[Cite as State v. Clemons, 2012-Ohio-5362.]

STATE OF OHIO, BELMONT COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, 

V. 

DAVIS FLOYD CLEMONS, 

 DEFENDANT-APPELLANT. 

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 CASE NO. 11 BE 26 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common 

Pleas of Belmont County, Ohio 

Case No. 09CR013 

JUDGMENT: Reversed and Remanded 

APPEARANCES: 

For Plaintiff-Appellee Thomas A. Hampton 

Special Prosecuting Attorney 

P.O. Box 310 

160 East Main Street 

Barnesville, Ohio 43913 

For Defendant-Appellant Atty. Peter Galyardt 

Assistant State Public Defender 

250 East Broad Street, Suite 1400 

Columbus, Ohio 43215 

JUDGES: 

Hon. Gene Donofrio 

Hon. Joseph J. Vukovich 

Hon. Mary DeGenaro 

 

 

 Dated: November 15, 2012 
[Cite as State v. Clemons, 2012-Ohio-5362.]

DONOFRIO, J. 

{¶1} Defendant-appellant David Clemons appeals the Belmont County 

Common Pleas Court decision classifying him as a Tier III sex offender. 

{¶2} In 2009, Clemons was indicted on eight counts of unlawful sexual 

conduct with a minor for his 1998 acts of sexual conduct with his daughter’s friend. 

See R.C. 2907.04(A). The victim was thirteen and fourteen at the time of the 

relationship. Clemons was also indicted on two counts of raping his daughter, who 

was as young as four at the time of the first incident. See R.C. 2907.02(A)(1)(b) 

(constituting the offense of rape of a child under the age of ten). It was alleged that 

these rapes took place between January 1, 1994 and December 31, 1996. 

{¶3} In an entry filed March 1, 2010, the court sentenced Clemons to three 

years on each of the first eight counts and ten to twenty-five years on the two rape 

counts all to run consecutively, for a total sentence of 44 to 74 years in prison. The 

court also classified Clemons as a Tier III sex offender pursuant to the current 

version of R.C. Chapter 2950, 2007 Am.Sub.S.B. No. 10 (S.B. 10) – Ohio’s version of 

the federal Adam Walsh Act. 

{¶4} Clemons appealed his conviction and sentence to this court in State v. 

Clemons, 7th Dist. No. 10 BE 7, 2011-Ohio-1177. This court affirmed his conviction 

and sentence with one exception. Clemons had argued that he should not have 

been tried and convicted for third-degree felony unlawful sexual conduct with a minor 

where the offense would have only constituted a fourth-degree felony at the time of 

commission. The court agreed, finding a defendant must be charged with the version 

of the offense in effect at the time of the crime’s commission. Clemon’s eight 

convictions of unlawful sexual conduct with a minor were amended to eight 

convictions for corruption of a minor and the case was remanded to the trial court for 

Clemons to be resentenced under the lower degree of felony. 

{¶5} On remand, the trial court resentenced Clemons to seventeen months 

in prison on each of the amended eight convictions for corruption of a minor to be 

served consecutively to one another and consecutively to the sentences for 

Clemons’s rape convictions, for a total sentence of 31 years and 4 months to 61 
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years and 4 months in prison. The court again classified Clemons as a Tier III sex 

offender. This appeal followed. 

{¶6} Clemons’s sole assignment of error states: 

The trial court violated Mr. Clemons’s right under the Ohio 

Constitution to be free from retroactive laws. Section 28, Article II, Ohio 

Constitution. (June 9, 2011 Resentencing Hearing Transcript, at 21; 

June 10, 2011 Resentencing Entry, at 8). 

{¶7} Clemons directs this court’s attention to the Ohio Supreme Court’s 

decision in State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 344, 952 N.E.2d 

1108, syllabus, where it held that “2007 Am.Sub.S.B. No. 10, as applied to 

defendants who committed sex offenses prior to its enactment, violates Section 28, 

109 Article II of the Ohio Constitution, which prohibits the General Assembly from 

passing retroactive laws.” Here, each of Clemons’s offenses occurred prior to the 

enactment of S.B. 10. Therefore, Clemons contends the trial court’s classification of 

him as a Tier III sex offender should be reversed and his case remanded for 

reclassification under the law that existed at the time of his offenses. 

{¶8} In response, plaintiff-appellee State of Ohio acknowledges the Ohio 

Supreme Court’s Williams decision but insists that since Clemons did not contest his 

sex offender classification at the trial or appellate level when he was first classified as 

a Tier III sex offender he waived the ability to raise it now. 

{¶9} The Ohio Supreme Court was asked to decide whether S.B. 10 was 

unconstitutionally retroactive when it was applied to an offender who committed a sex 

crime about one month prior to the enactment date of S.B. 10. Williams, 129 Ohio 

St.3d 344, 2011–Ohio–3374, 952 N.E.2d 1108. In response to that question, the 

Ohio Supreme Court held that S.B. 10 is punitive in nature. Id. at ¶ 15, 952 N.E.2d 

1108. “The statutory scheme has changed dramatically since this court described the 

registration process imposed on sex offenders as an inconvenience ‘comparable to 

renewing a driver’s license.’ [State v. Cook (1998), 83 Ohio St.3d 404, 409, 418, 700 
-3-

N.E.2d 570]. And it has changed markedly since this court concluded in [State v. 

Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110] that R.C. Chapter 

2950 was remedial.” Id. Senate Bill 10 has imposed new or additional burdens, 

duties, obligations, or liabilities as to a past transaction. Id. at ¶ 21. Thus, the Court 

held that applying S.B. 10 to any sex offender who committed an offense prior to its 

enactment violates Section 28, Article II of the Ohio Constitution, the prohibition 

against the enactment of retroactive laws. Id. 

{¶10} As for the state’s argument that Clemons waived the issue of his sex 

offender classification, the Ohio Supreme Court has held that “[f]ailure to raise at the 

trial court level the issue of the constitutionality of a statute or its application, which 

issue is apparent at the time of trial, constitutes a waiver of such issue.” State v. 

Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 (1986), syllabus. However, the Ohio 

Supreme Court has also held that the waiver doctrine announced in Awan is 

discretionary. In re M.D., 38 Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus. “Even 

where waiver is clear, [a reviewing court may] consider constitutional challenges to 

the application of statutes in specific cases of plain error or where the rights and 

interests involved may warrant it.” Id. 

{¶11} As indicated, the Ohio Supreme Court found in Williams that S.B. 10 

violated the Ohio constitution’s prohibition against retroactive laws as applied to 

defendants who committed sex offenses prior to its enactment. Given that the Court 

found S.B. 10 unconstitutional on the basis of the constitution’s prohibition against 

retroactive laws, we find that this is a compelling reason to allow Clemons’s 

constitutional challenge despite his failure to raise it below. This court has previously 

exercised authority to allow relief under Williams. In State v. Weaver, 7th Dist. No. 

11 BE 12, 2011-Ohio-6402, ¶18, this court allowed relief to a defendant under the 

Williams decision despite his having failed to appeal the trial court’s original 

sentencing decision. 

{¶12} Moreover, the Ohio Supreme Court’s own treatment of cases like this 

one post-Williams further supports our decision here to reach Clemons’s 
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constitutional challenge despite his having failed to raise it below. There were many 

cases the Court had accepted for review which involved a defendant who had lost 

their constitutional challenge at the trial or appellate court level. The Ohio Supreme 

Court stayed those cases pending its decision in Williams. Following the Court’s 

decision in Williams, the Court reversed and remanded those cases for application of 

its Williams decision. Among those case were ones in which the defendant had 

failed to raise their constitutional challenge below. See State v. Franklin, 182 Ohio 

App.3d 410, 2009-Ohio-2664, 912 N.E.2d 1197 (10th Dist.). 

{¶13} Accordingly, Clemons’s sole assignment of error has merit. 

{¶14} The judgment of the trial court is hereby reversed and the case 

remanded to the trial court to classify Clemons pursuant to the law that existed at the 

time he committed his offenses. 

Vukovich, J., concurs. 

DeGenaro, J., concurs.