[Cite as State v. McMullen, 2012-Ohio-2629.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                  Nos. 97475 and 97476




                                     STATE OF OHIO
                                                     PLAINTIFF-APPELLANT

                                               vs.

                                JOSEPH MCMULLEN
                                                     DEFENDANT-APPELLEE




                                   JUDGMENT:
                             REVERSED AND REMANDED



                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CR-542624

        BEFORE: S. Gallagher, J., Boyle, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: June 14, 2012
ATTORNEYS FOR APPELLANT

William D. Mason
Cuyahoga County Prosecutor

By: Daniel T. Van
       Oscar E. Albores
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Edward A. Heffernan
1660 West Second Street
Suite 410
Cleveland, OH 44113

Robert L. Tobik
Cuyahoga County Public Defender

By: Cullen Sweeney
Assistant Public Defender
Courthouse Square Suite 200
310 Lakeside Avenue
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:

       {¶1} Appellant, the state of Ohio, appeals the decision of the Cuyahoga County

Court of Common Pleas that reclassified appellee, Joseph McMullen, as a sex offender

with a ten-year registration requirement under Megan’s Law. For the reasons stated

herein, we reverse the decision of the trial court and remand the matter for further

proceedings consistent herewith.

       {¶2} On September 10, 1998, McMullen was convicted of attempted rape in

Maryland.     After serving his sentence in Maryland, McMullen was transferred to

Pennsylvania to serve another sentence on an unrelated, non-sex offense. In 2004, while

incarcerated in Pennsylvania, McMullen executed a document, provided by the state of

Maryland, notifying him he had been classified as a sexually violent offender and was

required to register for life.1

       {¶3} Although at the time of McMullen’s conviction the registration requirement

in Maryland required a sexually violent offender to register annually for ten years after

the last date of release, the law was later amended to a lifetime requirement.                   See

Md.Code Art. 27 § 792 (repealed), and former Md.Code § 11-707(a)(4)(ii). Further, the

registration requirements applied retroactively pursuant to statute. See former Md.Code



       1
            Although the document is not included as part of the record on appeal, the transcript
reflects that it was referred to throughout the proceedings below and the parties do not dispute that
McMullen was notified of his classification and registration requirements.
§ 11-702.1(a). The computation of the term would be computed from the last date of

release or the date granted probation. See former Md.Code § 11-707(5)(b).

       {¶4} The law being enforced upon McMullen was known as the Jacob Wetterling

Act. In Young v. Maryland, 370 Md. 686, 690, 806 A.2d 233 (2002), the court struck

down a constitutional challenge to the Jacob Wetterling Act and found that the statutory

requirement that certain convicted defendants register as sex offenders was not regarded

as “punishment” in the constitutional sense, but was a remedial requirement for the

protection of the public. In Doe v. Dept. of Public Safety & Corr. Servs., 185 Md.App.

625, 971 A.2d 975 (2009), the court ruled in a case in which the Jacob Wetterling Act

was being applied to the defendant retroactively that

       (1) lifetime registration requirement for an individual classified as sexually
       violent offender did not violate procedural due process; (2) use of prior
       conviction for sexually violent offense as sole basis for lifetime registration
       had a rational basis and therefore did not violate equal protection; and (3)
       lifetime registration did not violate offender’s constitutional right to
       privacy.

       {¶5} Upon his release from prison, McMullen moved to Ohio. He registered his

address with the Cuyahoga County sheriff’s office on June 16, 2008. It is undisputed

that the sheriff’s office treated McMullen as a Tier III sex offender under the Adam

Walsh Act (“AWA”).

       {¶6} On October 18, 2010, McMullen was charged in a two-count indictment with

failure to verify address (R.C. 2950.06(F)) and failure to provide notice of change of

address (R.C. 2950.05(E)(1)). As part of a plea agreement, McMullen pled guilty to an

amended charge of attempted failure to verify, a felony of the third degree, and the
remaining count was nolled. The trial court sentenced McMullen to six months of

community control sanctions.

      {¶7} During the lower court proceedings, the trial court recognized uncertainty

with McMullen’s sex-offender classification. The court recognized that the AWA could

not be retroactively applied to offenders such as McMullen. While the court found that

McMullen should be classified under Megan’s Law, the court struggled with whether he

should be subject to a ten-year or a lifetime registration requirement. Ultimately, the

court classified McMullen as a sex offender under Megan’s Law with a ten-year

registration requirement to end in 2014 and ordered the Cuyahoga County Sheriff and the

Ohio Attorney General to remove any notation of McMullen’s classification as a Tier III

sex offender.

      {¶8} The state has appealed the trial court’s ruling, raising four assignments of

error for our review. The state’s first assignment of error challenges the jurisdiction of

the trial court to remove McMullen’s AWA classification and to reclassify McMullen.

      {¶9} In State v. Bodyke, the Ohio Supreme Court held that the reclassification

provisions of the AWA, which required the attorney general to reclassify sex offenders

who have already been classified by court order under Megan’s Law, were

unconstitutional. 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 67. The

court severed the reclassification provisions, R.C. 2950.031 and 2950.032, and held that

after severance, those provisions could not be enforced. Id. at ¶ 66. The court further

held that those provisions may not be applied to offenders previously adjudicated by
judges under Megan’s Law and reinstated the classifications and community-notification

and registration orders imposed previously. Id.

       {¶10} In State v. Williams, the Ohio Supreme Court declared that

       S.B. 10, as applied to Williams and any other 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. 129 Ohio St.3d 344, 2011-Ohio-3374, 952
       N.E.2d 1108, ¶ 22.

       {¶11} In State v. Gingell, the Ohio Supreme Court vacated the conviction for a

violation of the 90-day address-verification requirement of R.C. 2950.06 where the

conviction was based upon an unlawful reclassification under the AWA. 128 Ohio St.3d

444, 2011-Ohio-1481, 946 N.E.2d 192, ¶ 8. The court found that pursuant to Bodyke,

Gingell’s   original   classification   under     Megan’s   Law    and    the   associated

community-notification and registration order were reinstated and that Gingell remained

accountable for the yearly registration requirement under Megan’s Law. Id.

       {¶12} In State v. Palmer, the Ohio Supreme Court recognized that sex offenders

who have been reclassified under the AWA may still petition the court to contest their

classification because Bodyke did not invalidate the petition process under

R.C. 2950.031(E) and 2950.032(E). 131 Ohio St.3d 278, 2012-Ohio-580, 964 N.E.2d

406.

       {¶13} Upon our review of the above decisions, we find that the trial court correctly

invalidated McMullen’s Tier III classification and recognized his original classification
under Megan’s Law. 2         We reject the state’s argument that the trial court lacked

jurisdiction to do so.

       {¶14} We further recognize that McMullen entered a plea of guilty and has not

appealed his conviction for attempted failure to verify. Nonetheless, it appears that his

conviction was contrary to law because it arose from his unlawful classification under the

AWA. See State v. Caldero, 8th Dist. No. 96719, 2012-Ohio-11; State v. Grunden, 8th

Dist. No. 95909, 2011-Ohio-3687. Indeed, the record shows that McMullen had been

improperly classified as a Tier III offender and that the charges stemmed from the AWA

registration requirements. Though the issue is not before us, McMullen may wish to

pursue relief upon remand.3

       {¶15} The state’s first assignment of error is overruled.

       {¶16} The state’s second and third assignments of error challenge the trial court’s

removal of McMullen’s AWA classification because it claims the AWA may be

constitutionally applied to out-of-state offenders whose crimes were committed prior to

the enactment of S.B. 10. While McMullen argues that the state failed to raise these

       2
          We note that the Ohio General Assembly repealed Megan’s Law and
replaced it with the AWA through S.B. 10. There has been no further action taken
by the legislature.       Nonetheless, the Ohio Supreme Court reinstated the
classifications and registration requirements for offenders originally classified
under Megan’s Law. Although the legislature has not acted, we are bound to
follow the decisions of the Ohio Supreme Court.
       3
           We recognize that pending before the Ohio Supreme Court is the issue of whether Bodyke
requires the vacation of convictions where the conduct of the sex offender, classified under Megan’s
Law, would have been a violation under both Megan’s Law and the AWA. See State v. Brunning,
Ohio Supreme Court No. 2011-1066.
arguments below, we recognize that a reviewing court retains “the right to consider

constitutional challenges to the application of statutes in specific cases of plain error or

where the rights and interests involved may warrant it.” In re M.D., 38 Ohio St.3d 149,

527 N.E.2d 286 (1988), syllabus.

       {¶17} The state acknowledges that this court has previously rejected its arguments

and indicates that these arguments are raised to preserve the issue for further review.

Indeed, this court has previously found that Bodyke and Williams apply to out-of-state

offenders and has rejected similar arguments. See Nelson v. Ohio, 8th Dist. No. 96988,

2012-Ohio-364, ¶ 10-13; State v. Ortega-Martinez, 8th Dist. No. 95656, 2011-Ohio-2540,

¶ 11. Accordingly, we overrule the state’s second and third assignments of error.

       {¶18} The state’s fourth assignment of error argues that the trial court incorrectly

imposed a ten-year registration requirement. The state claims that because McMullen

was subject to a lifetime registration requirement under Maryland law, he should have

been deemed a sexual predator with a lifetime registration requirement pursuant to former

R.C. 2950.09(A). While McMullen has not appealed his conviction in this matter, he

does contest the state’s argument concerning his registration requirement.

       {¶19} R.C. 2950.04(A)(4) imposes a duty to register on a person who has been

convicted of a sexually oriented offense in another jurisdiction only if, at the time he

moves to Ohio, he had a duty to register in the other jurisdiction as a consequence of the

conviction. State v. Lloyd, __ Ohio St.3d __, 2012-Ohio-2015, __ N.E.2d __, ¶ 46. In

Lloyd, the court ruled in a case involving a duty to register arising from an out-of-state
conviction, the state must prove that the defendant was convicted of a sexually oriented

offense that is or was substantially equivalent to any of the Ohio offenses listed under

R.C. 2950.01(A), and that the defendant was under a duty to register in the other

jurisdiction as a consequence of the conviction. Id. at ¶ 13 and 46. The court set forth

the analysis a court must undertake to determine whether the offenses are substantially

equivalent, stating as follows:

       We conclude that in order to determine whether an out-of-state conviction

       is substantially equivalent to a listed Ohio offense, a court must initially

       look only to the fact of conviction and the elements of the relevant criminal

       statutes, without considering the particular facts disclosed by the record of

       conviction. If the out-of-state statute defines the offense in such a way that

       the court cannot discern from a comparison of the statutes whether the

       offenses are substantially equivalent, a court may go beyond the statutes and

       rely on a limited portion of the record in a narrow class of cases where the

       factfinder was required to find all the elements essential to a conviction

       under the listed Ohio statute. To do so, courts are permitted to consult a

       limited range of material contained in the record, including charging

       documents, plea agreements, transcripts of plea colloquies, presentence

       reports, findings of fact and conclusions of law from a bench trial, jury

       instructions and verdict forms, or some comparable part of the record.

Id. at ¶ 31.
       {¶20} The record in this case reflects that McMullen was convicted of attempted

rape in Maryland in 1998. By the time McMullen was released from prison, he had been

notified that he was subject to a lifetime registration requirement as a consequence of that

conviction by the state of Maryland. The law was retroactively imposed upon McMullen

pursuant to former Md.Code, § 11-702.1(a), which is to “be applied retroactively to

include a registrant convicted of an offense committed before July 1, 1997, and who is

under the custody or supervision of a supervising authority on October 1, 2001.” Doe,

185 Md.App. 625, 631-632, 971 A.2d 975.            Similarly, in Ohio, Megan’s Law was

retroactively imposed upon sex offenders regardless of when the underlying sex offense

had been committed. See former R.C. 2950.04(A). It is only the retroactive application

of the AWA that has been deemed unconstitutional in Ohio. See Williams, 129 Ohio

St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108.

       {¶21} Upon coming to Ohio, McMullen registered his address with the Cuyahoga

County sheriff’s office on June 16, 2008. At that time, Ohio law automatically classified

as a sexual predator an out-of-state sex offender convicted of a nonexempt, sexually

oriented offense who is required to register as a sex offender for life as a result of that

conviction.   Former R.C. 2950.09(A).         Such offenders may petition the court to

challenge the automatic classification pursuant to former R.C. 2950.09(F)(2), which

requires the offender to show by clear and convincing evidence that the registration

requirement of the other jurisdiction “is not substantially similar to the classification as a

sexual predator for purposes [R.C. Chapter 2950].”          When an out-of-state offender
challenges his classification under former R.C. 2950.09(F), the trial court first must

determine whether the sexually oriented offense in the other state is substantially

equivalent to one of the requisite Ohio offenses. State v. Pasqua, 157 Ohio App.3d 427,

2004-Ohio-2992, 811 N.E.2d 601, ¶ 22 (1st Dist.). If the offense is found to be similar,

then the offender is entitled to a hearing where he has the burden of showing by clear and

convincing evidence that he is not likely to commit a sexually oriented offense in the

future. Id.

       {¶22} The state claims that the trial court should have deemed McMullen a sexual

predator in accordance with former R.C. 2950.09(A). McMullen contends that the trial

court properly modified his default sexual-predator classification because Maryland’s

lifetime registration requirement is not substantially similar to a classification as a sexual

predator under Ohio law.      However, the trial court never conducted an appropriate

inquiry for determining McMullen’s duty to register in accordance with Lloyd. We

understand that the trial court and the parties did not have the benefit of the Lloyd

decision in the underlying proceedings.

       {¶23} While the record reflects that McMullen was convicted of attempted rape

and was subject to a lifetime registration requirement, the court never determined whether

the Maryland offense is substantially equivalent to a listed Ohio offense. Further, even if

McMullen is automatically deemed a sexual predator under former R.C. 2950.09(A), he

should be afforded an opportunity to challenge the classification pursuant to former R.C.

2950.09(F)(2). Therefore, we find that the matter must be remanded for a hearing in
order for the proper determination to be made. The state’s fourth assignment of error is

sustained insofar as we find the trial court imposed a registration requirement upon

McMullen without making the appropriate considerations.

       {¶24} For the foregoing reasons, we find the trial court had jurisdiction to render

McMullen’s reclassification under the AWA invalid and to effectuate his original

classification under Megan’s Law. McMullen’s conviction has not been challenged

herein. However, the trial court erred in reclassifying McMullen contrary to the dictates

of Lloyd and former R.C. 2950.09(A).

       {¶25} Judgment reversed, case remanded.

       This cause is reversed and remanded to the lower court for further proceedings

consistent with this opinion.

       It is ordered that appellant recover from appellee 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.



SEAN C. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., and
MARY EILEEN KILBANE, J., CONCUR
