[Cite as Bies v. State, 2012-Ohio-5572.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

MICHAEL BIES, 

 PETITIONER-APPELLANT, 

V. 

STATE OF OHIO, ET AL., 

 RESPONDENTS-APPELLEES. 

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 CASE NO. 12 MA 3 

OPINION 

CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common 

Pleas of Mahoning County, Ohio 

Case No. 08CV454 

JUDGMENT: Reversed and Modified 

APPEARANCES: 

For Petitioner-Appellant Randall Porter 

Assistant Public Defender 

250 East Broad St., Suite 1400 

Columbus, Ohio 43215 

For Respondents-Appellees Paul Gains 

Prosecutor 

Ralph Rivera 

Assistant Prosecutor 

21 W. Boardman St., 6th Floor 

Youngstown, Ohio 44503 

JUDGES: 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

 

 

 Dated: November 29, 2012 
[Cite as Bies v. State, 2012-Ohio-5572.]

DONOFRIO, J. 

{¶1} Defendant-appellant, Michael Bies, appeals from a Mahoning County 

Common Pleas Court judgment dismissing as moot his petition contesting his 

reclassification under the Adam Walsh Act. 

{¶2} Appellant was convicted in 1992 of aggravated murder, attempted rape, 

and kidnapping. Appellant was later classified as a sexually oriented offender under 

Megan’s Law, the sex offender registration and notification law in place at the time. 

Appellant is currently serving a sentence of 46 years to life. On April 10, 2012, the 

United States District Court for the Southern District of Ohio granted appellant’s 

petition for a writ of habeas corpus and ordered the state to conduct a new trial. Bies 

v. Bagley, S.D. Ohio No. 1:00-CV-682 (Apr. 10, 2012). A further appeal is currently 

pending before the Sixth Circuit Court of Appeals. Bies v. Bagley, No. 12-3431. 

{¶3} In January 2008, Ohio’s Adam Walsh Act (AWA), R.C. 2905.01 et seq., 

became effective. It repealed Megan’s Law and was meant to align Ohio’s sex 

offender classification system with federal law. A few months before the AWA’s 

effective date, the General Assembly directed the state attorney general to reclassify 

existing offenders. The attorney general reclassified appellant under the AWA as a 

Tier III sex offender. 

{¶4} On January 30, 2008, appellant filed a petition pursuant to R.C. 

2950.031(E) and R.C. 2950.11(F)(2) to contest his classification under the AWA and 

request for declaratory judgment. 

{¶5} The trial court put a stay on appellant’s motion (and those similar to it) 

first pending resolution of litigation in federal court dealing with the AWA and then 

pending the Ohio Supreme Court’s decision in State v. Bodyke, 126 Ohio St.3d 266, 

2010-Ohio-2424, 933 N.E.2d 753. 

{¶6} The attorney general subsequently reinstated appellant’s pre-AWA 

classification. 

{¶7} On October 21, 2011, plaintiff-appellee, the State of Ohio, filed a motion 

to dismiss appellant’s petition. The state argued that because the attorney general 

had already reclassified appellant to his pre-AWA sex offender classification, 

appellant’s petition was moot. 
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{¶8} The trial court granted the state’s motion and dismissed appellant’s 

petition on October 31, 2011. It charged the costs to appellant. 

{¶9} Appellant filed a timely notice of appeal on January 6, 2012. 

{¶10} This court put an order on instructing the parties to file jurisdictional 

memorandum on whether this case presented a final, appealable order. In an April 

12, 2012 judgment entry, we stated that this case presented a final, appealable 

order. 

{¶11} Appellant raises three assignments of error. We will address them out 

of order for ease of discussion. Appellant’s second assignment of error states: 

 THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT 

RULED THAT APPELLANT’S PETITION WAS MOOT. 

{¶12} Here appellant contends that the trial court erroneously determined that 

Bodyke, 126 Ohio St.3d 266, rendered his petition moot. Instead, he claims Bodyke 

rendered his petition meritorious. 

{¶13} Appellant points out that in the trial court the state supported its 

mootness argument with the argument that the attorney general had already 

reclassified appellant pursuant to his pre-AWA classification. Appellant further points 

out that he named the Mahoning County Prosecutor and Mahoning County Sheriff as 

parties and the state’s motion to dismiss did not concede that the prosecutor and 

sheriff were bound by Bodyke. Therefore, he argues that he is not protected against 

future attempts to reclassify him under the AWA. He contends that this court can 

implement an effective remedy by ordering all Ohio governmental entities to cease 

enforcement of the AWA reclassification provisions against him. 

{¶14} In further support of his argument that his petition is not moot, appellant 

points out that since Bodyke, and while this appeal has been pending, the Ohio 

Supreme Court decided State v. Palmer, 131 Ohio St.3d 278, 2012-Ohio-580, 964 

N.E.2d 406, where the Court held that defendants could continue to challenge their 

reclassifications subsequent to Bodyke. Appellant contends that the Court would not 

have reached this conclusion if such challenges were moot. Appellant further asserts 
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that in several reclassification cases subsequent to Bodyke, this court has found that 

the defendants’ pre-AWA classification should be reinstated, not that the appeals 

were moot. Citing, State v. Guthrie, 7th Dist. No. 09-CO-40, 2012-Ohio-1264, ¶18; 

Balasz v. Ohio, 7th Dist. No. 09-CO-25, 2011-Ohio-1455, ¶22; Melendez v. Ohio, 7th 

Dist. No. 09-CO-39, 2010-Ohio-6507, ¶16; Cechura v. Ohio, 7th Dist. No. 09-CO-41, 

2010-Ohio-6505, ¶12. 

{¶15} The Ohio Supreme Court held in Bodyke, 126 Ohio St.3d at paragraphs 

two and three of the syllabus: 

2. R.C. 2950.031 and 2950.032, which require the attorney 

general to reclassify sex offenders who have already been classified by 

court order under former law, impermissibly instruct the executive 

branch to review past decisions of the judicial branch and thereby 

violate the separation-of-powers doctrine. 

3. R.C. 2950.031 and 2950.032, which require the attorney 

general to reclassify sex offenders whose classifications have already 

been adjudicated by a court and made the subject of a final order, 

violate the separation-of-powers doctrine by requiring the opening of 

final judgments. 

Consequently, the Court struck down these portions of the AWA as unconstitutional 

and held that the reclassifications of sex offenders under these provisions were 

invalid. The Court then reinstated the prior judicial classifications of sex offenders. 

{¶16} The Court next addressed the AWA’s constitutionality in State v. 

Williams, 129 Ohio St.3d 244, 2011-Ohio-3374, 952 N.E.2d 1108. The Court held 

that, as applied to defendants who committed their crimes prior to the AWA’s 

enactment, the AWA violated the ban against retroactive laws. Id. at the syllabus. 

{¶17} The Ohio Supreme Court most recently elaborated on Bodyke in State 

v. Palmer, 131 Ohio St.3d 278. After learning of his AWA classification as a Tier III 

offender for a 1995 crime, Palmer filed a petition in the trial court challenging the 

classification. The trial court ruled that the sex-offender regulations did not apply to 
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Palmer and ordered the removal of Palmer’s name from any local, state, or federal 

lists of sex offenders. The state appealed and the appellate court reversed. Palmer 

then appealed to the Ohio Supreme Court. 

{¶18} On appeal, the state argued that the trial court’s ruling was a nullity 

because Bodyke abolished the petition process. Rejecting this notion, the Court 

stated, at ¶15: 

Portions of R.C. 2950.031 and 2950.032 impermissibly instructed the 

Ohio attorney general, an officer of the executive branch, to reopen final 

judgments of the judicial branch. Bodyke, 126 Ohio St.3d 266, 2010-

Ohio-2424, 933 N.E.2d 753, at ¶ 62. That instruction violated Ohio's 

separation-of-powers doctrine. Id. at ¶ 61. To remedy the violation, in 

Bodyke we declared unenforceable “the unconstitutional component” of 

the Adam Walsh Act's reclassification provisions. However, we held 

that the component could be severed from the rest of the act, and 

accordingly, we “left in place * * * the remainder of the AWA, ‘which is 

capable of being read and of standing alone.’ ” Id. at ¶ 66, quoting State 

v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 98. 

{¶19} The Court went on to find that the petition process of R.C. 2950.031(E) 

and R.C. 2950.032(E) does not violate the separation-of-powers doctrine because it 

involves only one branch of government, the judiciary. Id. at ¶16. “Therefore, 

Bodyke's severance of the unconstitutional reclassification process left intact the 

petition process, which ‘can be given effect without the invalid’ reclassification 

provisions.” Id. at ¶17, citing R.C. 1.50. 

{¶20} The cases appellant cites to from this court in which we found that the 

defendants’ pre-AWA classification should be reinstated, and not that the appeals 

were moot (Guthrie, supra; Balasz, supra; Melendez, supra; and Cechura, supra), 

are all distinguishable from the present case. In those cases, the defendants filed 

petitions contesting their reclassifications under the AWA. The trial court upheld the 

defendants’ reclassifications. On appeal, we then reversed the trial court’s 
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judgments and either reinstated the defendants’ pre-AWA classifications or 

remanded the matter to the trial court for further proceedings. In the present case, 

however, the trial court did not uphold appellant’s AWA reclassification. Thus, these 

cases do not necessarily support appellant’s position due to the difference in the 

facts. 

{¶21} But at least one other district has addressed the issue at hand. In State 

v. Edwards, 10th Dist. No. 10AP-645, 2011-Ohio-1492, the Tenth District was faced 

with a situation where the defendant was reclassified under the AWA, the defendant 

filed a petition in the trial court contesting his reclassification, and the trial court 

dismissed the petition as moot based on Bodyke. On appeal, the defendant argued 

that Bodyke rendered his petition meritorious, not moot, and that the trial court erred 

in dismissing his petition. The Tenth District agreed. It reasoned that petitioners who 

filed their petitions prior to Bodyke being decided were entitled to the same relief the 

Ohio Supreme Court granted to Bodyke. Id. at ¶8. Thus, because the defendant 

filed his petition before the Bodyke decision, the court concluded he was entitled to 

the relief granted in Bodyke and the trial court erred when it denied him such relief. 

Id. 

{¶22} The Tenth District has further held that defendants in such cases are 

entitled to court orders directing their return to their pre-AWA classifications. See 

Hosom v. State, 10th Dist. No. 10AP-671, 2011-Ohio-1494; State v. Watkins, 10th 

Dist. No. 09AP-669, 2010-Ohio-4187; State v. Miliner, 10th Dist. No. 09AP-643, 

2010-Ohio-6117; State v. Hazlett, 10th Dist. No. 09AP-1069, 2010-Ohio–6119; Core 

v. State, 191 Ohio App.3d 651, 2010-Ohio-6292, 947 N.E.2d 250. 

{¶23} Additionally, after Palmer, supra, it is clear that the petition process for 

challenging a reclassification under the AWA is still intact. 

{¶24} Furthermore, after rendering its decision in Bodyke, the Ohio Supreme 

Court addressed all of the pending appeals before it involving reclassification. In re 

Sexual Offender Reclassification Cases, 126 Ohio St.3d 322, 2010-Ohio-3753. It did 

not declare that any of these appeals were moot on account of its holding in Bodyke. 

{¶25} Here, while the attorney general has reinstated appellant’s pre-AWA 
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classification, appellant is entitled to a court ruling that his petition for reclassification 

is meritorious and to a court order that he be returned to that classification. A court 

order will ensure that the sheriff will abide by the proper reporting and notification 

requirements and that appellant will not be subject to future reclassification. 

{¶26} Accordingly, appellant’s second assignment of error has merit. 

{¶27} Appellant’s third assignment of error states; 

 THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT 

ASSESSED COSTS TO APPELLANT. 

{¶28} In this assignment of error, appellant contends that the trial court should 

not have assessed the costs of bringing the petition against him because the 

argument he made in his petition opposing his reclassification was found to be 

meritorious in Bodyke. He asserts that his position is akin to a defendant who is 

found “not guilty” because it was found that he should not have been reclassified. 

Thus, appellant argues it was error for the court to impose a criminal sanction (the 

court costs) against him. Appellant further argues that as a matter of fairness and 

public policy, the trial court should not have ordered him to pay court costs when he 

was only trying to correct the improper classification imposed on him by the Ohio 

Attorney General. 

{¶29} “In all criminal cases* * * the judge or magistrate shall include in the 

sentence the costs of prosecution * * * and render a judgment against the defendant 

for such costs.” R.C. 2947.23(A)(1)(a). But appellant’s petition in this case was one 

in postconviction. A postconviction proceeding is a collateral civil attack on a criminal 

judgment. State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994). Thus, the 

civil rule for imposing court costs should apply. 

{¶30} In civil cases, unless otherwise provided by statute or rule, “costs shall 

be allowed to the prevailing party unless the court otherwise directs.” Civ.R. 54(D). 

The Ohio Supreme Court has interpreted this phrase to grant the trial court discretion 

to order that the prevailing party pay all or part of its own costs. Vance v. 

Roedersheimer, 64 Ohio St.3d 552, 555, 597 N.E.2d 153 (1992). The Court has also 
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stated that the trial court may not award costs to the non-prevailing party. Id. “A 

‘prevailing party’ is ‘one in whose favor the decision or verdict is rendered and 

judgment entered.’” Hagemeyer v. Sadowski, 86 Ohio App.3d 563, 566, 621 N.E.2d 

707 (11993), quoting Yetzer v. Henderson, 5th Dist. No. CA-1967, 1981 WL 6293 

(June 4, 1981). 

{¶31} Based on our resolution of appellant’s second assignment of error, 

appellant is now clearly the prevailing party. Consequently, the costs of appellant’s 

petition are to be assessed against the state. 

{¶32} Accordingly, appellant’s third assignment of error has merit. 

{¶33} Appellant’s first assignment of error states: 

 THE TRIAL COURT ERRED WHEN IT RULED ON THE 

STATE’S MOTION TO DISMISS WITHOUT AFFORDING APPELLANT 

AN OPPORTUNITY TO RESPOND. 

{¶34} Due to our resolution of appellant’s second assignment of error, his first 

assignment of error is now moot. 

{¶35} For the reasons stated above, the trial court’s judgment is hereby 

reversed. Appellant’s pre-AWA classification under Megan’s Law is reinstated. The 

state is ordered to pay all court costs of appellant’s petition. 

Waite, P.J., concurs. 

DeGenaro, J., concurs.