[Cite as State v. Ortega-Martinez, 2011-Ohio-2540.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 95656 

STATE OF OHIO 

PLAINTIFF-APPELLANT 

vs. 

ANGEL ORTEGA-MARTINEZ 

DEFENDANT-APPELLEE

JUDGMENT: 

AFFIRMED 

 

Criminal Appeal from the 
Cuyahoga County Court of Common Pleas 

Case No. CR-534907 

BEFORE: Stewart, P.J., Sweeney, J., and Jones, J. 

RELEASED AND JOURNALIZED: May 26, 2011 

ATTORNEYS FOR APPELLANT

William D. Mason 

Cuyahoga County Prosecutor 

BY: Daniel T. Van 

 Katherine E. Mullin 

Assistant County Prosecutors 

The Justice Center 

1200 Ontario Street, 8th Floor 

Cleveland, OH 44113 

ATTORNEYS FOR APPELLEE

Robert L. Tobik 

Cuyahoga County Public Defender 

BY: Cullen Sweeney 

 Frank Cavallo 

Assistant Public Defenders 

310 Lakeside Avenue, Suite 400 

Cleveland, OH 44113 

MELODY J. STEWART, P.J.: 
{¶ 1} In 2001, appellee Angel Ortega-Martinez was convicted of 

statutory rape in Tennessee and classified under Tennessee law as a sexual 

offender.1 After his release from prison, Ortega-Martinez moved to Ohio and 

registered his address with the Cuyahoga County Sheriff’s Office. Pursuant 

to the provisions of Chapter 2950 of the Ohio Revised Code in effect at that 

time, as a sexually oriented offender, Ortega-Martinez was required to verify 

his address annually for ten years. Beginning in August 2003, 

Ortega-Martinez registered annually as required by law. 

{¶ 2} In July 2007, the Ohio General Assembly repealed the existing 

sexual offender registration statutes and replaced them with Ohio’s version of 

the Adam Walsh Act (AWA) under which a sexual offender is classified using a 

three-tiered system based solely upon the offense committed. OrtegaMartinez was notified that, pursuant to R.C. 2950.031 and 2950.032, the Ohio 

Attorney General had reclassified him as a Tier II sex offender. 

Ortega-Martinez was informed that beginning in January 2008 he was 

required to register every 180 days for 25 years.2 

 1

 There were only two possible sexual offender classifications available under Tennessee law 

at that time: sexual offender or violent sexual offender. 

2

 On March 5, 2008, Ortega-Martinez filed a civil petition contesting his reclassification under 

the AWA. While this appeal was pending, the trial court granted Ortega-Martinez’s petition and found 

that, pursuant to State v. Bodyke, 126 Ohio St.3d, 266, 2010-Ohio-2424, 933 N.E.2d 753, 

Ortega-Martinez’s reclassification was unconstitutional. The state has appealed this decision. 
{¶ 3} On June 3, 2010, the Supreme Court of Ohio decided Bodyke, in 

which it concluded that 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, was an unconstitutional violation of the 

separation-of-powers doctrine. As a remedy, the court held “that R.C. 

2950.031 and 2950.032 are severed and, that after severance, they may not be 

enforced.” Id. at ¶66. 

{¶ 4} Ortega-Martinez was indicted for failing to verify his address on 

January 9, 2010 in violation of R.C. 2950.06(F), a fourth degree felony. 

Ortega-Martinez filed a motion to dismiss the indictment on the grounds that 

it was based upon the attorney general’s unconstitutional reclassification of 

his sexual offender status per Bodyke. The state opposed the motion and 

argued that Bodyke applied only to offenders whose original sexual offender 

classification was adjudicated by an Ohio court, not to out-of-state offenders 

like Ortega- Martinez. The state also contested the use of a motion to dismiss 

as a challenge to an indictment that they claimed was facially valid. The trial 

court granted Ortega-Martinez’s motion to dismiss the indictment on August 

27, 2010. The state timely appeals this judgment and raises two assignments 

of error. 
{¶ 5} “I. The trial court erred in finding that the defendant’s 

indictment was based on the Attorney General’s unconstitutional 

reclassification.” 

{¶ 6} It is the state’s contention that Bodyke is limited to those cases in 

which there was an adjudication of a sexual offender’s classification by an 

Ohio court prior to the attorney general’s notice of reclassification. The state 

maintains that with Ortega-Martinez, as with all out-of-state offenders, the 

Ohio sexual offender classification arose by operation of law and not by court 

order. The state argues that because there is no judicial order from an Ohio 

court classifying out-of-state offenders, there can be no violation of the 

separation of powers doctrine and, therefore, the attorney general is not 

precluded from reclassifying the offender under the new Ohio classifications. 

{¶ 7} Shortly after Bodyke was released, this court was called upon to 

determine whether that holding also applied to an out-of-state offender whose 

sexual offender status had been reclassified by the Ohio Attorney General. In 

Majewski v. State, 8th Dist. Nos. 92372 and 92400, 2010-Ohio-3178, the 

defendant had been convicted of sexual assault and attempted sexual assault 

in Hawaii and was classified as a sexually oriented offender, the least 

restrictive classification. After release from prison, he moved to Ohio and 

registered with the sheriff’s office. In 2007, he was notified that, pursuant to 

the passage of S.B. 10, the Ohio Attorney General had reclassified him as a 
Tier III sex offender, the most restrictive classification, which required that he 

register with the sheriff’s office every 90 days for life. Majewski contested his 

reclassification arguing that the AWA was unconstitutional. The trial court 

upheld the reclassification. 

{¶ 8} On appeal, we reversed, stating: 

{¶ 9} “In Bodyke, the Ohio Supreme Court recently determined that the 

AWA violates the separation of power doctrine, stating the following: ‘The 

AWA’s provisions governing the reclassification of sex offenders already 

classified by judges under Megan’s Law violates the separation-of-powers 

doctrine for two related reasons: the reclassification scheme vests the 

executive branch with authority to review judicial decisions, and it interferes 

with the judicial power by requiring the reopening of final judgments.’ Id. at 

¶55. 

{¶ 10} “Essentially, the AWA is a legislative mechanism to reopen the 

judgments on countless sex offender classifications, and reclassify those 

individuals, usurping the initial judgment of the trial court. Only appellate 

courts have the power to affirm, reverse, or modify a final judgment. Bodyke

at ¶58; Section 3(B)(2), Article IV, Ohio Constitution.” 

{¶ 11} The state appealed our decision in Majewski to the Ohio Supreme 

Court upon the identical argument raised in this appeal. On December 15, 

2010, the supreme court dismissed the appeal as not involving any substantial 
constitutional question. Majewski v. State, 127 Ohio St.3d 1462, 

2010-Ohio-6008, 938 N.E.2d 364 (Table). Accordingly, our holding that 

Bodyke applies to out-of-state offenders remains controlling precedent in this 

jurisdiction. The state’s first assignment of error is overruled. 

{¶ 12} We note that the Fifth District Court of Appeals has also reached 

the same conclusion. In Clager v. State, 5th Dist. No. 10-CA-49, 

2010-Ohio-6074, Clager was convicted in Texas of possessing child 

pornography. He then moved to Ohio in 2003. In 2007, he received notice 

that he had been reclassified as a Tier II offender under the AWA. He 

challenged the new classification, claiming that the Ohio Attorney General’s 

reclassification was unconstitutional and barred by Bodyke. Clager argued 

that in one of the cases reviewed by the Ohio Supreme Court, in In re 

Sexual-Offender Reclassification Cases, 126 Ohio St.3d 322, 2010-Ohio-3753, 

933 N.E.2d 801, ¶63, the court reversed the reclassification of an out-of-state 

offender who had never been classified in Ohio under Megan’s Law on 

separation of powers grounds. (“The judgments of the courts of appeals in the 

following cases [including Robinson v. State, Hamilton App. No. C-090002] are 

reversed as to those portions of the judgments that rejected constitutional 

challenges to the Adam Walsh Act on separation-of-powers grounds, and the 

causes are remanded to the trial courts for further proceedings, if any, 

necessitated by State v. Bodyke.” Id. at ¶15. The appellate court agreed and 
held, that “out-of-state offenders are not subject to the Ohio Attorney 

General’s reclassification as it violates the separation of powers doctrine.” 

Clager at ¶25. 

{¶ 13} “II. The trial court erred in dismissing the indictment where the 

indictment was valid on its face.” 

{¶ 14} The state’s second assignment of error asserts that the trial court 

erred in dismissing the indictment where the indictment was valid on its face. 

 The state argues that Ortega-Martinez’s motion questions the state’s ability 

to prove the indictment, and therefore, dismissal is not proper. 

{¶ 15} As a general rule, “[a] pretrial motion must not involve a 

determination of the sufficiency of the evidence to support the indictment. If 

the indictment is valid on its face, a motion to dismiss should not be granted.” 

State v. Preztak, 181 Ohio App.3d 106, 2009-Ohio-62, 907 N.E.2d 1254, ¶12, 

citing State v. Eppinger, 162 Ohio App.3d 795, 2005-Ohio-4155, 835 N.E.2d 

746. However, the Supreme Court of Ohio has carved out an exception to the 

general rule, noting that a court may consider material outside the face of the 

indictment if the “motion did not embrace what would be the general issue at 

trial.” State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, 

¶18; Crim.R. 12(C). The court may consider briefs, affidavits, testimony, and 

other exhibits in deciding the motion. Id. However, a court may not 
determine a pretrial motion to dismiss if it requires the trial court to also 

determine the general issue for trial. Id. 

{¶ 16} In the instant case, the trial court did not impermissibly decide 

the issue for trial in ruling on Ortega-Martinez’s motion to dismiss. 

Ortega-Martinez’s motion did not address what would be the general factual 

issue for trial (whether the evidence showed Ortega-Martinez failed to verify 

his address on January 1, 2008); rather, it asserted that the question of 

whether Ortega-Martinez’s indictment for failure to verify was predicated on 

an unconstitutional reclassification by the Ohio Attorney General. Because 

Ortega-Martinez’s motion did not require a determination of the factual issue 

for trial, the trial court could properly consider the motion under Crim.R. 

12(C). 

{¶ 17} This court has held that an unlawful reclassification under Ohio’s 

AWA cannot serve as the predicate for the crime of failure to verify. State v. 

Smith, 8th Dist. No. 92550, 2010-Ohio-2880, ¶29; State v. Page, 8th Dist. No. 

94369, 2011-Ohio-83. Because appellant’s indictment was predicated on an 

unlawful reclassification, he cannot be convicted of the offense charged. The 

trial court did not err by dismissing the indictment. The state’s second 

assignment of error is overruled. 

Judgment affirmed. 

It is ordered that appellee recover of appellant his 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 Cuyahoga 

County Court of Common Pleas 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. 

 

MELODY J. STEWART, PRESIDING JUDGE 

JAMES J. SWEENEY, J., and 

LARRY A. JONES, J., CONCUR