[Cite as State v. Hurst, 2012-Ohio-6075.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                        Hon. W. Scott Gwin, J.
                                                  Hon. William B. Hoffman, J.
-vs-
                                                  Case No. 12-CA-20
MARK E. HURST

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Licking County Court of
                                               Common Pleas, Case No. 07 CR 527


JUDGMENT:                                      Affirmed in part, Vacated in part and
                                               Final Judgment Entered



DATE OF JUDGMENT ENTRY:                        December 20, 2012


APPEARANCES:


For Defendant-Appellant                        For Plaintiff-Appellee

SCOTT D. SCHOCKLING                            KENNETH W. OSWALT
5073 Bixby Road                                Licking County Prosecutor
Groveport, Ohio 43125                          20 S. Second Street, Fourth Floor
                                               Newark, Ohio 43055

MARK E. HURST, PRO SE
19 East Street
Newark, Ohio 43055
Licking County, Case No. 12-CA-20                                                           2

Hoffman, J.


         {¶1}   Defendant-appellant Mark E. Hurst appeals his February 29, 2012

sentence entered by the Licking County Court of Common Pleas. Plaintiff-appellee is

the State of Ohio.

                                    STATEMENT OF THE CASE1

         {¶2}   On August 6, 2008, Appellant was found guilty of pandering obscenity

involving a minor, in violation of R.C. 2907.321(A)(5); pandering sexually-oriented

matter involving a minor, in violation of R.C. 2907.322(A)(5); and illegal use of a minor

in nudity-oriented material or performance, in violation of R.C. 2907.323(A)(3). The

offenses were alleged to have taken place in March and April 2007.

         {¶3}   The trial court sentenced Appellant to fifteen months on each of the first

two counts and nine months on the third count, all to be served consecutively, for a total

term of thirty nine months.       Additionally, the court classified Appellant a Tier I sex

offender under Ohio's Sex Offender Registration and Notification Law (SORN Law).

The Tier I classification was based on the 2008 amendments to the SORN Law,

commonly referred to as the Adam Walsh Act (AWA) or Senate Bill 10.

         {¶4}   Appellant served his full term, and was released under the supervision of

the Adult Parole Authority in November of 2011.

         {¶5}   In response to the Ohio Supreme Court holding in State v. Williams, 129

Ohio St.3d 344, 2011-Ohio-3374, on February 10, 2012, the State moved the trial court

to vacate Appellant's Tier I classification and to reclassify Appellant a "sexually oriented

offender,” under the law in effect prior to S.B. 10, commonly known as Megan's Law or

1
    A rendition of the underlying facts is unnecessary for our resolution of this appeal.
Licking County, Case No. 12-CA-20                                                      3


S.B. 5. The trial court granted the motion without a hearing, via Judgment Entry of

February 29, 2012.

      {¶6}   Appellant now appeals, assigning as error:

      {¶7}   “I. THE TRIAL COURT ERRED WHEN IT GRANTED THE STATE’S

MOTION TO RECLASSIFY APPELLANT AS A ‘SEXUALLY ORIENTED OFFENDER,’

IN ACCORDANCE WITH MEGAN’S LAW, BECAUSE HE DID NOT COMMIT A

‘SEXUALLY ORIENTED OFFENSE’.

      {¶8}   “II. THE TRIAL COURT ERRED WHEN IT CLASSIFIED APPELLANT AS

A TIER I SEX OFFENDER, IN ACCORDANCE WITH THE ADAM WALSH ACT, AND

THE RESULTING SENTENCE IS VOID.”

                                           I. and II.

      {¶9}   Appellant's assigned errors raise common and interrelated issues;

therefore, we will address the arguments together.

      {¶10} Appellant asserts the trial court erred in granting the State's motion to

reclassify Appellant a sexually oriented offender in accordance with Megan's Law, as he

did not commit a sexually oriented offense. Appellant maintains offenders convicted of

possessing obscene or pornographic materials containing children were not subject to

any registration requirements under the SORN Law in effect prior to January 1, 2008.

      {¶11} Appellant was convicted of pandering obscenity involving a minor,

pandering sexually-oriented matter involving a minor, and illegal use of a minor in

nudity-oriented material or performance. None of the offenses for which Appellant was

convicted were considered a sexually oriented offense under the previous version of

R.C. 2950.01(D). As a result, Appellant maintains his sentence is void; and therefore,
Licking County, Case No. 12-CA-20                                                        4


this Court must remand the matter for resentencing in accordance with the SORN Law

in effect when the offenses were committed.

      {¶12} The State concedes error in Appellant’s reclassification as a sexually

oriented offender.     However, the State disagrees this Court must remand for

resentencing. Rather, the State asserts the only error in Appellant's sentencing is its

current provision designating him a "sexually oriented offender." Accordingly, the State

maintains the trial court’s authority is limited to correcting the erroneous designation by

removing the language classifying Appellant a “sexually oriented offender.”

      {¶13} We find the logic set forth in State v. Harris, 132 Ohio St.3d 318, 972

N.E.2d 509, 2012-Ohio-1908, and State v. Fischer, 128 Ohio St.3d 92, 942 N.E.2d 332,

2010-Ohio-6238, provides guidance in the situation presented.

       {¶14} In Harris, supra, the Court held,

       {¶15} "Because a mandatory driver's license suspension is a statutorily

mandated term, we hold that a trial court's failure to include this term in a criminal

sentence renders the sentence void in part. Fischer. Our conclusion reflects the well-

established principle that a court acts contrary to law if it fails to impose a statutorily

required term as part of an offender's sentence. Colegrove; Beasley. [citations omitted.]

       {¶16} "Our conclusion, however, resolves only one part of the matter before us.

As we discussed in Fischer, the scope of relief is a critical aspect of void judgments.

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, at ¶ 18. We held that

'when a judge fails to impose statutorily mandated postrelease control as part of a

defendant's sentence, that part of the sentence is void and must be set aside.'

(Emphasis sic.) Id. at ¶ 26. Although we explicitly limited our decision to those cases in
Licking County, Case No. 12-CA-20                                                         5


which a court does not properly impose a statutorily mandated period of postrelease

control, id. at ¶ 31, we find the same logic in Fischer to be controlling when it comes to

other statutorily mandatory terms.

       {¶17} "In Fischer, we found the illegal-sentence doctrine persuasive:

       {¶18} "'A motion to correct an illegal sentence ‘presupposes a valid conviction

and may not, therefore, be used to challenge alleged errors in proceedings that occur

prior to the imposition of sentence.’ ” Edwards v. State (1996), 112 Nev. 704, 708, 918

P.2d 321, quoting Allen v. United States (D.C.1985), 495 A.2d 1145, 1149. It is,

however, an appropriate vehicle for raising the claim that a sentence is facially illegal at

any time. Id. The scope of relief based on a rule * * * is likewise constrained to the

narrow function of correcting only the illegal sentence.'

       {¶19} "Id. at ¶ 25. This rationale applies with equal force in cases in which a

mandatory driver's license suspension was not included in the sentencing entry.

       {¶20} "Therefore, we hold that when a trial court fails to include a mandatory

driver's license suspension as part of an offender's sentence, that part of the sentence

is void. We further hold that resentencing of the offender is limited to the imposition of

the mandatory driver's license suspension."

       {¶21} The within appeal comes before this Court pursuant to R.C. 2953.08(A).

R.C. 2953.08(G)(2) provides,

       {¶22} "(2) The court hearing an appeal under division (A), (B), or (C) of this

section shall review the record, including the findings underlying the sentence or

modification given by the sentencing court.
Licking County, Case No. 12-CA-20                                                        6


       {¶23} "The appellate court may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the sentence and remand

the matter to the sentencing court for resentencing. The appellate court's standard for

review is not whether the sentencing court abused its discretion. The appellate court

may take any action authorized by this division if it clearly and convincingly finds either

of the following:

       {¶24} "(a) That the record does not support the sentencing court's findings under

division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or

division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;

       {¶25} "(b) That the sentence is otherwise contrary to law."

       {¶26} Based upon the above, we find only that portion of Appellant's sentence

classifying him a sexually oriented offender is void. As a result, this Court vacates the

illegal portion of Appellant's sentence. Appellant's sentencing entry is affirmed in all

other respects, excepting his classification as a sexually oriented offender, which is

hereby vacated.
Licking County, Case No. 12-CA-20                                                  7


      {¶27} The judgment of the Licking County Court of Common Pleas is affirmed in

part, vacated in part and final judgment entered.

By: Hoffman, J.

Delaney, P.J. and

Gwin, J. concur
                                            s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ Patricia A. Delaney _________________
                                            HON. PATRICIA A. DELANEY


                                            s/ W. Scott Gwin _____________________
                                            HON. W. SCOTT GWIN
Licking County, Case No. 12-CA-20                                                  8


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
MARK E. HURST                             :
                                          :
       Defendant-Appellant                :         Case No. 12-CA-20


       For the reason stated in our accompanying Opinion, the judgment entered by the

Licking County Court of Common Pleas is affirmed in part, vacated in part and final

judgment entered in accordance with our Opinion. Costs to Appellee.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ Patricia A. Delaney _________________
                                          HON. PATRICIA A. DELANEY


                                          s/ W. Scott Gwin _____________________
                                          HON. W. SCOTT GWIN
