[Cite as State v. Nash, 2020-Ohio-388.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                    :

                  Plaintiff-Appellee,             :
                                                                   No. 19AP-171
v.                                                :            (C.P.C. No. 08CR-5537)

Stephen E. Nash,                                  :          (REGULAR CALENDAR)

                  Defendant-Appellant.            :



                                          D E C I S I O N

                                    Rendered on February 6, 2020


                  On brief: Ron O'Brien, Prosecuting Attorney, and Steven L.
                  Taylor, for appellee.

                  On brief: Mark J. Miller, for appellant.

                   APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.
          {¶ 1} Defendant-appellant, Stephen E. Nash, appeals a decision and judgment
entered by the Franklin County Court of Common Pleas on March 18, 2019 vacating his tier
III Adam Walsh Act1 sex offender classification and instead finding that he is a habitual sex
offender under Megan's Law, as it existed prior to the enactment of the Adam Walsh Act.
Because we find no basis for concluding that the trial court acted beyond the scope of its
jurisdiction in vacating the improper Adam Walsh Act classification and substituting a
registration under Megan's Law, we affirm.
I. FACTS AND PROCEDURAL HISTORY
          {¶ 2} On July 28, 2008, a Franklin County Grand Jury indicted Nash for numerous
sex offenses allegedly perpetrated against his 2 minor biological daughters. (July 28, 2008
Indictment.) Nash initially pled "not guilty" to all counts. (Aug. 1, 2008 Plea Form.)

1   Sometimes recognized by the acronym, "AWA."
No. 19AP-171                                                                                                2


However, approximately one year later, Nash pled guilty to five third-degree felonies–two
counts of gross sexual imposition, two counts of sexual battery, and one count of pandering
obscenity involving a minor. (Sept. 29, 2009 Plea & Sentencing Tr. at 2-21, filed May 2,
2019; Sept. 30, 2009 Plea Form.) The trial court proceeded immediately to sentencing and
imposed a jointly recommended sentence of 10 years in prison with credit for 438 days of
jail-time credit already having been served. (Plea & Sentencing Tr. at 3, 23-24; Sept. 30,
2009 Jgmt. Entry at 2-3.) The sentence included a notice that Nash would be subject to a
five-year period of post-release control. (Sept. 30, 2009 Notice.) The sentence also
included a notification that Nash was a tier III sexual offender pursuant to Ohio's
enactment of the Adam Walsh Act. (Sept. 30, 2009 Jgmt. Entry at 2; Plea & Sentencing Tr.
at 10-11, 24.) Nash did not appeal.
         {¶ 3} On May 18, 2018, shortly before Nash's release from prison, the trial court
scheduled a reclassification hearing in his case.2 (May 18, 2018 Hearing Schedule.) The
record does not disclose exactly what triggered the trial court's decision to schedule a
hearing. The hearing was rescheduled several times for reasons that are also not disclosed
by the record. (June 19, 2018 Continuance; July 24, 2018 Continuance; Sept. 26, 2018
Continuance; Nov. 15, 2018 Continuance.) Some months after when Nash would have been
(and presumably was) released from prison, but before the hearing had occurred, Nash filed
a motion to dismiss the impending reclassification hearing on the grounds that the trial
court allegedly lacked jurisdiction to proceed with the hearing since Nash had been released
from prison. (Jan 13, 2019 Mot. to Dismiss.) The State responded in opposition. (Jan. 31,
2019 Memo. in Opp.) The trial court continued the hearing one more time (again for
reasons that do not appear in the record). (Feb. 5, 2019 Continuance.) Then, on March 6,
2019, the trial court held the hearing.
         {¶ 4} During the hearing, both parties argued the jurisdictional issue. (Mar. 6,
2019 Hearing Tr. at 2-5, filed May 1, 2019.) After hearing arguments on the matter, the
trial court ruled that it had jurisdiction to reclassify Nash, notwithstanding the fact that he
had been released from prison. Id. at 5-6. The parties then stipulated that Nash should be



2 The initial
            scheduling entry does not disclose the nature of the hearing but later-filed records make clear that
the hearing was for the purpose of reclassifying Nash under Megan's Law, rather than the Adam Walsh Act,
under which he had been initially improperly classified.
No. 19AP-171                                                                              3


classified as a "habitual sex offender under the Megan's Law standards that were previously
in effect at the time of [the] offenses." Id. at 6-8.
       {¶ 5} On March 18, the trial court memorialized the results of the hearing in a
decision and entry in which it vacated the tier III classification initially imposed upon Nash
under Ohio's enactment of the Adam Walsh Act. (Mar. 18, 2019 Decision & Entry at 1.) The
same decision and entry simultaneously found Nash to be a "habitual sex offender" under
Megan's Law as formerly in force in Ohio at the time Nash committed the offenses. Id. at
1-2.
       {¶ 6} Nash now appeals.
II. ASSIGNMENTS OF ERROR
       {¶ 7} Nash presents two assignments of error for review:
               [1.]  THE TRIAL COURT ERRED IN DENYING
               DEFENDANT'S MOTION TO DISMISS FOR LACK OF
               JURISDICTION.

               [2.] THE TRIAL COURT VIOLATED DEFENDANT'S DUE
               PROCESS AND DOUBLE JEOPARDY RIGHTS UNDER THE
               U.S. AND OHIO CONSTITUTIONS.

III. DISCUSSION
   A. Sex Offender Registration in Ohio
       {¶ 8} In 1996, after enactments in other states and federal legislation, the general
assembly enacted Ohio's version of what is commonly known as "Megan's Law," creating a
comprehensive registration and classification system for sex offenders. State v. Bodyke,
126 Ohio St.3d 266, 2010-Ohio-2424, ¶ 3-7. The Supreme Court of Ohio found the Megan's
Law requirements to be remedial, rather than substantive or punitive, with the result that
they could be (and were) imposed retroactively. State v. Cook, 83 Ohio St.3d 404, 410-23
(1998); see also State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, ¶ 29-40.
       {¶ 9} The following decade, in 2007, again after federal legislation, Ohio enacted
its version of what is commonly known as the "Adam Walsh Act," redefining the
classification system into three tiers and imposing tier classification based solely on the
nature of the offense(s) rather than independent factfinding regarding such matters as
likelihood of recidivism and criminal and social history.        Bodyke at ¶ 17-23; 2007
No. 19AP-171                                                                             4


Am.Sub.S.B. No. 10.3 The Adam Walsh Act provisions, however, were found to be punitive
and, accordingly, could not be retroactively applied to persons who committed relevant
offenses prior to the effective date of the act. State v. Williams, 129 Ohio St.3d 344, 2011-
Ohio-3374, ¶ 22; see also In re Von, 146 Ohio St.3d 448, 2016-Ohio-3020, ¶ 21. The upshot
of this was, as the Supreme Court succinctly stated:
                  Therefore, Ohio has, in effect, separate statutory schemes
                  governing sex offenders depending on when they committed
                  their underlying offense. Those who committed their offense
                  before the effective date of the AWA are subject to the
                  provisions of Megan's Law; those who committed their offense
                  after the effective date of the AWA are subject to the AWA.

State v. Howard, 134 Ohio St.3d 467, 2012-Ohio-5738, ¶ 17.
          {¶ 10} It is undisputed that Nash committed the offenses to which he pled guilty
before the effective date of the Adam Walsh Act and, therefore, should have been subject to
the provisions of Megan's Law. It is equally undisputed that Nash was incorrectly classified
and notified of a duty to register under the Adam Walsh Act at the time of his original
sentencing in 2009. The question in this case is: now that Nash has been released from
prison, what can be done about that problem? The State requests that we permit the
stipulated reclassification decision to stand. (State's Brief at 29.) Nash argues that his
classification under the Adam Walsh Act is void but that the court has no jurisdiction to
impose a new classification under Megan's Law. (Nash's Brief at 3-7.) In consequence,
Nash's stance appears to be either that no classification should apply to him or that an
interpretation of his erroneous classification allegedly made by the Ohio Attorney General's
Office should control. (Nash's Brief at 2, 6-7, 9.)
      B. First Assignment of Error – Whether the Trial Court had Jurisdiction to
         Reclassify Nash Despite the Fact that he had Been Released from Prison
          {¶ 11} In general, the remedy for circumstances in which an offender is mistakenly
classified according to the Adam Walsh Act is to vacate the classification and schedule a
hearing so that the offender can be properly classified under Megan's Law. State v. D.S.,
10th Dist. No. 15AP-790, 2016-Ohio-2856, ¶ 18-19. Nash argues that the general remedy
should not have applied to him because he had completed his prison term and, according
to Nash, the trial court had lost jurisdiction over him to hold such a hearing. (Nash's Brief

3   Archived online at 2007 Ohio SB 10.
No. 19AP-171                                                                               5


at 3-7.) Other districts have rejected the jurisdictional argument Nash raises. State v.
Sturgill, 4th Dist. No. 16CA21, 2017-Ohio-2736, ¶ 7-22; State v. Bell, 12th Dist. No. CA2015-
10-077, 2016-Ohio-7363, ¶ 9-21; State v. Miller, 8th Dist. No. 100768, 2014-Ohio-4568,
¶ 7-10. Nash nonetheless presents several arguments to justify his argument for lack of
jurisdiction.
       {¶ 12} First, Nash argues that Megan's Law classification hearings were required to
be held before his prison release date. (Nash's Brief at 3-4.) Nash cites State v. Brewer, 86
Ohio St.3d 160 (1999), for the proposition that if an offender has not been adjudicated a
sexual predator before the time of his release, the offender never can be. (Nash's Brief at 3-
4.) But in Brewer, the question was not whether the trial court had jurisdiction to impose
a classification and registration duties after the offender's release from prison. Brewer even
remarked that the trial court "may not lose jurisdiction to hold a hearing," simply as a
consequence of the offender's having been released. (Emphasis added.) Brewer at 164; see
also State v. Bellman, 86 Ohio St.3d 208, 209 (1999) (holding that the statutory timing
requirements of the sexual predator hearings are not jurisdictional and may be waived).
Rather, in Brewer, the crux of the problem was that, having never been classified prior to
release, it could not be said that the offenders had "been 'adjudicated as being a sexual
predator' according to the statute." Brewer at 164-65. While Nash was not "adjudicated"
under Megan's Law before his release from prison—he was classified and subjected to
registration duties (albeit erroneously) under the Adam Walsh Act. Unlike what occurred
in Brewer, the State was not seeking to classify Nash or impose onerous registration duties
for the first time; rather, the State has only sought to modify the existing classification and
registration duties to correct a mistake of law.
       {¶ 13} Second, Nash analogizes his situation to the circumstance where a court has
failed to impose post-release control or notify the offender. In such cases, once the prisoner
is released, post-release control cannot thereafter be imposed. (Nash's Brief at 6, citing
State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250; Hernandez v. Kelly, 108 Ohio St.3d
395, 2006-Ohio-126). However, we have distinguished Hernandez and progeny on the
grounds that, in Hernandez, post-release control was not imposed at all in the judgment
entry and no notification was given to the defendant. State v. Harper, 10th Dist. No. 17AP-
762, 2018-Ohio-2529, ¶ 16. In cases where post-release control was mentioned and
No. 19AP-171                                                                              6


imposed, albeit defectively, we have held that the trial court retains jurisdiction to correct
the error even after the offender has been released from prison. Id. at ¶ 16-19. Applying
Nash's analogy, we note that the trial court did not completely omit to impose a
classification on Nash or fail to inform him that he would have to register, it simply erred
in doing so because it imposed Nash's classification under the wrong law. We do not,
therefore, find that the Hernandez line of cases suggest that Nash should be beyond the
reach of the courts now to correct the error.
       {¶ 14} Nash finally argues that, even if the trial court had jurisdiction, the
reclassification remedy was unnecessary because he had already been reclassified by the
Attorney General's Office. (Nash's Brief at 7.) The record does not shed light on exactly
what is meant by Nash's assertion that the Attorney General's Office had reclassified him
already. At the trial level, Nash asserted that, "prior to his release last year, he was
reclassified by the Attorney General's office as a Tier I offender." (Jan. 13, 2019 Mot. to
Dismiss at 6.) The State countered with its own assertion that the Attorney General's Office
did not reclassify Nash as "Tier I" but instead listed him as a "(Pre AWA) Sexually Oriented
Offender" on its web registry for sex offenders. (Jan. 31, 2019 Memo. in Opp. at 14.) But
no actual records regarding this supposed reclassification or website listing were submitted
by either party. In any event, the Supreme Court has held:
               2. R.C. 2950.031 and 2950.032, which require the attorney
               general to reclassify sex offenders who have already been
               classified by court order under former law, impermissibly
               instruct the executive branch to review past decisions of the
               judicial branch and thereby violate the separation-of-powers
               doctrine.

               3. R.C. 2950.031 and 2950.032, which require the attorney
               general to reclassify sex offenders whose classifications have
               already been adjudicated by a court and made the subject of a
               final order, violate the separation-of-powers doctrine by
               requiring the opening of final judgments.

Bodyke at paragraphs two and three of the syllabus; see also Bundy v. State, 143 Ohio St.3d
237, 2015-Ohio-2138, ¶ 5, 8. For these reasons, we cannot find merit in Nash's unsupported
contentions regarding the Attorney General's Office's purported reclassification or in the
Attorney General's legal and state constitutional authority to correct a sentence and
classification of a trial court.
No. 19AP-171                                                                             7


         {¶ 15} We overrule Nash's first assignment of error.
   C. Second Assignment of Error – Whether Holding a Reclassification
      Hearing Violated Double Jeopardy
         {¶ 16} Nash argues that, having already been classified under the Adam Walsh Act
and "reclassified" by the Attorney General's Office, he cannot be reclassified again without
violating the Double Jeopardy Clauses of the U.S. and Ohio Constitutions. (Nash's Brief at
7-8.) See also Fifth Amendment to the U.S. Constitution; Ohio Constitution, Article I,
Section 10. The Adam Walsh Act provisions are punitive, whereas Megan's Law is a civil
registration classification. As such, we see where reclassification under the Adam Walsh
Act may support an argument for double jeopardy, post-release from prison, when
revisiting and increasing Adam Walsh Act classification or registration requirements. State
v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, ¶ 20-27. However, this is not the case for
Nash. Here, the trial court changed Nash's sex offender status to vacate the punitive
classification improperly imposed under the Adam Walsh Act and replaced it with the non-
punitive civil registration requirement imposed under Megan's Law; that does not trigger
double jeopardy analysis. See Cook, 83 Ohio St.3d at 410-23; Ferguson, 2008-Ohio-4824,
at ¶ 29-40. In short, imposing the correct Megan's Law civil registration requirements to
remedy an incorrect and punitive Adam Walsh Act classification is not a second
punishment that would violate double jeopardy. State v. Williams, 88 Ohio St.3d 513, 527-
28 (2000).
         {¶ 17} We overrule Nash's second assignment of error.
IV. CONCLUSION
         {¶ 18} Notwithstanding the fact that Nash has been released from prison, the trial
court had jurisdiction to vacate the improper punitive Adam Walsh Act classification, hold
a hearing, and replace it with an appropriate civil registration requirement under Megan's
Law. Because the Megan's Law requirements were civil, imposing them after vacating the
Adam Walsh Act classification did not violate double jeopardy. Having overruled Nash's
two assignments of error, we affirm the judgment of the Franklin County Court of Common
Pleas.
                                                                      Judgment affirmed.
                         BROWN and BEATTY BLUNT, JJ., concur.
No. 19AP-171   8
