[Cite as Nelson v. State, 2012-Ohio-364.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 96988


                                   ANTHONY NELSON
                                                     PLAINTIFF-APPELLEE

                                               vs.


                                       STATE OF OHIO
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-648836

        BEFORE: Rocco, J., Boyle, P.J., and Cooney, J.

        RELEASED AND JOURNALIZED: February 2, 2012

                                               -i-
                                          2

ATTORNEYS FOR APPELLANT

William D. Mason
Cuyahoga County Prosecutor

BY: Daniel T. Van
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Robert L. Tobik
Chief Public Defender

BY: Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113



KENNETH A. ROCCO, J.:

      {¶ 1} Defendant-appellant the state of Ohio appeals from the trial court order that

granted summary judgment to plaintiff-appellee Anthony Nelson on his petition for relief

from the application of “S.B. 10,” commonly referred to as Ohio’s version of the “Adam

Walsh Act” (the “AWA”).

      {¶ 2} The state presents two assignments of error.      The state argues that, as

applied to Nelson, whose original conviction occurred out-of-state, the AWA is

constitutional and does not violate either the separation of powers doctrine or the Ohio
                                           3

Constitution’s Retroactivity Clause. The state concedes as to the first argument that this

court has determined otherwise. Moreover, the state’s second argument is rejected on

the authority of State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d

1108. Consequently, the state’s assignments of error are overruled, and the trial court’s

order is affirmed.

       {¶ 3} The record reflects Nelson filed his petition seeking relief from the

application of the AWA in January 2008. He alleged that in 1977, he was convicted in

North Carolina of an offense that the Ohio Attorney General (“OAG”) “determined to be

substantially equivalent to [the offense of] Rape in violation of R.C. 2907.02.”

       {¶ 4} Nelson further alleged that he had been living in Cuyahoga County and had

been registering as a sexually oriented offender under R.C. 2950.01 et seq., but had

received a letter in December 2007 from the OAG that informed him that, as of January

2008, he would be reclassified and subject to new registration duties based upon the

AWA. Nelson asserted that his “reclassification” by the AWA was unconstitutional on

several grounds, and requested the court to declare that the AWA did not apply to him.

       {¶ 5} In August 2008, the trial court granted Nelson a preliminary injunction,

ordering the state to refrain from enforcing the AWA against Nelson until further order of

the court. Nelson was ordered to continue to comply with the earlier version of the law.

       {¶ 6} In July 2010, based upon State v. Bodyke, 126 Ohio St.3d 266,

2010-Ohio-2424, 933 N.E.2d 753, Nelson filed a motion for summary judgment with
                                            4

respect to his petition. Although the state filed a brief in opposition to Nelson’s motion,

the trial court nevertheless granted Nelson’s petition in an order issued on May 31, 2011.

       {¶ 7} The state filed a timely appeal, challenging the trial court’s order with two

assignments of error. The state’s assignments of error assert:

       {¶ 8} “I. The retroactive application of the Adam Walsh Act as applied to

Nelson does not violate the Separation of Powers doctrine.

       {¶ 9} “II. The retroactive application of the Adam Walsh Act as applied

       {¶ 10} to Nelson does not violate the Retroactivity Clause of the Ohio

Constitution.”

       {¶ 11} In its first assignment of error, the state asserts that, because “Nelson’s duty

to register [as a sex offender] arose by operation of law due to an out-of-state conviction,

he is not subject to the relief provided for in State v. Bodyke * * * .”

       {¶ 12} The state concedes that this court has already resolved this issue in Nelson’s

favor, citing State v. Ortega-Martinez, 8th Dist. No. 95656, 2011-Ohio-2540, 2011 WL

2112726; Hannah v. State, 8th Dist. Nos. 95883-95889, 2011-Ohio-2930, 2011 WL

2436619; Speight v. State, 8th Dist. Nos. 96041-96405, 2011-Ohio-2933, 2011 WL

2436606; see also State v. Mestre, 8th Dist. No. 96820, 2011-Ohio-5677, 2011 WL

5326145, ¶ 6. However, the state opposes the trial court’s judgment in this appeal in

order to preserve the issue for further review.        Id.   Accordingly, the state’s first

assignment of error is overruled pursuant to the precedent in this jurisdiction. Id.
                                          5

        {¶ 13} The state argues in its second assignment of error that the Ohio Supreme

Court’s decision in Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108,

does not apply to out-of-state offenders. Although the trial court could not have applied

Williams since that case was not decided until July 13, 2011, the state anticipates this

court will look to Williams as authority in addressing the second assignment of error.

The state, therefore, counters by asserting out-of-state offenders “may not have an

expectation of finality” as to the registration duties required when they move to a

different state.

        {¶ 14} However, this court declines to adopt the state’s position.    The Ohio

Supreme Court’s decisions in Williams and Bodyke are stated broadly. Sheets v. State,

8th Dist. Nos. 95876-95880, 2011-Ohio-4098, 2011 WL 3612231, ¶ 9; State v. Henthorn,

5th Dist. No. 11-COA-011, 2011-Ohio-5579, 2011 WL 5143140, ¶ 19; see also Mestre, at

¶ 4; Goggans v. State, 8th Dist. Nos. 96857-96862, 2011-Ohio-5932, 2011 WL 5825915,

¶ 13.

        {¶ 15} The Supreme Court held that the AWA “interferes with the judicial power

by requiring the reopening of final judgments.”         Bodyke, 126 Ohio St.3d 266,

2010-Ohio-2424, 933 N.E.2d 753, at ¶ 55.     Since “final judgments” include judgments

that arose by operation of law, they necessarily also include judgments rendered by

another state’s court. Mestre, 8th Dist. No. 96720, 2011-Ohio-5677, 2011 WL 5326145.

 The Ohio Supreme Court declared that “S.B. 10, as applied to Williams and any other
                                           6

sex offender who committed an offense prior to the enactment of S.B. 10, violates Section

28, Article II of the Ohio Constitution, which prohibits the General Assembly from

enacting retroactive laws.” (Emphasis added.) Williams at ¶ 22.

      {¶ 16} The foregoing language leaves no doubt that the AWA, as applied to

      {¶ 17} Nelson, violates the Ohio Constitution’s Retroactivity Clause. While this

court recognized in Goggans that its view on this issue was in conflict with the First and

Twelfth Districts (see Sewell v. State, 181 Ohio App.3d 280, 2009-Ohio-872, 908 N.E.2d

995, ¶ 14 (1st Dist.), and Boswell v. State, 12th Dist. No. CA2010-01-006,

2010-Ohio-3134, 2010 WL 2653379, ¶ 6), this court still decided that this district

“continues to hold that it is the correct interpretation” on the issue. Goggans, 8th Dist.

Nos. 96857-96862, 2011-Ohio-5932, 2011 WL 5825915, at ¶ 13.

      {¶ 18} Accordingly, the state’s second assignment of error also is overruled.

      {¶ 19} The trial court’s order is affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      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.
                                7

_____________________________
KENNETH A. ROCCO, JUDGE

MARY J. BOYLE, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR
