[Cite as State v. Caldwell, 2012-Ohio-1091.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                 MONTGOMERY COUNTY

STATE OF OHIO                                                                 :
                                                  :     Appellate Case No. 24333
        Plaintiff-Appellee                                            :
                                                  :     Trial Court Case No. 09-CR-1702
v.                                                                                        :

                                                  :
ANDRE CALDWELL                                                      :      (Criminal Appeal
                                                        from
                                                  :     (Common Pleas Court)
        Defendant-Appellant                                  :
                                                  :
                                               ...........

                                               OPINION

                              Rendered on the 16th day of March, 2012.

                                               ...........

MATHIAS H. HECK, JR., by JOHNNA M. SHIA, Atty. Reg. #0067685, Montgomery County
Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972,
301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

TYLER D. STARLINE, Atty. Reg. #0078552, Finlay, Johnson & Beard, Ltd., 260 North
Detroit Street, Xenia, Ohio 45385
        Attorney for Defendant-Appellant

                                                       .............

HALL, J.

        {¶ 1} In February 1996, Andre Caldwell was convicted of third-degree felony
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corruption of a minor and sentenced to prison. In July 2009, he was convicted for violating the

address-verification requirement under the then-current sex offender registration and

notification law, Ohio’s Adam Walsh Act (AWA). In July 2010, Caldwell filed, pro se, a

“Motion to Vacate and Set Aside the Judgment,” targeting the failure-to-verify conviction,

based on State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, in which the

Ohio Supreme Court severed the AWA’s reclassification provisions after concluding that they

are unconstitutional. On the state’s motion, the trial court dismissed Caldwell’s “Motion to

Vacate * * *” as an untimely petition for postconviction relief under R.C. 2953.21. Caldwell

timely appealed the dismissal.1

         {¶ 2} In two assignments of error, Caldwell alleges that the trial court erred by

dismissing the motion to vacate and erred by implicitly denying it.2 The principal issue in the

first allegation is whether the trial court’s treating the motion as a statutory petition for

postconviction relief was proper. We conclude that it was and, furthermore, that it was

untimely. The principal issue in the second allegation is whether either Bodyke, as applied in

State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, 947 N.E.2d 192, or State v. Williams,

129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, decided during the pendency of this

appeal, rendered Caldwell’s failure-to-verify conviction void. We conclude that these decisions

rendered his conviction not void but voidable.

A. The Petition for Postconviction Relief

            1
             A couple days after Caldwell filed his notice of appeal, he filed a motion in this Court for leave to file a delayed appeal of his 2009
 conviction. The state moved to dismiss. Observing that Caldwell had filed the notice of appeal, we overruled his motion, sustaining the state’s
 motion to dismiss.

            2
              On December 22, 2011, Caldwell filed a motion for leave to file a reply brief instanter. The motion is granted. Although the reply
 brief was filed after this case was conferenced, we read and considered the brief before arriving at the decision in this opinion.
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        {¶ 3} “Courts may recast irregular motions into whatever category necessary to

identify and establish the criteria by which the motion should be judged.” State v. Schlee, 117

Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12, citing State v. Bush, 96 Ohio St.3d 235,

2002-Ohio-3993, 773 N.E.2d 522, ¶ 10 (“Our decision in [State v.] Reynolds[, 79 Ohio St.3d

158, 679 N.E.2d 1131 (1997)] set forth a means by which courts can classify such irregular

motions.”). The Ohio Supreme Court has found that a motion meets the definition of a petition

for postconviction relief in R.C. 2953.21(A)(1) when the motion “(1) [was] filed subsequent to

[a defendant’s] direct appeal, (2) claim[s] a denial of constitutional rights, (3) s[eeks] to render

the judgment void, and (4) ask[s] for vacation of the judgment and sentence.” Reynolds at 160

(motion captioned “Motion to Correct or Vacate Sentence”). Caldwell’s motion was filed after

his direct appeal could have been taken, claimed a constitutional violation based on Bodyke,

sought to render his judgment of conviction void, and asked the trial court to vacate the

judgment and sentence. Since Caldwell’s motion meets the statutory definition of a

postconviction-relief petition, the trial court properly treated it as such.

        {¶ 4} But Caldwell filed the motion to vacate too late. Because he did not appeal,

Caldwell had 180 days after the time ended for filing an appeal in which to file a petition–which

he did not do–subject to two exceptions–neither of which applies here. See R.C. 2953.21(A)(2).

Caldwell’s judgment of conviction was filed on July 30, 2009, and his time for direct appeal

expired on August 29, 2009. He filed his motion to vacate on September 29, 2010, over a year

later. Since the motion was untimely filed, the trial court could not consider it. See R.C.

2953.23(A) (“A court may not entertain a petition filed after the expiration of the [180-day]

period prescribed in division (A) of that section [2953.21].”).

        {¶ 5} Furthermore, even if the motion had been timely filed, it likely would have been
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dismissed anyway because the Bodyke and Williams issues raised in it are barred by the doctrine

of res judicata. Citing the Ohio Supreme Court’s decision in State v. Duling, 21 Ohio St.2d 13,

254 N.E.2d 670 (1970), vacated in part on other grounds, Duling v. Ohio, 408 U.S. 936, 92

S.Ct. 2861, 33 L.Ed.2d 753 (1972), the Ninth District in State v. Bolds, 96 Ohio App.3d 483,

485, 645 N.E.2d 164 (9th Dist.1994), said that “where a defendant fails to raise questions about

the constitutionality of a statute or ordinance, and such questions are subsequently decided in a

case brought by another individual, the defendant is barred by the doctrine of res judicata from

raising such questions in a postconviction proceeding.” Bolds at 485, citing Duling at 16-17.

The Bolds defendant was convicted under a municipal ordinance that the Ninth District

subsequently held was unconstitutional. Based on this holding, the defendant filed for

postconviction relief, which the trial court denied. The Ninth District affirmed, holding that the

ordinance’s constitutionality was an issue barred by res judicata. Also instructive is the Ohio

Supreme Court’s decision in Reynolds. In that case the defendant was convicted of aggravated

robbery with a firearm specification. The defendant appealed and the appellate court affirmed.

At the time of his appeal, controlling law in the appellate district did not require any

independent evidence that a firearm was operable to prove a firearm specification (beyond the

evidence needed to establish its use to prove aggravated robbery). Later, the Ohio Supreme

Court held that to establish a firearm specification the state must prove that the firearm was

operable, a holding that, in effect, reversed the appellate-court case on which the above

controlling law was based. Several years later, the defendant filed a petition for postconviction

relief based on the Court’s holding. The trial court vacated the firearm-specification conviction,

and the appellate court affirmed. On the state’s appeal, the defendant argued that, since it was

not until after his direct appeal that the controlling appellate-court case was reversed, res
                                                                                                 5


judicata should not prevent the Court’s later, reversing case from applying. Before the reversing

case was decided, the defendant pointed out, there was no way he could have argued that its

holding applied in his case. The Court rejected this argument. Citing Duling, the Court said that

it was irrelevant that one of its decisions changed the controlling law on which the conviction

was based. Nothing, said the Court, prevented the defendant from himself appealing the

operability issue. That the controlling authority at the time of his appeal was the appellate

court’s decision, said the Court, did not bar the defendant from appealing the issue anyway.

       {¶ 6} Applying res judicata in these types of situations promotes the principle of

finality. In State v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233 (1996), the defendant was

convicted   of   involuntary      manslaughter,    a     conviction    that   was   predicated   on

minor-misdemeanor       traffic      violations.   The     defendant      timely    appealed     the

involuntary-manslaughter conviction, arguing that a minor misdemeanor cannot serve as the

predicate offense. The appellate court affirmed, and the Ohio Supreme Court declined to hear

his appeal. A couple of years later, in another case, the Court held that a minor misdemeanor

may not serve as a predicate offense under the involuntary-manslaughter statute. Based on this

holding, the defendant filed a petition for postconviction relief. The Court denied relief. The

Court held that the defendant could not use a postconviction-relief petition to relitigate the

predicate-offense issue that he had fully litigated simply because a subsequent decision changed

the law. Id. at 95, citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph

seven of the syllabus. (Duling approved and followed this paragraph of Perry’s syllabus. See

Duling, 21 Ohio St.2d at paragraph two of the syllabus.) This holding, said the Court,

“underscores the importance of finality of judgments of conviction.” Id. The Court then

explained the public-policy basis:
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       Public policy dictates that there be an end of litigation; that those who have

       contested an issue shall be bound by the result of the contest, and that matters

       once tried shall be considered forever settled as between the parties. We have

       stressed that “[the] doctrine of res judicata is not a mere matter of practice or

       procedure inherited from a more technical time than ours. It is a rule of

       fundamental and substantial justice, ‘of public policy and of private peace,’

       which should be cordially regarded and enforced by the courts.” Id., quoting

       Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 401, 101 S.Ct. 2424, 69

       L.Ed.2d 103 (1981).

       {¶ 7} Whether because his motion was untimely or because the constitutionality of his

conviction is barred by res judicata, the trial court correctly determined that Caldwell is not

entitled to postconviction relief.

       {¶ 8} The first assignment of error is overruled.

B. The Court’s Inherent Authority to Vacate Void Judgments

       {¶ 9} Caldwell’s primary contention is that his conviction is void. He argues that the

trial court should have granted his motion to vacate under its inherent power to vacate a void

judgment. See Cincinnati School Dist. Bd. of Edn. v. Hamilton Cty. Bd. of Revision, 87 Ohio

St.3d 363, 368, 721 N.E.2d 40 (2000), citing Patton v. Diemer, 35 Ohio St.3d 68, 518 N.E.2d

941 (1988), paragraph four of the syllabus (“The authority to vacate a void judgment * * *

constitutes an inherent power possessed by Ohio courts.”). If the conviction was determined to

be void, the timing of Caldwell’s motion is inconsequential. It would have been void then, and

void now. But, Caldwell’s judgment of conviction is not void; it’s only voidable.

       1. Background
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       {¶ 10} A few months after Caldwell’s 1996 corruption-of-a-minor conviction, Megan’s

Law went into effect, significantly changing Ohio’s sex-offender-registration-and-notification

law. Sometime before he was released from prison in December 1999, Caldwell was classified

under Megan’s Law as a sexually oriented offender. Megan’s Law required Caldwell to verify

his residence address annually for ten years. In January 2008, the AWA replaced Megan’s Law,

and under the AWA, Caldwell was reclassified as a Tier-II sex offender. Caldwell did not

appeal his reclassification. The AWA requires Tier-II offenders to verify their residence address

every 180 days for 25 years. In June 2009, Caldwell pleaded guilty to a charge of failing to

verify his address, and he was sentenced to three years in prison. Caldwell did not appeal this

conviction.

       {¶ 11} After the time expired for direct appeal, and the 180-day period he had to file

for postconviction relief ended, the Ohio Supreme Court decided the trio of cases that Caldwell

cites. In June 2010, Bodyke held that the AWA’s reclassification provisions were

unconstitutional because they violated the separation-of-powers doctrine by requiring the

attorney general to reclassify sex offenders who had already been classified by court order and

whose classification had already been adjudicated by a court. As a remedy, the Court severed

the provisions, saying that, “after severance, they may not be enforced.” (Emphasis added.)

Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, at ¶ 66. That is, the provisions

“may not be applied to offenders previously adjudicated by judges under Megan’s Law.”

(Emphasis     added.)   Id.   “And,”    continued    the   Court,   “the   classifications   and

community-notification and registration orders imposed previously by judges are reinstated.”

(Emphasis added.) Id. In January 2011, the Court applied Bodyke’s holding in Gingell. For a

1981 rape conviction, the Gingell defendant was originally classified under Megan’s Law as a
                                                                                             8


sexually oriented offender and was reclassified under the AWA as a Tier-III sex offender. In

late 2008, the defendant was convicted for violating the AWA’s address-verification

requirement. The defendant appealed his conviction. Under Bodyke, said the Court, the

defendant’s original classification and associated court orders were reinstated. “Therefore,” the

Court concluded, “the current version of R.C. 2950.06 [the verification requirement] * * * does

not apply to [the defendant].” Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, 947 N.E.2d 192,

at ¶ 8. Because the AWA had been applied based on an unlawful reclassification, the Court

vacated the conviction. In July 2011, the Court went a step further in Williams and held that the

AWA is unconstitutional as applied to any sex offender who committed the underlying sex

offense before the AWA’s 2008 enactment. The Court concluded that applying the AWA to

such offenders violates the retroactivity clause of the Ohio Constitution. Williams, 129 Ohio

St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, at ¶ 22.

       {¶ 12}    2. The finality of Caldwell’s conviction

       {¶ 13} Caldwell urges us to follow our decision in State v. Eads, 2d Dist. Montgomery

App. No. 24696, 2011-Ohio-6307, in which we vacated a defendant’s convictions for violating

AWA registration requirements. In Eads, we held that, under Williams, because the defendant

had committed his underlying sex offense before the AWA went into effect, his AWA

classification was void. But we did not expressly hold that the defendant’s conviction was void.

And even if this could be inferred, Eads must be distinguished from the present case based on a

key procedural difference: Eads was a direct appeal; the present case is a collateral attack. In

Eads this author’s concurrence agreed that a defendant may “raise the issue of the Megan’s

Law-Adam Walsh switch in the direct appeal of their conviction for violation of their

registration requirements.” Id. at ¶ 33 (Hall, J., concurring). But it was pointed out that the
                                                                                              9


issue not before the Eads Court was “whether a final conviction for violation of registration

requirements can be collaterally attacked based on recent jurisprudence.” Id. That is now the

precise issue before the Court in the present case.

       {¶ 14} The Ohio Supreme Court (and this Court) has said that “‘“in cases where the

court has undoubted jurisdiction of the subject matter, and of the parties, [although] the action

of the trial court * * * involv[es] an erroneous exercise of jurisdiction [ie. an error of law],

which might be taken advantage of by direct appeal, or by direct attack, yet the judgment or

decree is not void though it might be set aside for the irregular or erroneous exercise of

jurisdiction if appealed from. It may not be called into question collaterally.”’” (Emphasis sic.)

State v. Filiaggi, 86 Ohio St.3d 230, 240, 714 N.E.2d 867 (1999), quoting In re Waite, 188

Mich.App. 189, 200, 468 N.W.2d 912 (1991), quoting Jackson City Bank & Trust Co. v.

Fredrick, 271 Mich. 538, 544-546, 260 N.W. 908 (1935); State v. Wilfong, 2d Dist. Clark App.

No. 2000-CA-75, 2001 WL 256326, *3-4 (Mar. 16, 2001) (quoting the same). Therefore,

because Caldwell’s pre-Bodyke, pre-Williams conviction for violating the AWA’s registration

requirements is, at best, an erroneous exercise of jurisdiction, meaning a legal error, it may not

be collaterally attacked.

       {¶ 15}    Our conclusion here is not inconsistent with this Court’s recent decision in

State v. Montgomery, 2d Dist. Montgomery App. No. 24450, 2012-Ohio-391. In Montgomery,

the defendant was convicted of rape in 1987 and later adjudicated a sexually-oriented offender

under Megan’s Law, which required him to verify his address annually. When the AWA was

enacted, the defendant was automatically reclassified as a Tier-III sex offender and required to

verify his address every 90 days. In July 2009, the defendant violated his verification duty. He

pleaded guilty to a charge of failure to verify and was sentenced to three years in prison. He did
                                                                                           10


not appeal the conviction or sentence. Over a year later, the defendant filed a motion to vacate

his sentence based on Bodyke. Finding that the defendant’s case was not on direct appeal when

Bodyke was decided, the trial court declined to apply Bodyke retroactively. The court also said

that “if the motion to vacate was actually intended to be a motion for postconviction relief, it

was filed beyond the time limit set by the postconviction relief statute.” Montgomery at ¶ 7.

       {¶ 16}    On appeal, this Court determined that Montgomery’s motion to vacate was

“more correctly” characterized as a Crim.R. 32.1 motion to withdraw a plea and that the

conviction should be reversed. In support, the Montgomery case cited State v. Pritchett, 2d

Dist. Montgomery App. No. 24183, 2011-Ohio-5978, in which the defendant filed, a year after

his conviction under the AWA, a Crim.R. 32.1 motion to withdraw his plea based on Bodyke.

The Pritchett decision had vacated Pritchett’s sentence, holding that the sentence was void

and saying that it would be a manifest injustice for the defendant to continue serving a void

sentence. But the underlying conviction in Pritchett had been upheld based on the conclusion

that Pritchett’s failure to provide a new address was valid under either Megan’s Law or the

AWA registration requirements.

       {¶ 17}    Relying on Pritchett, Montgomery vacated that defendant’s guilty plea,

sentence, and conviction itself. But Montgomery arrived at this conclusion after “review[ing]

Appellant’s arguments under the law governing a postsentence motion to withdraw a plea

rather than under the more restrictive rules governing Civ.R. 60(B) motions or petitions for

postconviction relief.” Montgomery at ¶ 15. There was also a question of whether Montgomery

could have been charged, at all, under either classification scheme. Id. at ¶ 23. Montgomery’s

motion to vacate was “more correctly” characterized by this court as a Crim.R. 32.1 motion to

withdraw a plea. The trial court’s judgment overruling Montgomery’s motion had been based
                                                                                            11


on its conclusion that Bodyke did not apply retroactively. While the trial court also concluded

that the motion was untimely under the postconviction-relief statute, this conclusion was an

alternative basis to deny Montgomery relief and not the basis of the court’s judgment.

       {¶ 18}     Caldwell’s motion should not be reviewed under the same analysis. The trial

court dismissed Caldwell’s motion to vacate because it was untimely under the

postconviction-relief statute. As we concluded above, the court’s treatment of the motion as one

for postconviction relief was a reasonable construction of the arguments made in the motion.

The motion does not contain any factual material to demonstrate that Caldwell could not be

charged, at all, for violation of reporting requirements. Accordingly, because we cannot simply

disregard the definite and plainly proper characterization made by the trial court, Montgomery

does not apply.

       {¶ 19}     The second assignment of error is overruled.

C. The Sentence

       {¶ 20}     Although Caldwell does not separately challenge his sentence, such a

challenge is fairly implied. Caldwell’s sentencing entry does not specifically state that he was

sentenced to a mandatory three years in prison as a result of the version of R.C. 2950.99 in

effect after passage of Ohio’s version of the AWA.(See R.C. 2950.99(A)(1)(b) making a

subsequent offense a 3 year minimum sentence) But, the entry of Waiver’s and Plea form filed

July, 24, 2009 does refer to the offense, Caldwell’s prior conviction, and a mandatory sentence

of three years without eligibility for judicial release. The indictment also includes Caldwell’s

prior conviction as an element. We can only conclude that the defendant was sentenced to three

years in prison as a result of the version of R.C. 2950.99(A)(1)(b) made effective at the same

time as adoption of the AWA. Therefore, while Williams did not render Caldwell’s conviction
                                                                                              12


void, the established case law of this district, with which this author has disagreed, see State v.

Howard, 195 Ohio App.3d 802, 2011-Ohio-5693, ¶14-21 (Hall, J., concurring in part and

dissenting in part), holds that Williams does render the sentence in the AWA-Megan’s Law

switch void. See e.g. Pritchett. When a sentence is void under Williams, this Court has said that

courts “‘must ignore the procedural irregularities of the petition [for postconviction relief] and

vacate the void sentence and resentence the defendant.’” State v. Harrison, 2d Dist.

Montgomery App. No. 24471, 2011-Ohio-6803, ¶ 20, quoting State v. Holcomb, 184 Ohio

App.3d 577, 2009-Ohio-3187, 921 N.E.2d 1077, ¶ 20.

        {¶ 21}    We therefore affirm the trial court’s conviction of Caldwell. But we vacate the

sentence and remand this case so that Caldwell can be sentenced under former law.

                                                    .............

DONOVAN, J., concurs.

FROELICH, J., concurring:

        {¶ 22}   I write separately only to stress that my concurrence is largely based on the

record presented, or not presented, at the trial level by the Appellant. Further, the Ohio

Supreme Court has accepted State v. Brunning, 8th Dist. Cuyahoga No. 95376,

2011-Ohio-1936 appeal accepted, 2011-Ohio-5129 (S.Ct. Case No. 2011-1066); State v.

Campbell, 8th Dist. Cuyahoga No. 95348, 2011-Ohio-2281, appeal accepted, 2011-Ohio-6124

(S.Ct. Case No. 2011-1061); and State v. Gilbert, 8th Dist. Cuyahoga Nos. 95083 and 95084,

2011-Ohio-1928, appeal accepted, 2011-Ohio-6124 (S.Ct. Case No. 2011-1062); while not

directly on point with this case, they hopefully will help clarify the quagmire that now exists for

trial and appellate courts.

                                           ..........
                       13


Copies mailed to:

Mathias H. Heck, Jr.
Johnna M. Shia
Tyler D. Starline
Hon. Mary L. Wiseman
