[Cite as State v. Klepatzki, 2014-Ohio-4571.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 100847

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

BENJAMIN KLEPATZKI

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-01-407962-ZA 

BEFORE: Keough, J., Rocco, P.J., and Stewart, J. 

RELEASED AND JOURNALIZED: October 16, 2014 
ATTORNEYS FOR APPELLANT

Robert L. Tobik 

Public Defender 

By: Cullen Sweeney 

Assistant Cuyahoga County Public Defender 

310 Lakeside Avenue 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Diane Smilanick 

Assistant Prosecuting Attorney 

The Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
KATHLEEN ANN KEOUGH, J.: 

{¶1} Defendant-appellant, Benjamin Klepatzki, appeals the trial court’s denial of 

his Civ.R. 60(B) motion to vacate his sexual predator classification. For the reasons that 

follow, we affirm. 

{¶2} In 2001, Klepatzki was convicted of breaking and entering, and two counts 

each of voyeurism and menacing by stalking. He was sentenced to five years of 

community control sanctions. In 2002, Klepatzki was found to be in violation of the 

terms and conditions of community control and was sentenced to 17 months in prison. 

This sentence was ordered to run concurrent with a 45-month sentence in Case No. CR 

01-406228. This court affirmed his sentence in State v. Klepatzki, 8th Dist. Cuyahoga 

No. 81676, 2003-Ohio-1529 (“Klepatzki I”). 

{¶3} In 2003, the General Assembly amended Megan’s Law in Am.Sub.S.B. 5 

(“S.B. 5”), which allowed the state to request that Klepatzki be classified as a sex 

offender. In 2005 and while Klepatzki was still in prison serving the remainder of his 

sentence in Case No. CR 01-406228, the state requested in Case No. CR 01-407962 that 

Klepatzki be classified as a sexual predator. Following a hearing in 2006, the court 

classified Klepatzki as a sexual predator, which this court affirmed in State v. Klepatzki, 

8th Dist. Cuyahoga No. 88416, 2007-Ohio-2511 (“Klepatzki II ”). 
{¶4} In 2013, Klepatzki moved the trial court pursuant to Civ.R. 60(B) to vacate 

his sexual predator classification. He argued that the trial court lacked the authority or 

jurisdiction to classify him because both voyeurism and menacing by stalking were 

presumptive registration-exempt sex offenses under former R.C. 2950.01(P)(1)(a). He 

contended that because the presumption was not removed by the trial court prior to 

sentencing, the offenses became “registration-exempt sexually oriented offenses” 

pursuant to former R.C. 2950.01(Q) and 2950.021. His motion also asserted that former 

R.C. 2950.09 did not authorize a trial court to hold a sexual predator classification 

hearing for registration exempt sexually oriented offense. Accordingly, Klepatzki argued 

that his classification was void ab initio. 

{¶5} The state responded that Klepatzki’s motion was untimely and barred by res 

judicata because this issue could have been raised at the time of classification in 2006 or 

in his appeal from that classification. The trial court agreed with the state and found that 

Klepatzki’s motion was barred by the doctrine of res judicata. 

{¶6} Klepatzki now appeals from this decision, raising as his sole assignment of 

error that the trial court erred when it failed to vacate a sexual predator classification that 

was based on offenses that were exempt from registration. He contends, citing State v. 

Cole, 8th Dist. Cuyahoga No. 96687, 2011-Ohio-6283, that res judicata does not bar this 

appeal because if a trial court classifies an individual as a sex offender without statutory 

authority to do so, the court acts without jurisdiction and the resulting order is void. In 

opposition, the state contends that Klepatzki’s appeal is barred by res judicata. 
{¶7} “A judgment will be deemed void when it is issued by a court which did not 

have subject matter jurisdiction or otherwise lacked the authority to act.” State v. 

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 6. On the other hand, 

“a voidable judgment is one rendered by a court that has both jurisdiction and authority to 

act, but the court’s judgment is invalid, irregular, or erroneous.” State v. Simpkins, 117 

Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 12. 

{¶8} If a judgment is void, the doctrine of res judicata has no application, and the 

propriety of the decision can be challenged on direct appeal or by collateral attack. 

Fischer at paragraph one of the syllabus; State v. Billiter, 134 Ohio St.3d 103, 

2012-Ohio-5144, 980 N.E.2d 960, ¶ 10 (“if a trial court imposes a sentence that is 

unauthorized by law, the sentence is void”). If a sentencing judgment is merely voidable, 

rather than void, the doctrine of res judicata applies and any argument regarding the 

merits of the decision is considered waived for all purposes unless it is asserted as part of 

the direct appeal. State ex rel Porterfield v. McKay, 11th Dist. Trumbull No. 

1012-T-0012, 2012-Ohio-5027, ¶ 13. 

{¶9} In 2001, when Klepatzki was originally sentenced, neither voyeurism nor 

menacing by stalking were statutorily defined as sexually oriented offenses under 

Megan’s Law. See former R.C. 2950.01(2001). When the General Assembly amended 

Megan’s Law through S.B. 5, former R.C. 2950.01 was amended to include both 

voyeurism and menacing by stalking of an adult as sexually oriented offenses. S.B. 5 

also added another “class” of sex offenders: the registration exempt sexually oriented 
offenders. State v. Johnson, 6th Dist. Ottawa OT-05-053, 2006-Ohio-7004, *9, citing 

State v. Cooper, 1st Dist. Hamilton No. C-030921, 2004-Ohio-6428. 

{¶10} Under former 2950.01, a presumption is created that certain sexually 

oriented offenses are exempt from the registration requirements of R.C. Chapter 2950. 

Pursuant to former R.C. 2950.01(P)(1)(a) and (D)(1)(e), voyeurism and menacing by 

stalking committed by an offender 18 years of age or older and with a sexual motivation, 

are presumptive registration-exempt sexually oriented offenses, “when committed by a 

person who previously has not been convicted of, pleaded guilty to, or adjudicated a 

delinquent child for committing any sexually oriented offense described in division 

(P)(1)(a), (b), (c), (d), or (e), any other sexually oriented offense, * * *.” (Emphasis 

added.) 

{¶11} In this case, Klepatzki was convicted in 1989 of committing a sexually 

oriented offense — gross sexual imposition in violation of R.C. 2907.05. See Klepatzki I 

at ¶ 15 (noting Klepatzki’s prior conviction). Former R.C. 2950.01(D)(1)(a) identifies 

gross sexual imposition as a sexually oriented offense. Therefore, Klepatzki’s 

subsequent convictions for voyeurism and menacing by stalking were not presumptive 

registration-exempt sexually oriented offenses. See former R.C.2950.01(P)(2). 

{¶12} In so far that Klepatzki argues that any sexual predator classification hearing 

had to occur prior to sentencing, the Ohio Supreme Court has rejected this argument by 

stating that “prior to sentencing” as written in former R.C. 2950.09(B)(2) is not 

jurisdictional, but directory. State v. Bellman, 86 Ohio St.3d 208, 210, 714 N.E.2d 381 
(1999); see also State v. Webb, 9th Dist. Lorain No. 06CA008875, 2006-Ohio-5476; State 

v. Echols, 2d Dist. Greene No. 99CA60, 2000 Ohio App. LEXIS 1906 (May 5, 2000). 

{¶13} Accordingly, Klepatzki’s argument that his sexual predator classification is 

void is without merit because the trial court acted with authority and jurisdiction in 

classifying him as a sexual predator in 2006 pursuant to former R.C. 2950.09. This court 

affirmed his sexual predator classification in Klepatzki I; thus, res judicata applies and the 

trial court did not err in denying Klepatzki’s Civ.R. 60(B) motion to vacate. The 

assignment of error is sustained. 

{¶14} Judgment affirmed. 

It is ordered that appellee recover from appellant 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. 

KATHLEEN ANN KEOUGH, JUDGE 

KENNETH A. ROCCO, P.J., and 

MELODY J. STEWART, J., CONCUR