[Cite as State v. Benkoe, 2012-Ohio-1180.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsMATTHEW BENKOE 

 Defendant-Appellant 

JUDGES: 

Hon. W. Scott Gwin, P.J. 

Hon. William B. Hoffman, J. 

Hon. Julie A. Edwards, J. 

Case No. 2011CA00194 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of 

Common Pleas, Case No. 2011 CR 0869 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: March 19, 2012 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

JOHN D. FERRERO, STEVEN A. REISCH 

PROSECUTING ATTORNEY, Stark County Public Defender Office 

STARK COUNTY, OHIO 200 West Tuscarawas St., Suite 200 

 Canton, Ohio 44702 

By: KATHLEEN O. TATARSKY 

Assistant Prosecuting Attorney 

Appellate Section 

110 Central Plaza, South – Suite 510 

Canton, Ohio 44702-1413 
Stark County, Case No. 2011CA00194 2

Hoffman, J. 

(¶1) Defendant-appellant Matthew Benkoe appeals his conviction and 

sentence entered in the Stark County Court of Common Pleas. Plaintiff-appellee is the 

state of Ohio. 

STATEMENT OF THE CASE 

(¶2) In 2003, Appellant entered a plea of guilty to a reduced charge of gross 

sexual imposition, a felony of the third degree, and was declared a sexually oriented 

offender under Megan’s Law, the sex offender statute in effect at the time of his 

conviction, in State v. Benkoe, Geauga Co. Case No. 03C000093. As a sexually 

oriented offender under Megan’s Law, Appellant was required to register any change of 

address with the sheriff of the county where he resided after his release from prison at 

least twenty days prior to changing his address. He was also required to verify his 

current residential address annually for a period of ten years. 

(¶3) In 2007, Appellant moved to Stark County, and failed to register his 

address. He entered a plea of guilty to failure to register in State v. Benkoe, Stark 

County Court of Common Pleas Case No. 2007CR1936. In 2010, he entered a plea of 

guilty to failure to provide written notice of a residence change to the Stark County 

Sheriff’s Office at least twenty days prior to the change of address in State v. Benkoe, 

Stark County Court of Common Pleas Case No. 2010CR0239. 

(¶4) Effective January 1, 2008, the Ohio Legislature amended current R.C. 

2950.99 directly correlating the underlying sex offense conviction to a failure to register 

conviction, and requiring the trial court to impose a definite prison term of no less than 
Stark County, Case No. 2011CA00194 3

three years if the offender has previously been convicted of failing to register under 

Ohio law. 

(¶5) Appellant was released from prison after serving his sentence. On May 4, 

2011, Appellant registered his address as Refuge of Hope, 300 Walnut Avenue N.E., 

Canton, Ohio. Appellant signed a “Notice of Registration Duties of Sexually Oriented 

Offender” acknowledging he understood the notification requirements. 

(¶6) On May 28, 2011, Appellant was removed from the Refuge of Hope for 

failure to follow rules and claimed to be living on the streets. Appellant then failed to 

register with the Stark County Sheriff’s Office. Accordingly, a warrant was issued for his 

arrest. 

(¶7) Appellant was indicted by the Stark County Grand Jury for failure to notify 

of change of address; registration of new address, R.C. 2950.05(A)(F)(1). The 

indictment contained the two previous convictions for violations of the same statute; 

elevating the penalty under R.C. 2929.13(F) to a mandatory three year prison sentence. 

(¶8) On August 11, 2011, Appellant entered a plea of no contest to the charge 

in the indictment, and orally objected to the application of the mandatory sentence. The 

trial court convicted Appellant of the charge, and sentenced him to three years in prison. 

(¶9) Appellant now appeals, assigning as error: 

(¶10) “I. THE APPLICATION OF THE MANDATORY PRISON SENTENCE OF 

S.B. 9 TO THE APPELLANT VIOLATED SECTION 28, ARTICLE II OF THE OHIO 

CONSTITUTION. 

(¶11) “II. THE IMPOSITION OF A THREE YEAR SENTENCE FOR FAILURE 

TO REGISTER AS A SEXUALLY ORIENTED OFFENDER IS GROSSLY 
Stark County, Case No. 2011CA00194 4

DISPROPORTIONATE TO THE CRIME AND CONSTITUTES CRUEL AND UNUSUAL 

PUNISHMENT.” 

I. 

(¶12) In the first assignment of error, Appellant maintains the trial court erred in 

applying the mandatory prison sentence herein. Appellant argues the trial court should 

have imposed the penalty provision in effect at the time he was declared a sexually 

oriented offender in 2003. Specifically, Appellant argues the penalty provision violates 

the retroactivity clause of the Ohio Constitution banning the passage of laws creating 

new burdens not existing at the time the crime was committed. Bielat v. Bielat, 87 Ohio 

St.3d 350. 

(¶13) Appellant was convicted of a new offense, failure to notify of change of 

address under R.C. 2950.05 (A)(F)(1). The penalty was enhanced because of 

Appellant’s two prior convictions for failing to register. See State v. Cook, 83 Ohio St.3d 

404 (holding the punishment for failure to register flows from a new violation of the 

statute, not for a past sexual offense.) Here, the trial court sentenced Appellant for the 

commission of a new crime, not a new punishment for the past sexually oriented 

offense. Not every offender who has committed a sexually oriented offense is subject to 

the new penalties imposed by R.C. 2950.99; only those who commit a new offense 

under R.C. 2950.04, 2950.041, 2950.05 or 2950.06. See Bielat, supra. 

(¶14) Appellant’s assignment of error is overruled. 

II. 

(¶15) In the second assignment of error, Appellant argues his sentence is 

grossly disproportionate to the offense and constitutes cruel and usual punishment. 
Stark County, Case No. 2011CA00194 5

(¶16) Recently in State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, 896 

N.E.2d 124, the Ohio Supreme Court held “trial courts have full discretion to impose a 

prison sentence within the statutory range and are no longer required to make findings 

or give their reasons for imposing maximum, consecutive, or more than the minimum 

sentences.” Kalish at ¶ 1 and 11, 896 N.E.2d 124, citing Foster at ¶ 100, See also, State 

v. Payne, 114 Ohio St.3d 502, 2007–Ohio–4642, 873 N.E.2d 306; State v. Firouzmandi,

Licking App. No.2006–CA–41, 2006–Ohio–5823, 2006 WL 3185175. 

(¶17) The Court in Kalish held appellate courts must use a two-step approach. 

“First, they must examine the sentencing court's compliance with all applicable rules 

and statutes in imposing the sentence to determine whether the sentence is clearly and 

convincingly contrary to law. If this first prong is satisfied, the trial court's decision in 

imposing the term of imprisonment shall be reviewed under an abuse of discretion 

standard.” Kalish at ¶ 4, State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856, 845 N.E.2d 

470. 

(¶18) Here, Appellant had two prior convictions for failure to register a 

residential address. The mandatory three year prison term was provided for by statute. 

While we concur with the trial court the sentence may seem harsh under the 

circumstances, Appellant’s sentence is not contrary to law and we hold it does not 

constitute cruel and unusual punishment. 

(¶19) The second assignment of error is overruled. 
Stark County, Case No. 2011CA00194 6

(¶20) Appellant’s sentence in the Stark County Court of Common Pleas is 

affirmed. 

By: Hoffman, J. 

Gwin, P.J. and 

Edwards, J. concur s/ William B. Hoffman _________________

 HON. WILLIAM B. HOFFMAN 

 s/ W. Scott Gwin_____________________

 HON. W. SCOTT GWIN 

 s/ Julie A. Edwards___________________

 HON. JULIE A. EDWARDS 
Stark County, Case No. 2011CA00194 7

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

MATTHEW BENKOE : 

 : 

 Defendant-Appellant : Case No. 2011CA00194 

 For the reasons stated in our accompanying Opinion, Appellant’s sentence in the 

Stark County Court of Common Pleas is affirmed. Costs to Appellant. 

 s/ William B. Hoffman _________________

 HON. WILLIAM B. HOFFMAN 

 s/ W. Scott Gwin_____________________

 HON. W. SCOTT GWIN 

 s/ Julie A. Edwards___________________

 HON. JULIE A. EDWARDS