[Cite as State v. Grunden, 2011-Ohio-3687.]

 Court of Appeals of Ohio

 EIGHTH APPELLATE DISTRICT 

 COUNTY OF CUYAHOGA

 JOURNAL ENTRY AND OPINION 

 No. 95909 

 

STATE OF OHIO 

PLAINTIFF-APPELLEE 

vs.

 

THOMAS GRUNDEN 

DEFENDANT-APPELLANT 

JUDGMENT: 

REVERSED AND REMANDED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-525977 

BEFORE: Sweeney, P.J., Cooney, J., and S. Gallagher, J. 
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RELEASED AND JOURNALIZED: July 28, 2011 

 

FOR APPELLANT

Thomas L. Grunden, Pro Se 

No. 574-766 

Richland Correctional Institution 

P.O. Box 8107 

Mansfield, Ohio 44901 

ATTORNEYS FOR APPELLEE

William D. Mason, Esq. 

Cuyahoga County Prosecutor 

By: Daniel T. Van, Esq. 

Assistant County Prosecutor 

8

th Floor, Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 

JAMES J. SWEENEY, P.J.: 

{¶ 1} Defendant-appellant Thomas Grunden appeals from the trial 

court’s decision that denied his petition to vacate his sentence following his 

conviction for violating provisions of the Adam Walsh Act (“AWA”). The 

state agrees that defendant’s reclassification under the AWA was invalid but 

maintains that defendant’s conviction and four-year sentence should 
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nonetheless be affirmed. For the reasons that follow, we vacate defendant’s 

sentence and reverse his conviction. 

{¶ 2} Defendant was previously convicted of attempted rape, 

determined to be a sexually oriented offender (the lowest classification), and 

subjected to the reporting provisions of Megan’s Law. He was subsequently 

reclassified under the AWA to a Tier III status (the highest classification) 

which, in turn, increased his reporting and registration requirements from 

ten years to life. 

{¶ 3} In April 2009, defendant successfully obtained a restraining order 

whereby the Cuyahoga Court of Common Pleas declared that he no longer 

had to register under the AWA but was to comply with the requirements 

under Megan’s Law. As part of that order, the court instructed, “the State 

of Ohio and/or its agents are restrained from taking any steps to reclassify 

the petitioner or to implement any of the provisions of Ohio’s Senate Bill 10, 

including, but not limited to, its notification and registration provisions, 

pending resolution on the merits of petitioner’s request for a permanent 

injunction * * *.” (Emphasis added.) 

{¶ 4} Despite the foregoing court order, defendant was nevertheless 

charged in July 2009 with failing to provide a notice of change of address and 

tampering with records under the provisions of the AWA. 
4

{¶ 5} Defendant pled guilty to the first count, the remaining count was 

dismissed, and he was sentenced to a four-year prison term. Although 

defendant filed multiple pro se motions, this appeal is related to his attempts 

to vacate or set aside his sentence as being void. 

{¶ 6} Defendant advances ten assignments of error; however, only the 

dispositive errors will be addressed. 

{¶ 7} The defendant maintains that his conviction under the AWA is 

void and therefore should be vacated based primarily upon State v. Bodyke, 

126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753. The precedent in this 

district holds that “convictions arising from reporting violations under the 

AWA for any individual reclassified under its provisions are also contrary to 

law.” State v. Gilbert, Cuyahoga App. Nos. 95083 and 95084, 2011-Ohio-1928, 

citing State v. Page, Cuyahoga App. No. 94369, 2011-Ohio-83, ¶10; see, also, 

State v. Smith, Cuyahoga App. No. 92550, 2010-Ohio-2880, ¶29; State v. 

Patterson, Cuyahoga App. No. 93096, 2010-Ohio-3715; State v. Jones, 

Cuyahoga App. No. 93822, 2010-Ohio-5004. 

{¶ 8} The state recognizes that defendant’s reclassification under the 

AWA is invalid but maintains defendant’s conviction should be affirmed. 

First, the state maintains that the conviction should be affirmed because 
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defendant’s duty to provide a change of address was the same whether 

applying the AWA or Megan’s Law. 

{¶ 9} While it is true that defendant had to provide a change of address 

under both Megan’s Law and AWA, the fact remains that a violation of that 

duty can carry a significantly harsher penalty under the AWA than it would 

under Megan’s Law. Compare R.C. 2950.99 (AWA) with former R.C. 2950.99 

(Megan’s Law). This is significant and can mean the difference between 

being indicted with a first degree felony as opposed to one of a lesser felony, 

such as a third degree felony. The Ohio Supreme Court noted this distinction 

when it held where the application of the AWA to an offender is based upon 

an unlawful reclassification, the conviction is to be vacated, and the offender’s 

prior classification and reporting requirements under Megan’s Law must be 

reinstated. State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, 946 N.E.2d 

192, ¶8. Pursuant to Gingell, defendant’s conviction must be vacated and his 

prior classification and attendant requirements under Megan’s Law 

reinstated. 

{¶ 10} Notwithstanding the above authority, the state asserts that the 

trial court was correct in denying defendant’s petition because it was 

untimely and, therefore, left the trial court without jurisdiction to entertain it 

pursuant to R.C. 2953.21(A)(1). However, because Grunden’s 
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reclassification under the AWA was invalid, it rendered his conviction under 

it void. We simply cannot brush over the fact that the indictment failed to 

properly allege an offense against him just because he pled guilty to it and did 

not timely appeal. Grunden is subject to charges for violating the provisions 

of his classification under Megan’s Law, not his invalid classification under 

the AWA. The law is quite clear; Grunden could not be reclassified under 

the AWA, and the improper classification cannot serve as a predicate for an 

offense against him. Gingell, 2011-Ohio-1481; Gilbert, 2011-Ohio-1928; 

Page, 2011-Ohio-83; Smith, 2010-Ohio-2880; Patterson, 2010-Ohio-3715; State 

v. Jones, 2010-Ohio-5004. As such, his conviction pursuant to his invalid 

reclassification is not subject to principles of res judicata and remained 

subject to collateral attack at any time. 

{¶ 11} In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238,942 

N.E.2d 332, the Ohio Supreme Court held: 

{¶ 12} “* * * A sentence that does not include the statutorily mandated 

term of postrelease control is void, is not precluded from appellate review by 

principles of res judicata, and may be reviewed at any time, on direct appeal 

or by collateral attack.* * *” Id. at ¶1. 

{¶ 13} That logic applies equally where a sentence is imposed for a 

conviction obtained as a consequence of an invalid reclassification under the 
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AWA. For the foregoing reasons, the trial court erred by denying defendant’s 

petition to vacate his void sentence. The remaining assignments of error are 

overruled as moot. 

Judgment reversed and remanded to the lower court for further 

proceedings consistent with this opinion. 

It is, therefore, considered that said appellant recover of said appellee 

his costs herein. 

It is ordered that a special mandate be sent to said court to carry this 

judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

 

JAMES J. SWEENEY, PRESIDING JUDGE 

COLLEEN CONWAY COONEY, J., and 

SEAN C. GALLAGHER, J., CONCUR