[Cite as State v. Montgomery, 2012-Ohio-391.]

IN THE COURT OF APPEALS OF OHIO 

 SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

LAWRENCE MONTGOMERY 

Defendant-Appellant 

Appellate Case No. 24450 

Trial Court Case No. 2009 CR 02328 

(Criminal Appeal from 

 Common Pleas Court) 

. . . . . . . . . . . 

O P I N I O N

Rendered on the 3rd day of February , 2012. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by JOHNNA M. SHIA, Atty. Reg. #0067685, Montgomery 

County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. 

Box 972, 301 West Third Street, Dayton, Ohio 45422 

Attorney for Plaintiff-Appellee 

 

KATHERINE A. SZUDY, Atty. Reg. #0076729, Office of the Ohio Public Defender, 

Assistant State Public Defender, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215 

Attorney for Defendant-Appellant 

 . . . . . . . . . . . . . 

 

WAITE, J. (Sitting by Assignment) 
2

{¶ 1} Appellant Lawrence Montgomery appeals the judgment of the Montgomery 

County Court of Common Pleas overruling the motion to vacate his sentence. Appellant 

was convicted of rape in 1987 and was later adjudicated as a sexually oriented offender. He 

was released from prison in 2004. As part of his designation as a sexually oriented 

offender, he was required to register or verify his address with the county sheriff annually. 

In 2007, he was reclassified as a Tier II Sex Offender under the new provisions of Ohio’s 

version of the federal Adam Walsh Act (“AWA”). Starting in 2008, he was required to 

register or verify his address every 90 days. Appellant subsequently failed to verify his 

address as required by the AWA. He pleaded guilty to the charge and on August 19, 2009, 

he was sentenced to three years in prison. He did not appeal the conviction or sentence. 

{¶ 2} On June 3, 2010, in State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 

933 N.E.2d 753, the Ohio Supreme Court decided that certain parts of the AWA were 

unconstitutional. The Court held that the provisions allowing the Ohio Attorney General to 

reclassify sexual offenders who had previously had their sexual offender classification 

determined by a judge violated the constitutional rule of separation of powers. The 

reclassification provisions of the AWA were severed from R.C. Chapter 2950. Thus, on 

November 16, 2010, Appellant filed a motion to vacate his sentence based on the holding in 

Bodyke. The trial court ruled on the motion on December 29, 2010 and determined that 

Appellant could not rely on Bodyke because that case applied only to offenders whose 

convictions were pending on appeal on the date Bodyke was announced. Since Appellant 

did not file a direct appeal of his conviction, the trial court accurately concluded that his case 

was not pending when Bodyke was announced. The motion to vacate was overruled. 
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{¶ 3} Appellant argues on appeal that the trial court should have applied the Bodyke

holding and vacated his conviction and sentence because it was based on his 2008 

reclassification as a Tier III sexual offender by the Ohio Attorney General. Appellant’s 

argument is persuasive. Bodyke, as well as subsequent Ohio Supreme Court opinions, 

prohibit the application of the AWA to all offenders who were previously adjudicated under 

Megan’s Law due to a separation of powers violation. The Ohio Supreme Court has also 

held that the AWA is punitive and violates the constitutional prohibition against retroactive 

laws. State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374. Similar to Bodyke, the 

Williams Court held that the AWA could not be applied to any offender who committed an 

offense prior to the enactment of the law. Id. at ¶22. Based on Bodyke and Williams, 

Appellant’s guilty plea, conviction and sentence are vacated and the case is remanded to the 

trial court for further proceedings. 

Background of the Case

{¶ 4} Appellant was originally convicted of rape in 1987, and was released from 

prison on March 11, 2004. On August 16, 2000, while he was still incarcerated for the rape 

conviction, he was adjudicated by the Montgomery County Court of Common Pleas as a 

sexually oriented offender under Ohio’s version of the federal Jacob Wettling Act, also 

known as Megan’s Law. Ohio’s version of Megan’s Law was passed as part of 

Am.Sub.H.B. No. 180, 146 Ohio Laws, Part II, 2560, effective January 1, 1997, and codified 

in R.C. Chapter 2950. As part of his designation as a sexually oriented offender, Appellant 

was required to register annually with the Sheriff’s Office for ten years and to verify his 

address annually for ten years. Appellant was released from prison on March 11, 2004. 
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{¶ 5} In 2006, Congress replaced Megan’s Law with the AWA, codified at Section 

16901 et seq., Title 42, U.S.Code. The AWA created a three-tiered system of sexual 

offender classification and registration, and the act required states to comply with the new 

law or risk losing their federal crime-control funding. In 2007, Ohio adopted the Sex 

Offender Registration and Notification Act, R.C. Chapter 2950, as its version of the federal 

AWA. Ohio’s AWA was passed as part of Sub. S.B. 10, 2007 Ohio Laws 10, effective 

January 1, 2008. The classification scheme for sexual offenders changed significantly 

under S.B. 10, subjecting the offender to longer and more burdensome reporting and 

registration requirements than under Megan’s Law, and in many cases providing for more 

severe penalties for violations of the statute. Appellant was automatically reclassified under 

the AWA. He received a letter notifying him of the new classification on November 26, 

2007, with the change to be effective on January 1, 2008. Under the new classification 

system, Appellant was required to register or verify his address with the county sheriff every 

90 days for life. Appellant subsequently failed to verify his address as a sex offender under 

the new law and was charged with and convicted of a first degree felony for failure to report 

pursuant to R.C. 2950.06. He was sentenced on August 19, 2009, to three years in prison. 

He did not appeal the conviction or sentence. 

{¶ 6} On June 3, 2010, the Ohio Supreme Court decided that certain parts of Ohio’s 

version of the AWA were unconstitutional. State v. Bodyke, 126 Ohio St.3d 266, 

2010-Ohio-2424, 933 N.E.2d 753. Pursuant to Bodyke, Appellant’s original classification 

as a sexually oriented offender was reinstated, along with the former notification provisions. 

{¶ 7} On November 16, 2010, Appellant filed a motion to vacate his sentence. 

The state filed a response, and the court ruled on the motion on December 29, 2010. The 
5

court noted that Appellant did not appeal the final judgment issued on August 19, 2009. 

The court held that Bodyke applied only to cases that remained pending when the decision 

was rendered on June 3, 2010. As Appellant’s case was not on direct appeal when Bodyke

was released, the trial court did not apply Bodyke to Appellant’s situation. The court also 

determined that if Appellant’s motion to vacate was actually intended to be a motion for 

postconviction relief, it was filed beyond the time limit set by the postconviction relief 

statute, R.C. 2953.21(A)(2). The court then overruled the motion to vacate. 

{¶ 8} Appellant filed this timely appeal on January 26, 2011. 

ASSIGNMENT OF ERROR

{¶ 9} “The trial court erred when it overruled Mr. Montgomery’s November 16, 

2010 Motion to Vacate His Three-Year Prison Term. (December 29, 2010 Decision, Order, 

and Entry Overruling Defendant’s Motion to Vacate His Three-Year Prison Term).” 

{¶ 10} Appellant argues that he was not subject to the requirements of the AWA and 

could not have been convicted of violating the 90-day verification requirements of the 

statute. He contends that he was judicially designated as a sexually oriented offender under 

Megan’s Law and is subject only to the annual registration and verification provision of that 

statute. He relies on Bodyke to support his reasoning. Bodyke held that the AWA violates 

the constitutional rule of separation of powers because it gave the Ohio Attorney General, an 

officer of the executive branch of the government, the power to review and reclassify sexual 

offenders after their sexual offender classification had already been determined by a judicial 

proceeding. Id. at paragraph two of the syllabus. The AWA also violates the rule of 

separation of powers because the state legislature, in effect, used its lawmaking power to 

modify or overturn final judgments issued by judges. Id. at ¶55. The Ohio Supreme Court 
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has held that “[t]he administration of justice by the judicial branch of the government cannot 

be impeded by the other branches of the government in the exercise of their respective 

powers.” State ex rel. Johnston v. Taulbee, 66 Ohio St.2d 417, 423 N.E.2d 80, (1981), 

paragraph one of the syllabus. Based on the dual violations of the separation of powers, the 

reclassification provisions of the AWA, R.C. 2950.031 and 2950.032, were severed from 

R.C. Chapter 2950 and were rendered unenforceable. Id. at ¶66. Appellant argues on 

appeal that the trial court should have applied the Bodyke holding and vacated his sentence 

because it was based on his 2008 reclassification as a Tier III sexual offender by the Ohio 

Attorney General, and was not based on a violation of the former Megan’s Law. 

{¶ 11} Appellee argues that Bodyke may only be applied to cases that were still 

pending on direct appeal on the date that Bodyke was announced. We have recently held 

otherwise: “Following its expansive language, the supreme court has not limited its holding 

in Bodyke to that case and to those sex offenders who had pending cases based on challenges 

to their reclassifications. Rather, the supreme court has applied Bodyke to all sex offenders 

who were reclassified by the Attorney General under R.C. 2950.031 and R.C. 2950.032.” 

State v. Eads, 2d Dist. Montgomery No. 24696, 2011-Ohio-6307, ¶20. Failure to challenge 

the reclassification provisions of the AWA on direct appeal is not a bar to raising a Bodyke

challenge through some other procedural mechanism. Id. at ¶23. We have also held that 

sentences arising from an improper reclassification of an offender under the AWA are void. 

State v. Pritchett, 2d Dist. Montgomery No. 24183, 2011-Ohio-5978, ¶28. A void sentence 

may be reviewed at any time either on direct appeal or through a collateral attack of the 

sentence. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶30. 
7

{¶ 12} The parties are aware that a motion to vacate a void sentence is not 

specifically provided for in the Ohio Rules of Criminal Procedure. Appellant argues that 

his motion should be treated as a Civ.R. 60(B) motion for relief from judgment. Civ.R. 

60(B), a rule of civil procedure, is sometimes applied to criminal cases by reference to 

Crim.R. 57(B), which allows a criminal court to look to the rules of civil procedure when no 

appropriate criminal rule exists. Civ.R. 60(B)(4) allows for relief from judgment when a 

prior determination upon which a judgment has been based has been reversed or otherwise 

vacated. Civ.R. 60(B)(5) allows for relief from judgment for any other appropriate reason. 

Appellant believes that the judgment entry of August 19, 2009, has essentially been reversed, 

vacated, or nullified by Bodyke, and that he should be given relief from his judgment of 

sentence through Civ.R. 60(B). 

{¶ 13} Appellee, in keeping with the argument used by the trial court, contends that 

Appellant is procedurally barred from relying on Civ.R. 60(B). Appellee submits that a 

Civ.R. 60(B) motion cannot be used as a substitute for a direct appeal. It is a fundamental 

principle of both civil and criminal procedure that a Civ.R. 60(B) motion is not a substitute 

for a direct appeal. State v. Dunn, 2d Dist. Montgomery No. 21766, 2007-Ohio-4890; State 

ex rel. Richard v. Cuyahoga Cty. Commrs., 89 Ohio St.3d 205, 729 N.E.2d 755 (2000). 

Appellant did not file a direct appeal of his conviction and sentence. Appellee contends that 

Appellant could have raised a constitutional separation of powers argument regarding his 

sentence in a direct appeal, although he obviously could not have relied on Bodyke for 

support as it had not been decided during the time that Appellant could have processed any 

direct appeal. Appellee concludes that Appellant cannot use Civ.R. 60(B) to achieve relief 

that may have been available through a direct appeal. As we have already noted, Bodyke
8

has been applied to all offenders whose sexual offender status was reclassified under the 

AWA, without regard to the manner in which the offender attempted to raise the issue with 

the court. We have not limited relief only to cases that were on direct appeal when Bodyke 

was announced. 

{¶ 14} Appellee further argues that Appellant’s motion to vacate his sentence does 

not meet the procedural requirements of a petition for postconviction relief under Crim.R. 35 

and R.C. 2953.21. A petition for postconviction relief in many ways serves the same 

purposes as a Civ.R. 60(B) motion. State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 

882 N.E.2d 431, ¶11. A petition for postconviction relief filed under R.C. 2953.21(A) must 

be filed within 210 days after the sentencing entry is journalized if no direct appeal is taken 

of the conviction and sentence. State v. Carson, 2d Dist. Greene No. 2003-CA-76, 

2004-Ohio-2741, ¶8. Appellant did not meet that deadline, nor did he attempt to satisfy the 

exceptions for filing a late petition. See R.C. 2953.23(A). For this reason, Appellee 

contends that there is an additional reason why we should not reach the merits of Appellant’s 

motion to vacate. 

{¶ 15} Ultimately, we need not determine whether Civ.R. 60(B) or R.C. 2953.21 was 

properly invoked because Appellant’s motion to vacate can more correctly be characterized 

as a Crim.R. 32.1 motion to withdraw his guilty plea. Crim.R. 32.1 allows an offender to 

file a postsentence motion to withdraw or vacate a plea to correct a manifest injustice. We 

have recently reviewed and granted relief pursuant to Bodyke arising from a postsentence 

motion to withdraw a plea. Pritchett, supra. Given the expansive wording of Bodyke

directing us to apply its holding to all offenders reclassified under the AWA, and the fact 

that a void sentence may be reviewed at any time, we review Appellant’s arguments under 
9

the law governing a postsentence motion to withdraw a plea rather under the more restrictive 

rules governing Civ.R. 60(B) motions or petitions for postconviction relief. We are also 

aware that Appellant could raise the arguments he raises in a delayed appeal pursuant to 

App.R. 5. The manifest injustice that Appellant is attempting to correct would only be 

magnified if we avoided reviewing the merits of his argument now, only to be compelled to 

review them in a delayed appeal. Thus, fundamental fairness requires that we review the 

merits of his appeal under the framework of a Crim.R. 32.1 motion to withdraw a plea. 

{¶ 16} Crim.R. 32.1 states: “A motion to withdraw a plea of guilty or no contest 

may be made only before sentence is imposed; but to correct manifest injustice the court 

after sentence may set aside the judgment of conviction and permit the defendant to 

withdraw his or her plea.” 

{¶ 17} “Under Crim.R. 32.1, a defendant who files a post-sentence motion to 

withdraw [his] guilty plea bears the burden of establishing a ‘manifest injustice.’ * * * A 

manifest injustice has been defined as ‘a clear or openly unjust act’ that involves 

‘extraordinary circumstances.’ We apply an abuse-of-discretion standard to a trial court's 

decision on a motion to withdraw a guilty plea.” (Internal citations omitted). Xenia v. 

Jones, 2d Dist. Greene No. 07-CA-104, 2008-Ohio-4733, ¶6. “A ‘manifest injustice’ 

comprehends a fundamental flaw in the path of justice so extraordinary that the defendant 

could not have sought redress from the resulting prejudice through another form of 

application reasonably available to him or her.” State v. Hartzell, 2d Dist. Montgomery 

No. 17499, *2 (Aug. 20, 1999). 

{¶ 18} Appellant was charged with failure to verify his address in violation of R.C. 

2950.06, a first degree felony under the AWA. The 2008 amendments to R.C. 2950.06 
10

significantly modified the registration and verification requirements for sexual offenders. 

Appellant was required to verify his address annually for a period of ten years under 

Megan’s Law, but pursuant to the AWA he was required to register and verify his address 

every 90 days for life. Further, Appellant’s violation of the verification requirement would 

have been a third-degree felony under Megan’s Law. It constituted a first-degree felony 

under the AWA. 

{¶ 19} Bodyke held that the 2008 AWA amendments to R.C. Chapter 2950 were 

unconstitutional under the separation of powers doctrine. The specific statutory mechanism 

for reclassifying offenders is found in R.C. 2950.031 and 2950.032. Bodyke declared R.C. 

2950.031 and 2950.032 unconstitutional, and the statutes were severed from R.C. Chapter 

2950. Bodyke further held that “R.C. 2950.031 and 2950.032 may not be applied to 

offenders previously adjudicated by judges under Megan's Law, and the classifications and 

community-notification and registration orders imposed previously by judges are reinstated.” 

 Id. at ¶66. 

{¶ 20} Appellant submits that the Ohio Supreme Court applied the Bodyke holding 

to a case similar to his: State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, 946 N.E.2d 

192. In Gingell, the defendant was convicted of rape in 1981 and was classified as a 

sexually oriented offender under Megan's Law in 2003. To comply with Megan's Law, 

Gingell was required to report once per year for ten years. A failure to register under this 

requirement was a fifth-degree felony. Once the AWA was enacted, Gingell was 

reclassified as a Tier III offender. Under the AWA, Gingell was required to report every 90 

days for the rest of his life. Failure to register, under the AWA, was classified as an offense 

of the same degree as the underlying offense. In Gingell's case, this was a first-degree 
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felony. Gingell was indicted on and pleaded guilty to a charge of failure to verify his 

address under the AWA. The trial court sentenced him to eight years in prison. 

{¶ 21} Gingell appealed, arguing that the court had erred in retroactively applying 

the requirements and penalties of the AWA to him. He argued that the AWA increased the 

severity of his violation of R.C. 2950.06 to a first-degree felony. He contended that if the 

court had applied the version of R.C. 2950.99 in place at the time of his original 

classification, it would have made his failure to verify his address a fifth-degree felony. The 

court of appeals upheld the sentence, and he appealed to the Ohio Supreme Court. During 

the pendency of that appeal, the Ohio Supreme Court issued its decision in Bodyke. The 

Ohio Supreme Court reversed Gingell’s conviction on the basis of the Bodyke holding 

regarding the violation of the separation of powers doctrine, rather than on the retroactivity 

argument raised by Gingell. Appellant contends that the trial court should have followed 

Gingell and reversed his conviction even though he did not raise the legal theory used in 

Bodyke at the time he was sentenced or on appeal. 

{¶ 22} We agree with Appellant’s argument. We have been persuaded by a similar 

argument in the recent Pritchett case, which was released after Appellant filed his brief in 

this matter. In Pritchett, the offender was reclassified as a Tier III Sex Offender under the 

AWA and was subsequently convicted and sentenced for violating R.C. 2950.05, failure to 

notify of a change of address. Such a violation under Megan’s Law would have been a 

third-degree felony, but under the new AWA provisions, it was a first degree felony with a 

mandatory minimum three-year prison term. Pritchett was sentenced to a mandatory 

three-year prison term. He did not file a direct appeal of his sentence. Almost a year after 

he was sentenced, he filed a Crim.R. 32.1 postsentence motion to withdraw his plea. The 
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trial court overruled the motion, and he filed an appeal to this Court. Based on the broad 

holdings of both Bodyke and Williams, supra, we reviewed the merits of Pritchett’s appeal. 

We agreed with the trial court that Pritchett’s violation of R.C. 2950.05 was valid both under 

Megan’s Law and under the AWA, and was not a basis for reversing the underlying 

judgment of the trial court. However, we held that his sentence was void, because it was 

based on the increased penalty set forth in the AWA and not the penalty prescribed by 

Megan’s Law. We determined that it would be a manifest injustice to continue Pritchett’s 

incarceration based on a void statute and sentence. Id. at ¶28. We vacated the sentence 

and remanded the case for a new sentencing hearing. 

{¶ 23} In Pritchett, the ultimate error being corrected was the length of the 

offender’s sentence and not the validity of the conviction itself. In this appeal, though, it is 

unclear whether Appellant could have been charged at all under the 90-day notification 

requirements of the AWA, since he was only required to register and verify his address 

annually pursuant to the former Megan’s Law. The more appropriate remedy in this case is 

to vacate the conviction itself as well as the guilty plea on which the conviction was based. 

Conclusion

{¶ 24} In conclusion, Appellant is not procedurally barred from presenting the merits 

of his appeal even though he failed to file a direct appeal of the sentence imposed on him on 

August 19, 2009. The Ohio Supreme Court has held that AWA violates the constitutional 

rule of separation of powers and constitutional prohibition against retroactive laws. The 

judicial determination that the AWA is unconstitutional must be applied to all offenders who 

were automatically reclassified under the AWA and were previously classified under 

Megan’s Law. Appellant filed a motion to vacate his sentence that should more properly be 
13

construed as a postsentence motion to withdraw his plea. Based on the record in this case, 

the trial court should have granted the motion. Appellant’s assignment of error has merit, 

and we hereby vacate Appellant’s guilty plea, conviction and sentence. The case is 

remanded to the trial court for further proceedings according to law and consistent with this 

Opinion. 

 . . . . . . . . . . . . . 

GRADY and DONOVAN, JJ., concur. 

(Hon. Cheryl L. Waite, Seventh District Court of Appeals, sitting by assignment of 

the Chief Justice of the Supreme Court of Ohio). 

Copies mailed to: 

Mathias H. Heck 

Johnna M. Shia 

Katherine A. Szudy 

Hon. Connie S. Price