         [Cite as State v. Harris, 2014-Ohio-1589.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                        :   APPEAL NO. C-130395
                                                          TRIAL NO. B-0908089
        Plaintiff-Appellee,                           :

  vs.                                                 :     O P I N I O N.

ERNEST HARRIS,                                        :

    Defendant-Appellant.                              :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: April 16, 2014


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Michael J. Trapp, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS



DEWINE, Judge.
       {¶1}    Once again, we are confronted with a case that involves the interplay

between Ohio’s current sex-offender registration scheme, the Adam Walsh Act

(“AWA”), and its previous scheme, “Megan’s Law.” Ernest Harris was convicted by a

jury in 2010 for failure to meet his registration requirements. The jury at the 2010

trial was instructed on the registration requirements of the AWA, and Mr. Harris was

convicted for a violation of that Act.     Shortly after Mr. Harris’s trial, the Ohio

Supreme Court decided that the AWA could not be applied retroactively to offenders

like Mr. Harris.

       {¶2}    The question we face now is whether we must vacate his conviction.

We determine that we need not do so, because the conduct for which Mr. Harris was

indicted and found guilty constituted a violation of duties that applied to him under

Megan’s Law.

                     Facts and a Lengthy Procedural History

       {¶3}    Mr. Harris was convicted of rape on January 7, 1983, and sentenced to

25 years’ incarceration. He served his sentences for rape and other crimes, and was

ultimately released from prison on August 12, 2009. On December 3, 2009, Mr.

Harris was indicted for failing to register as a sex offender. The indictment cited a

statutory subsection of the AWA. A jury found Mr. Harris guilty, and in April 2010,

he was sentenced to six years’ incarceration.

       {¶4}    At Mr. Harris’s trial, the correctional-records management officer of

the Toledo Correctional Institution testified that before Mr. Harris had been released

from prison, she had notified him that he was classified as a Tier III sex offender

under the AWA, that he was required to register with the local sheriff every 90 days

for life, and that upon his release he was required to register no later than August 17,

2009. The officer further testified that Mr. Harris had refused to sign the notice of

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                       OHIO FIRST DISTRICT COURT OF APPEALS



registration duties.     The officer then notified the Hamilton County Sheriff’s

Department of Harris’s duty to register as a sex offender and his refusal to sign the

notification form.

       {¶5}   Adam Breeze, the Hamilton County Sheriff’s Department investigator

for the sex-offender program, testified that Mr. Harris was a Tier III sex offender,

that he had a duty to register every 90 days for life, that he had had a duty to register

with the department upon his release from prison, and that Mr. Harris had never

registered.

       {¶6}   In its jury instructions, the trial court referred to the registration

duties of a Tier III sex offender. The jury found Mr. Harris guilty. At the sentencing

hearing, the trial court told Mr. Harris that he had been found guilty by the jury of a

first-degree felony for failing to register “in accordance with the Adam Walsh Act.”

       {¶7}   We affirmed Mr. Harris’s conviction on direct appeal. State v. Harris,

1st Dist. Hamilton Nos. C-100243 and C-100273 (June 8, 2011). The Ohio Supreme

Court accepted Mr. Harris’s appeal and remanded the case to this court for

application of State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d

1108. In Williams, the court held that the AWA’s classification, registration, and

community-notification provisions were punitive and could not constitutionally be

applied to sex offenders who had committed their sex offenses before its enactment.

       {¶8}   In applying Williams to Mr. Harris, we held that because Mr. Harris

had committed his crime in 1983, the AWA classification, registration, and

community-notification provisions may not be applied to him. State v. Harris, 1st

Dist. Hamilton Nos. C-100243 and C-100273, 2012-Ohio-2460. We stated that “[i]t

is clear from the record that Harris was indicted, tried, and convicted for violating

[the AWA’s] registration requirements while he was unconstitutionally classified as a

Tier III sex offender. Therefore, his conviction for failing to register as a sex offender

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must be reversed, and Harris must be discharged.” Id. at ¶ 7. We pointed out that

Mr. Harris “may have a duty, arising by operation of law, to register as a sexually

oriented offender under former R.C. Chapter 2950 (‘Megan’s Law’) * * * because he

was convicted of a sexually oriented offense and was serving the term of

incarceration for that offense on or after July 1, 1997.” Id. at ¶ 8.

       {¶9}    The state appealed our opinion to the Ohio Supreme Court, which

remanded the case to the trial court for application of its decision in State v.

Brunning, 134 Ohio St.3d 438, 2012-Ohio 5752, 983 N.E.2d 316. See In re Cases

Held for the Decision in State v. Brunning, 134 Ohio St.3d 593, 2012-Ohio-5777, 984

N.E.2d 12. The issue in Brunning was the proper application of State v. Bodyke, 126

Ohio St.3d 266, 2012-Ohio-2424, 933 N.E.2d 753. In Bodyke the court had held that

the reclassification under the AWA of sex offenders who had been previously

classified under Megan’s Law violated the separation-of-powers doctrine, and the

court had accordingly reinstated the classification and registration requirements of

Megan’s Law.     The court in Brunning considered the legitimacy of convictions

obtained under the AWA for offenders who had been reclassified and held that

Bodyke did not require “the vacation of convictions where the conduct at issue * * *

was a violation of R.C. 2950.05 both as it exists under the AWA and as it existed

under Megan’s Law.” Brunning at ¶ 1.

       {¶10} The trial court, after applying the Brunning holding, determined that

Mr. Harris should have been convicted of failing to register as a third-degree felony,

not as a first-degree felony, and sentenced him to five years of community control.

See State v. Howard, 134 Ohio St.3d 467, 2012-Ohio-5738, 983 N.E.2d 341

(offenders originally classified under Megan’s Law are subject to the penalty

provisions of Megan’s Law in effect just prior to the effective date of the AWA). Mr.

Harris has appealed.

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                      OHIO FIRST DISTRICT COURT OF APPEALS



       We Affirm Because the Conduct for Which Mr. Harris was Convicted
      Constituted a Violation of His Megan’s Law Registration Requirements
        {¶11} Mr. Harris’s sole assignment of error alleges that the trial court erred

in convicting him of failing to register.

        {¶12} Because Mr. Harris was in prison for rape when Megan’s Law was

enacted, “his designation as a sexually oriented offender attached as a matter of law

based upon his conviction for a sexually oriented offense.” See State v. Wood, 1st

Dist. Hamilton No. C-120598, 2013-Ohio-2724, ¶ 6, citing State v. Hayden, 96 Ohio

St.3d 211, 2002-Ohio-4169, 773 N.E.2d 502, ¶ 18. Under Megan’s Law, Mr. Harris

was required to register with the sheriff within five days of “coming into a county in

which the offender resides or is temporarily domiciled for more than five days.” See

former R.C. 2950.04(A)(1). But the AWA, under which Mr. Harris was tried and

convicted, requires registration within three days of “coming into a county in which

the offender resides or is temporarily domiciled for more than three days.” See R.C.

2950.04(A)(2)(a). Because he was not subject to the more restrictive duties of the

AWA, Mr. Harris argues that his conviction for failing to register as a sex offender

must be reversed and he must be discharged. We disagree.

        {¶13} “Brunning stands for the proposition that a conviction need not be

vacated when the ‘conduct at issue’ is a violation of both Megan’s Law and the AWA.”

State v. Shirley, 1st Dist. Hamilton No. C-130121, 2013-Ohio-5216, ¶ 16. “Even

where a defendant subject to Megan’s Law is indicted under the AWA, if the

indictment describes conduct that is also a violation of Megan’s Law, which a

defendant originally classified under Megan’s Law remains obligated to meet, the

indictment is sufficient and a defendant can be convicted of the charges.” State v.

Ogletree, 8th Dist. Cuyahoga No. 96438, 2013-Ohio-1538, ¶ 4, citing Brunning at ¶

31.


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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶14} The indictment in this case charged that Mr. Harris “failed to register

with the Sheriff’s Office in Hamilton County, Ohio, when [Mr. Harris] was required

to register * * * or failed to send notice of intent as required,” and that the basis of

the registration requirement was Mr. Harris’s 1983 rape conviction. Mr. Harris had

a continuing duty to comply with the registration requirements of Megan’s Law. The

conduct described in the indictment as a violation of the AWA also constituted a

violation of Mr. Harris’s duty under Megan’s Law to register with the Hamilton

County Sheriff. It is undisputed that Mr. Harris did not register with the sheriff as

required after his release from prison. Because Mr. Harris’s conduct in failing to

register violated his duty under Megan’s Law, his conviction need not be vacated.

See Brunning, 134 Ohio St.3d 438, 2012-Ohio-5752, 983 N.E.2d 316, at ¶ 31.

       {¶15} This case is distinguishable from our opinion in Shirley. That case

came before us on a motion to withdraw a guilty plea. Mr. Shirley had pleaded guilty

to failing to register with the sheriff within three days of coming into a county as a

required under the AWA. Mr. Shirley, however, was subject to Megan’s Law and not

the AWA. It was not clear from the record that he had violated Megan’s Law by

failing to register within five days, rather than three. As a consequence, we held that

the trial court erred in denying the motion without a hearing, and we remanded the

cause for a hearing on the three-day/five-day issue and other issues that might

constitute manifest injustice entitling him to withdraw his plea.

       {¶16} Unlike in the Shirley case, there is no question that Mr. Harris’s

conduct constituted a violation of his registration duties under Megan’s Law. He did

not register as a sex offender after he was released from prison. The “conduct at

issue” violated both the AWA and Megan’s Law, and his conviction need not be

vacated. See Brunning, 134 Ohio St.3d 438, 2012-Ohio-5752, 983 N.E.2d 316, at ¶

31.

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                     OHIO FIRST DISTRICT COURT OF APPEALS



                                     Conclusion

       {¶17} The assignment of error is overruled and judgment of the trial court is

affirmed.

                                                                Judgment affirmed.

CUNNINGHAM, P.J., and FISCHER, J., concur.


Please note:
       The court has recorded its own entry this date.




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