
2901.04(A), which provides: "sections of the Revised Code defining offenses or penalties
shall be strictly construed against the state, and liberally construed in favor of the
accused."
          {¶ 32} In State v. Henderson, 58 Ohio St.2d 171 (1979), the Supreme Court of Ohio
considered whether a person who pleads guilty to a theft offense is considered "convicted"
at the time of the plea for the purpose of determining if that person has previously been
convicted of a theft offense. In Henderson, the Supreme Court found that "conviction"
means a final judgment (which includes a sentence) or "the legal ascertainment of guilt,"
and specifically limited its decision to situations involving theft offenses. Id. at 174. See
syllabus.4 The court in Henderson decided that, in determining convictions of prior theft
offenses, " 'the weight of authority is to the effect that the word "conviction" as used in
statutes providing for increased punishment for persons formerly convicted of crime
necessitates the pronouncement of sentence upon the verdict or plea of guilty in order to

4   Paragraphs one and two of the syllabus in Henderson are as follows:

                  1. Where an accused has entered a plea of guilty to a theft offense but has
                  not been sentenced by the court on that charge, such offender has not
                  been previously convicted of a theft offense within the meaning of R.C.
                  2913.02(B).

                  2. To constitute a prior conviction for a theft offense, there must be a
                  judgment of conviction, as defined in Crim.R. 32(B), for the prior offense.
No. 14AP-480                                                                                         13

obtain a judgment that is final.' " Id. at 178, quoting United States v. Allen, 566 F.2d 1193
(3d Cir.1977). The court found that, for purposes of establishing a prior conviction as an
element of an offense, a guilty plea is not a "conviction" and there is no "conviction"
before final judgment (which, under Crim.R. 32(C), requires that a sentence has been
imposed). Id. at paragraphs one and two of the syllabus.
        {¶ 33} Crim.R. 32.1 requires that a motion to withdraw a guilty plea "may be made
only before sentence is imposed." A plea permitted to be withdrawn after sentencing is
recognized by the rule to occur, when a court, in its discretion, sets aside the "judgment of
conviction"5 "to correct manifest injustice." Crim. R. 32.1. In the integrated context of
Henderson and Crim.R. 32.1, sentencing is a more permanent circumstance than the legal
ascertainment of guilt without sentence. When being convicted of or pleading guilty to a
prior offense is the element of a subsequent crime, R.C. 2901.04(A) requires this
construction.
        {¶ 34} Applying R.C. 2901.04(A) with consistency to Mullins' situation, there is no
similar contextual need for defining "is convicted of" to include sentencing. Rather, in
Mullins' case, the critical element potentially defining him as an "arson offender" is
whether he was "convicted of or pleaded guilty to" an arson-related offense (in Mullins'
case R.C. 2909.03) "on or after the effective date" of the law. R.C. 2909.13(B)(1) and (2).
Determining how R.C. 2901.04(A) affects our interpretation of "convicted of" involves
determining whether registration is a "penalty," part of the "offense" of arson, or a new
offense, because the law expressly instructs that its application is to "defining offenses or
penalties." To determine whether to "strictly construe[] against the state, and liberally
construe[] in favor of the accused," the nature of the registration scheme sought by the
state to be imposed by the court must be examined. R.C. 2901.04(A).
        6. Arson offender registration as a penalty
        {¶ 35} Two other Ohio appellate districts have held that arson registration
requirements are not "so punitive that they impose a new burden in the constitutional
sense" under Ohio's Retroactivity Clause. State v. Caldwell, 1st Dist. No. C-130812, 2014-
Ohio-3566, ¶ 34 (holding the registration requirement not to be an additional penalty);


5 Crim.R. 32.1 utilizes the term "judgment of conviction" to denote a conviction involving sentence as a
separate concept from "conviction."
No. 14AP-480                                                                               14

see also State v. Reed, 11th Dist. No. 2013-L-130, 2014-Ohio-5463, ¶ 85. The courts in
both of these cases recognized the arson registration scheme to be part of the offense of
arson and not a separate penalty in finding no state constitutional violation when applied
to an offender under R.C. 2909.13(B)(2). In reaching their decisions affecting persons
already incarcerated for arson-related offenses, these other appellate courts recognized
that "[r]egistration programs have 'long been a valid regulation technique with a remedial
purpose.' " Caldwell at ¶ 35, quoting State v. Cook, 83 Ohio St.3d 404, 418 (1998); see
also Reed at ¶ 84-85.      I would not reach the question of the registration scheme's
constitutionality in our district, but rather, observe that other districts have done so,
examining some of their analyses in reaching their conclusions. I would exercise caution
and decline at this time to hold the arson registration law to be an additional penalty.
Rather, I would examine whether the state's arson offender registration scheme may be
defined as part of a criminal offense or whether it creates a new offense.
       7. Arson offender registration as part of a defined criminal offense
       {¶ 36} Under R.C. 2909.13(B)(1) and (2), "arson offenders" are persons who have
been ascertained to be guilty by either plea or by a court finding without admitting guilt.
The third category, R.C. 2909.13(B)(3), is an explicit pleading guilty situation, but guilt is
not pled to arson or aggravated arson, but rather, to other specific charges than originally
indicted. To become an "arson offender" is to have satisfied prerequisites for "enjoining a
specific duty" of registration, which under R.C. 2901.03(A), "defines" an offense. These
provisions, along with the accompanying provisions of R.C. 2909.14 and 2909.15 that
require registration, together may be taken to "define" a criminal offense. Their
application to Mullins' situation is guided by R.C. 2901.04(A), in that they must be strictly
construed against the state, and liberally construed in favor of the accused.
       8. Arson offender registration as creating a new offense
       {¶ 37} The arson offender registration scheme also creates a new crime, a felony of
the fifth degree:
              Whoever fails to register or reregister as required by this
              section is guilty of a felony of the fifth degree. If an arson
              offender or out-of-state arson offender is subject to a
              community control sanction, is on parole, is subject to one or
              more post-release control sanctions, or is subject to any other
              type of supervised release at the time of the violation, the
No. 14AP-480                                                                                            15

                violation shall constitute a violation of the terms and
                conditions of the community control sanction, parole, post-
                release control sanction, or other type of supervised released.

R.C. 2909.15(H). Under this analysis, the arson offender registration scheme clearly
enjoins a specific duty and provides a clear penalty "for violation of such prohibition or
failure to meet such duty." R.C. 2901.03(B). I would thus hold, when interpreting the
application of R.C. 2909.13 to one legally ascertained to be guilty of an arson-related
offense, the statute must be strictly construed against the state, and liberally construed in
favor of the accused.        R.C. 2901.04(A).        I would therefore utilize this approach in
determining whether "convicted" in R.C. 2909.13(B) includes "sentenced" for an arson-
related offense, thus making Mullins an "arson offender" and subject to registration.
        {¶ 38} In State v. Maye, 129 Ohio App.3d 165 (10th Dist.1998), in the context of a
sexually oriented offense, a different context than in Henderson, this court found that
" 'the General Assembly [had] placed "convicted" on equal footing with a guilty plea.' " Id.
at 170, quoting State ex rel. Watkins v. Fiorenzo, 71 Ohio St.3d 259, 260 (1994). In doing
so, this court relied on Watkins.6           In Maye, this court held that, in the context of
interpreting the application of a previous "sexual predator" registration law, "convicted of
or pleaded guilty to" means a legal determination of guilt rather than a final order of
judgment that includes sentencing. Id. at 170-71; see In re Forfeiture of One 1986 Buick
Somerset Auto., 91 Ohio App.3d 558, 562-63 (3d Dist.1993). Our conclusion in Maye is
consistent with certain definitions in R.C. Title 29 that define both "sanction" and
"sentence" as distinct from the concept of being "convicted." See R.C. 2929.01(DD)
(" 'Sanction' means any penalty imposed upon an offender who is convicted of or pleads
guilty to an offense, as punishment for the offense."); R.C. 2929.01(EE) (" 'Sentence'




6 In Watkins, in the context of a crime that includes permanent disqualification from public office upon

conviction or pleading guilty to a crime, the Supreme Court stated, "Henderson recognizes that the term
'conviction' normally includes both the finding of guilt and the sentence. State v. Carter (1992), 64 Ohio
St.3d 218, 222, 594 N.E.2d 595, 599; State v. Poindexter (1988), 36 Ohio St.3d 1, 5, 520 N.E.2d 568, 572;
cf. State v. Cash (1988), 40 Ohio St.3d 116, 532 N.E.2d 111, syllabus. However, the language of R.C.
2921.41(C)(1) specifies permanent disqualification from * * * any public office in this state if the public
official is either 'convicted of or pleads guilty to, theft in office.' (Emphasis added.) Unlike in R.C.
2913.02(B), the General Assembly placed 'convicted' on equal footing with a guilty plea in R.C.
2921.41(C)(1)." (Emphasis sic.) Id. at 260.
No. 14AP-480                                                                                             16

means the sanction or combination of sanctions imposed by the sentencing court on an
offender who is convicted of or pleads guilty to an offense.").7
         {¶ 39} This distinction between legal ascertainment of guilt and sentencing is
appropriate because a criminal conviction may occur in several ways. A jury or a judge
may find a criminal defendant guilty at trial, after which, when accepting the verdict or
rendering judgment if a jury is waived, a defendant is pronounced guilty. To avoid a trial,
a criminal defendant can and often does enter a guilty plea, a nolo contendere plea, or
even an Alford plea,8 the latter two having the effect of being convicted without the
admission of guilt. When a criminal defendant is found guilty at trial, he or she is
convicted. After the taking of a plea, regardless of type, the court (as it did in Mullins'
case) finds the defendant guilty just as occurs at trial. It is at that point that the defendant
is convicted of one or more crimes, thereby moving the criminal case into a sentencing
phase.
         {¶ 40} R.C. 2909.13(B)(1) defines an "arson offender" who must register under
R.C. 2909.14 and 2909.15 as, "A person who on or after the effective date of this section is
convicted of or pleads guilty to an arson-related offense." Under Watkins, Maye, and
Forfeiture of One 1986, the meaning of "convicted" when used in this phrase is a legal
determination of guilt, not a final judgment. Watkins at 260; Maye at 170-71; Forfeiture
of One 1986 at 562-63.
         9. Applying rules of statutory construction
         {¶ 41} If "convicted" were meant to include sentencing, "pleads guilty" would be
extraneous and duplicative language, because pleading guilty is but one way to reach a
legal ascertainment of guilt. Looking to R.C. 1.51 for the proposition that a special


7Registration under R.C. 2909.15(A) is required either after release from confinement in the case of a jail
or prison sentence (R.C. 2909.15(A)(1)) or after sentencing in the case that community control is imposed
(R.C. 2909.15(A)(2)).

8 "The term 'Alford plea' originated with the United States Supreme Court's decision in North Carolina v.
Alford (1971), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162, wherein the Supreme Court held that guilty pleas
linked with claims of innocence may be accepted provided the 'defendant intelligently concludes that his
interests require entry of a guilty plea and the record before the judge contains strong evidence of actual
guilt.' Id., 400 U.S. at 37, 91 S.Ct. at 167, 27 L.Ed.2d at 171. 'An individual accused of a crime may
voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is
unwilling or unable to admit his participation in the acts constituting the crime.' Id. An Alford plea has
the same legal effect as a guilty plea. State v. Vogelsong, 3d Dist. No. 5-06-60, 2007-Ohio-4935, ¶ 15."
State v. Schmidt, 3d Dist. No. 10-10-04, 2010-Ohio-4809, ¶ 13.
No. 14AP-480                                                                                             17

provision of statute prevails as an exception to a general statute, "pleads guilty to" is a
specialized form of a legal ascertainment of guilt, also known as a criminal conviction, and
it must be found to have meaning and be given effect:
                If a general provision conflicts with a special or local
                provision, they shall be construed, if possible, so that effect is
                given to both. If the conflict between the provisions is
                irreconcilable, the special or local provision prevails as an
                exception to the general provision, unless the general
                provision is the later adoption and the manifest intent is that
                the general provision prevail.

R.C. 1.51.     Based on this statutory instruction, I would additionally hold that the
specialized form of conviction, "pleaded guilty to," must be given effect. The language,
"been convicted of" in R.C. 2909.13(B), includes pleading guilty, and the separate
recitation of it would be unnecessary and could in effect be ignored. But this would be
inapposite to the operation of R.C. 1.51. Heeding the rules of statutory construction
enacted by the legislature in applying R.C. 2909.13(B) to Mullins' situation, I would hold
that, because Mullins' ascertainment of guilt for the crime of arson occurred before the
effective date of the statute, even though his sentence occurred after the effective date, he
was not required to be notified or to register as an arson offender under R.C. 2909.13.
        10. Determining the application of R.C. 2909.13(B)(2), the effect of
            incarceration on arson offender registration

        {¶ 42} I would next consider the application of R.C. 2909.13(B)(2), concerning
notification and placement on the arson registry because of incarceration for an arson-
related offense on the effective date of the new law, July 1, 2013. The state argues that,
were it not for the trial court's "declaration," the warden at the prison where Mullins is
imprisoned would have to give Mullins notice of his duty to register under R.C. 2909.14
upon his release, because his release date post-dates July 1, 2013. This argument is
inapposite because it ignores that this is the only subdivision of R.C. 2909.13(B), (defining
"arson offender") that limits its application to on the effective date of R.C. 2909.13.9 Id. at
12-14. The legal ascertainment of guilt and imprisonment (or other confinement) must be
the simultaneous status of a criminal defendant on the date of the new law, July 1, 2013.

9 R.C. 2909.13(B)(1) and (3) contain language of "on or after" concerning the effective date of the

legislation. Conversely, R.C. 2909.13(B)(2) contains only the word "on" in referencing the effective date of
the registration law.
No. 14AP-480                                                                              18

Mullins was not incarcerated for arson on July 1, 2013, and he cannot on the basis of R.C.
2909.13(B)(2) be defined to be an arson offender.
       {¶ 43} Whether or not the trial court had imposed community control rather than
prison, because Mullins is not an "arson offender," R.C. 2909.14 does not require Mullins
to be noticed or to register under either R.C. 2909.13(B)(1) or (2). I would hold that the
trial court was correct to declare that the warden at the prison where Mullins was to be
incarcerated would not have to give Mullins notice of a duty to register under R.C.
2909.14 upon his release, even though his release date would be after July 1, 2013.
       11. Argument that application of the law to Mullins is "incongruous"
       {¶ 44} The state argues that it is incongruous that Mullins, who pled guilty to R.C.
2909.03 before the registration law took effect, but who avoided sentencing until after it
took effect, should not have to register, while someone who pleaded guilty, was sentenced
and was incarcerated for the same offense, all before the law took effect, does have to
register. The arson registry is for "arson offenders" as defined by R.C. 2909.13(B).
Mullins is not an arson offender from any definitional standpoint under R.C. 2909.13(B).
Mullins is not required to receive notice or to register on the arson registry created by the
new law. The registration scheme does not apply to Mullins. I would overrule the state's
first assignment of error.
    B. Second Assignment of Error – Whether the Registration Scheme is
    Constitutional as Applied to Mullins

       {¶ 45} Because I would find that the statutory registration scheme does not apply
to Mullins, I would find the state's arguments and the trial court's findings on
constitutionality to be unnecessary and thereby rendered moot.
III. CONCLUSION
       {¶ 46} Upon such findings, pursuant to App.R. 12(A)(1)(a), I would modify the
judgment of the trial court, eliminating the application of the state and/or federal
constitutions as a basis for its decision.
