[Cite as State v. Carter, 2012-Ohio-4617.]




         IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                    :

        Plaintiff-Appellant                      :    C.A. CASE NO. 24995

vs.                                              :    T.C. CASE NO. 11-CR-3659

MALCOLM J. CARTER                                :    (CRIMINAL APPEAL FROM
                                                       COMMON PLEAS COURT)
        Defendant-Appellee                       :

                                             .........

                                             OPINION

                             Rendered on the 5th day of October, 2012.

                                             .........

Mathias H. Heck, Jr., Prosecuting Attorney, Johnna M. Shia, Assistant Prosecuting
Attorney, Atty. Reg. No. 0067685, P.O. Box 972, 301 West Third Street, Dayton, Ohio
45422
      Attorney for Plaintiff-Appellant

Tina M. McFall, Atty. Reg. No. 0082586, 117 South Main Street, Suite 400, Dayton, Ohio
45422
      Attorney for Defendant-Appellee

                                             .........

GRADY, P.J.:

        {¶ 1} This appeal is brought by the State pursuant to R.C.          2945.67(A) and

2953.08(B).      The State asks us to reconsider our holding in State v. Milby, 2d Dist.
Montgomery No. 23798, 2010-Ohio-6344. We decline to reconsider Milby, and will affirm

the judgment of the trial court.

       {¶ 2} The facts of the present case relevant to the State’s assignment of error are

essentially the same as those in Milby and subsequent decisions in which we followed Milby.

See, e.g., State v. Pritchett, 2d Dist. Montgomery No. 24183, 2011-Ohio-5978, State v.

Kimbrough, 2d Dist. Montgomery No. 24746, 2012-Ohio-1773, State v. Muldrew, 2d Dist.

Montgomery No. 24721, 2012-Ohio-1573.

       {¶ 3} In February 13, 2006, Defendant Malcolm Carter was adjudicated delinquent

for having committed sexual battery, R.C. 2907.03, a felony of the third degree had it been

committed by an adult, in Montgomery County Juvenile Court Case No. A2006-0194-01.

Defendant was committed to the Department of Youth Services.              Prior to Defendant’s

release, the trial court classified Defendant as a juvenile sexually oriented offender, requiring

annual registration for ten years following his release, pursuant to Megan’s Law.

       {¶ 4} On January 1, 2008, Ohio’s version of the Adam Walsh Act (S.B. 10 and S.B.

97) went into effect. S.B. 10 implemented a Tier structure, whereby an offender is classified

into a Tier based solely upon his conviction for a sex offense. S.B. 97 increased the penalties

for which offenders would be subject if they failed to comply with their registration

requirements.

       {¶ 5} Shortly after the passage of the Adam Walsh Act, Defendant was reclassified

as a Tier I juvenile offender. Tier I juvenile offenders must register for ten years and verify

their addresses with the sheriff each year. R.C. 2950.05(B)(3); R.C. 2950.06(B)(1).

       {¶ 6} Between March 1, 2010 and April 22, 2010, Defendant failed to notify the

sheriff of a change of address. He was charged by indictment with failure to notify, R.C.
                                                                                               3

2950.50(A) and (F), a felony of the third degree. Defendant pled guilty to the offense, and

the trial court sentenced him to community control sanctions.

       {¶ 7} On June 3, 2010, the Ohio Supreme Court held the Adam Walsh Act

unconstitutional to the extent it required reclassification of sex offenders who had already

been classified under Megan’s Law. State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424,

933 N.E.2d 753, ¶ 60-61.       Pursuant to Bodyke, Defendant’s original classification as a

juvenile sexually oriented offender was reinstated.

       {¶ 8} On July 13, 2011, the Ohio Supreme Court decided State v. Williams, 129

Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, holding that it is unconstitutional to

impose the S.B. 10 registration requirements on a sex offender whose crime was committed

prior to S.B. 10's enactment. Id. at ¶ 20.

       {¶ 9} Between September 4, 2011 and October 24, 2011, Defendant again failed to

notify the sheriff of a change of address. He was indicted with one count of failure to notify

(underlying offense a third-degree felony, and with a prior conviction for failure to notify),

R.C. 2950.05(A) and (F), a felony of the third degree. The trial court accepted Defendant’s

guilty plea to the offense as a felony of the fifth degree, over the State’s objection. The trial

court sentenced Defendant to six months in prison. The State appeals from the judgment of

conviction and the sentence.

       {¶ 10} State’s assignment of error:

“THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT SENTENCED

CARTER TO 6 MONTHS OF INCARCERATION BECAUSE THE SENTENCING

STATUTE IN EFFECT AT THE TIME HE COMMITTED HIS REGISTRATION OFFENSE
                                                                                            4

CLASSIFIED HIS OFFENSE AS A F3 AND REQUIRED A MANDATORY 3-YEAR

PRISON SENTENCE DUE TO HIS PRIOR CONVICTION.”

       {¶ 11} As of January 1, 2008, S.B. 97 increased the penalty for failure to notify (with

a prior conviction), mandating a three-year sentence.         The State argues that because

Defendant committed the offense of failure to notify after this change in the statute, the

enhanced Adam Walsh Act penalties should apply.

       {¶ 12} We previously addressed this argument in Pritchett, one of the cases that

applied and followed Milby. In Pritchett, we wrote at ¶ 26 and ¶ 28:

                    Very recently, in State v. Williams, 129 Ohio St.3d 344, 952

                    N.E.2d 1108, 2011-Ohio-3374, the Supreme Court of Ohio

                    held that the provision of 2007 Am.Sub. S.B. 10, which

                    imposes greater penalties on sexual offenders, such as

                    Pritchett, for violation of notification and registration

                    requirements than applied when they were convicted of their

                    underlying sexual offense, violates the prohibition against

                    retroactive laws in Section 28, Article II of the Ohio

                    Constitution.

                    ***

                    Under Megan’s law (which had been applied to Pritchett in

                    2005), Pritchett with the 2005 prior failure to notify conviction

                    was subject to sentencing for a felony of the third degree. As

                    a result of the subsequent amendment of the law, Pritchett was
                     instead sentenced for a second degree felony offense. That

                     amendment of the law is void, per Williams. The sentence

                     the court imposed pursuant to that law is likewise void. It

                     would be a manifest injustice to continue Pritchett’s sentence

                     on a void sentence.

       {¶ 13}        What we said in Pritchett likewise applies in this case. Moreover, we

note that the State appealed our decision in Milby to the Ohio Supreme Court, and by Entry

filed on October 5, 2011, in Case No. 2011-0292, the Supreme Court declined to accept that

decision for review. The State encourages us to reconsider our decision in Milby, but we

decline to do so.

       {¶ 14} The State alternatively asks us to hold our decision in this case pending the

Supreme Court’s decisions in the recently argued cases of State v. Brunning, 8th Dist.

Cuyahoga No. 95376, 2011-Ohio-1936, appeal accepted, 129 Ohio St.3d 1488,

2011-Ohio-5129, 954 N.E.2d 661, and State v. Howard, 195 Ohio App.3d 802,

2011-Ohio-5693 (2d Dist.), appeal accepted, 131 Ohio St.3d 1472, 2012-Ohio-896, 962

N.E.2d 803. We decline to do so.

       {¶ 15} The trial court properly applied our holding in Milby, and correctly sentenced

Defendant for a fifth-degree felony based upon the penalty for a violation of R.C.2950.06,

failure to verify residence address, in effect under Megan’s Law. See, former R.C. 2950.99.

Accordingly, the State’s assignment of error is overruled. The judgment of the trial court will

be affirmed.

Froelich, J., concurs.
                                                                                                    6

Hall, J., concurring

       I concur with the result here. I have previously disagreed with the holding in Milby,

see State v. Howard, 195 Ohio App.3d 802, 2011–Ohio–5693, 961 N.E.2d 1196, ¶ 14–21 (2d

Dist.) (Hall, J., concurring in part and dissenting in part). But I recognize that “ Milby is part

of the jurisprudence of this court, and stare decisis precludes simply ignoring it.” Id. at ¶ 18.



Copies mailed to:

Johnna M. Shia, Esq.
Tina M. McFall, Esq.
Hon. Dennis J. Langer
