[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 Ca se 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, Appe llate 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, O ffice 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 appeal s the judgment of the Montgomery County Court of Common Pleas overruling the mo tion to vacate his sentence. Appellant was convicted of rape in 1987 and was later adjudicated as a sexu ally oriented offender. He was released from prison in 2004. As part of his designation as a sexually oriented offender, he was required to regi ster or verify his address w ith the county sheriff annually. In 2007, he was reclassified as a Tier II Se x Offender under the new provisions of Ohio’s version of the federal Adam Walsh Act (“AW A”). Starting in 2008, he was required to register or verify his addre ss every 90 days. Appellant subs equently failed to verify his address as required by the AWA. He plead ed 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 decide d 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 previous ly 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 file d a motion to vacate his sent ence 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 accu rately concluded that his case was not pending when Bodyke was announced. The motion to vacate was overruled. 3

 {¶ 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 Oh io Supreme Court opinions, prohibit the application of the AWA to all o ffenders who were previ ously adjudicated under Megan’s Law due to a separati on of powers violation. The Oh io 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, convic tion and sentence are vacated a nd the case is remanded to the trial court for further proceedings. Background of the Case {¶ 4} Appellant was origin ally 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 Mont gomery County Court of Common Pleas as a sexually oriented offender under Ohio’s vers ion 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 designati on as a sexually orient ed offender, Appellant was required to register annually with the Sheriff’s Office for ten years and to verify his address annually for ten year s. Appellant was releas ed from prison on March 11, 2004. 4

 {¶ 5} In 2006, Congress replaced Megan’s Law w ith the AWA, codified at Section 16901 et seq., Title 42, U.S.Code. The AWA cr eated a three-tiered system of sexual offender classification and regist ration, and the act required states to comply with the new law or risk losing their fe deral crime-control funding. In 2007, Ohio adopted the Sex Offender Registration and Notifi cation 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 fo r sexual offenders changed significantly under S.B. 10, subjecting the offender to l onger and more burde nsome reporting and registration requirements than under Megan’s Law, and in many cases providing for more severe penalties for viola tions of the statute. Appellant was automatically reclassified under the AWA. He received a letter notifying h im of the new classification on November 26, 2007, with the change to be effective on Ja nuary 1, 2008. Under the new classification system, Appellant was required to register or verify his addre ss with the county sheriff every 90 days for life. Appellant s ubsequently failed to verify hi s 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 d ecided 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 offende r was reinstated, along with th e former notification provisions. {¶ 7} On November 16, 2010, Appella nt filed a motion to vacate his sentence. The state filed a response, and the cour t 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 rema ined pending when the decision was rendered on June 3, 2010. As Appellant’s case was not on direct appeal when Bodyke was released, the tria l 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 f iled 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 th is 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 Pris on 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 subj ect to the requirements of the AWA and could not have been convicted of violatin g the 90-day verificati on 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 verifica tion provision of that statute. He relies on Bodyke to support his reasoning. Bodyke held that the AWA violates the constitutional rule of separa tion of powers because it gave th e 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 6

 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 AW A, R.C. 2950.031 and 2950.032, were severed from R.C. Chapter 2950 and were re ndered unenforceable. Id. at ¶66. Appellant argues on appeal that the trial cour t 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. Rath er, 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 pro cedural mechanism. Id. at ¶ 23. We have also held that sentences arising from an improper reclassifi cation 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 cr iminal court to look to the rule s 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 judg ment entry of August 19, 2009, ha s essentially been reversed, vacated, or nullified by Bodyke , and that he should be give n 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 sent ence. 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 coul d have processed any direct appeal. Appellee concl udes that Appellant cannot use Ci v.R. 60(B) to achieve relief that may have been available through a di rect appeal. As we have already noted, Bodyke 8

 has been applied to all offende rs whose sexual offender stat us was reclassified under the AWA, without regard to the manner in which th e 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 requi rements of a petition for postc onviction relief under Crim.R. 35 and R.C. 2953.21. A petition for postconviction re lief 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 postconvicti on relief filed under R.C. 2953.21(A) must be filed within 210 days after th e 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 wh ether 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 offe nders reclassified under the AWA, and the fact that a void sentence may be re viewed at any time, we review Appellant’s arguments under 9

 the law governing a postsentence motion to wit hdraw a plea rather under the more restrictive rules governing Civ.R. 60(B) motions or petiti ons 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 Appella nt is attempting to correct would only be magnified if we avoided reviewing the merits of his argument now, onl y to be compelled to review them in a delayed appeal. Thus, funda mental 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 wit hdraw 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 per mit 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-discreti on 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 ava ilable to him or her.” State v. Hartzell , 2d Dist. Montgomery No. 17499, *2 (Aug. 20, 1999). {¶ 18} Appellant was charged with failure to ve rify 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 ve rification requirements for sexual offenders. Appellant was required to ve rify his address annually fo r a period of ten years under Megan’s Law, but pursuant to the AWA he was required to register a nd verify his address every 90 days for life. Further, Appellant’s violation of the verifi cation 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 se paration of powers doctrine. Th e specific statut ory 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 statut es 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 regist ration 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 ra pe 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 regi ster, under the AWA, was cl assified as an offense of the same degree as the underlying offense. In Gingell's case, this was a first-degree 11

 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 cour t had erred in retr oactively 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 fi rst-degree felony. He contended that if the court had applied the versi on 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 sent ence, 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 Ginge ll’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 shoul d 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 se ntenced for violating R.C. 2950.05, failure to notify of a change of address. Such a vi olation under Megan’s Law would have been a third-degree felony, but under the new AWA provi sions, 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 12

 trial court overruled the motion, a nd he filed an appeal to this Court. Based on the broad holdings of both Bodyke and Williams , supra, we reviewed the me rits of Pritchett’s appeal. We agreed with the trial c ourt 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 senten ce. 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 convi ction itself. In this appeal, though, it is unclear whether Appellant coul d have been charged at a ll under the 90-day notification requirements of the AWA, since he was only re quired to register a nd verify his address annually pursuant to the former Megan’s Law. The more appropriate re medy in this case is to vacate the conviction itself as well as th e 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 gran ted the motion. Appellant’s assi gnment of error has merit, and we hereby vacate Appellant’s guilty pl ea, 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 Cour t 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