[Cite as State v. McMullen, 2012-Ohio-2629.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

Nos. 97475 and 97476

STATE OF OHIO

PLAINTIFF-APPELLANT

vs. 

JOSEPH MCMULLEN

DEFENDANT-APPELLEE 

JUDGMENT: 

REVERSED AND REMANDED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-542624 

BEFORE: S. Gallagher, J., Boyle, P.J., and Kilbane, J. 

RELEASED AND JOURNALIZED: June 14, 2012 
ATTORNEYS FOR APPELLANT 

William D. Mason 

Cuyahoga County Prosecutor 

By: Daniel T. Van 

 Oscar E. Albores 

Assistant Prosecuting Attorneys 

The Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, OH 44113 

ATTORNEYS FOR APPELLEE

Edward A. Heffernan 

1660 West Second Street 

Suite 410 

Cleveland, OH 44113 

Robert L. Tobik 

Cuyahoga County Public Defender 

By: Cullen Sweeney 

Assistant Public Defender 

Courthouse Square Suite 200 

310 Lakeside Avenue 

Cleveland, Ohio 44113 
SEAN C. GALLAGHER, J.: 

{¶1} Appellant, the state of Ohio, appeals the decision of the Cuyahoga County 

Court of Common Pleas that reclassified appellee, Joseph McMullen, as a sex offender 

with a ten-year registration requirement under Megan’s Law. For the reasons stated 

herein, we reverse the decision of the trial court and remand the matter for further 

proceedings consistent herewith. 

{¶2} On September 10, 1998, McMullen was convicted of attempted rape in 

Maryland. After serving his sentence in Maryland, McMullen was transferred to 

Pennsylvania to serve another sentence on an unrelated, non-sex offense. In 2004, while 

incarcerated in Pennsylvania, McMullen executed a document, provided by the state of 

Maryland, notifying him he had been classified as a sexually violent offender and was 

required to register for life.1

 

{¶3} Although at the time of McMullen’s conviction the registration requirement 

in Maryland required a sexually violent offender to register annually for ten years after 

the last date of release, the law was later amended to a lifetime requirement. See

Md.Code Art. 27 § 792 (repealed), and former Md.Code § 11-707(a)(4)(ii). Further, the 

registration requirements applied retroactively pursuant to statute. See former Md.Code 

 1

 Although the document is not included as part of the record on appeal, the transcript 

reflects that it was referred to throughout the proceedings below and the parties do not dispute that 

McMullen was notified of his classification and registration requirements.
§ 11-702.1(a). The computation of the term would be computed from the last date of 

release or the date granted probation. See former Md.Code § 11-707(5)(b). 

{¶4} The law being enforced upon McMullen was known as the Jacob Wetterling 

Act. In Young v. Maryland, 370 Md. 686, 690, 806 A.2d 233 (2002), the court struck 

down a constitutional challenge to the Jacob Wetterling Act and found that the statutory 

requirement that certain convicted defendants register as sex offenders was not regarded 

as “punishment” in the constitutional sense, but was a remedial requirement for the 

protection of the public. In Doe v. Dept. of Public Safety & Corr. Servs., 185 Md.App. 

625, 971 A.2d 975 (2009), the court ruled in a case in which the Jacob Wetterling Act 

was being applied to the defendant retroactively that 

(1) lifetime registration requirement for an individual classified as sexually 

violent offender did not violate procedural due process; (2) use of prior 

conviction for sexually violent offense as sole basis for lifetime registration 

had a rational basis and therefore did not violate equal protection; and (3) 

lifetime registration did not violate offender’s constitutional right to 

privacy. 

{¶5} Upon his release from prison, McMullen moved to Ohio. He registered his 

address with the Cuyahoga County sheriff’s office on June 16, 2008. It is undisputed 

that the sheriff’s office treated McMullen as a Tier III sex offender under the Adam 

Walsh Act (“AWA”). 

{¶6} On October 18, 2010, McMullen was charged in a two-count indictment with 

failure to verify address (R.C. 2950.06(F)) and failure to provide notice of change of 

address (R.C. 2950.05(E)(1)). As part of a plea agreement, McMullen pled guilty to an 

amended charge of attempted failure to verify, a felony of the third degree, and the 
remaining count was nolled. The trial court sentenced McMullen to six months of 

community control sanctions. 

{¶7} During the lower court proceedings, the trial court recognized uncertainty 

with McMullen’s sex-offender classification. The court recognized that the AWA could 

not be retroactively applied to offenders such as McMullen. While the court found that 

McMullen should be classified under Megan’s Law, the court struggled with whether he 

should be subject to a ten-year or a lifetime registration requirement. Ultimately, the 

court classified McMullen as a sex offender under Megan’s Law with a ten-year 

registration requirement to end in 2014 and ordered the Cuyahoga County Sheriff and the 

Ohio Attorney General to remove any notation of McMullen’s classification as a Tier III 

sex offender. 

{¶8} The state has appealed the trial court’s ruling, raising four assignments of 

error for our review. The state’s first assignment of error challenges the jurisdiction of 

the trial court to remove McMullen’s AWA classification and to reclassify McMullen. 

{¶9} In State v. Bodyke, the Ohio Supreme Court held that the reclassification 

provisions of the AWA, which required the attorney general to reclassify sex offenders 

who have already been classified by court order under Megan’s Law, were 

unconstitutional. 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 67. The 

court severed the reclassification provisions, R.C. 2950.031 and 2950.032, and held that 

after severance, those provisions could not be enforced. Id. at ¶ 66. The court further 

held that those provisions may not be applied to offenders previously adjudicated by 
judges under Megan’s Law and reinstated the classifications and community-notification 

and registration orders imposed previously. Id. 

{¶10} In State v. Williams, the Ohio Supreme Court declared that 

S.B. 10, as applied to Williams and any other sex offender who committed 

an offense prior to the enactment of S.B. 10, violates Section 28, Article II 

of the Ohio Constitution, which prohibits the General Assembly from 

enacting retroactive laws. 129 Ohio St.3d 344, 2011-Ohio-3374, 952 

N.E.2d 1108, ¶ 22. 

 

{¶11} In State v. Gingell, the Ohio Supreme Court vacated the conviction for a 

violation of the 90-day address-verification requirement of R.C. 2950.06 where the 

conviction was based upon an unlawful reclassification under the AWA. 128 Ohio St.3d 

444, 2011-Ohio-1481, 946 N.E.2d 192, ¶ 8. The court found that pursuant to Bodyke, 

Gingell’s original classification under Megan’s Law and the associated 

community-notification and registration order were reinstated and that Gingell remained 

accountable for the yearly registration requirement under Megan’s Law. Id. 

{¶12} In State v. Palmer, the Ohio Supreme Court recognized that sex offenders 

who have been reclassified under the AWA may still petition the court to contest their 

classification because Bodyke did not invalidate the petition process under 

R.C. 2950.031(E) and 2950.032(E). 131 Ohio St.3d 278, 2012-Ohio-580, 964 N.E.2d 

406. 

{¶13} Upon our review of the above decisions, we find that the trial court correctly 

invalidated McMullen’s Tier III classification and recognized his original classification 
under Megan’s Law. 2 We reject the state’s argument that the trial court lacked 

jurisdiction to do so. 

{¶14} We further recognize that McMullen entered a plea of guilty and has not 

appealed his conviction for attempted failure to verify. Nonetheless, it appears that his 

conviction was contrary to law because it arose from his unlawful classification under the 

AWA. See State v. Caldero, 8th Dist. No. 96719, 2012-Ohio-11; State v. Grunden, 8th 

Dist. No. 95909, 2011-Ohio-3687. Indeed, the record shows that McMullen had been 

improperly classified as a Tier III offender and that the charges stemmed from the AWA 

registration requirements. Though the issue is not before us, McMullen may wish to 

pursue relief upon remand.3

 

{¶15} The state’s first assignment of error is overruled. 

{¶16} The state’s second and third assignments of error challenge the trial court’s 

removal of McMullen’s AWA classification because it claims the AWA may be 

constitutionally applied to out-of-state offenders whose crimes were committed prior to 

the enactment of S.B. 10. While McMullen argues that the state failed to raise these 

 2

 We note that the Ohio General Assembly repealed Megan’s Law and 

replaced it with the AWA through S.B. 10. There has been no further action taken 

by the legislature. Nonetheless, the Ohio Supreme Court reinstated the 

classifications and registration requirements for offenders originally classified 

under Megan’s Law. Although the legislature has not acted, we are bound to 

follow the decisions of the Ohio Supreme Court. 

3

 We recognize that pending before the Ohio Supreme Court is the issue of whether Bodyke

requires the vacation of convictions where the conduct of the sex offender, classified under Megan’s 

Law, would have been a violation under both Megan’s Law and the AWA. See State v. Brunning,

Ohio Supreme Court No. 2011-1066.
arguments below, we recognize that a reviewing court retains “the right to consider 

constitutional challenges to the application of statutes in specific cases of plain error or 

where the rights and interests involved may warrant it.” In re M.D., 38 Ohio St.3d 149, 

527 N.E.2d 286 (1988), syllabus. 

{¶17} The state acknowledges that this court has previously rejected its arguments 

and indicates that these arguments are raised to preserve the issue for further review. 

Indeed, this court has previously found that Bodyke and Williams apply to out-of-state 

offenders and has rejected similar arguments. See Nelson v. Ohio, 8th Dist. No. 96988, 

2012-Ohio-364, ¶ 10-13; State v. Ortega-Martinez, 8th Dist. No. 95656, 2011-Ohio-2540, 

¶ 11. Accordingly, we overrule the state’s second and third assignments of error. 

{¶18} The state’s fourth assignment of error argues that the trial court incorrectly 

imposed a ten-year registration requirement. The state claims that because McMullen 

was subject to a lifetime registration requirement under Maryland law, he should have 

been deemed a sexual predator with a lifetime registration requirement pursuant to former 

R.C. 2950.09(A). While McMullen has not appealed his conviction in this matter, he 

does contest the state’s argument concerning his registration requirement. 

{¶19} R.C. 2950.04(A)(4) imposes a duty to register on a person who has been 

convicted of a sexually oriented offense in another jurisdiction only if, at the time he 

moves to Ohio, he had a duty to register in the other jurisdiction as a consequence of the 

conviction. State v. Lloyd, __ Ohio St.3d __, 2012-Ohio-2015, __ N.E.2d __, ¶ 46. In 

Lloyd, the court ruled in a case involving a duty to register arising from an out-of-state 
conviction, the state must prove that the defendant was convicted of a sexually oriented 

offense that is or was substantially equivalent to any of the Ohio offenses listed under 

R.C. 2950.01(A), and that the defendant was under a duty to register in the other 

jurisdiction as a consequence of the conviction. Id. at ¶ 13 and 46. The court set forth 

the analysis a court must undertake to determine whether the offenses are substantially 

equivalent, stating as follows: 

We conclude that in order to determine whether an out-of-state conviction 

is substantially equivalent to a listed Ohio offense, a court must initially 

look only to the fact of conviction and the elements of the relevant criminal 

statutes, without considering the particular facts disclosed by the record of 

conviction. If the out-of-state statute defines the offense in such a way that 

the court cannot discern from a comparison of the statutes whether the 

offenses are substantially equivalent, a court may go beyond the statutes and 

rely on a limited portion of the record in a narrow class of cases where the 

factfinder was required to find all the elements essential to a conviction 

under the listed Ohio statute. To do so, courts are permitted to consult a 

limited range of material contained in the record, including charging 

documents, plea agreements, transcripts of plea colloquies, presentence 

reports, findings of fact and conclusions of law from a bench trial, jury 

instructions and verdict forms, or some comparable part of the record. 

Id. at ¶ 31. 
{¶20} The record in this case reflects that McMullen was convicted of attempted 

rape in Maryland in 1998. By the time McMullen was released from prison, he had been 

notified that he was subject to a lifetime registration requirement as a consequence of that 

conviction by the state of Maryland. The law was retroactively imposed upon McMullen 

pursuant to former Md.Code, § 11-702.1(a), which is to “be applied retroactively to 

include a registrant convicted of an offense committed before July 1, 1997, and who is 

under the custody or supervision of a supervising authority on October 1, 2001.” Doe, 

185 Md.App. 625, 631-632, 971 A.2d 975. Similarly, in Ohio, Megan’s Law was 

retroactively imposed upon sex offenders regardless of when the underlying sex offense 

had been committed. See former R.C. 2950.04(A). It is only the retroactive application 

of the AWA that has been deemed unconstitutional in Ohio. See Williams, 129 Ohio 

St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108. 

{¶21} Upon coming to Ohio, McMullen registered his address with the Cuyahoga 

County sheriff’s office on June 16, 2008. At that time, Ohio law automatically classified 

as a sexual predator an out-of-state sex offender convicted of a nonexempt, sexually 

oriented offense who is required to register as a sex offender for life as a result of that 

conviction. Former R.C. 2950.09(A). Such offenders may petition the court to 

challenge the automatic classification pursuant to former R.C. 2950.09(F)(2), which 

requires the offender to show by clear and convincing evidence that the registration 

requirement of the other jurisdiction “is not substantially similar to the classification as a 

sexual predator for purposes [R.C. Chapter 2950].” When an out-of-state offender 
challenges his classification under former R.C. 2950.09(F), the trial court first must 

determine whether the sexually oriented offense in the other state is substantially 

equivalent to one of the requisite Ohio offenses. State v. Pasqua, 157 Ohio App.3d 427, 

2004-Ohio-2992, 811 N.E.2d 601, ¶ 22 (1st Dist.). If the offense is found to be similar, 

then the offender is entitled to a hearing where he has the burden of showing by clear and 

convincing evidence that he is not likely to commit a sexually oriented offense in the 

future. Id. 

{¶22} The state claims that the trial court should have deemed McMullen a sexual 

predator in accordance with former R.C. 2950.09(A). McMullen contends that the trial 

court properly modified his default sexual-predator classification because Maryland’s 

lifetime registration requirement is not substantially similar to a classification as a sexual 

predator under Ohio law. However, the trial court never conducted an appropriate 

inquiry for determining McMullen’s duty to register in accordance with Lloyd. We 

understand that the trial court and the parties did not have the benefit of the Lloyd

decision in the underlying proceedings. 

{¶23} While the record reflects that McMullen was convicted of attempted rape 

and was subject to a lifetime registration requirement, the court never determined whether 

the Maryland offense is substantially equivalent to a listed Ohio offense. Further, even if 

McMullen is automatically deemed a sexual predator under former R.C. 2950.09(A), he 

should be afforded an opportunity to challenge the classification pursuant to former R.C. 

2950.09(F)(2). Therefore, we find that the matter must be remanded for a hearing in 
order for the proper determination to be made. The state’s fourth assignment of error is 

sustained insofar as we find the trial court imposed a registration requirement upon 

McMullen without making the appropriate considerations. 

{¶24} For the foregoing reasons, we find the trial court had jurisdiction to render 

McMullen’s reclassification under the AWA invalid and to effectuate his original 

classification under Megan’s Law. McMullen’s conviction has not been challenged 

herein. However, the trial court erred in reclassifying McMullen contrary to the dictates 

of Lloyd and former R.C. 2950.09(A). 

{¶25} Judgment reversed, case remanded. 

This cause is reversed and remanded to the lower court for further proceedings 

consistent with this opinion. 

It is ordered that appellant recover from appellee costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas 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. 

SEAN C. GALLAGHER, JUDGE 

MARY J. BOYLE, P.J., and 

MARY EILEEN KILBANE, J., CONCUR