[Cite as State v. Mestre, 2012-Ohio-5745.]




          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                                JOURNAL ENTRY AND OPINION
                                         No. 98311



                                        STATE OF OHIO

                                                         PLAINTIFF-APPELLANT

                                                   vs.

                                       RAMON MESTRE

                                                         DEFENDANT-APPELLEE




                                             JUDGMENT:
                                              AFFIRMED


                                         Criminal Appeal from the
                        Cuyahoga County Court of Common Pleas
                                 Case No. CR-535193

      BEFORE: Stewart, P.J., Cooney, J., and Keough, J.

      RELEASED AND JOURNALIZED: December 6, 2012

ATTORNEYS FOR APPELLANT

Sherri Bevan Walsh
Summit County Prosecutor
Special Prosecutor for Cuyahoga County

BY: Richard S. Kasay
Assistant Summit County Prosecutor
53 University Avenue, 6th Floor
Akron, OH 44308


ATTORNEYS FOR APPELLEE

Robert L. Tobik
Cuyahoga County Public Defender

BY: Culleen Sweeney
           John T. Martin
Assistant Public Defenders
310 Lakeside Avenue, Suite 200
Cleveland, OH 44113
MELODY J. STEWART, P.J.:

      {¶1} The state of Ohio appeals from an order that dismissed an

indictment charging defendant-appellee Ramon Mestre with failing to verify

his address under the Adam Walsh Act, as codified in R.C. 2950.06(F).

Although the state concedes that Mestre could not be charged with a violation

of the Adam Walsh Act, it argues that the court erred by dismissing the

indictment because Mestre could have been charged with failure to verify his

address under Megan’s law.

                                       I

      {¶2} In 1988, Mestre was convicted in the state of Pennsylvania on a

charge of deviate sexual intercourse.      He later moved to Ohio and, as a

sexually oriented offender, was required under Megan’s Law to verify his

address annually on the date of his original registration for a period of ten

years. Following the enactment of the Adam Walsh Act in 2007, Mestre was

reclassified as a Tier III sexual offender and was required to verify his

address every 90 days for life.

      {¶3} In 2010, the state of Ohio charged Mestre with failing to verify his

address. Mestre pleaded guilty to the charge, but nine months later sought

to withdraw his guilty plea under authority of State v. Bodyke, 126 Ohio St.3d
266, 2010-Ohio-2424, 933 N.E.2d 753, which held that the reclassification of

sexual offenders under the Adam Walsh Act violated the separation-of-powers

doctrine. The court denied Mestre’s motion to withdraw his guilty plea. We

held on appeal from that ruling that the court abused its discretion by

refusing to allow Mestre to withdraw his guilty plea because Mestre had been

unlawfully reclassified under the Adam Walsh Act. State v. Mestre, 8th Dist.

No. 96820, 2011-Ohio-5677.

      {¶4} On remand, Mestre filed a motion to dismiss the indictment,

arguing   that   his    reclassification under the Adam Walsh Act was

unconstitutional, that he was actually innocent of the charged crime of failure

to verify his address, and that the supreme court had held in the second

paragraph of the syllabus to State v. Palmer, 131 Ohio St.3d 278,

2012-Ohio-580, 964 N.E.2d 406, that “[a] trial court may dismiss an

indictment for violations of R.C. Chapter 2950 when it determines that the

chapter’s regulations do not apply to the accused.” The state opposed the

motion on grounds that regardless of whether Mestre’s reclassification under

the Adam Walsh Act had been improper, it could nonetheless maintain a

prosecution against Mestre for failure to verify under Megan’s Law because

Mestre failed to verify his address on the one-year anniversary date of his

initial registration.   At no point, however, did the state actually seek to
amend the indictment. Following a hearing on the motion, the court granted

the motion to dismiss.

                                        II

      {¶5} While the enactment of the Adam Walsh Act was accompanied by

the repeal of Megan’s Law, see State v. Williams, 129 Ohio St.3d,

2011-Ohio-3374, 952 N.E.2d 1108, ¶ 40, the repeal of Megan’s Law did not

affect Mestre’s reporting obligations under that act. R.C. 1.58(A)(2) states

that the repeal of a statute does not “[a]ffect any validation, cure, right,

privilege, obligation, or liability previously acquired, accrued, accorded, or

incurred thereunder[.]”       In     State v. Gingell, 128 Ohio St.3d 444,

2011-Ohio-1481, 946 N.E.2d 192, the supreme court noted that Bodyke

severed the reclassification provisions of the Adam Walsh Act and that the

“original   classification   under    Megan’s   Law   and    the   associated

community-notification and registration order were reinstated” for the

offender.   Id. at ¶ 8.      See also State v. Proctor, 9th Dist. No. 26303,

2012-Ohio-3342, ¶ 6.

      {¶6} In State v. Aaron, 9th Dist. No. 25900, 2012-Ohio-248, the Ninth

District Court of Appeals considered the same issue presented in this appeal.

Aaron had been classified as a sexual offender under Megan’s law, but

reclassified as a Tier II offender under the Adam Walsh Act. He pleaded
guilty to a charge of failing to verify his address, but asked the court to

withdraw the plea because the reclassification was unconstitutional under

Bodyke. The court granted the motion to withdraw, and Aaron then sought

dismissal of the indictment.    The state agreed that Aaron could not be

charged under the Adam Walsh Act, but argued that he could be charged

under Megan’s Law and asked the court to amend the indictment under

Crim.R. 7(D). The court denied the state’s motion to amend the indictment

and granted Aaron’s motion to dismiss. On appeal by the state, the Ninth

District stated:

      The Ohio Supreme Court’s statements in Gingell clarify that
      sexual offenders who were improperly reclassified under the
      Adam Walsh Act remained subject to Megan’s Law’s reporting
      requirements during the period of their improper reclassification.
       State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, at ¶ 8, 946
      N.E.2d 192.      We, therefore, conclude that the trial court
      incorrectly determined that the State could not amend the
      indictment to charge Mr. Aaron with an offense under Megan’s
      Law. See State v. Howard, 2d Dist. No. 24680, 195 Ohio App.3d
      802, 2011-Ohio-5693, at ¶ 12, 961 N.E.2d 1196 (upholding
      conviction for failure to provide notice of change of address
      because the requirement was the same under Megan’s Law and
      the Adam Walsh Act); State v. Bowling, 1st Dist. No. C-100323,
      2011-Ohio-4946, at ¶ 23 (concluding that defendant’s failure to
      notify of change of address offense was not based on an
      unconstitutional reclassification because the same duty applied
      under Megan’s Law and the Adam Walsh Act); State v. Stoker,
      5th Dist. No. 2010-CA-00331, 2011- Ohio-3934, at ¶ 23
      (concluding that defendant’s reclassification under Adam Walsh
      Act had “no bearing on the outcome of his prosecution” for failing
      to provide notice of his change of address). Id. at ¶ 5.
      {¶7} Our decision in State v. Brunning, 8th Dist. No. 95376,

2011-Ohio-1936, appeal allowed, 129 Ohio St.3d 1488, 2011-Ohio-5129, 954

N.E.2d 661, contains language that contradicts Aaron:           “Once offenders

already under the obligation to report pursuant to Megan’s Law were

reclassified pursuant to R.C. 2950.031 and 2950.032, their duties to report

were derived from the AWA.” Id. at ¶ 10. This language is contradicted by

Gingell, which makes it plain that an offender who was reclassified under

the Adam Walsh Act could still be held accountable for the yearly reporting

requirement under Megan’s Law.          Gingell at ¶ 8.     Indeed, even before

Gingell was issued, we implicitly recognized that a vacated plea stemming

from an alleged violation of the Adam Walsh Act might nonetheless support a

different prosecution under Megan’s Law.        See, e.g., State v. Caldero, 8th

Dist. No. 96719, 2010-Ohio-11, ¶ 14 (“Whether Caldero was in compliance

with Megan’s Law is a question of fact before the trial court, not this court.”).

      {¶8} Gingell settles the question raised here — even though Mestre is

not subject to the reporting requirements of the Adam Walsh Act, he is

nonetheless still subject to the reporting requirements of Megan’s Law.

      {¶9} But being subject to the reporting requirements of Megan’s Law is

not the same thing as being charged with violating Megan’s Law. The state
made no attempt to amend the indictment or reindict Mestre for alleged

violations of Megan’s Law. At all times, Mestre was charged under a facially

invalid indictment because it charged him with a criminal offense under the

wrong statute.        Under those circumstances, the court had no choice but to

dismiss the defective indictment. Palmer, supra. It follows that the court

did not err by dismissing the indictment.

       {¶10} Judgment affirmed.

       It is ordered that appellee recover of appellant his costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to the Cuyahoga County Court of Common

Pleas 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.




MELODY J. STEWART, PRESIDING JUDGE

COLLEEN CONWAY COONEY, J., and
KATHLEEN ANN KEOUGH, J., CONCUR
KEY WORDS:
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