[Cite as State v. Foster, 2012-Ohio-1431.]

 

IN THE COURT OF APPEALS OF OHIO 

 SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO : 

: Appellate Case No. 24637 

Plaintiff-Appellant : 

: Trial Court Case No. 2011-CR-604 

v. : 

: 

JAMES L. FOSTER : (Criminal Appeal from 

: (Common Pleas Court) 

Defendant-Appellee : 

: 

. . . . . . . . . . . 

O P I N I O N

Rendered on the 30th day of March, 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-Appellant 

 

ANTHONY R. CICERO, Atty. Reg. #0065408, Cicero Law Office, LLC, 500 East Fifth 

Street, Suite 100, Dayton, Ohio 45402 

Attorney for Defendant-Appellee 

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

 

FAIN, J. 

{¶ 1} The State of Ohio appeals from the sentence imposed upon 

defendant-appellee James L. Foster on his plea of guilty to two counts of Failure to Notify, in 
2

violation of R.C. 2950.05(A)(1) and (F)(1). The State urges us to overrule State v. Milby, 2d 

Dist. Montgomery No. 23978, 2010-Ohio-6344, and a line of subsequent cases, and hold that a 

person convicted of Failure to Notify should be sentenced under the version of the statute in 

effect at the time of his commission of the Failure to Notify offense, not under the version of 

the statute in effect at the time of his classification as a sexually oriented offender. 

{¶ 2} We decline the invitation to overrule Milby, and affirm. 

I. Course of Proceedings 

{¶ 3} Foster was convicted of two counts of Rape in 1990 in Montgomery 

County, and was classified as a sexually oriented offender. 

{¶ 4} In 2011, Foster was charged by indictment with two counts of Failure to 

Notify, in violation of R.C. 2950.05(A)(1) and (F)(1). Specifically, he was charged with 

having failed to provide written notice of a change of his residence, school, institution of 

higher education, or place of employment, to the Sheriff of Montgomery County within the 

time limits prescribed by the statute. 

{¶ 5} Foster pled guilty to each offense as “a felony of the 5th degree.” Over 

the State’s objection, the trial court found Foster guilty, on his plea, to two counts of Failure to 

Notify as felonies of the fifth degree, although it cautioned him that his plea would stand even 

if the court of appeals would decide that the State’s objection was well-taken. 

{¶ 6} Foster was sentenced to community control sanctions for a period of 

time not to exceed five years. From the sentence, the State appeals. 
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II. We Will Not Overrule the State v. Milby Line of Cases

{¶ 7} The State’s sole assignment of error is as follows: 

{¶ 8} “THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT 

SENTENCED FOSTER TO COMMUNITY CONTROL SANCTIONS BECAUSE THE 

STATUTE IN EFFECT AT THE TIME HIS OFFENSE WAS COMMITTED REQUIRED 

HIM TO BE SENTENCED TO A MANDATORY PRISON TERM FOR COMMITTING A 

FIRST DEGREE FELONY.” 

{¶ 9} In State v. Milby, supra, we held that under State v. Bodyke, 126 Ohio 

St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, not only does it violate the Ohio Constitution to 

apply the new reporting, notification, and registration requirements set forth in the Ohio Adam 

Walsh Act to a person classified as a sex offender before the enactment of that act, it also 

violates the Ohio Constitution to apply the enhanced penalties set forth in the new act to such 

a person. Milby, 2010-Ohio-6344, ¶ 31. We have followed that holding in numerous 

subsequent cases. E.g., State v. Johnson, 2d Dist. Montgomery No. 24029, 2011-Ohio-2069, 

¶ 10; State v. Alexander, 2d Dist. Montgomery No. 24119, 2011-Ohio-4015, ¶ 38; State v. 

Alltop, 2d Dist. Montgomery No. 24234, 2011-Ohio-5541, ¶ 14; and State v. Howard, 2d Dist. 

Montgomery No. 24680, 2011-Ohio-5693, ¶ 12. 

{¶ 10} The State argues that State v. Milby, supra, is incorrectly decided, and that we 

should no longer follow it. The State argues that because the penalty for Foster’s offense was 

enhanced before he committed that offense, there is no problem with applying the enhanced 

penalty to him. 

{¶ 11} We recently considered this argument in State v. Buelow, 2nd Dist. 
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Montgomery No. 24570, 2012-Ohio-832, where we applied the principle of stare decisis, and 

rejected the argument. For all of the reasons set forth in Buelow, we do so again here. 

{¶ 12} The State’s sole assignment of error is overruled. 

III. Conclusion

{¶ 13} The State’s sole assignment of error having been overruled, the judgment of 

the trial court is Affirmed. 

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

GRADY, P.J., and FROELICH, J., concur. 

Copies mailed to: 

Mathias H. Heck 

Johnna Shia 

Anthony R. Cicero 

Hon. Barbara P. Gorman