[Cite as State v. Duran, 2014-Ohio-5208.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

 LUCAS COUNTY 

State of Ohio Court of Appeals No. L-13-1253 

 

 Appellee Trial Court No. CR90-5991 

v. 

Richard Garcia Duran DECISION AND JUDGMENT

Appellant Decided: November 21, 2014 

* * * * * 

 Julia R. Bates, Lucas County Prosecuting Attorney, and 

 Evy J. Jarrett, Assistant Prosecuting Attorney, for appellee. 

 David Klucas, for appellant. 

* * * * * 

PIETRYKOWSKI, J. 

{¶ 1} Defendant-appellant, Richard Garcia Duran, appeals the August 6, 2013 

judgment of the Lucas County Court of Common Pleas which found him to be a sexual 

predator. Because we find that the classification is supported by clear and convincing 

evidence, we affirm. 
2.

{¶ 2} In 1990, appellant, following a plea entered pursuant to North Carolina v. 

Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), was found guilty of one count 

of rape of a minor under the age of 13. Appellant was sentenced to an indefinite term of 

six to 25 years in prison. On August 20, 2010, while still in prison, appellant filed a pro 

se motion to vacate his sex offender classification based on general claims of 

constitutional violations. In response, the state asserted that appellant had never been 

judicially designated a sex offender and requested that the court confirm his Tier III 

status under the Adam Walsh Act, or R.C. 2950.09, as amended in 2007 by Am.Sub.S.B. 

10. On February 11, 2011, the trial court denied appellant’s motion finding that there 

was no court order classifying appellant as a sexual offender. 

{¶ 3} Thereafter, on March 12, 2012, appellant filed a pro se motion for 

resentencing requesting that he be resentenced under the sexual offender classification 

statutes in effect at the time the crime was committed. Appellant argued that the 

additional burdens in the amendments to the sex offender classification laws were 

punitive in nature. In response, the state argued that appellant should be classified 

pursuant to the 1997 version of Megan’s Law. 

{¶ 4} On March 6, 2013, the trial court granted appellant’s motion and ordered 

that a hearing be conducted in order to determine whether he should be classified as a 

sexual predator under Megan’s Law. The court agreed with appellant and the state that 

the Ohio Attorney General’s classification of appellant as a Tier III sexual offender under 

the Adam Walsh Act was improper based on the Supreme Court of Ohio’s decision in 
3.

State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108 (court 

determined that S.B. 10 was unconstitutional as applied to defendants who committed sex 

offenses prior to its enactment). 

{¶ 5} Appellant was ordered to undergo a diagnostic evaluation which was 

conducted on May 30, 2013, and a report was sent to the court on June 12, 2013. On 

July 31, 2013, the sexual offender classification hearing was held. No testimony was 

presented and the evaluation report as well as appellant’s prior criminal history were 

admitted into evidence. At the conclusion of the hearing, the trial court found appellant 

to be a sexual predator and informed him of his notification requirements. The judgment 

entry on the finding was journalized on August 6, 2013, and this appeal followed. 

{¶ 6} Appellant raises two assignments of error for our review: 

 Assignment of Error No. 1: The trial court committed reversible 

error when it classified Mr. Duran as a sexual predator. 

 Assignment of Error No. 2: Mr. Duran did not receive effective 

assistance of counsel at the classification hearing. 

{¶ 7} Appellant’s first assignment of error argues that the trial court erred in 

classifying him as a sexual predator. Appellant first contends that the classification 

violates the prohibition against Ex Post Facto laws found in the Ohio and United States 

Constitutions. Appellant then argues that, even assuming that the classification was 

constitutionally permissible, the court erred in finding that appellant is a sexual predator. 
4.

{¶ 8} The Supreme Court of Ohio has repeatedly held that the S.B. 5 version of 

R.C. Chapter 2950, or Megan’s Law, is remedial in nature. Thus, its application to 

offenses committed prior to its 1997 enactment does not violate the prohibition against 

Ex Post Facto or retroactive punishments. See State v. Ferguson, 120 Ohio St.3d 7, 

2008-Ohio-4824, 896 N.E.2d 110. Appellant notes that the “complexion” of the Ohio 

Supreme Court has changed and that it is more willing to view the sex offender 

registration requirements as punitive in nature. In this vein, the court addressed the issue 

of the constitutionality of the S.B. 10 amendments to R.C. Chapter 2950 known as the 

Adam Walsh Act. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108. In 

Williams, the court found that the registration requirements violated the prohibition on 

retroactive statutes as to the offender whose crime was committed prior to its effective 

date. Id. at syllabus. The court distinguished the S.B. 5 amendments which it found 

remedial and the S.B. 10 amendments which it found punitive. Specifically, the court 

found punitive the fact that the sexual predator label is now permanent for adult 

offenders, the registration requirements are more onerous, and the community 

notification was expanded. Id. at ¶ 14. 

{¶ 9} In the present case, because appellant’s reclassification proceedings were 

conducted according to the 1997, or S.B. 5 statutory amendments, they were 

constitutionally applied to appellant. Appellant next disputes the court’s finding that he 

is a sexual predator. 
5.

{¶ 10} A sexual predator is defined by R.C. 2950.01(E)(1) as a “person [who] has 

been convicted of or pleaded guilty to committing a sexually oriented offense that is not a 

registration-exempt sexually oriented offense and is likely to engage in the future in one 

or more sexually oriented offenses.” Appellant was convicted of rape of a minor less 

than 13 years of age, a sexually oriented offense which is not registration exempt under 

R.C. 2950.01(P) and (Q). 

{¶ 11} R.C. 2950.09(B)(3) sets forth the statutory factors the court must consider 

in determining whether one should be classified as a “sexual predator.” That section 

provides: 

 (3) In making a determination under divisions (B)(1) and (4) of this 

section as to whether an offender or delinquent child is a sexual predator, 

the judge shall consider all relevant factors, including but not limited to, all 

of the following: 

 (a) The offender’s or delinquent child’s age; 

 (b ) The offender’s or delinquent child’s prior criminal or 

delinquency record regarding all offenses, including, but not limited to, all 

sexual offenses; 

 (c) The age of the victim of the sexually oriented offense for which 

sentence is to be imposed or the order of disposition is to be made; 

 (d) Whether the sexually oriented offense for which sentence is to be 

imposed or the order of disposition is to be made involved multiple victims; 
6.

 (e) Whether the offender or delinquent child used drugs or alcohol to 

impair the victim of the sexually oriented offense or to prevent the victim 

from resisting; 

 (f) If the offender or delinquent child previously has been convicted 

of or pleaded guilty to, or been adjudicated a delinquent child for 

committing an act that if committed by an adult would be, a criminal 

offense, whether the offender or delinquent child completed any sentence or 

dispositional order imposed for the prior offense or act and, if the prior 

offense or act was a sex offense or a sexually oriented offense, whether the 

offender or delinquent child participated in available programs for sexual 

offenders; 

 (g) Any mental illness or mental disability of the offender or 

delinquent child; 

 (h) The nature of the offender’s or delinquent child’s sexual conduct, 

sexual contact, or interaction in a sexual context with the victim of the 

sexually oriented offense and whether the sexual conduct, sexual contact, or 

interaction in a sexual context was part of a demonstrated pattern of abuse; 

 (i) Whether the offender or delinquent child, during the commission 

of the sexually oriented offense for which sentence is to be imposed or the 

order of disposition is to be made, displayed cruelty or made one or more 

threats of cruelty; 
7.

 (j) Any additional behavioral characteristics that contribute to the 

offender’s or delinquent child’s conduct. 

{¶ 12} A trial court need not find all or even a majority of these factors in order to 

classify an offender as a sexual predator. State v. Whitson, 6th Dist. Wood No. WD-99-

034, 2000 WL 353122, *5 (Apr. 7, 2000). However, clear and convincing evidence must 

support a trial court’s determination that an offender is a sexual predator. R.C. 

2950.09(B)(4). The Supreme Court of Ohio has held that an appellate court must apply 

the civil manifest-weight-of-the-evidence standard in its review of the trial court’s 

findings in a sex offender classification. State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio2202, 865 N.E.2d 1264, ¶ 32. Under this standard, the trial court’s determination will be 

upheld if it is supported by some competent, credible evidence. Id.

{¶ 13} In the present case, the trial court reviewed appellant’s prior criminal 

record and the evaluation by clinical psychologist Dr. Charlene Cassel which ultimately 

recommended that appellant be classified as a “habitual child-victim offender.” The 

court then discussed each of the R.C. 2950.09(B)(3) factors and found the following. 

Appellant was 46 years old at the time of the offense and the victim was 11 years old. 

The court noted that there were charges relating to two other victims who were 12 and 

13, but that they did not result in a conviction. Appellant did not use drugs or alcohol to 

impair the victim. The court stated that appellant had been convicted of numerous 

offenses and one prior sexual offense. Appellant had completed sex-offender treatment 

but still referred to the offense as poor judgment and blamed the victim for his behavior. 
8.

No evidence of mental illness noted. As to the cruelty factor, the court stated that it was a 

“fine line” because although not severe, there was information that force was used to 

initiate the sexual contact and that the victim was warned not to tell anyone. 

{¶ 14} The court then reviewed the various standardized testing results which 

indicated that appellant was at a moderate risk for reoffending. The court then concluded 

that appellant would be classified as a sexual predator. 

{¶ 15} Upon review, we find it clear that the trial court thoroughly reviewed the 

evidence presented at the classification hearing in light of the R.C. 2950.09(B)(3) factors. 

We further conclude that clear and convincing evidence supports the court’s determination 

that appellant is a sexual predator. Appellant’s first assignment of error is not well-taken. 

{¶ 16} In his second assignment of error, appellant contends that he was denied 

the effective assistance of counsel where appointed counsel failed to call or crossexamine any witnesses. Specifically, appellant argues that counsel should have crossexamined Dr. Cassel regarding the evaluation report relied upon by the court. 

{¶ 17} The standard for determining whether a trial attorney was ineffective 

requires appellant to show: 1) that the trial attorney made errors so egregious that the 

trial attorney was not functioning as the “counsel” guaranteed appellant under the Sixth 

Amendment, and 2) that the deficient performance prejudiced appellant’s defense. 

Strickland v. Washington, 466 U.S. 668, 686-687, 104 S.Ct. 2052, 80 L.Ed.2d 674 

(1984). In essence, appellant must show that the proceedings, due to his attorney’s 

ineffectiveness, were so demonstrably unfair that there is a reasonable probability that the 
9.

result would have been different absent his attorney’s deficient performance. Id. at 693. 

Furthermore, a court must be “highly deferential” and “indulge a strong presumption that 

counsel’s conduct falls within the wide range of reasonable professional assistance” in 

reviewing a claim of ineffective assistance of counsel. Id. at 689. A properly licensed 

attorney in Ohio is presumed to execute his or her duties in an ethical and competent 

manner. State v. Hamblin, 37 Ohio St.3d 153, 155-56, 524 N.E.2d 476 (1988). 

Debatable strategic and tactical decisions may not form the basis of a claim for 

ineffective assistance of counsel. State v. Phillips, 74 Ohio St.3d 72, 85, 656 N.E.2d 643 

(1995). Even if the wisdom of an approach is debatable, “debatable trial tactics” do not 

constitute ineffective assistance of counsel. Id. 

{¶ 18} In the present case, appellant argues that his counsel should have, at 

minimum, cross-examined Dr. Cassel regarding her evaluation of appellant and her 

conclusions drawn therefrom. In particular, appellant contends that counsel should have 

questioned Cassel about the reliability of the standardized testing she performed We note 

that, in general, the decision to cross-examine witnesses and the extent of crossexamination of a witness is a tactical decision and left to the discretion of trial counsel. 

State v. Ellison, 6th Dist. Lucas No. L-02-1292, 2003-Ohio-6748, ¶ 33. See State v. 

Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678, ¶ 118. Thus, we will not 

question counsel’s strategic decision not to question Dr. Cassel and to rely instead on her 

report. Appellant’s second assignment of error is not well-taken. 
10. 

{¶ 19} On consideration whereof, we find that substantial justice was done the 

party complaining, and the judgment of the Lucas County Court of Common Pleas is 

affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal. 

Judgment affirmed. 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Mark L. Pietrykowski, J. _______________________________ 

JUDGE 

Arlene Singer, J. 

_______________________________ 

Thomas J. Osowik, J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE 

This decision is subject to further editing by the Supreme Court of 

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported 

version are advised to visit the Ohio Supreme Court’s web site at: 

http://www.sconet.state.oh.us/rod/newpdf/?source=6.