[Cite as State v. Bennett, 2013-Ohio-4610.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                         :

        Plaintiff-Appellant                           :        C.A. CASE NO.     25600

v.                                                    :        T.C. NO.   12CR2549

MICHAEL D. BENNETT                                    :        (Criminal appeal from
                                                                Common Pleas Court)
        Defendant-Appellee                            :

                                                      :

                                              ..........

                                              OPINION

                         Rendered on the       18th   day of       October       , 2013.

                                              ..........

R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellant

VICTOR A. HODGE, Atty. Reg. No. 0007298, Assistant Public Defender, 117 S. Main
Street, Suite 400, Dayton, Ohio 45422
        Attorney for Defendant-Appellee

                                              ..........

DONOVAN, J.

        {¶ 1}     This matter is before the Court on the Notice of Appeal of the State of Ohio,
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filed January 30, 2013. The State appeals from the December 31, 2012 decision of the trial

court which granted Michael Dean Bennett’s motion to dismiss an indictment charging him

with one count of failure to notify of a change of address, in violation of R.C. 2950.05(A)

and (F)(1), a felony of the first degree. We hereby affirm the judgment of the trial court.

       {¶ 2}      On March 31, 2008, Bennett pled guilty to kidnaping (sexual activity), a

first degree felony. He committed the offense in November, 2007. On April 2, 2008, he

was sentenced to a three year term of imprisonment, and he was designated a Tier II sex

offender. Bennett was indicted herein on September 13, 2012, and he filed his motion to

dismiss the charge of failure to notify on November 1, 2012, asserting that his “classification

as a Tier II sex offender is null and void, as a result of which he cannot be prosecuted for a

violation of a duty which is based upon the S.B. 10 (Adam Walsh Act) Tier classification.”

Bennett asserted that “as a matter of law, he had no duty to notify the Sheriff of a residence

change, and therefore, cannot be prosecuted for the omission.” Bennett further asserted,

“where the offense occurred prior to January 1, 2008, but the accused was convicted and

classified as an S.B. 10 Tier level offender, the Tier classification is unconstitutional as

applied to a sex offender who committed the offense prior to January 1, 2008.” Attached to

the motion to dismiss is Bennett’s 2007 indictment, judgment entry of conviction, and

classification notice.   On December 27, 2012, Bennett filed a Notice of Additional

Authority, citing In re Bruce S., 134 Ohio St. 3d 477, 479, 2012-Ohio-5696, 983 N.E.2d

350, in response to the State’s Memorandum Contra Motion to Dismiss.

       {¶ 3}     In sustaining Bennett’s motion to dismiss, the trial court noted from the

bench that Bennett committed the kidnaping offense in 2007, and the court stated as follows:
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               Judge Langer following the express dictates of what was done (sic)

       as the Adam Walsh Act had you classified as a sex offender under the express

       terms of the Adam Walsh Act. That’s subsequently been determined by the

       Supreme Court of Ohio and the Second District Court of Appeals which

       governs my actions to have been in error. And so now the issue remains as

       to whether you should be reclassified under the previous law which was

       called Megan’s Law and if so, what your classification would be.

               * * * But in any event, as it relates to your indictment in connection

       with this matter, I’m dismissing the case. * * *

The entry of dismissal provides, “Simply put, and based upon the authority cited by

Defendant in his Motion and Notice of Additional Authority, Defendant’s Motion is

well-taken.”

       {¶ 4}    The State asserts one assigned error herein as follows:

               THE TRIAL COURT ERRED BY DISMISSING THE STATE’S

       INDICTMENT FOR FAILURE TO NOTIFY OF A CHANGE OF

       ADDRESS IN VIOLATION OF R.C. 2950.05 WHERE MICHAEL DEAN

       BENNETT IS PRESUMED TO HAVE KNOWN THAT, BY OPERATION

       OF LAW, HE QUALIFIED AS A SEXUALLY ORIENTED OFFENDER

       UNDER MEGAN’S LAW, AND SEXUALLY ORIENTED OFFENDERS

       ARE REQUIRED TO NOTIFY THE SHERIFF OF THEIR COUNTY OF

       RESIDENCE OF A CHANGE IN ADDRESS AT LEAST TWENTY DAYS

       PRIOR TO MAKING THE CHANGE.
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        {¶ 5}    We note that “Crim.R. 12 permits a court to consider evidence beyond the

face of an indictment when ruling on a pretrial motion to dismiss an indictment if the matter

is capable of determination without trial of the general issue.” State v. Brady, 119 Ohio

St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶ 3; Crim.R.12(C)1. The general issue for

trial herein is whether Bennett failed to notify the Sheriff’s Office regarding his change of

address, pursuant to an enforceable legal duty. Bennett’s motion to dismiss was based upon

his not being subject to any constitutional classification, which could be determined without

trial of the general issue, and Crim.R. 12(C) allowed the trial court to consider the motion.

Id., ¶ 18.

        {¶ 6}    As this Court has previously noted:

                The original version of Ohio's sex offender classification and

        registration law was enacted in 1963. See former R.C. Chapter 2950, 130

        Ohio Laws 669. In 1996, the Ohio General Assembly enacted Ohio's version

        of “Megan's Law,” which “repealed prior versions of R.C. Chapter 2950 and

        created Ohio's first comprehensive registration and classification system for

        sex offenders.” State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933

        N.E.2d 753, ¶ 7, citing State v. Cook (1998), 83 Ohio St.3d 404, 407, 700

        N.E.2d 570. Under Ohio's Megan's Law, judges classified sex offenders, after

        a hearing, as either a sexually oriented offender, habitual sex offender, or



   1
    Crim.R. 12(C) provides in part as follows:
    “Prior to trial, any party may raise by motion any defense, objection, evidentiary
    issue, or request that is capable of determination without trial of the general
    issue. The following must be raised before trial: * * *.”
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       sexual predator, based on the judge's consideration of various factors. Sex

       offenders      were    subject   to   registration,   classification,   and/or

       community-notification requirements in accordance with their specific

       classification.

               In 2006, the United States Congress passed the Adam Walsh Child

       Protection and Safety Act, which divided sex offenders into three tiers based

       solely upon the offense committed. Bodyke at ¶ 18. * * * In 2007, the Ohio

       General Assembly enacted 2007 Am.Sub.S.B. No. 10, which replaced

       Megan's Law with Ohio's version of the Adam Walsh Act (“S.B. 10"),

       effective January 1, 2008. Bodyke at ¶ 20; current R.C. Chapter 2950. State

       v. Eads, 197 Ohio App. 3d 493, 2011-Ohio-6307, 968 N.E.2d 18, ¶ 7-8 (2d

       Dist.), appeal not allowed, 131 Ohio St. 3d 1500, 2012-Ohio-1501, 964

       N.E.2d 440.

       {¶ 7}       “In State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d

1108, [the Supreme Court of Ohio] held, at syllabus: ‘2007 Am.Sub.S.B. No. 10, as applied

to defendants who committed sex offenses prior to its enactment, violates Section 28, Article

II of the Ohio Constitution, which prohibits the General Assembly from passing retroactive

laws.’ ” In re Bruce S., 134 Ohio St. 3d 477, 2012-Ohio-5696, 983 N.E.2d 350, ¶ 6. In

other words, “Senate Bill 10's classification, registration, and community-notification

provisions cannot be constitutionally applied to a sex offender who committed his sex

offense between July 1, 2007, and December 31, 2007, the last day before January 1, 2008,

the effective date of S.B. 10's classification, registration, and community-notification
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provisions.” Id., ¶ 12. We note that the State does not contest the fact that Bennett

committed the offense of kidnaping (sexual activity) in November, 2007, nor that his Tier II

classification is void. Furthermore, the State does not dispute the fact that at the time of

Bennett’s conviction, Megan’s Law had been repealed.           Finally, we find the State’s

argument unpersuasive that Bennett is somehow “by operation of law, a sexually oriented

offender under Megan’s Law and therefore subject to the duty to notify * * * .”    The State

does not contest the fact that Bennett was never designated as a sexually oriented offender,

habitual sexual offender, or sexual predator by a judge, following a hearing, and as in Eads,

“it is unclear what his designation would be.” Eads, ¶ 25. In other words, Bennett has no

enforceable duty to register, pursuant to R.C. 2950.05(A) and (F)(1), and he is accordingly

not subject to prosecution for failure to notify.

          {¶ 8}   The State’s sole assigned error is overruled, and the judgment of the trial

court is affirmed.

                                           ..........

FAIN, P.J., concurs.

FROELICH, J., concurring:

          {¶ 9}   To paraphrase Tom Hanks, “There is no summary judgment in the criminal

rules.”

          “When a defendant in a criminal case files a motion to dismiss which goes beyond

the face of the indictment, he is, essentially, moving for a summary judgment, which is not

permitted under the Ohio Rules of Criminal Procedure.” (Internal citations omitted.) State

v. Link, 155 Ohio App.3d 585, 2003-Ohio-6798, 802 N.E.2d 680, ¶ 12 (5th Dist.); see also
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State v. Robinson, 4th Dist. Athens No. 01CA51, 2002-Ohio-6150, ¶ 22. As stated in State

v. Kolat, 11th Dist. Lake No. 2001-L-117, 2002-Ohio-4699, ¶ 16:

                In criminal matters, a motion to dismiss can only raise matters that are

       “capable of determination without a trial of the general issue.” Crim.R.

       12(B); State v. O’Neal (1996), 114 Ohio App.3d 335, 336, 683 N.E.2d 105.

       Thus, in the criminal context, a motion to dismiss “tests the sufficiency of the

       indictment, without regard to the quantity or quality of evidence that may be

       produced by either the state or the defendant.” State v. Patterson (1989), 63

       Ohio App.3d 91, 95, 577 N.E.2d 1165. If the allegations contained in the

       indictment constitute offenses under Ohio criminal law, it is premature to

       determine, in advance of trial, whether the state could satisfy its burden of

       proof with respect to those charges, and thus, a motion to dismiss must be

       denied. Consequently, a pretrial motion, such as a motion to dismiss, must

       not entail a determination of the sufficiency of the evidence to support the

       indictment because such a determination cannot properly be made until, at the

       earliest, the conclusion of the state’s case in chief and pursuant to a Crim.R.

       29(A) motion.      State v. Abercrombie (May 20, 2002), 12th Dist. No.

       CA2001-06-057, 2002 Ohio App. LEXIS 2408 at * 9.

       {¶ 10}     In State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671,

the defendant was charged with numerous counts of pandering obscenity. The defendant

moved to dismiss the indictment, claiming that his court-appointed expert would be unable

to adequately prepare for trial because of the risk of federal prosecution. Citing State v.
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O’Neal, 114 Ohio App.3d 335, 683 N.E.2d 105 (2d Dist.1996) and State v. Varner, 81 Ohio

App.3d 85, 610 N.E.2d 476 (9th Dist.1991), the State argued it was premature to determine,

in advance of trial, whether the State could satisfy its burden of proof with respect to the

charges. The Ohio Supreme Court rejected this argument and held that Brady’s situation

compromised his constitutional right to a fair trial, as opposed to O’Neal and Varner “that

required consideration of the general issue for trial.” Brady at ¶ 18.

        {¶ 11}    Accordingly, in State v. Gaines, 193 Ohio App.3d 260, 2011-Ohio-1475,

951 N.E.2d 814 (12th Dist.), the court, relying on Brady, reversed the dismissal of an

indictment that had been based on the grounds that the defendants’ conduct did not

constitute the crime of extortion. The “motion to dismiss addressed the very issue to be

determined at trial and required a determination of the general (and ultimate) issue for trial,

to-wit, whether [the defendants’] alleged acts constituted extortion under Ohio law. In turn,

a review of the trial court’s decision dismissing the indictments clearly shows that the trial

court considered the alleged facts of the case and applied Ohio and federal cases to the

facts.” Gaines at ¶ 21. This appears to be what occurred in our case.

        {¶ 12}    There is nothing that would have prevented the defendant from waiving a

jury, and then the parties’ agreeing to submit the facts to the court as a stipulated trial.

However, here, as in Link, the State neither objected to the motion and procedure, nor has it

specifically raised such an issue in its appeal. And, similar to Link, the underlying facts of

the trial court’s decision are not in dispute.

        {¶ 13}    With the unique facts and procedure before us, I would consider the merits

as both the State and defendant apparently desire and I concur in the affirmance.
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                        ..........

Copies mailed to:

R. Lynn Nothstine
Victor A. Hodge
Hon. Steven K. Dankof
