[Cite as State v. Klepatzki, 2014-Ohio-4571.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100847




                                       STATE OF OHIO
                                                         PLAINTIFF-APPELLEE

                                                   vs.

                               BENJAMIN KLEPATZKI
                                                         DEFENDANT-APPELLANT




                                                JUDGMENT:
                                                 AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                  Case No. CR-01-407962-ZA

        BEFORE: Keough, J., Rocco, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED: October 16, 2014
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Public Defender
By: Cullen Sweeney
Assistant Cuyahoga County Public Defender
310 Lakeside Avenue
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Diane Smilanick
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:

      {¶1} Defendant-appellant, Benjamin Klepatzki, appeals the trial court’s denial of

his Civ.R. 60(B) motion to vacate his sexual predator classification. For the reasons that

follow, we affirm.

      {¶2} In 2001, Klepatzki was convicted of breaking and entering, and two counts

each of voyeurism and menacing by stalking.         He was sentenced to five years of

community control sanctions. In 2002, Klepatzki was found to be in violation of the

terms and conditions of community control and was sentenced to 17 months in prison.

This sentence was ordered to run concurrent with a 45-month sentence in Case No. CR

01-406228. This court affirmed his sentence in State v. Klepatzki, 8th Dist. Cuyahoga

No. 81676, 2003-Ohio-1529 (“Klepatzki I”).

       {¶3} In 2003, the General Assembly amended Megan’s Law in Am.Sub.S.B. 5

(“S.B. 5”), which allowed the state to request that Klepatzki be classified as a sex

offender. In 2005 and while Klepatzki was still in prison serving the remainder of his

sentence in Case No. CR 01-406228, the state requested in Case No. CR 01-407962 that

Klepatzki be classified as a sexual predator. Following a hearing in 2006, the court

classified Klepatzki as a sexual predator, which this court affirmed in State v. Klepatzki,

8th Dist. Cuyahoga No. 88416, 2007-Ohio-2511 (“Klepatzki II ”).
       {¶4} In 2013, Klepatzki moved the trial court pursuant to Civ.R. 60(B) to vacate

his sexual predator classification. He argued that the trial court lacked the authority or

jurisdiction to classify him because both voyeurism and menacing by stalking were

presumptive registration-exempt sex offenses under former R.C. 2950.01(P)(1)(a). He

contended that because the presumption was not removed by the trial court prior to

sentencing, the offenses became “registration-exempt sexually oriented offenses”

pursuant to former R.C. 2950.01(Q) and 2950.021. His motion also asserted that former

R.C. 2950.09 did not authorize a trial court to hold a sexual predator classification

hearing for registration exempt sexually oriented offense. Accordingly, Klepatzki argued

that his classification was void ab initio.

       {¶5} The state responded that Klepatzki’s motion was untimely and barred by res

judicata because this issue could have been raised at the time of classification in 2006 or

in his appeal from that classification. The trial court agreed with the state and found that

Klepatzki’s motion was barred by the doctrine of res judicata.

       {¶6} Klepatzki now appeals from this decision, raising as his sole assignment of

error that the trial court erred when it failed to vacate a sexual predator classification that

was based on offenses that were exempt from registration. He contends, citing State v.

Cole, 8th Dist. Cuyahoga No. 96687, 2011-Ohio-6283, that res judicata does not bar this

appeal because if a trial court classifies an individual as a sex offender without statutory

authority to do so, the court acts without jurisdiction and the resulting order is void. In

opposition, the state contends that Klepatzki’s appeal is barred by res judicata.
       {¶7} “A judgment will be deemed void when it is issued by a court which did not

have subject matter jurisdiction or otherwise lacked the authority to act.”         State v.

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 6. On the other hand,

“a voidable judgment is one rendered by a court that has both jurisdiction and authority to

act, but the court’s judgment is invalid, irregular, or erroneous.” State v. Simpkins, 117

Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 12.

       {¶8} If a judgment is void, the doctrine of res judicata has no application, and the

propriety of the decision can be challenged on direct appeal or by collateral attack.

Fischer at paragraph one of the syllabus; State v. Billiter, 134 Ohio St.3d 103,

2012-Ohio-5144, 980 N.E.2d 960, ¶ 10 (“if a trial court imposes a sentence that is

unauthorized by law, the sentence is void”). If a sentencing judgment is merely voidable,

rather than void, the doctrine of res judicata applies and any argument regarding the

merits of the decision is considered waived for all purposes unless it is asserted as part of

the direct appeal.     State ex rel Porterfield v. McKay, 11th Dist. Trumbull No.

1012-T-0012, 2012-Ohio-5027, ¶ 13.

       {¶9} In 2001, when Klepatzki was originally sentenced, neither voyeurism nor

menacing by stalking were statutorily defined as sexually oriented offenses under

Megan’s Law. See former R.C. 2950.01(2001). When the General Assembly amended

Megan’s Law through S.B. 5, former R.C. 2950.01 was amended to include both

voyeurism and menacing by stalking of an adult as sexually oriented offenses. S.B. 5

also added another “class” of sex offenders: the registration exempt sexually oriented
offenders. State v. Johnson, 6th Dist. Ottawa OT-05-053, 2006-Ohio-7004, *9, citing

State v. Cooper, 1st Dist. Hamilton No. C-030921, 2004-Ohio-6428.

      {¶10} Under former 2950.01, a presumption is created that certain sexually

oriented offenses are exempt from the registration requirements of R.C. Chapter 2950.

Pursuant to former R.C. 2950.01(P)(1)(a) and (D)(1)(e), voyeurism and menacing by

stalking committed by an offender 18 years of age or older and with a sexual motivation,

are presumptive registration-exempt sexually oriented offenses, “when committed by a

person who previously has not been convicted of, pleaded guilty to, or adjudicated a

delinquent child for committing any sexually oriented offense described in division

(P)(1)(a), (b), (c), (d), or (e), any other sexually oriented offense, * * *.” (Emphasis

added.)

      {¶11} In this case, Klepatzki was convicted in 1989 of committing a sexually

oriented offense — gross sexual imposition in violation of R.C. 2907.05. See Klepatzki I

at ¶ 15 (noting Klepatzki’s prior conviction). Former R.C. 2950.01(D)(1)(a) identifies

gross sexual imposition as a sexually oriented offense.           Therefore, Klepatzki’s

subsequent convictions for voyeurism and menacing by stalking were not presumptive

registration-exempt sexually oriented offenses. See former R.C.2950.01(P)(2).

      {¶12} In so far that Klepatzki argues that any sexual predator classification hearing

had to occur prior to sentencing, the Ohio Supreme Court has rejected this argument by

stating that “prior to sentencing” as written in former R.C. 2950.09(B)(2) is not

jurisdictional, but directory. State v. Bellman, 86 Ohio St.3d 208, 210, 714 N.E.2d 381
(1999); see also State v. Webb, 9th Dist. Lorain No. 06CA008875, 2006-Ohio-5476; State

v. Echols, 2d Dist. Greene No. 99CA60, 2000 Ohio App. LEXIS 1906 (May 5, 2000).

       {¶13} Accordingly, Klepatzki’s argument that his sexual predator classification is

void is without merit because the trial court acted with authority and jurisdiction in

classifying him as a sexual predator in 2006 pursuant to former R.C. 2950.09. This court

affirmed his sexual predator classification in Klepatzki I; thus, res judicata applies and the

trial court did not err in denying Klepatzki’s Civ.R. 60(B) motion to vacate.            The

assignment of error is sustained.

       {¶14} Judgment 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 issue out of this court directing the common

pleas 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.




KATHLEEN ANN KEOUGH, JUDGE

KENNETH A. ROCCO, P.J., and
MELODY J. STEWART, J., CONCUR
