[Cite as Speight v. State, 2011-Ohio-2933.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                              Nos. 96041, 96042, 96043,
                                   96044 and 96405



                       WILLIE SPEIGHT, III, ET AL.
                                                       PLAINTIFFS-APPELLEES

                                                 vs.

                                     STATE OF OHIO
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                 Civil Appeal from the
                        Cuyahoga County Court of Common Pleas
                      Case Nos. CV-654590, CV-648679, CV-668227
                               CV-647002, and CV-648873

        BEFORE: Keough, J., Boyle, P.J., and Jones, J.

        RELEASED AND JOURNALIZED: June 16, 2011
ATTORNEYS FOR APPELLANT

William D. Mason
Cuyahoga County Prosecutor
BY: Daniel T. Van
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113

ATTORNEYS FOR APPELLEES

For Daniel Terzin Read

James W. Burke
Burke, Vannucci & Gallagher
22649 Lorain Road
Fairview Park, OH 44126

For Juan Wyley

Robert L. Tobik
Chief Public Defender
BY: Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue, Ste 400
Cleveland, OH 44113

Tavon Dickerson, Pro Se
805 Alhambra Street
Cleveland, OH 44110

Willie Speight III, Pro Se
2100 Lakeside Avenue
Cleveland, OH 44114

Robert Umstead, Pro Se
3101 Chelsea Drive
Cleveland, OH 44118
KATHLEEN ANN KEOUGH, J.:

       {¶ 1} In this consolidated appeal, defendant-appellant, the state of

Ohio (“the State”), appeals the trial court’s judgments granting the petitions

contesting the application of Ohio’s Adam Walsh Act (“AWA”) of the

plaintiffs-appellees, Willie Speight, III, Robert Umstead, Tavon Dickerson,

Daniel Terzin Read, and Juan Wyley (collectively “appellees”).           For the

following reasons, we affirm.

       {¶ 2} The Cuyahoga County Common Pleas Court convicted Speight of

sexual battery in 2007, Dickerson of unlawful sexual contact with a minor in

2004, and Umstead of sexual battery in 1995.            When they were each

sentenced, the trial court did not conduct a hearing to determine their sex

offender classification or issue a journal entry designating their classification.

 Accordingly, their sexually oriented offender status arose by operation of

law.

       {¶ 3} Read was convicted of sexual battery in 2007 in the state of

Virginia. Wyley was convicted in 1997 of aggravated criminal sexual assault

in the state of Illinois. Upon moving to Ohio, both Read and Wyley were

classified and began registering as sexually oriented offenders under Megan’s

Law. Their classification arose by operation of law.

       {¶ 4} After the enactment of the AWA, appellees each received

notification from the Ohio Attorney General indicating their sex offender
reclassification with new reporting and notification requirements associated

with that classification.          Speight, Umstead, Read, and Wyley were all

reclassified as “Tier III” sex offenders. 1             In 2008, appellees filed separate

petitions pursuant to R.C. 2950.031 and 2950.032, contesting their

reclassification and the application of the AWA.

      {¶ 5} While appellees’ petitions were pending, the Ohio Supreme Court

issued its decision in State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424,

933   N.E.2d      753,      reconsideration         denied,       126   Ohio   St.3d   1235,

2010-Ohio-3737, 933 N.E.2d 810, in which the Supreme Court held that, “R.C.

2950.031 and 2950.032, the reclassification provisions in the AWA, are

unconstitutional because they violate the separation-of-powers doctrine.”

Bodyke at ¶2.        Because those sections were held unconstitutional, the

Supreme Court chose to sever the statutes. Specifically, the Supreme Court

stated, “As a remedy, we strike R.C. 2950.031 and 2950.032, hold that the

reclassifications of sex offenders by the attorney general are invalid, and

reinstate prior judicial classifications of sex offenders.” Id.

      {¶ 6} Accordingly, in 2010, the trial court granted appellees’ individual

petitions on the authority of Bodyke and restored each appellee to his

previous sex offender status under Megan’s Law.




      The record is unclear as to Dickerson’s reclassification.
      1
      {¶ 7} The State appeals these judgments, contending that the trial

court erred in applying Bodyke to petitioners who (1) were not classified

under Megan’s Law by an Ohio court, and (2) did not demonstrate by clear

and convincing evidence that they were previously classified by an Ohio court.

 Because these arguments are related, we address them together.

      {¶ 8} The State argues that Bodyke is limited to only those individuals

who were classified under Megan’s Law by an Ohio court. The State

maintains that where there is no prior judicial order classifying a sex

offender, reclassification by the attorney general under the AWA does not

violate the separation-of-powers doctrine under Bodyke because it does not

require the opening of a final court order or a review by the executive branch

of a past decision of the judicial branch. See Bodyke at 60-61. In support

of their argument, the State cites to Green v. State, 1st Dist. No. C-090650,

2010-Ohio-4371, appeal allowed in part, 127 Ohio St.3d 1531, 2011-Ohio-376,

940 N.E.2d 985, and Boswell v. State, 12th Dist. No. CA2010–01–006,

2010-Ohio-3134.    Therefore, according to the State, because appellees’

original classifications under Megan’s Law arose by operation of law and were

not court-ordered, Bodyke does not apply and appellees are subject to the

AWA. We disagree.

      {¶ 9} This court has consistently and repeatedly held that pursuant to

the holding in Bodyke, reclassification under the AWA is unconstitutional
because it violates the separation-of-powers doctrine.   See e.g., Pierson v.

State of Ohio, 8th Dist. Nos. 92173-92175, 92177, 92179, 92182-92185,

92187-92188, 92199-92206, 92240, 92248-92251, 92255-92257, 92277, 92312,

92328, 2010-Ohio-3060, and State v. Means, 8th Dist. Nos. 92936-92939,

92941-92945, 2010-Ohio-3082.

      {¶ 10} In State v. Majewski, 8th Dist. No. 92372, 92400, 2010-Ohio-3178,

 appeal not allowed, 127 Ohio St.3d 1462, 2010-Ohio-6008, 938 N.E.2d 364,

this court considered whether an individual who was convicted of sexual

assault and attempted sexual assault outside the state of Ohio was bound by

the reclassification scheme under the AWA. This court, in applying Bodyke,

concluded that the reclassification of an offender whose underlying conviction

occurred in Hawaii violated the separation-of-powers doctrine. Id. at 13.

See, also, State v. Ortega-Martinez, 8th Dist. No. 95656, 2011-Ohio-2540

(recognizing that Majewski remains the controlling precedent and that

Bodyke applies to out-of-state offenders); Clager v. State, 5th Dist. No.

10-CA-49, 2010-Ohio-6074, 25 (Bodyke applies to out-of-state offenders).

      {¶ 11} The State contends that Majewski is not controlling because the

“arguments raised in the instant appeal were not explicitly argued by the

State in the Majewski case.”    However, the Tenth District has previously

addressed and rejected the very arguments raised by the State in this appeal,

holding that Bodyke applies to individuals whose sex offender classifications
under Megan’s Law arose by operation of law. See State v. Hazlett, 191 Ohio

App.3d 105, 2010-Ohio-6119, 944 N.E.2d 1220; Core v. State, 10th Dist. No.

09AP-192, 2010-Ohio-6292; State v. Johnson, 10th Dist. No. 10AP-932,

2011-Ohio-2009.

      {¶ 12} The Hazlett court analyzed the Bodyke holding in light of

Chojnacki v. Cordray, 126 Ohio St.3d 321, 2010-Ohio-3212, 933 N.E.2d 800,

which was decided shortly after Bodyke.

      {¶ 13} “The Supreme Court of Ohio in Chojnacki reiterated, ‘In Bodyke,

we severed R.C. 2950.031 and 2950.032, the reclassification provisions of the

Adam Walsh Act, and held that after severance, those provisions could not be

enforced.’   Noting that the reclassification hearing that resulted in the

appeal and the related certified question ‘arose under the now-severed

provisions of R.C. 2950.031 and 2950.032,’ the Supreme Court dismissed the

appeal. Hazlett at 9, quoting Chojnacki at 5-6.

      {¶ 14} “[T]he remedy of Bodyke, as later clarified and reaffirmed in

Chojnacki, was complete and total severance of the provisions providing for

the attorney general’s authority to reclassify sex offenders. The severance

makes no distinction between those classified judicially and those classified

by operation of law. Moreover, after Bodyke was rendered, the Supreme Court

was asked for clarification on this very issue, but declined to offer either

reconsideration or clarification, which suggests the effect of severance is
applicable to all sex offenders whether classified judicially or by operation of

law.” Hazlett at 11.

      {¶ 15} “Given that the statutory provisions authorizing the attorney

general to reclassify sex offenders have been severed and excised from the

Ohio Revised Code, we find the action taken by the Supreme Court in Bodyke,

i.e., reinstating sex offenders to their sex-offender classifications as they

existed prior to the implementation of the AWA, to be equally applicable

here.” Id. at 12.

      {¶ 16} We find the decision of the Tenth District addressing this issue

well-reasoned and persuasive. Additionally, we note that one of the Bodyke

petitioners did not have a court-ordered classification; rather, his sex offender

classification arose by operation of law.     We presume the Ohio Supreme

Court rendered its decision in Bodyke recognizing the distinctions among the

petitioners involved. This recognition is reflected by the remedy established

in Bodyke that the reclassification provisions of the AWA were severed. The

Court would not have selected severance as a remedy had it intended to

declare the AWA reclassification provisions unconstitutional only “as

applied,” rather than facially, to those offenders who had classified by a court

order. See Core at 26.

      {¶ 17} Moreover, if we adopted the State’s reasoning, we would have to

conclude that Bodyke applies only to those individuals who were classified as
sexual predators or habitual sex offenders under Megan’s Law, but not

necessarily to sexually oriented offenders, because all individuals convicted of

a sex offense are automatically classified as a “sexually oriented offender”

under the statute. Under Megan’s Law, the duty to register as a sexually

oriented offender arises automatically if the offender pled guilty to or was

convicted of a sex offense and the trial court does not make a determination

that the offender was a sexual predator or habitual sex offender. State v.

Hayden, 96 Ohio St.3d 211, 2002-Ohio-4169, 773 N.E.2d 502.

      {¶ 18} In Hayden, the Supreme Court, in holding that due process does

not require a trial court to conduct a hearing to determine if a defendant is a

sexually oriented offender, made the following observation:

      {¶ 19} “In fact, affording [the defendant] a hearing under these facts

would be nothing more than an empty exercise. The point of such a hearing

would be to determine whether [the defendant] committed a sexually oriented

offense. * * * When he was convicted of [ attempted rape], which is a sexually

oriented offense under R.C. 2950(D)(1)(g), [the defendant] was automatically

classified as a sexually oriented offender * * *.” Id. at 15.

      {¶ 20} Therefore, adopting the State’s reasoning, “the point of such a

hearing,” would be to preserve the rights of individuals who are challenging

the application of the AWA. If this court applied the State’s reasoning, the

least serious offenders under Megan’s Law, i.e. sexually oriented offenders,
would be subject to the more stringent Tier system of classification under the

AWA, because their classifications arose by operation of law, whereas

individuals classified as sexual predators and habitual sex offenders, the

more serious offenders under Megan’s Law, would get the benefit of the

application of Bodyke and maintain their original classification under

Megan’s Law. This reasoning is nonsensical. To limit the holding in Bodyke

to only those offenders who were classified by a court and not those whose

classifications arose by operation of law would render unfair and unjust

results.

         {¶ 21} We recognize that our decision is in conflict with those of other

districts regarding this issue. See Green, supra (First District) and Boswell,

supra, (Twelfth District) (both holding that Bodyke is limited only to those

offenders whose received court order classifications under Megan’s Law).

The Supreme Court has accepted jurisdiction to consider Green, but has

stayed briefing pending its resolution of State v. Williams, Supreme Court

Case No. 2009-0088. See Green v. State, Supreme Court Case No. 2010-1882.

 Until the Ohio Supreme Court renders a decision expressly limiting the

holding in Bodyke, we will continue to apply the precedents made by this

court.

         {¶ 22} This appeal involved individuals whose sex-offender status under

Megan’s Law arose not by judicial determination but instead by operation of
law. Therefore, we hold that if an offender’s classification under Megan’s

Law arose by operation of law, the holdings in Bodyke and Chojnacki apply

and dictate that reclassifications made under the AWA are to be vacated and

the prior sex-offender classification be reinstated.

      {¶ 23} Accordingly, we hold that the trial court did not err in applying

Bodyke and we overrule the State’s assignments of error.

      Judgment affirmed.

      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.



KATHLEEN ANN KEOUGH, JUDGE

MARY J. BOYLE, P.J., and
LARRY A. JONES, J., CONCUR
