[Cite as State v. Woolridge , 2012-Ohio-4088.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO : Plaintiff-Appellant : C.A. CASE NO. 24924

v. : T.C. NO. 11CR3345 LARRY WOOLDRIDGE : (Criminal appeal from Common Pleas Court) Defendant-Appellee :

:

. . . . . . . . . . O P I N I O N

Rendered on the 7th day of September , 2012.

. . . . . . . . . . JOHNNA M. SHIA, Atty. Reg. No. 0067685, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellant TINA M. McFALL, Atty. Reg. No. 0082586, Assistan t Public Defender, 117 S. Main Street, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellee

. . . . . . . . . . FROELICH, J. {¶ 1} Appellant, the State of Ohio, appeal s the sentence of the Montgomery2 County Court of Common Pleas of appellee, La rry Wooldridge, following his guilty plea to failure to notify the Montgomery County Sheriff of his change of address. At issue is

whether the trial court erred in sentencing Wooldridge pursuant to the sentencing statute in effect at the time of his original sex offe nder classification, as opposed to the amended sentencing statute in e ffect at the time of his notificati on violation. Because we hold that the trial court did not err, we will affirm. {¶ 2} On November 24, 1999, Wooldridge, who was then 47 years old, was convicted of one count of rape of a child under the age of 13, a felony of the first degree, and three counts of gross sexual imposition of thr ee different children, each under the age of 13. State v. Wooldridge , Montgomery C.P. No. 1998 CR 2940. Wooldridge was sentenced to a total of ten years in prison. Th e trial court designated him as a sexual predator under Ohio’s version of Megan’s Law, wh ich became effective in 1997. {¶ 3} In 2006, the federal Adam Walsh Ch ild Protection and Safety Act was enacted by Congress, which divided sex offenders into three tiers based solely on the type of sex offense committed. On January 1, 2008, Am.Sub.S.B. 10, which replaced Megan’s

Law with Ohio’s version of the Adam Wals h Act (“AWA”), became effective. The AWA required the Ohio Attorney General to reclassify existing sex offenders based on the tier system and to notify them of the reclassifica tion. Pursuant to the AWA, Wooldridge was

reclassified as a Tier III sex offender. {¶ 4} R.C. 2950.05 outlines a sex offende r’s registration and notification obligations. Under the version of R.C. 2950.05 in effect at the time of Wooldridge’s original classification (as a sexual predator), he was required to register every 90 days for3 life and to provide written notice to the sheriff of a change of address at least 20 days prior to changing his address. R.C. 2950.05, as am ended by S.B. 10 in 2008, also required Wooldridge (as a Tier III offender), to register every 90 days for life and to provide wr itten notice to the sheriff at least 20 days prior to changing his address. {¶ 5} R.C. 2950.99 sets forth the penalties fo r a sex offender’s failure to comply with his registration and notif ication obligations. Under the version of R.C. 2950.99 in effect at the time of Wooldridge’s original classification in 1999, the penalty for failure to notify was a felony of the fifth degree. In 2004, pursuant to S.B. 5, the penalties for registration offenses were increased. For ex ample, when the underlying sex offense was a first-degree felony, the registration offense wa s a third-degree felony. See former R.C. 2950.99. Current R.C. 2950.99, which was amended by S.B. 97 and also became effective on January 1, 2008, further increased the penaltie s for violations of the registration and notification requirement s of R.C. 2950.05. Pursuant to R.C. 2950.99, a failure to notify is a felony of the first degree when the underlying sex offense is a first-degree felony, and requires a mandatory three-year te rm in prison if the offender we re previously convicted of a registration or notification viola tion. R.C. 2950.99(A)(1)(a)(ii)(2)(B). {¶ 6} Following his release from prison, on October 5, 2011, Wooldridge was indicted for failure to notify, a felony of the first degree , for failing to provide notice of his change of address to the Montgomery County Sher iff at least 20 days prior to that change, a requirement imposed on Wooldridge as a Tier III sex offender, as required by R.C. 2950.04 and 2950.041. On October 27, 2011, over the stat e’s objection, the trial court accepted Wooldridge’s guilty plea to failure to notify, a felony of the fifth degree , which was the4 degree of his notification offense at the time of his original classifi cation. The trial court accepted this reduced plea. On November 10, 2011, again, over the state’s objection and pursuant to this court’s decision in State v. Milby , 2d Dist. Montgomery No. 23798, 2010-Ohio-6344, the trial court sentenced Wooldridge on the offense as a fifth-degree felony to community control sanctions not to exceed five years. {¶ 7} The state appeals the trial court’s sentence, asserting the following for its sole assignment of error: {¶ 8} “The trial court erred as a matter of law when it sentenced Wooldridge to community control sanctions because the sent encing statute in e ffect at the time he committed his offense classified his offense as a felony of the first degree requiring a mandatory 3-year prison sentence.” {¶ 9} In State v. Bodyke , 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, the Supreme Court of Ohio struck down as unconstitutional the reclassification provisions in the AWA, i.e. , R.C. 2950.031 and 2950.032, which require d the Attorney General to reclassify sex offenders pursu ant to the tiered scheme. Id . at ¶ 60-61. The court severed those provisions from the AWA as violating the separation-of-powers doctr ine, and held that they “may not be applied to offenders previ ously adjudicated by judges under Megan’s Law, and the classifications and community-notif ication and registration orders imposed previously by judges are reinstated.” Id . at ¶ 66. {¶ 10} The state concedes that, pursuant to Bodyke , Wooldridge’s reclassification as a Tier III sex offender and the community-notification and registration orders attending that reclassification may not be app lied, and his original classifica tion as a sexual predator and5 the community-notification and registration orders pursuant to that classification are

reinstated. {¶ 11} The state asks us to “reconsider” our decision in Milby and to hold that because Wooldridge committed his notification violation after the January 1, 2008 effective date of current R.C. 2950.99, the trial court should ha ve imposed the heightened felony classification and sentence authorized by that statute. However, because the state asserts the identical argument it presented in Milby and subsequent cases, wh ich we fully considered and rejected, we will follow our precedent. {¶ 12} In Milby , this court held that because th e prohibition against failing to notify the sheriff of a change of address did not change when R.C. 2950.05 was amended by S.B. 10 in 2008, the defendant had an ongoing duty to notify that neither the amendment of that

section nor Bodyke had changed. Id . at ¶ 31. As a result, this court held that Milby could

be convicted of failure to notify based on the original cl assification to which he was

reinstated. Id . However, this court further held that, because the related amendment of R.C. 2950.99(A)(1)(a) increased the violation from a felony of the third degree to a first-degree felony, Milby could not be convicted of the greater offense, and was entitled to a remand for resentencing as a third-degree felony. Id

. {¶ 13} This court applied Milby in State v. Johnson , 2d Dist. Montgomery No. 24029, 2011-Ohio-2069. Johnson had been designat ed a sexually oriented offender in 1994. His classification was changed to Tier III under AWA. In 2009, he was charged with a first-degree felony failure to provide no tice of his change of address. Pursuant to Milby , this court held that, because the prohib ited conduct in failing to give notice of the6 new address did not change when R.C. 2950.05 was amended, the defe ndant’s duty was not altered by the AWA. Johnson at ¶ 9. As a result, he could be convicted for failing to notify based on his prior sexual offender cla ssification to which he was reinstated under Bodyke

. Id . However, pursuant to Milby , because the related amendment of R.C. 2950.99(A)(1)(a)(i) changed the violation from a thir d-degree felony to a first-degree felony,

of which the defendant was c onvicted, this court reversed and remanded for re-sentencing for a third-degree felony. Id

. {¶ 14} Likewise, in State v. Alexander , 2d Dist. Montgomery No. 24119, 2011-Ohio-4015, Alexander had been convicted of rape, a first-degree felony, and designated as a sexually oriented offende r in 2004. He was reclassified under AWA in

2008 as a Tier III offender. He was charged with fa iling to notify the sheriff of his new address in 2010, a first-degree felony. This court stated, “[L]ike in Johnson [and Milby ], appellant should have been f ound guilty of a third-degree felony and not a first-degree felony.” Id . at ¶ 38. {¶ 15} Similarly, in State v. Alltop , 2d Dist. Montgomery No. 24324, 2011-Ohio-5541, the defendant was classified as a sexual predator in 2006. This court applied Milby in holding that because the defendant’s failure-to-notify offense was changed from a third-degree felony to a first-degree fel ony by S.B. 97, the penalty codified at R.C. 2950.99(A)(1)(a)(ii) for violation of the repor ting requirements coul d not be applied. Id . at ¶ 15-16. Consequently, a remand for resentenci ng as a third-degree felony, which was the penalty in place when the defendant was origin ally classified as a sexual predator, was appropriate. Id . at ¶ 16.[Cite as State v. Woolridge , 2012-Ohio-4088.] {¶ 16} Finally, in State v. Howard , 195 Ohio App.3d 802, 2011-Ohio-5693, 961 N.E.2d 1196 (2d Dist.), discretionary appeal allowed , 131 Ohio St.3d 1472, 2012-Ohio-896, 962 N.E.2d 803, this court noted that, while Howard ’s duty to provide notice of a change of address had not changed, the amendment of R. C. 2950.99 changed the penalty for failure to notify from a felony of the fifth degree to a fel ony of the first degree, and subjected Howard to a mandatory term of incarceration. This c ourt held that the fact that Howard committed his failure-to-notify offense after the effective date of S.B. 97, which changed the sentencing provisions for violations of R.C. 2950.05, did not affect the outcome. Id . at ¶ 12. Pursuant

to Milby , this court held that the tr ial court erred when it convict ed Howard of a first-degree felony and sentenced him accordingly, instead of finding him guilty of a fifth-degree felony.

Id

. {¶ 17} Thus, based on Milby , as followed in Johnson, Alexander, Alltop, and

Howard , when a failure-to-notify conviction is reve rsed and remanded for resentencing after an improper AWA reclassification, the penalty fo r the notification violation reverts to the penalty that was in place at the time of the defendant’s original classification. {¶ 18} We acknowledge that, following the Supreme Court’s decision in Bodyke , a conflict exists among Ohio appellate districts that have considered the application of the penalties in current R.C. 2950.99 to sex offenders classified under Megan’s Law. Our holdings are consistent with those of the Seventh and Eighth Districts. State v. Savors , 197 Ohio App.3d 61, 2012-Ohio-1297, 965 N.E.2d 1086 (7th Dist.); State v. Smith , 8th Dist. Cuyahoga Nos. 96582, 96622 & 96623, 2012-Ohio-261. However, our holdings are in conflict with the First, Fifth, and Twelfth Districts. State v. Freeman , 1st Dist. Hamilton No. C-100389, 2011-Ohio-4357; State v. Bowling , 1st Dist. Hamilton No. C-100323,8 2011-Ohio-4946; State v. Poling , 5th Dist. Stark No. 2009-CA-00264, 2011-Ohio-3201; State v. Topping , 12th Dist. Warren No. CA2011-07-067, 2012-Ohio-2259. The decisions in conflict with ours ge nerally hold that current R.C. 2950.99 is not applied retroactively to offenders classified under Megan’ s Law who fail to register or notify after the effective date

of current R.C. 2950.99. This is because an o ffender who violates these duties is not being punished for the original sex offense for which he is required to regi ster and notify, but, rather, is punished for violating his ongoi ng registration and notification duties. E.g. , Topping at ¶ 20. {¶ 19} Pursuant to this court’s precedent, we hold the trial court did not err in convicting Wooldridge of failu re to notify because, under form er law, he was required to provide notice of an address change at leas t 20 days prior to changing his address. See former R.C. 2950.05(A). Further, the trial court did not err in sentencing Wooldridge for a fifth-degree felony because, at the time of his original classification, that was the degree of felony attributed to a failure to notify the sheriff of his change of address. {¶ 20} For the reasons stated in this opini on, the state’s assignment of error is overruled, and the judgment of the Montgome ry County Court of Common Pleas will be

affirmed.

. . . . . . . . . . FAIN, J., concurs. RICE, J., dissenting: {¶ 21} I must respectfully dissent. Wooldr idge should have been sentenced as a first-degree felony offender because current R.C. 2950.99 does not violate the prohibition9 against retroactive laws. {¶ 22} The first-degree penalty for Wooldridge ’s violation of his duty to register, which arose from his past sex offense, is puni shment for a violati on of law committed after the enactment of the penalty enhancemen t provisions contained in R.C. 2950.99. His conviction for failure to regist er does not punish Wooldridge’s past conduct but is a penalty imposed for a current violation of his duty to register. {¶ 23} In 1999, Wooldridge was convicted of ra pe. At that time, he was classified as a sexual predator under Megan’s Law. After the AWA became effective on January 1, 2008, he was reclassified as a Tier III sex offender. This appeal arises from Wooldridge’s October 5, 2011 indictment for fa ilure to notify the sheriff of a change of address. {¶ 24} At the time of Wooldridge’s rape conviction, pursuant to former R.C. 2950.99, failure to notify the sheriff of an a ddress change was a fifth-degree felony. Pursuant to current R.C 2950.99, effective Janua ry 1, 2008, a failure-to-notify violation was elevated to a first-degree felony. Afte r the effective date of current R.C. 2950.99, Wooldridge was indicted for failure to notify the sheriff of his change of address as a first-degree felony. {¶ 25} The Supreme Court of Ohio in Bodyke , supra , struck down and severed the reclassification provisions of the AW A, R.C. 2950.031 and 2950.032, which required the attorney general to reclassify sex offenders w ho have already been classified by court order

under former law. Those cla ssifications had already been adjudicated by a court and requiring the executive branch to review past decisions of the judicial branch violated the separation-of-powers doctrine. Although the court in Bodyke reinstated the classifications10 and registration orders impos ed under Megan’s Law, it did not vacate or sever the current sentencing statute, R.C. 2950.99. Id . at ¶ 66. Thus, the Suprem e Court left the current penalty provisions intact. Because Wooldrid ge’s classification and registration duties imposed under Megan’s Law were reinstated, he is subject to the reporting requirements under that law. However, because the current penalty statute was not severed, I believe Wooldridge is subject to R.C. 2950.99’s increased penalties. {¶ 26} Unlike the majority, I do not belie ve that application of current R.C.2950.99 to Wooldridge violates the prohibiti on against retroactive laws. “A law is retroactive if it ‘changes the legal consequences of acts completed before its effective date.’”

Miller v. Florida , 482 U.S. 423, 430, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987), quoting

Weaver v. Graham , 450 U.S. 24, 31, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). In contrast, a statute that does not change the legal consequences of acts completed before its effective date, but “simply mandates an enhanced penalty for acts committed after the effective date of the provision,” is not retroactive . State v. Clark , 1st Dist. Hamilton No. C-910541, 1992 WL 188535, *1 (Aug. 5, 1992). {¶ 27} Current R.C. 2950.99 did not change the legal consequences of Wooldridge’s rape offense, which he committed before the statute’s effective date. Rather, the statute simply imposed an enhanced penalty for registration violations committed after

the effective date of the statute. The conduct which led to his presen t registration conviction took place long after current R. C. 2950.99 became effective. As a result, I do not believe

the statute is a retroactive law. {¶ 28} This conclusion finds support in State v. Cook , 83 Ohio St.3d 404, 70011 N.E.2d 570 (1998). In Cook , the Supreme Court of Ohio cons idered the heightened penalty for a registration violation imposed by Megan’s Law in 1997. The court stated: Even prior to the promulgation of th e current version of R.C. Chapter 2950, failure to register was a punishable offense. See former R.C. 2950.99, 130 Ohio Laws 671. Thus, any such punishment flows from a failure to register, a new violation of the statute, not from a past sex offense. In other words, the punishment is not applied retro actively for an act that was committed previously, but for a violation of law committed subsequent to the enactment

of the law.

Cook at 420-421. {¶ 29} In Clark , the defendant challenged fo rmer R.C. 2929.11, which provided that if an offender had previously been convict ed of an aggravated felony, the minimum term

of incarceration for the current offense would be imposed as a term of actual incarceration. The First District rejected the defendant’s ex post facto argument. The court held the statute was not retroactive because it did not change the legal consequences of acts completed before the effective date, but, rath er, simply mandated an enhanced penalty for acts committed after the effective date of the statute where the defendant had previously been convicted of a felony. Id . at *4. {¶ 30} Likewise, in State v. Sargent , 126 Ohio App.3d 557, 710 N.E.2d 1170 (12th Dist.1998), the defendant was convicted of a ggravated arson. Based on a prior robbery conviction, the trial court incr eased his sentence under former R.C. 2929.01(EE) as a repeat violent offender. The defendant argued the statute was an ex post facto law. The Twelfth12 District disagreed, holding that statutes which enhance the pena lty for repeat offenders based in part upon criminal conduct occurring prior to passage of the enhancement statutes are not ex post facto laws. Id . at 566. The enhancement stat utes do not punish the past conduct; instead, they merely increase the se verity of a penalty imposed for criminal

behavior that occurs after enactment of the enhancement legislation. Id

. {¶ 31} This court reached the same conclusion in State v. Sanders , 2d Dist. Miami Nos. 95 CA 11, 95 CA 12, 1995 WL 634371 (Sep. 29, 1995). There, the defendant pled no

contest to OVI. As a recidi vist offender, she was subject to a mandatory term of confinement. The trial court granted her motion to declare the mandatory sentencing statute unconstitutional. On appeal by the state, this court reversed, holding: The conduct which led to Sanders’ [c urrent] conviction for a violation of R.C. 4511.19 took place on March 17, 1994. According to the version of R.C. 4511.99(A) then in effect, whic h became effective on September 1, 1993, Sanders was subject to greater pe nalties * * * because she had been

convicted of violations of R.C. 4511.19 tw ice before within five years. * * * Because these prior viola tions took place before the effective date of R.C. 4511.99(A), the trial court found that the penalty enhancement provisions of that statute violate the Constitutional prohibitions against ex post facto laws. Statutes which enhance the penalty fo r repeat offenders based in part upon criminal conduct occurring prior to passage of the enhancement provision do not constitute ex post f acto legislation. The enhancement provisions do not punish the past conduc t; rather, the enhancement provisions13 merely increase the severity of a penalty imposed for criminal behavior that occurs after passage of the e nhancement legislation. * * * R.C. 4511.99(A) does not impose a punishment on Sanders for her past convictions. It merely increases the severity of the punishment imposed

for her current offense becau se of those past convictions. It is not an ex post

facto law.

Sanders at *13. {¶ 32} I do not see a meaningful distinc tion between the analogous enhancement statutes, found to be constitutional by this cour t as well as the First, Eighth, and Twelfth Districts, and current R.C. 2950.99. Although W ooldridge’s duty to register flowed from his sex offense, his failure to notify the sheri ff of his address change was a new offense that

he committed after the effective date of current R.C. 2950.99. Thus, the penalty enhancement provisions do not punish Wooldrid ge’s past conduct. Ra ther, they merely increase the severity of a penalty imposed for a current violation of his duty to register, which arose from his past sex offense. Fo r this reason, I do not believe current R.C. 2950.99 violates the prohibition against retroactive laws. {¶ 33} For the foregoing reasons, I respectfully dissent.

. . . . . . . . . (Hon. Cynthia Westcott Rice, Eleven th District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio). Copies mailed to:

Johnna M. Shia Tina M. McFall Hon. Steven K. Dankof