[Cite as State v. Barnett, 2013-Ohio-4936.]

COURT OF APPEALS 

PERRY COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : 

 : Hon. W. Scott Gwin, P.J. 

 Plaintiff - Appellee : Hon. John W. Wise, J. 

 : Hon. Craig R. Baldwin, J. 

 : 

-vs- : 

 : 

JEFFREY L. BARNETT : Case No. 12-CA-00010 

 : 

 : 

 Defendant - Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Perry County Court 

 of Common Pleas, Case No. 08-CR- 

 0070 

JUDGMENT: Affirmed in Part; Reversed 

 and Remanded in Part 

DATE OF JUDGMENT: November 6, 2013 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

JOSEPH A. FLAUTT JEFFREY L. BARNETT, PRO SE 

Prosecuting Attorney Inmate # 597-239 

111 North High Street P.O. Box 5500 

P.O. Box 569 Chillicothe, OH 45601 

New Lexington, OH 43764-0569 
Perry County, Case No. 12-CA-00010 2 

Baldwin, J.

{¶1} Defendant-appellant Jeffrey L. Barnett appeals his sentence issued by the 

Perry County Court of Common Pleas. Plaintiff-appellee is the State of Ohio. 

STATEMENT OF THE FACTS AND CASE 

{¶2} On September 19, 2008, the Perry County Grand Jury indicted appellant 

on fifteen (15) counts of rape in violation of R.C. 2907.02(A)(2), felonies of the first 

degree, fifteen (15) counts of sexual battery in violation of R.C. 2907.03(A)(5), felonies 

of the third degree, and fifteen (15) counts of unlawful sexual conduct with a minor in 

violation of R.C. 2907.04(A) and (B)(3), felonies of the third degree. The indictment 

alleged that the offenses occurred on or about June 2004 to May 2005. At his 

arraignment on September 22, 2008, appellant entered a plea of not guilty to the 

charges. 

{¶3} Subsequently, on December 3, 2008, appellant withdrew his former not 

guilty plea and entered a plea of guilty to eleven (11) counts of sexual battery. The 

remaining counts were dismissed. On January 14, 2009, appellant was adjudicated a 

Tier II sex offender. Pursuant to a Judgment Entry filed on January 16, 2009, the trial 

court sentenced appellant to a definite prison sentence of one (1) year on each count 

and ordered that the sentences be served consecutively, for an aggregate prison 

sentence of eleven (11) years. 

{¶4} Appellant, on February 17, 2012, filed a Motion for Resentencing, arguing 

that there was no final appealable order. After appellee filed a memorandum stating 

that the January 16, 2009 Judgment Entry was not a final appealable order, the trial 

court issued a Nunc Pro Tunc Judgment Entry on March 30, 2012. 
Perry County, Case No. 12-CA-00010 3 

{¶5} Appellant filed a Notice of Appeal from the March 30, 2012 Judgment 

Entry on April 27, 2012. After no appellant’s brief was filed, this Court, as memorialized 

in a Judgment Entry filed on August 1, 2012, dismissed the appeal for want of 

prosecution. 

{¶6} On November 1, 2012, appellant filed a Motion to Reopen Appeal 

pursuant to App.R. 26(B). This Court granted such motion. 

{¶7} Appellant now raises the following assignments of error on appeal: 

{¶8} THE TRIAL COURT’S SENTENCE IS CONTRARY TO LAW IN THAT IT 

FAILED TO APPLY THE FACTORS MANDATED BY O.R.C. 2929.11 AND 2929.12(D) 

AND OHIO CRIM. R. 32. 

{¶9} THE CONSECUTIVE SENTENCES IMPOSED ON APPELLANT ARE AN 

ABUSE OF DISCRETION FOR NOT PROPERLY CONSIDERING THE MITIGATING 

FACTORS ALONG WITH THE ENHANCEMENT FACTORS OF R.C. 2929.11; 

2929.12; AND THE MISAPPLICATION OF R.C. 2929.14( C)(4). 

{¶10} THE TRIAL COURT ERRORED (SIC) IN SENTENCING DEFENDANT 

UNDER THE REQUIREMENTS OF SENATE BILL 10 (AWA) INSTEAD OF MEGAN’S 

LAW. 

I 

{¶11} Appellant, in his first assignment of error, argues that his sentence is 

contrary to law because the trial court failed to apply the factors mandated by R.C. 

2929.11, 2929.12(D) and Crim.R. 32. 

{¶12} R.C. 2953.08(D) provides that “[a] sentence imposed upon a defendant is 

not subject to review ... if the sentence is authorized by law, has been recommended 
Perry County, Case No. 12-CA-00010 4 

jointly by the defendant and the prosecution in the case, and is imposed by a 

sentencing judge.” “In other words, * * * an agreed-upon sentence may not be 

[appealable] if (1) both the defendant and the state agree to the sentence, (2) the trial 

court imposes the agreed sentence, and (3) the sentence is authorized by law. R.C. 

2953.08(D)(1). If all three conditions are met, the defendant may not appeal the 

sentence.” State v. Underwood, 124 Ohio St.3d 365, 2010–Ohio–1, 922 N.E.2d 923, ¶ 

16. In Underwood, the Ohio Supreme Court held that R.C. 2953.08(D) did not prohibit 

appellate review of sentence for two counts of aggravated theft that were allied offenses 

of similar import and two counts of theft that were allied offenses of similar import. In so 

holding, the court stated, in relevant part, as follows: “Our holding does not prevent R.C. 

2953.08(D)(1) from barring appeals that would otherwise challenge the court's 

discretion in imposing a sentence, such as whether the trial court complied with 

statutory provisions like R.C. 2929.11 (the overriding purposes of felony sentencing), 

2929.12 (the seriousness and recidivism factors), and/or 2929.13(A) through (D) (the 

sanctions relevant to the felony degree) or whether consecutive or maximum sentences 

were appropriate under certain circumstances.” Id at paragraph 22. 

{¶13} Appellant's sentence was part of a negotiated plea agreement and is 

authorized by law. Therefore, the sentence is not subject to review pursuant to R.C. 

2953.08(D). Furthermore, the state agreed to dismiss the remaining charges. Appellant 

received a benefit and the trial court sentenced appellant to what was bargained for in 

the plea. 

{¶14} Appellant’s first assignment of error is, therefore, overruled. 
Perry County, Case No. 12-CA-00010 5 

II 

{¶15} Appellant, in his second assignment of error, argues that the trial court 

erred in imposing consecutive sentences on him. 

{¶16} As is stated above, [i]t is well-established that a sentence that is agreed 

upon as part of a negotiated plea, and that does not exceed the statutory maximum 

sentence applicable to the crime, and is not subject to appellate review pursuant to R.C. 

§ 2953.08(D).” State v. Yeager, 7th Dist. Carroll No. 03CA786, 2004–Ohio–3640, ¶ 21 

(additional citations omitted). In the case sub judice, in exchange for appellant's guilty 

plea, appellant was sentenced in accordance with the plea agreement. Appellant has 

thus waived his right to appeal his consecutive sentences. See State v. Davis, 5th Dist. 

Muskingum No. CT2011–0033, 2012-Ohio-4922. 

{¶17} Appellant’s second assignment of error is, therefore, overruled. 

III 

{¶18} Appellant, in his third assignment of error, argues that the trial court erred 

in sentencing him under the requirements of Senate Bill 10 (the Adam Walsh Act) rather 

than those of Megan’s law. 

{¶19} Appellant specifically argues that the Adam Walsh Child Protection Safety 

Act (“AWA”), as enacted by the Ohio General Assembly in Am. Sub. S.B. No. 10 and 

effective January 1, 2008, may not be applied retroactively to him. In 1996, the General 

Assembly enacted Am. Sub. H.B. 180 (“Megan's Law”), which amended the state's sex 

offender registration process. State v. Cook, 83 Ohio St.3d 404, 406, 1998–Ohio–291, 

700 N.E.2d 570. In 2007, the General Assembly enacted Am. Sub. S.B. 10, which 
Perry County, Case No. 12-CA-00010 6 

repealed Megan's Law and replaced it with Ohio's version of the Adam Walsh Act 

(“S.B.10”). 

{¶20} In State v. Williams, 129 Ohio St.3d 344, 2011–Ohio–3374, 952 N.E.2d 

1108, the Ohio Supreme Court held in the syllabus that, “2007 Am. Sub. S.B. No. 10, as 

applied to defendants who committed sex offenses prior to its enactment, violates 

Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly 

from passing retroactive laws.” (Emphasis added).The defendant in Williams committed 

the sexually oriented offenses before the effective date of S.B. 10. He was designated a 

Tier II sex offender by the trial court after the effective date of S.B. 10. Williams at ¶ 1–3. 

The Ohio Supreme Court held that application to S.B. 10 to him was unconstitutional. 

{¶21} In the case sub judice, the indictment alleged that appellant committed his 

offenses in 2004 and 2005. Appellant pleaded guilty to eleven (11) counts of sexual 

battery, was sentenced in 2009 for such offenses, and was adjudicated a Tier II sex 

offender. Appellant, therefore, committed his offenses prior to the enactment of the 

AWA and the trial court erred in applying the provisions of the Adam Walsh Act to him. 

We note that appellee concurs that the trial court “improperly used the provisions 

pursuant to the Adam Walsh Act rather than the provisions pursuant to Megan’s Law.” 

{¶22} Appellant’s third assignment of error is, therefore, sustained. 

 
Perry County, Case No. 12-CA-00010 7 

{¶23} Accordingly, the judgment of the Perry County Court of Common Pleas is 

affirmed in part and reversed in part. This matter is remanded for proceedings in 

accordance with this Opinion. 

By: Baldwin, J. 

Gwin, P. J. and 

Wise, J. concur. 

 

HON. CRAIG R. BALDWIN 

HON. W. SCOTT GWIN 

HON. JOHN W. WISE 

CRB/dr
[Cite as State v. Barnett, 2013-Ohio-4936.]

IN THE COURT OF APPEALS FOR PERRY COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff - Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

JEFFREY L. BARNETT : 

 : 

 Defendant - Appellant : CASE NO. 12-CA-00010 

For the reasons stated in our accompanying Memorandum-Opinion, the 

judgment of the Court of Common Pleas of Perry County, Ohio is affirmed in part and 

reversed and remanded in part. Costs assessed 50% to appellant and 50% to appellee. 

HON. CRAIG R. BALDWIN 

HON. W. SCOTT GWIN 

HON. JOHN W. WISE