[Cite as State v. Sheriff, 2012-Ohio-656.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                LOGAN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 8-11-14

        v.

JAMES A. SHERIFF,                                          OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Logan County Common Pleas Court
                            Trial Court No. CR 07 06 0122

                                       Judgment Affirmed

                           Date of Decision: February 21, 2012




APPEARANCES:

        James A. Sheriff, Appellant

        William T. Goslee and Daniel J. LaRoche for Appellee
Case No. 8-11-14



SHAW, P.J.

       {¶1} Defendant-appellant James A. Sheriff (“Sheriff”) appeals the August

3, 2011 judgment of the Logan County Court of Common Pleas resentencing and

reclassifying him as a sexually oriented offender under the law in effect at the time

he committed his offenses of sexual battery pursuant to the holding in State v.

Williams, 129 Ohio St. 3d 344, 2011-Ohio-3374.

       {¶2} On September 11, 2007, Sheriff was indicted on two counts of

unlawful sexual conduct with a minor, in violation of R.C. 2907.04, felonies of the

third degree, and three counts of sexual battery, in violation of R.C.

2907.03(A)(5), also felonies of the third degree. On September 21, 2007, Sheriff

was arraigned and pled not guilty to all five counts.

       {¶3} On January 10, 2008, a jury trial commenced. On January 11, 2008,

the jury returned a verdict of not guilty on both counts of unlawful sexual conduct

with a minor and one count of sexual battery. However, the jury found Sheriff

guilty on the remaining two counts of sexual battery.

       {¶4} On February 25, 2008, Sheriff was sentenced to three years in prison

on each count of sexual battery, to be served concurrently. The trial court also

classified Sheriff as a Tier III sexual offender.

       {¶5} Sheriff appealed and on October 6, 2008, this Court affirmed Sheriff’s

conviction and sentence. At the time, Sheriff was released on bond pending the

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outcome of his appeal. However, after the release of this Court’s opinion, the trial

court revoked Sheriff’s bond and remanded him into the care and custody of the

Ohio Department of Rehabilitation for the execution of his sentence.

       {¶6} On June 24, 2011, Sheriff filed a “Request to Remove Classification,”

arguing that the trial court erred in classifying him as Tier III sexual offender.

Specifically, Sheriff asserted that S.B. 10, Ohio’s version of the Adam Walsh Act

(“AWA”), is unconstitutional and that the trial court lacked jurisdiction to classify

him as a Tier III sexual offender under that law.

       {¶7} On July 11, 2011, the trial court held a hearing on Sheriff’s “Request

to Remove Classification.”

       {¶8} On July 13, 2011, the Supreme Court of Ohio issued its decision in

State v. Williams, 129 Ohio St. 3d 344, 2011-Ohio-3374, in which it concluded

that S.B. 10 cannot be applied retroactively to offenders who committed their

offense prior to the enactment of the law on January 1, 2008. Accordingly, the

Court in Williams held that those offenders must be resentenced under the law in

effect at the time the offense for which they were convicted was committed.

       {¶9} On July 14, 2011, the trial court issued its decision on Sheriff’s

“Request to Remove Classification.” Based on the holding of the Supreme Court

in Williams, the trial court concluded that Sheriff must be resentenced under S.B.

5, Ohio’s version of “Megan’s Law,” which was the law in effect at the time

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Sheriff committed his sexual battery offenses. Therefore, the trial court granted

Sheriff’s “Request to Remove Classification” and ordered that he be resentenced

under S.B. 5.

       {¶10} On August 1, 2011, the trial court held a hearing on the matter. On

August 3, 2011, the trial court issued its Judgment Entry resentencing Sheriff

under S.B. 5 and reclassifying him as a “sexually oriented offender.”

       {¶11} Sheriff subsequently filed this appeal pro se, asserting the following

assignment of error.

       THE TRIAL COURT ABUSED IT’S [SIC] DISCRETION
       WHEN IT DID NOT REMOVE FULLY DEFENDANT’S [SIC]
       JAMES   SHERIFF    [SIC] CLASSIFICATION   AND
       REGISTRATIONAL [SIC] REQUIREMENTS AS REQUIRED
       BY LAW AND IN DOING SO CREATED PREJUDICE TO
       THE DEFENDANT.

       {¶12} In his sole assignment of error, Sheriff contends that the trial court

erred when it failed to completely remove his classification and registration

requirements for his conviction on two counts of sexual battery. In particular,

Sheriff argues that he “is entitled to the benefit of no classification or

categorization of any sort due to not being placed on the proper classification in

the first place.”   (Appt. Brief at 6).    Notably, Sheriff cites no authority that

supports his contention, but rather, he completely overlooks the holding in State v.

Williams, 129 Ohio St. 3d 344, 2011-Ohio-3374, which is dispositive to this issue.


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        {¶13} The facts in Sheriff’s case are similar to the ones in Williams. In that

case, Williams was indicted in 2007 for one count of unlawful sexual conduct with

a minor. Williams at ¶1. At the time Williams committed the offenses S.B. 5

(“Megan’s Law”) was the sentencing law in effect for sex offenses. Williams

eventually pled guilty to the charge and was sentenced under S.B. 10 (“AWA”),

which repealed and superseded S.B. 5, and was the new law in effect at the time of

his sentencing.1 Id. at ¶¶ 1-2. As a result, the trial court classified Williams as a

Tier II sexual offender under the provisions of S.B. 10. Id. at ¶ 3.

        {¶14} Williams appealed, asserting that the provisions of S.B. 10 cannot

constitutionally be applied retroactively to a defendant whose offense occurred

prior to the effective date of that statute. Williams at ¶4. The Supreme Court

agreed, concluding “that S.B. 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.” Id. ¶ 21. The Supreme Court then reversed the prior judgment sentencing

and classifying Williams as a Tier II sexual offender under S.B. 10, “and

remand[ed] the cause for resentencing under the law in effect at the time Williams

committed the offense.” Id. at ¶ 23 (emphasis added).



1
  Revised Code Section 2950.03, a component of S.B. 10, imposes registration requirements for offenders
sentenced on or after January 1, 2008, regardless of when the offense was committed.

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       {¶15} We believe that the Supreme Court in Williams squarely addressed

the issue raised by Sheriff on appeal. Because Sheriff committed the offenses for

which he was convicted prior to January 1, 2008, the effective date of S.B. 10, he

must be sentenced under the law in effect at the time the offenses were

committed—i.e., S.B. 5. Consequently, the trial court properly determined that

Sheriff is not subject to the Tier III sexual offender classification under S.B. 10,

and that he had to be resentenced and reclassified under the provisions of S.B. 5.

After conducting a hearing pursuant to the procedures set forth in S.B. 5, the trial

court determined that it was appropriate to classify Sheriff as a “sexually oriented

offender,” which requires him to register with the Sheriff in the county in which

he resides for a period of ten years.

       {¶16} We note that Sheriff’s reclassification subjects him to the much less

restrictive requirements of S.B. 5. Under that statutory scheme, the offender is

entitled to a hearing where the trial court determines whether he should be

classified as a sexual predator, a habitual sex offender or a habitual child-victim

offender, or a sexually oriented offender. In making this determination, the trial

court considers various factors and exercises its discretion in classifying the

offender. See former R.C. 2950.09.

       {¶17} Under S.B. 10, the offender is classified according to a three tiered

system based solely on the offense committed by the offender. As a result, the

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trial court no longer has any discretion to consider factors like the circumstances

of the crime or the offender’s likelihood to reoffend when imposing the

classification on the offender. See R.C. 2950.01(E), (F), and (G). In addition, the

registration and community notification requirements for offenders under S.B. 10

are now far more restrictive and demanding than those under S.B. 5. Accordingly,

we fail to see how Sheriff is prejudiced by being reclassified under the less

stringent statutory scheme of S.B. 5.

       {¶18} For all these reasons, we find no error in the trial court’s decision to

reclassify Sheriff as a sexually oriented offender under S.B. 5.            Sheriff’s

assignment of error is therefore overruled and the judgment of the trial court is

affirmed.

                                                               Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.




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