[Cite as State v. Kennedy, 2024-Ohio-1170.]

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT

MAHONING COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

ALVIN KENNEDY,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY

Case No. 23 MA 0050

Criminal Appeal from the

Court of Common Pleas of Mahoning County, Ohio

Case No. 1988 CR 00207

BEFORE:

Carol Ann Robb, Cheryl L. Waite, Mark A. Hanni, Judges 

JUDGMENT:

Affirmed.

Atty. Gina DeGenova, Mahoning County Prosecutor, Atty. Edward A. Czopur, Assistant 

Mahoning County Prosecutor, Mahoning County Prosecutor's Office for Plaintiff-Appellee 

and

Atty. Victoria Bader, Assistant State Public Defender, Office of the Ohio Public Defender 

for Defendant-Appellant.

Dated: March 27, 2024
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Case No. 23 MA 0050

Robb, P.J.

{¶1} Defendant-Appellant Alvin Kennedy appeals the decision of the Mahoning 

County Common Pleas Court denying a reclassification motion he filed in his 1988 

criminal case regarding his sexual predator label. He states his sexual predator 

classification and registration requirements were the result of a 2010 judgment issued in 

a civil action he filed wherein the court mistakenly “reinstated” a classification that never 

existed. For the following reasons, the trial court’s judgment is affirmed.

STATEMENT OF THE CASE

{¶2} In 1988, a jury convicted Appellant of rape in violation of R.C. 2907.02(A)(2) 

and two counts of kidnapping in violation of R.C. 2905.01(A)(2). The court imposed 

consecutive sentences of 10 to 25 years for rape, 10 to 25 years for kidnapping the rape 

victim, and 8 to 15 years for kidnapping a different victim. (5/6/88 J.E.). This court 

affirmed Appellant’s convictions. State v. Kennedy, 7th Dist. Mahoning No. 88 C.A. 93, 

1990 WL 14793 (Feb. 16, 1990).

{¶3} On August 20, 1997, the trial court issued a judgment stating it received a 

sexual predator screening instrument from the Ohio Department of Rehabilitation and 

Correction (ODRC) recommending the court adjudicate Appellant as a sexual predator 

under the newly enacted R.C 2950.09 (“Megan’s Law” classifications effective 1/1/97, 

registration and notification effective 7/1/97). The court asked the prosecution to report 

the state’s position in writing within 7 days to ascertain whether Appellant should be 

transported for a hearing. A subsequent entry vacated the time limitation and said a 

hearing would be scheduled upon application by either side. (9/2/97 J.E.).

{¶4} On December 28, 1998, the trial court issued another judgment stating it 

received a sexual predator recommendation from ODRC. The court asked the 

prosecution to report the state’s position in writing within 21 days to ascertain whether 

Appellant should be transported for a hearing.

{¶5} Eight months later, the court appointed an attorney to represent Appellant 

at a sexual predator hearing scheduled for September 22, 1999 and signed a warrant of 

removal directing Appellant’s future transport from prison. (8/25/99 J.E.s). The next day, 
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defense counsel filed a motion for discovery. (8/26/99 Mot.). The trial judge in courtroom 

3 then recused himself from the case and transferred the case to courtroom 2. (9/2/99 

J.E.). On the same day, defense counsel moved to continue the hearing.

{¶6} The docket shows no further proceedings in Appellant’s criminal case until 

December 22, 2022, when a public defender filed the “Motion for Reclassification by 

Operation of Law” at issue in this appeal. This motion said Appellant had been complying 

with sexual predator registration requirements (every 90 days for life) since his release 

from prison on June 30, 2008. The motion pointed out a sexual predator judgment entry 

was never filed in his criminal case and thus there is no indication the trial court held the 

sexual predator hearing scheduled in 1999.1

{¶7} Appellant’s 2022 motion then cited a “civil complaint” he filed pro se on 

January 25, 2008, five months before his release from prison. Mahoning County C.P. No. 

08 CV 381. He attached a copy of the docket in that case but did not attach a copy of the 

complaint. His motion said this complaint challenged the attorney general’s automatic 

reclassification of him as a tier III sex offender (the highest level) under the newly enacted 

Adam Walsh Act, arguing it could not apply to offenses committed prior to the effective 

date. See R.C. 2950 (eff. 1/1/08) (containing tiers based on the offense). 

{¶8} On the docket he attached the “Case Type” is labeled as “Civil” and the 

“Action” is labeled as “Administrative Appeal.” An entry recorded in the attached civil 

docket recites a portion of a February 14, 2008 judgment, demonstrating the common 

pleas court judges issued a stay of all civil filings involving the reclassification of sexual 

offenders. (Mot.Ex. J) (showing the stay was filed in 08 CV 381 and 08 CV OPEN). 

Appellant was released from prison during the stay of his civil case. (Mot.Ex. A) (ODRC 

printout showing “release date” of June 30, 2008, with a “final release” from supervision 

on July 13, 2010).

1 Contrary to a statement at page 3 in the state’s brief, the record contains no indication Appellant was 

brought to the jail from the prison for the September 22, 1999 hearing. The warrant for removal instructed 

the sheriff to notify the court on his return. (8/26/99 J.E.). The docket does not contain a notice of return. 

Twenty days before the hearing, the judge recused and transferred the case to another judge, and defense 

counsel sought a continuance. We also note the Mahoning County Clerk of Court’s online public website

contains the docket, which is part of the physical file, and contains a calendar of events in the case. This 

calendar shows the September 22, 1999 hearing was canceled. 
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{¶9} Appellant’s 2022 motion for reclassification also provided the state’s 

September 10, 2010 confession of judgment filed in 08 CV 381. In this filing, the state 

notified the court the decision that prompted the stay had been issued, citing State v. 

Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753. The state emphasized 

the Supreme Court held the Adam Walsh Act reclassification provisions were 

unenforceable against those who were already classified under Megan’s Law. The state’s 

motion concluded by asking the court “to GRANT [Appellant’s] Petition to Contest the 

Constitutionality of the Adam Walsh Act, VACATE the Ohio Attorney General’s 

classification under that act, and REINSTATE [Appellant’s] prior classification and 

registration order directing [him] to register as a SEXUAL PREDATOR.” (Mot.Ex. K).

{¶10} Finally, Appellant’s 2022 reclassification motion attached the trial court’s 

September 20, 2010 judgment in 08 CV 381. In this entry, a visiting judge said Bodyke

held the Adam Walsh Act’s reclassification of offenders who had already been classified 

violated the separation of powers doctrine and interfered with judicial power by requiring 

final judgments to be reopened. The judge then granted Appellant’s petition contesting 

the application of the Adam Walsh Act and vacated the attorney general’s classification 

of Appellant under that act. The court additionally concluded: “The classification and 

registration order directing [him] to report as a sexual predator is hereby reinstated.” 

(Mot.Ex. L). 

{¶11} The docket from 08 CV 381 shows Appellant did not appeal this judgment. 

(Mot.Ex. J). A printout from the attorney general’s offender search website confirms his 

classification as “(Pre AWA) Sexual Predator.” (Mot.Ex. B).2 

{¶12} Appellant’s 2022 reclassification motion says there is no indication he 

received a sexual predator label that the 2010 judgment could reinstate prior to 2010, 

pointing out a hearing would have been required before a sexually oriented offender could 

be classified as a sexual predator. His motion concluded that upon his successful civil 

action to vacate his tier III label, he should have been (automatically) classified as only a 

2 Contrary to another statement at page 3 in the state’s brief, there is no indication Appellant was released 

from prison with a sexual predator label and registered as a sexual predator immediately after his release. 

It is more likely Appellant was classified as a tier III sex offender prior to his release and during the stay of 

08 CV 381 until his status was changed due to the 2010 judgment in that case (wherein the court vacated 

the Adam Walsh Act classification). 
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sexually oriented offender (subject to annual registration for 10 years). His 2022 motion 

thus asked the trial court in his criminal case to reclassify him as a sexually oriented 

offender and find he completed his registration duties.

{¶13} The state responded to Appellant’s 2022 motion for reclassification by 

arguing Appellant waived the right to contest the sexual predator classification when he 

failed to appeal the September 20, 2010 order reclassifying him from a tier III sex offender 

under the Adam Walsh Act to a sexual predator. The state argued any procedural defects 

in classifying him were barred by res judicata and could not be relitigated, citing State v. 

Horch, 3d Dist. Union No. 14-07-47, 2008-Ohio-1494, ¶ 9-10 (res judicata barred 

argument about failure to hold a sexual predator hearing before classification, where 

defendant failed to appeal classification) and State v. Stevenson, 9th Dist. Summit No. 

21953, 2005-Ohio-156, ¶ 7 (motion to correct illegally modified sentence, filed six years 

after classification, was barred by res judicata where defendant failed to raise the issue 

on the direct appeal of his sentence).

{¶14} On March 21, 2023, the trial court overruled Appellant’s motion for 

reclassification. The within timely appeal followed.

SEX OFFENDER STATUTES

{¶15} Appellant was convicted and sentenced before Megan’s Law enacted new 

sex offender classifications and registration requirements with community notification 

provisions for the highest classifications. See Former R.C. 2950 (eff. 1/1/97 and 7/1/97). 

The Ohio Supreme Court ruled the legislature was constitutionally permitted to apply 

Megan's Law to offenses committed before the effective date. State v. Cook, 83 Ohio 

St.3d 404, 409-423, 700 N.E.2d 570 (1998) (finding the law was remedial rather than 

punitive and did not violate the retroactivity clause of the Ohio Constitution or the ex post 

facto clause of the United States Constitution). See also State v. Ferguson, 120 Ohio 

St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, ¶ 40-43 (as to 2003 amendments). 

{¶16} Appellant’s rape offense was a sexually oriented offense. Former R.C. 

2950.01(D)(1), citing R.C. 2907.02. The label “sexually oriented offender” would have 

attached automatically by operation of law and required the offender to report for ten 

years; however, the label “sexual predator” was a classification to be imposed by judicial 

decree and required the offender to report for life with community notification. Former 
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R.C. 2950.07(B); State v. Schilling, __ Ohio St.3d __, 2023-Ohio-3027, __ N.E.3d __, ¶ 

24-26. 

{¶17} A sexual predator is defined as a sexually oriented offender who is likely to 

engage in a sexually oriented offense in the future. Former R.C. 2950.01(E). However, 

a person convicted of a sexually oriented offense could be classified as a sexual predator

only in accordance with division (B) or (C). Former R.C. 2950.09(A) (unless convicted of 

a sexually violent predator specification or required to register for life by another state). 

{¶18} Division (C) provided where an offender was convicted of a sexually 

oriented offense and serving time in prison on a sentence imposed before the law’s 

effective date, ODRC was to determine whether to recommend to the court that the 

offender be adjudicated a sexual predator. Former R.C. 2950.09(C)(1). Thereafter, the 

court “shall not make a determination that the offender is a sexual predator in any case 

without a hearing.” Former R.C. 2950.09(C)(2)(a). 

{¶19} The hearing was to be conducted in the manner described in division (B)(1), 

after which the court was to review all testimony and evidence presented, consider all 

relevant factors, and determine by clear and convincing evidence whether the offender 

was a sexual predator. Former R.C. 2950.09(C)(2)(b). (if not, then whether the offender 

was a habitual sexual offender due to a prior sexually oriented offense). The cited division 

(B) provides for notice of the sexual predator hearing, the right to appointed counsel if 

indigent, the opportunity to testify and present other evidence (including fact witnesses 

and experts), and the ability to cross-examine the state’s witnesses. Former R.C. 

2950.09(B)(1). 

{¶20} The factors for determining whether an offender is a sexual predator 

include: (a) age; (b) prior criminal record; (c) age of the victim; (d) number of victims; (e) 

use of drugs or alcohol to impair the victim or to prevent resistance; (f) prior completion

of any sentence and participation in available sex offenders programs; (g) mental illness 

or mental disability; (h) nature of the sexual interaction and whether it was part of a 

demonstrated pattern of abuse; (i) displays of cruelty or threats of cruelty during the 

sexual offense; and (j) any additional behavioral characteristics contributing to the 

offender's conduct. Former R.C. 2950.09(B)(2).
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Case No. 23 MA 0050

{¶21} Originally, the statute provided (in pertinent part) that an offender was 

considered to be “adjudicated as being a sexual predator” if: 

Prior to the effective date of this section, the offender was convicted of or 

pleaded guilty to, and was sentenced for, a sexually oriented offense, the 

offender is imprisoned in a state correctional institution on or after the 

effective date of this section, and, prior to the offender's release from 

imprisonment, the court determines pursuant to division (C) of section 

2950.09 of the Revised Code that the offender is a sexual predator.

(Emphasis added.) Former R.C. 2950.01(G)(3). See also Former R.C. 2950.09(C)(1) 

(ODRC’s recommendation to the court “prior to the offender’s release from the term of 

imprisonment”). 

{¶22} An offender could not be labeled a sexual predator unless a hearing was 

conducted prior to the release of the prisoner (with sufficient advance notice). State v. 

Brewer, 86 Ohio St.3d 160, 163, 712 N.E.2d 736 (1999) (reviewing four cases on direct 

appeal from the sexual predator proceedings, where some courts mentioned the trial 

court lacked “jurisdiction” to hold the hearing). The Supreme Court held: “if the 

determination is not made prior to the offender's release, the offender has not been 

‘adjudicated as being a sexual predator’ according to the statute and is not subject to the 

more onerous requirements imposed upon that class of offenders.” Id. The Court 

observed, “though the court may not lose jurisdiction to hold a hearing, the hearing cannot 

have the result of adjudicating the offender to be a sexual predator if it is not held prior to 

the offender's release.” Id.

{¶23} The phrase “prior to the offender's release from imprisonment” was 

eliminated from these subdivisions when the statute was amended in 2001. Former R.C. 

2950.01(G)(4) (eff. 3/15/01). At the same time, an amendment added the following: “The 

court may hold the hearing and make the determination prior to the offender's release 

from imprisonment or at any time within one year following the offender's release from 

that imprisonment.” Former R.C. 2950.09(C)(2)(a).

{¶24} A new system, the Adam Walsh Act, went into effect on January 1, 2008 

(before Appellant’s release from prison). Under this act, the offender is automatically 

classified into one of three tiers by operation of law depending on the offense, with no 
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Case No. 23 MA 0050

judicial discretion. R.C. 2950.01(E)-(G). The scheme instructed the attorney general to 

reclassify existing offenders. R.C. 2950.031(A); R.C. 2950.032(A)(1). 

{¶25} Appellant says he filed 08 CV 381 before his release from prison to 

challenge the attorney general’s ability to classify him under the Adam Walsh Act. Two 

years after Appellant was released from prison and while 08 CV 381 was stayed and still 

pending, the Ohio Supreme Court ruled the reclassification statutes in the Adam Walsh 

Act “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.” Bodyke, 126 Ohio St.3d 266, ¶ 66. The Court found 

the statutes requiring the attorney general to reclassify sex offenders who were already 

classified by court order under former law violate the separation of powers doctrine by 

allowing the executive branch to review past judicial decisions and by requiring the 

opening of final judgments. Id. at ¶ 67. This was the case cited in the 2010 judgment 

vacating Appellant’s Adam Walsh Act tier classification (notwithstanding the alleged lack 

of a previous classification order).

{¶26} A year later, the Ohio Supreme Court found the legislature was not 

constitutionally permitted to apply the Adam Walsh Act retroactively to offenders who 

committed their offenses prior to the effective date. State v. Williams, 129 Ohio St.3d 

344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶ 22 (the changes rendered the scheme “so 

punitive that its retroactive application is unconstitutional”). The holding in Williams would 

be most relevant to those who committed their offense prior to the Adam Walsh Act but 

had no prior classification court order (which is Appellant’s alleged status). 

{¶27} As a result, “[t]hose who committed their offense before the effective date 

of the AWA are subject to the provisions of Megan's Law; those who committed their 

offense after the effective date of the AWA are subject to the AWA.” State v. Howard, 

134 Ohio St.3d 467, 2012-Ohio-5738, 983 N.E.2d 341, ¶ 17.

ASSIGNMENT OF ERROR

{¶28} Appellant’s assignment of error on appeal contends: 

“The Mahoning County Common Pleas Court erred when it denied Alvin Kennedy’s 

motion for reclassification by operation of law.”
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{¶29} Appellant points out the record in his criminal case contains no indication 

he was ever the subject of a sexual predator hearing or a sexual predator judgment and 

suggests the record in the civil case contains no indication of a sexual predator hearing 

or consideration of the sexual predator factors. He says, in 2010, the court in his civil 

action violated the strict requirements of Megan’s Law when it mistakenly reinstated a 

sexual predator classification that had never been imposed. He blames this mistake on 

the state misrepresenting his prior classification status to the court in his civil action (in 

the state’s confession of judgment, which asked the court to vacate the Adam Walsh Act 

classification and to reinstate the prior sexual predator classification). In the conclusion 

of his brief, Appellant mentions for the first time that this error resulted in a “void” 

classification.

{¶30} The state argues the argument is barred by res judicata because Appellant 

did not raise it earlier. Initially, we note the state’s brief suggests Appellant should have 

raised the issue in the appeal of his 1988 conviction or after the 1999 anticipated 

proceedings. (St.Br. 1, 3) (“Appellant did not bring this appeal when he was convicted in 

1988”; “Regardless of when Appellant was made aware that he was a sexual predator—

1999, 2008, or 2010—one thing that is clear is that he took no action, via appeal or 

otherwise, to address his classification until 2022”). As Appellant points out: Megan’s 

Law was enacted in 1997 (after his direct appeal of his conviction); no judgment 

classifying him as a sexual predator was issued when the court was contemplating a 

hearing in 1997 through 1999 after receiving a “recommendation” from ODRC; and he 

(allegedly) was not classified as a sexual predator until the 2010 court order (which was 

the result of his initiation of the 2008 action in response to the attorney general’s 

classification of him as a tier III offender under the Adam Walsh Act).3

{¶31} More appropriately, the state points out Appellant did not contest the sexual 

predator label imposed on September 20, 2010, when the trial court granted his petition 

3 The offender search exhibit showing Appellant’s label which he attached to his reclassification motion also 

mentions a 2015 conviction for failing to register, citing R.C. 2950.04. (Mot.Ex. B). The state did not raise 

the issue below but now argues Appellant could have appealed the 2015 conviction to raise any issue with 

continuing registration requirements due to the alleged flaws with his sexual predator label. We note the 

statute cited in Appellant’s exhibit deals with the manner of registering and applies to sexually oriented 

offenses in general; i.e., even without a sexual predator label, Appellant still would have been required to 

register as a sexually oriented offender at that time, as it was within 10 years of his release. 
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contesting his 2008 Adam Walsh Act tier III classification and “reinstated” sexual predator 

classification and registration requirements. It is emphasized that Appellant could have 

appealed this judgment, which resulted in his official classification record being modified 

from tier III to “(Pre AWA) Sexual Predator.” 

{¶32} It has been observed that cases discussing errors related to “jurisdiction” 

do not always involve a lack of jurisdiction of the type that renders a judgment void. Pratts 

v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 10-12, 21-22. “Subjectmatter jurisdiction refers to the constitutional or statutory power of a court to adjudicate a 

particular class or type of case.” State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 

159 N.E.3d 248, ¶ 23. The court acquires personal jurisdiction over a criminal defendant 

where there exists a “lawfully issued process, followed by the arrest and arraignment of 

the accused and his plea to the charge” or the defendant “submits” to the court's 

jurisdiction without objecting to it. State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio4784, 162 N.E.3d 776, ¶ 36. The “third type of jurisdiction”, which involves consideration 

of the individual parties' rights and can only render a judgment voidable, involves the trial 

court’s “jurisdiction over a particular case [which] refers to the court's authority to proceed 

or rule on a case that is within the court's subject-matter jurisdiction.” Bank of America, 

N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 19-23.

{¶33} Where a trial court had jurisdiction over the subject matter of the action and 

the parties, subsequent questions merely involve the “exercise of the jurisdiction” already 

conferred and “any error in the exercise of that jurisdiction renders the court's judgment 

voidable, not void.” Harper, 160 Ohio St.3d 480 at ¶ 22, 26, 41-42. Allegations about a 

voidable judgment must be raised in an appeal of the pertinent judgment and not in a 

subsequent motion where such allegations will be considered res judicata. Id. (overruling 

precedent on a void sentence and holding the failure to properly impose post-release 

control at sentencing does not render that portion the sentence void). “[F]ailure to 

timely—at the earliest available opportunity—assert an error in a voidable judgment, even 

if that error is constitutional in nature, amounts to the forfeiture of any objection.” 

Henderson, 161 Ohio St.3d 285 at ¶ 17.

{¶34} In Henderson, the Supreme Court barred the prosecution from attempting 

to correct the trial court’s error in imposing a sentence of 15 years for murder instead of 
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the statutorily required sentence of 15 years to life. Henderson, 161 Ohio St.3d 285 at ¶ 

1, 43 (pointing out the common pleas court had subject matter jurisdiction over felony 

sentencing). The Court found the state was required to file a direct appeal of the sentence 

in order to correct the issue, opining the sentence was not void but only voidable (and 

thus subject to the res judicata bar). Id. “[W]hen a court has jurisdiction to act, any errors 

in the court's judgment are voidable and are subject to res judicata if they are not timely 

appealed * * *.” State v. Schilling, __ Ohio St.3d __, 2023-Ohio-3027, __ N.E.3d __, ¶ 1.

{¶35} Citing Henderson, the state concludes Appellant is likewise barred from 

protesting an erroneous trial court decision on his sexual predator label after he failed to 

appeal the decision. Appellant’s reply claims the more recent Schilling case rendered 

Henderson inapplicable to this type of sex offender classification issue. 

{¶36} In Schilling, the defendant committed a sexually oriented offense prior to 

the effective date of the Adam Walsh Act but was sentenced after the act’s effective date. 

At sentencing, he was provided notice that he was a tier I offender (the lowest tier). Id.

at ¶ 9. He automatically would have been considered a sexually oriented offender under 

Megan’s Law. When the defendant later asked for early termination of his reporting 

requirements and credit for out-of-state reporting, the state argued he could not seek early 

termination because he was actually a sex offender under Megan’s Law (which did not 

provide for such procedure). Id. at ¶ 13. The defendant urged the state’s contention was 

barred by res judicata. The trial court declared the defendant had been erroneously 

classified under the Adam Walsh Act, he was a sexually oriented offender under Megan’s 

Law, and early termination could not be granted. Id. at ¶ 15. The defendant later filed a 

second motion and appealed the denial of this second motion. The appellate court 

reversed, applying the holding in Henderson and essentially concluding the Adam Walsh 

Act classification remained because the court was barred by res judicata from revisiting 

the unappealed sentence. 

{¶37} The Supreme Court in Schilling disagreed, pointing out there was not 

actually a judicial decision imposing the status of a tier I sex offender (just a 

memorialization that the offender was notified about this tier). Id. at ¶ 23-25. “Likewise, 

classification as a sexually oriented offender under Megan's Law and the attendant 

registration and reporting obligations do not arise from a trial court's judgment” but arise 
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by operation of law (unlike a habitual offender or sexual predator label). Id. at ¶ 25. “A 

person's obligation to register and report as a sex offender under either of Ohio's sexoffender registration and reporting schemes does not arise by judicial determination. It 

arises by operation of law based on the sex-offense conviction itself. Accordingly, 

Henderson does not apply here, because our holding in that case applies only with 

respect to errors in a trial court's exercise of its judgment.” Id. at ¶ 2. 

{¶38} Distinctly, Appellant was seeking to have the trial court in his original 

criminal sex offense case declare void a sexual predator judgment issued by a court in 

his civil (or administrative appeal) case. Still, he says the particular sexual predator 

decision in his civil case was not entered after an exercise of judgment on the sexual 

predator label because the court believed it was merely reimposing a prior designation 

that never in fact occurred. However, Schilling (which permits modification of the Adam 

Walsh Act automatic label of tier I to the Megan’s Law automatic label of sexually oriented 

offender) does not answer the question raised by Appellant’s demand here (to change 

the Megan’s Law label of sexual predator to the automatic label of sexually oriented 

offender under the same law).

{¶39} In support of its res judicata argument, the state cites cases where a 

classification or registration requirement was imposed at sentencing and the defendant 

failed to appeal the issue and then filed a post-conviction motion raising a classification 

issue. See, e.g., State v. Schell, 9th Dist. Lorain No. 21CA011816, 2022-Ohio-4142 

(decision incorrectly classifying defendant with no prior convictions as a habitual sex 

offender under Megan's Law, instead of a sexually oriented offender, was not void; the 

issue was res judicata as the classification order could have been appealed); State v. 

Hobbs, 4th Dist. Scioto No. 05CA3011, 2006-Ohio-3121 (res judicata prohibited a 

defendant from raising issues with his classification where he failed to appeal the 

registration order issued in his criminal case for failure to register after an out-of-state 

conviction). See also State v. Horch, 3d Dist. Union No. 14-07-47, 2008-Ohio-1484, ¶ 10 

(argument was barred by res judicata where the direct appeal did not allege error 

regarding the trial court's failure to hold a sexual predator classification hearing before 

labeling the defendant in the sentencing entry).
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{¶40} Appellant’s reply argues the failure to appeal the imposition of a registration 

requirement imposed at sentencing is distinguishable from his situation. Nevertheless, 

the state’s point was to cite cases involving a failure to appeal the entry containing the 

contested label; i.e., cases which address whether certain omissions leading up to the 

label can render it void (so as to avoid the res judicata bar in a post-sentence motion to 

eliminate a classification). 

{¶41} The Tenth District held a trial court has jurisdiction after the offender’s 

release from prison to correct the Adam Walsh Act tier label placed upon him before his 

release. State v. Nash, 10th Dist. Franklin No. 19AP-171, 2020-Ohio-388, ¶ 11-12, citing 

Brewer, 86 Ohio St.3d at 164 (indicating the trial court does “not lose jurisdiction to hold 

a hearing” after release) and State v. Bellman, 86 Ohio St.3d 208, 209 (1999) (the 

statutory timing requirements of the sexual predator hearings are not jurisdictional and 

were waived where an offender agreed to a continuance). In Nash, the defendant was 

notified of his tier III sexual offender status at sentencing even though his offense was 

committed prior to the Adam Walsh Act. Before his release from prison, a reclassification 

hearing was scheduled; however, it was continued until after his release, when he claimed 

the court lost jurisdiction to label him a habitual sex offender. Nash, 10th Dist. No. 19AP17 at ¶ 3. The Tenth District concluded: “Notwithstanding the fact that Nash has been 

released from prison, the trial court had jurisdiction to vacate the improper punitive Adam 

Walsh Act classification, hold a hearing, and replace it with an appropriate civil registration 

requirement under Megan's Law.” Id. at ¶ 18. See also State v. Bell, 12th Dist. Clermont 

No. CA2015-10-077, 2016-Ohio-7363, ¶ 12-21 (the trial court does not lose jurisdiction to 

hold a hearing and reclassify under Megan’s Law after a defendant is released, where 

the attorney general classified him under the Adam Walsh Act while he was incarcerated). 

{¶42} The erroneous exercise of jurisdiction in adjudicating a person as a sexual 

predator is not the same as a lack of subject matter jurisdiction to rule in a case. See 

State ex rel. Grant v. Collins, 155 Ohio St.3d 242, 2018-Ohio-4281, 120 N.E.3d 804, ¶ 

13, 16. In accordance, a trial court would not lack jurisdiction to impose Megan’s Law 

requirements on offenders after their release from prison where before their release: they 

were labeled under the Adam Walsh Act; they initiated an action to contest the Adam 

Walsh Act label; and that case was stayed pending a Supreme Court ruling. 
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{¶43} Whether the trial court erred in issuing the judgment in Appellant’s 2008 

action, which had the result of labeling Appellant a sexual predator, could have been 

addressed in a direct appeal of the September 20, 2010 judgment now being contested. 

Any failure to follow the statutory process for labeling would not render a judgment void. 

Likewise, any erroneous use of the term sexual predator instead of the term sexually 

oriented offender or instead of just generally saying his prior classification was reinstated 

would not equate to a lack of subject matter jurisdiction by the court issuing the judgment 

but would be an error in the exercise of jurisdiction. Where a person institutes an action 

and succeeds in challenging a label imposed upon them under one act and where the 

same judgment relabels the person under a prior act, the person should appeal if the 

relabeling is incorrect. Accordingly, Appellant’s arguments are barred by res judicata to 

the extent they could have been raised in a 2010 appeal. 

{¶44} Even if Appellant is suggesting we should read the contested line in the 

September 20, 2010 judgment under an extremely limited reading, the jurisdictional 

category of the order does not change. This portion of the judgment states, “The 

classification and registration order directing Petitioner-Defendant Alvin A. Kennedy to 

report as a sexual predator is hereby reinstated.” One could argue this should be 

interpreted as a pure order to reinstate a prior order and not as a sexual predator label in 

itself, meaning if no prior sexual predator order could be found, then the reinstatement 

order had no practical effect, except to reinstate whatever prior classification order was 

imposed on Appellant by operation of law (sexually oriented offender). 

{¶45} Under the above reading, one could reason the record-keeping authorities 

have been miscategorizing Appellant. In other words, those following the judgment are 

failing to follow the precise concept encompassed in the language on reinstatement. Yet, 

even under this favorable reading with an argument that the attorney general was 

misclassifying Appellant based on the misreading of a judgment (i.e., the order was 

merely to reinstate a prior order), any remedy would have to occur by other means. 

{¶46} For instance, one could envision the issuance of a writ in an action against 

the official who maintains the classification records. See State v. Kelly, 7th Dist. 

Mahoning No. 07 MA 27, 2007-Ohio-6228, ¶ 31, 33 (where the entry labeled the offender 

as a sexual predator but did not specifically impose duty to register, this court mentioned 
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the dispute as to ODRC registration requirements could possibly be remedied by a writ), 

citing State v. Hayden, 96 Ohio St.3d 211, 2002-Ohio-4169, 773 N.E.2d 502, ¶ 17 

(misidentification as a sexual predator who was required to register has a mandamus 

remedy).4 However, this court will not issue an advisory opinion on the likelihood of 

success of proceeding through the requirements for seeking an extraordinary writ in an 

original action. 

{¶47} To further demonstrate the problem with seeking relief from the court in his 

criminal case, we make some additional observations. As emphasized above, the labels 

under Megan’s Law are civil and collateral. See Cook, 83 Ohio St.3d at 409-423 (Megan’s 

Law is remedial rather than punitive); State v. Ferguson, 120 Ohio St.3d 7 at ¶ 40-43 

(regarding 2003 amendments). In the case at bar, the court in a separate civil type of 

action was (allegedly) the only court stating Appellant was a sexual predator (even if

indirectly through “reinstatement” language). Even in cases where it was the judge in the 

criminal case who issued the sexual predator judgment, courts have observed a motion 

to vacate an erroneously imposed label is not a petition for post-conviction relief (under 

R.C. 2953.23); rather, it is a Civ.R. 60 motion. Kelly, 7th Dist. No. 07 MA 27 at ¶ 22. 

{¶48} “To the extent that [the offender’s] motion challenged his sexual predator 

classification, it could not be characterized as a petition for postconviction relief, and no 

provision of the Ohio Rules of Criminal Procedure apply. That portion of [his] motion is 

most accurately characterized as a motion for relief from judgment under Civ.R. 60(B).” 

State v. Dennard, 9th Dist. Lorain No. 17CA011199, 2019-Ohio-2601, ¶ 9, citing State v. 

Wesley, 149 Ohio App.3d 453, 2002-Ohio-5192, 777 N.E.2d 905, ¶ 6 (6th Dist.) 

(“Notwithstanding the state's extensive trial court argument characterizing appellant's 

‘Petition’ as an application for postconviction relief, it appears that the trial court properly 

treated it as a motion for relief from judgment, pursuant to Civ.R. 60(B).”). See also State 

v. Booker, 8th Dist. Cuyahoga No. 95740, 2011-Ohio-2154, ¶ 9.

4 We also cited cases concerning a gap in statutory registration coverage. Kelly, 7th Dist. No. 07 MA 27 at 

¶ 28-29, citing State v. Taylor, 100 Ohio St.3d 172, 2003-Ohio-5452, 797 N.E.2d 504, ¶ 10, citing State v. 

Bellman, 86 Ohio St.3d 208, 714 N.E.2d 381 (1999) (although the offender could be adjudicated a sexual 

predator, he had no duty to register if he did not fit within the plain language of R.C. 2950.04 describing 

categories of registrants).
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{¶49} Accordingly, a post-judgment motion could have been attempted under 

Civ.R. 60 in the case where the order was issued. Raising the issue in a post-sentence 

motion in the criminal case (a case where allegedly no sexual classification order exists), 

asks the criminal court to vacate another court’s judgment by issuing a declaratory 

judgment on the other judge’s order or by issuing an order to the maintainer of the 

classification records. That is, Appellant’s motion filed years after his conviction in the 

criminal case attempts to introduce, analyze, and reject an order issued in a separate 

action resulting in the label thereafter placed upon him by entities not parties to this action. 

He is thereby asking the court in his criminal case (and this court on appeal in that criminal 

case) to evaluate evidence outside the record such as the procedural history of another 

case. This is a process that would generally occur by a direct record review (if a motion 

had been filed in the civil case) or through a summary judgment motion (if an original 

action had been initiated and allowed to proceed). The criminal court and its reviewing 

court cannot just make assumptions (such as on the lack of original actions on this topic 

or on the contents of unsworn documents attached to his motion). We also note the file 

in 08 CV 381 was not certified as an exhibit to the motion filed in the criminal case, and 

the complaint initiating the 2008 action was not attached to the reclassification motion in 

order to ascertain what Appellant was seeking in that action, the attachment of any 

exhibits to the complaint, or any invited error issues. 

{¶50} To the extent Appellant may present a challenge to the 2010 judgment 

arising from facts outside of the record in 08 CV 381 in an attempt to avoid a res judicata 

bar in that case, filing a motion in the criminal case is improper. In accordance, 

Appellant’s assignment of error is overruled, and the trial court’s judgment denying 

Appellant’s reclassification motion is affirmed.

Waite, J., concurs.

Hanni, J., dissents, with dissenting opinion.
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Hanni, J., dissent with dissenting opinion.

{¶51} With regard and respect to my colleagues, I must dissent from the majority 

opinion. I would find that former R.C. 2950.09(B)(3) automatically classified Appellant as 

a sexually oriented offender by operation of law. 

{¶52} Appellant was convicted and sentenced in 1988. We affirmed his 

convictions in 1990. The trial court issued judgment entries in 1997 and 1998 setting time 

limits for the prosecution to respond as to whether a classification hearing was necessary 

after Megan’s Law was enacted. A hearing was finally scheduled eight months later, but 

the hearing was continued at the request of the defense and thereafter canceled.

{¶53} Appellant never received a classification hearing. The trial court never 

classified Appellant under Megan’s Law. The prosecution never appealed or otherwise 

notified the court of the lack of a hearing or classification. 

{¶54} No further action occurred in Appellant’s criminal case until December 22, 

2022, over 20 years later. The public defender filed a motion for reclassification and 

mentioned Appellant’s 2008 pro se civil action challenging his classification under the 

Adam Walsh Act. The court agreed with Appellant in the 2008 action following the Ohio 

Supreme Court’s holding in State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 

N.E.2d 753, and the State of Ohio’s confession of judgment. However, the court 

“reinstated” Appellant’s “prior classification” as a sexual predator, as the State had 

requested in its confession of judgment.

{¶55} But there was no “prior classification” to “reinstate.” The State asserted that 

Appellant waived the right to contest the classification because he failed to appeal the 

court’s judgment “reinstating” his “prior classification as a sexual predator” in his civil pro 

se case. However, the same could be said regarding Appellee’s failure to appeal the trial 

court’s lack of a classification hearing or sexual predator classification some 34 years ago 

in the criminal case. In State v. Todd, 10th Dist. Franklin Nos. 20AP-587, 20AP-588, 

2023-Ohio-4847, ¶ 62 (Luper Schuster, J. concurring in judgment only), Judge Luper 

Schuster indicated that she would hold that res judicata barred the State from appealing 

the trial court’s omission of Megan’s Law classification in the 24-year old sentencing entry. 

She reasoned that former R.C. 2950.09(B)(3) permitted the defense or the prosecution 
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to appeal from sexual predator determinations and submitted that “[i]f the state believed 

Todd should have been classified as a sexual predator, its remedy was to appeal from 

the original sentencing entry even though the entry was silent as to the Megan's Law 

classification because, as explained above, the classification of sexually oriented offender 

occurred by operation of law.” Id. (Luper Schuster, J. concurring in judgment only). 

{¶56} The instant case contains a host of missteps on the part of all involved. 

Despite this, Appellant has reported as a sexual predator since 2008, even though he 

never received such a classification or a hearing. The majority places the burden on 

Appellant to properly legally challenge the trial court’s lack of hearing and classification. 

However, the manner in which to challenge this issue is unclear. Further, both the State 

and the trial court could have easily reviewed the file and discovered some time in the 

last 34 years that a classification hearing was not held and Appellant was never classified. 

{¶57} I would find that under these circumstances, the label “sexually oriented 

offender” automatically attached to Appellant by operation of law under Megan’s Law. 
[Cite as State v. Kennedy, 2024-Ohio-1170.]

For the reasons stated in the Opinion rendered herein, the assignment of error is 

overruled and it is the final judgment and order of this Court that the judgment of the Court 

of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be taxed against the 

Appellant.

A certified copy of this opinion and judgment entry shall constitute the mandate in 

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a 

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.