[Cite as State v. Grunden, 2011-Ohio-3687.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 95909




                                       STATE OF OHIO

                                              PLAINTIFF-APPELLEE

                                              vs.


                                   THOMAS GRUNDEN

                                              DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-525977

        BEFORE:         Sweeney, P.J., Cooney, J., and S. Gallagher, J.
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       RELEASED AND JOURNALIZED: July 28, 2011


FOR APPELLANT

Thomas L. Grunden, Pro Se
No. 574-766
Richland Correctional Institution
P.O. Box 8107
Mansfield, Ohio 44901



ATTORNEYS FOR APPELLEE

William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Daniel T. Van, Esq.
Assistant County Prosecutor
8 Floor, Justice Center
 ht




1200 Ontario Street
Cleveland, Ohio 44113




JAMES J. SWEENEY, P.J.:

       {¶ 1} Defendant-appellant Thomas Grunden appeals from the trial

court’s decision that denied his petition to vacate his sentence following his

conviction for violating provisions of the Adam Walsh Act (“AWA”).        The

state agrees that defendant’s reclassification under the AWA was invalid but

maintains that defendant’s conviction and four-year sentence should
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nonetheless be affirmed. For the reasons that follow, we vacate defendant’s

sentence and reverse his conviction.

      {¶ 2} Defendant    was   previously    convicted   of   attempted   rape,

determined to be a sexually oriented offender (the lowest classification), and

subjected to the reporting provisions of Megan’s Law. He was subsequently

reclassified under the AWA to a Tier III status (the highest classification)

which, in turn, increased his reporting and registration requirements from

ten years to life.

      {¶ 3} In April 2009, defendant successfully obtained a restraining order

whereby the Cuyahoga Court of Common Pleas declared that he no longer

had to register under the AWA but was to comply with the requirements

under Megan’s Law.      As part of that order, the court instructed, “the State

of Ohio and/or its agents are restrained from taking any steps to reclassify

the petitioner or to implement any of the provisions of Ohio’s Senate Bill 10,

including, but not limited to, its notification and registration provisions,

pending resolution on the merits of petitioner’s request for a permanent

injunction * * *.” (Emphasis added.)

      {¶ 4} Despite the foregoing court order, defendant was nevertheless

charged in July 2009 with failing to provide a notice of change of address and

tampering with records under the provisions of the AWA.
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      {¶ 5} Defendant pled guilty to the first count, the remaining count was

dismissed, and he was sentenced to a four-year prison term.          Although

defendant filed multiple pro se motions, this appeal is related to his attempts

to vacate or set aside his sentence as being void.

      {¶ 6} Defendant advances ten assignments of error; however, only the

dispositive errors will be addressed.

      {¶ 7} The defendant maintains that his conviction under the AWA is

void and therefore should be vacated based primarily upon State v. Bodyke,

126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753. The precedent in this

district holds that “convictions arising from reporting violations under the

AWA for any individual reclassified under its provisions are also contrary to

law.” State v. Gilbert, Cuyahoga App. Nos. 95083 and 95084, 2011-Ohio-1928,

citing State v. Page, Cuyahoga App. No. 94369, 2011-Ohio-83, ¶10; see, also,

State v. Smith, Cuyahoga App. No. 92550, 2010-Ohio-2880, ¶29; State v.

Patterson, Cuyahoga App. No. 93096, 2010-Ohio-3715; State v. Jones,

Cuyahoga App. No. 93822, 2010-Ohio-5004.

      {¶ 8} The state recognizes that defendant’s reclassification under the

AWA is invalid but maintains defendant’s conviction should be affirmed.

First, the state maintains that the conviction should be affirmed because
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defendant’s duty to provide a change of address was the same whether

applying the AWA or Megan’s Law.

      {¶ 9} While it is true that defendant had to provide a change of address

under both Megan’s Law and AWA, the fact remains that a violation of that

duty can carry a significantly harsher penalty under the AWA than it would

under Megan’s Law. Compare R.C. 2950.99 (AWA) with former R.C. 2950.99

(Megan’s Law).     This is significant and can mean the difference between

being indicted with a first degree felony as opposed to one of a lesser felony,

such as a third degree felony. The Ohio Supreme Court noted this distinction

when it held where the application of the AWA to an offender is based upon

an unlawful reclassification, the conviction is to be vacated, and the offender’s

prior classification and reporting requirements under Megan’s Law must be

reinstated. State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, 946 N.E.2d

192, ¶8. Pursuant to Gingell, defendant’s conviction must be vacated and his

prior classification and attendant requirements under Megan’s Law

reinstated.

      {¶ 10} Notwithstanding the above authority, the state asserts that the

trial court was correct in denying defendant’s petition because it was

untimely and, therefore, left the trial court without jurisdiction to entertain it

pursuant      to   R.C.    2953.21(A)(1).      However,     because    Grunden’s
                                        6

reclassification under the AWA was invalid, it rendered his conviction under

it void. We simply cannot brush over the fact that the indictment failed to

properly allege an offense against him just because he pled guilty to it and did

not timely appeal. Grunden is subject to charges for violating the provisions

of his classification under Megan’s Law, not his invalid classification under

the AWA. The law is quite clear; Grunden could not be reclassified under

the AWA, and the improper classification cannot serve as a predicate for an

offense against him.         Gingell, 2011-Ohio-1481; Gilbert, 2011-Ohio-1928;

Page, 2011-Ohio-83; Smith, 2010-Ohio-2880; Patterson, 2010-Ohio-3715; State

v. Jones, 2010-Ohio-5004.       As such, his conviction pursuant to his invalid

reclassification is not subject to principles of res judicata and remained

subject to collateral attack at any time.

      {¶ 11} In   State v.     Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238,942

N.E.2d 332, the Ohio Supreme Court held:

      {¶ 12} “* * * A sentence that does not include the statutorily mandated

term of postrelease control is void, is not precluded from appellate review by

principles of res judicata, and may be reviewed at any time, on direct appeal

or by collateral attack.* * *” Id. at ¶1.

      {¶ 13} That logic applies equally where a sentence is imposed for a

conviction obtained as a consequence of an invalid reclassification under the
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AWA. For the foregoing reasons, the trial court erred by denying defendant’s

petition to vacate his void sentence. The remaining assignments of error are

overruled as moot.

      Judgment reversed and remanded to the lower court for further

proceedings consistent with this opinion.

      It is, therefore, considered that said appellant recover of said appellee

his costs herein.

      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.




JAMES J. SWEENEY, PRESIDING JUDGE

COLLEEN CONWAY COONEY, J., and
SEAN C. GALLAGHER, J., CONCUR
