[Cite as State v. Nelson, 2012-Ohio-2400.]

COURT OF APPEALS 

 STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsJERRY NELSON 

 

 Defendant-Appellant 

: JUDGES: 

: W. Scott Gwin, P.J. 

: William B. Hoffman, J. 

: Julie A. Edwards, J. 

: 

: Case No. 2011CA00219 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Criminal Appeal from Stark County 

 Court of Common Pleas Case No. 

 2011CR0787 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: May 29, 2012 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

JOHN D. FERRERO STEVEN A. REISCH 

Prosecuting Attorney Stark County Public 

Stark County, Ohio Defender’s Office 

 200 W. Tuscarawas Street, Suite 200 

BY: KATHLEEN O. TATARSKY Canton, Ohio 44702 

Assistant Prosecuting Attorney 

Appellate Section 

110 Central Plaza, South 

Suite 510 

Canton, Ohio 44702-1413 
[Cite as State v. Nelson, 2012-Ohio-2400.]

Edwards, J. 

{¶1} Appellant, Jerry Nelson, appeals a judgment of the Stark County 

Common Pleas Court convicting him of failing to provide notice of change of address 

(R.C. 2950.05(A), (F)(1)) and sentencing him to a mandatory term of incarceration of 

three years pursuant to R.C. 2950.99. Appellee is the State of Ohio. 

STATEMENT OF FACTS AND CASE

{¶2} Appellant entered a plea of guilty to corruption of a minor in 2000. He was 

found to be a sexually oriented offender under Megan’s Law, the sex offender 

registration statute in effect at the time of his conviction. His registration duties included 

registering any change of address within twenty days prior to changing his address, and 

verifying his residential address annually for ten years. 

{¶3} In 2004 and again in 2008, appellant was convicted of violating his 

registration requirements. On March 2, 2011, appellant registered his address as 4401 

Louisville Street N.E., Canton, Ohio. Appellant was brought to the Stark County Jail on 

a domestic violence charge on May 31, 2011. At that time, law enforcement learned 

that he was sharing a residence with his girlfriend at 210 Edwin Ave. S.E., Massillon, 

Ohio, an address he failed to register with the Stark County Sheriff. 

{¶4} Appellant was indicted by the Stark County Grand Jury on one count of 

failure to notify of change of address. Because he had two previous convictions for 

change of address violations, his potential penalty was elevated to a mandatory three 

year prison sentence. 

{¶5} Appellant entered a plea of not guilty. He filed a pleading entitled 

“Defendant’s Objection to Mandatory Sentence,” which the trial court overruled. 
Stark County App. Case No. 2011CA00219 3 

Appellant changed his plea to no contest and was found guilty. He was sentenced to 

three years incarceration. He assigns two errors on appeal: 

{¶6} “I. THE APPLICATION OF THE MANDATORY PRISON SENTENCE OF 

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

CONSTITUTION. 

{¶7} “II. THE IMPOSITION OF A THREE YEAR SENTENCE FOR FAILURE 

TO REGISTER AS A SEXUALLY ORIENTED OFFENDER IS GROSSLY 

DISPROPORATIONATE TO THE CRIME AND CONSTITUTES CRUEL AND 

UNUSUAL PUNISHMENT.” 

I 

{¶8} Appellant argues that the court erred in imposing the mandatory prison 

term of three years as required by R.C. 2950.99 because those penalty provisions were 

not in effect at the time he was classified as a sexually oriented offender. The penalty 

provision that was applied to appellant was a part of S.B.97, and the amendment was 

effective January 1, 2008. Appellant argues that application of this penalty provision to 

him is unconstitutionally retroactive pursuant to Section 28, Article II of the Ohio 

Constitution. 

{¶9} Appellant recognizes in his brief that this Court rejected his argument in 

State v. Poling, 5th Dist. No. 2009-CA-0264, 2011-Ohio-3201, finding that the increased 

penalties of R.C. 2950.99 did not violate the prohibition against retroactive laws so long 

as the changes in the law were effective prior to the registration offense: 

{¶10} “In the case at bar, R.C. 2950.99 as amended in 2008 does not punish 

any action that was formerly not a crime or increase the penalty for a crime already 
Stark County App. Case No. 2011CA00219 4 

committed. In 2006 appellant was subject to the reporting requirements as a sexually 

oriented offender for a period of ten years. R.C. 2950.07(B)(3) (repealed January 1, 

2008). The pre-existing ten-year reporting period applicable to appellant had not expired 

when he was charged and convicted of failing to provide notice of an address change 

twenty days prior to the change. Appellant had a duty to report a change of address 

when the statutory amendment to R.C. 2950.99 was enacted. Accordingly, appellant 

could only be charged with a felony of the first degree if he failed to report an address 

change after January 1, 2008. 

{¶11} “We find that the application of amended R.C. 2950.99 does not violate 

the Ex Post Facto Clause. See State v. Dycus, Franklin App. No. 04AP–751, 2005-

Ohio-3990 at ¶ 21. (Citations omitted). As the Ohio Supreme Court observed in Cook,

{¶12} “‘Even prior to the promulgation of the 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 

retroactively for an act that was committed previously, but for a violation of law 

committed subsequent to the enactment of the law.’ 83 Ohio St.3d at 420–421, 700 

N.E.2d at 584, 1998–Ohio–291. 

{¶13} “In the case at bar, appellant was advised of his duty to report a change of 

address at his sentencing hearing December 4, 2006. The penalty provisions for failure 

to register a change of address were increased nearly two years later on January 1, 

2008. Appellant was charged based upon his conduct in failing to register his address 

change approximately seventeen months later in June–July 2009. Thus, appellant had 
Stark County App. Case No. 2011CA00219 5 

fair warning that his conduct could be treated as a criminal offense, and that the penalty 

would be classified as a felony of the first degree, well-in advance of the conduct which 

led to his indictment.” Id. at ¶29-32. 

{¶14} In the instant case, appellant was sentenced pursuant to penalty 

provisions which were effective January 1, 2008. He did not commit the crime until 

2011. Therefore, application of the new penalty provisions is not unconstitutionally 

retroactive. 

{¶15} Appellant argues that we should revisit Poling in light of State v. Williams, 

129 Ohio St. 3d 344, 2011-Ohio-3374, 952 N.E.2d 1108. In Williams, the Ohio 

Supreme Court concluded that S.B. 10, which changed the registration requirements 

from Megan’s Law to the Adam Walsh Act, is unconstitutionally retroactive as applied to 

defendants who committed sex offenses prior to its passage. 

{¶16} This Court has recognized that although the current R.C. 2950.99 has the 

same effective date as Senate Bill 10, it was not enacted as a part of Senate Bill 10, but 

rather was enacted as part of Senate Bill 97. State v. Dunwoody, 5th Dist. CT11–0029, 

2011-Ohio-6360, ¶40. Williams dealt only with the imposition of Senate Bill 10’s more 

stringent registration requirements upon an offender who had committed his sex offense 

prior to its enactment, not to the imposition of the penalty provisions of R.C. 2950.99 on 

an offender who committed his registration offense after the effective date of the 

change. Id. We thus concluded subsequent to Williams that a defendant who was 

required to register under Megan’s Law and never reclassified under the Adam Walsh 

Act could be sentenced pursuant to the new penalty provisions of R.C. 2950.99. Id. at 

¶42. 
Stark County App. Case No. 2011CA00219 6 

{¶17} Like the appellant in Dunwoody, appellant was properly required to 

register under Megan’s Law. His failure to register occurred after the enactment of R.C. 

2950.99 and he could be sentenced pursuant to the penalty provisions in effect at the 

time of his failure-to-notify offense. 

{¶18} The first assignment of error is overruled. 

II 

{¶19} Appellant argues that a three-year sentence violates the 8th Amendment to 

the United States Constitution’s ban on cruel and unusual punishment. He argues the 

sentence is disproportionate to the underlying offense for which he was required to 

register because the sentence of three years is twice the maximum sentence he could 

have served for the underlying offense of corruption of a minor. 

{¶20} The Tenth District Court of Appeals considered this issue in State v. 

Richey, 10th Dist. 09AP-36, 2009-Ohio-4487. In Richey, the appellant’s underlying 

offense for which he was required to register was sexual imposition, a third degree 

misdemeanor. In 2009, he entered a plea of guilty to attempted failure to provide notice 

of a change of address, a fifth degree felony. The Court of Appeals rejected his 

argument that he was subjected to cruel and unusual punishment, holding: 

{¶21} “Appellant has also argued that R.C. 2950.99 unconstitutionally applies 

felony sentencing to him because the failure to register offense is ‘of lesser gravity’ than 

the third-degree misdemeanor sex offense that triggered the registration requirements. 

(Dec. Tr. 3.) Appellant is incorrect. When a person commits a failure to register offense, 

he exhibits recidivist behavior given that (1) he already has a prior offense that triggered 

the registration requirements, and (2) the failure to register offense stems from a 
Stark County App. Case No. 2011CA00219 7 

person's inability to follow the law and adhere to the registration requirements imposed 

upon him. See, e.g., R.C. 2929.12(D) (indicating that a defendant's prior criminal record 

and unfavorable response to previous sanctions demonstrates recidivism). The 

individual's status as a sex offender further exacerbates this recidivist factor. See 

McKune v. Lile (2002), 536 U.S. 24, 33-34, 122 S.Ct. 2017, 2024-25, 153 L.Ed.2d 47 

(recognizing concerns that sex offenders have a high rate of recidivism). Severe 

penalties are warranted for recidivism. See Solem, 463 U.S. at 296, 103 S.Ct. at 3013. 

Given the recidivist factors, we conclude that it is not contrary to the cruel and unusual 

punishment clause for a failure to register offense to carry a felony penalty, despite a 

prior sex offense being a misdemeanor, just as an offender's prior misdemeanor would 

not necessarily bar felony sentencing under the cruel and unusual punishment clause 

for the offender's new crime of escaping the incarceration for the misdemeanor. Id. at 

¶20. 

{¶22} We agree with the reasoning of the Tenth District. Appellant’s sentence 

stems from his inability to follow the registration requirements imposed on him. The 

instant offense was appellant’s third conviction for registration violations since 2004. A 

sentence of three years was not grossly disproportionate to appellant’s failure to register 

offense. 
Stark County App. Case No. 2011CA00219 8 

{¶23} The second assignment of error is overruled. 

{¶24} The judgment of the Stark County Common Pleas Court is affirmed. 

By: Edwards, J. 

Gwin, P.J. and 

Hoffman, J. concur 

______________________________ 

______________________________ 

______________________________ 

 JUDGES 

JAE/r0214 
[Cite as State v. Nelson, 2012-Ohio-2400.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

JERRY NELSON : 

 : 

 Defendant-Appellant : CASE NO. 2011CA00219 

 For the reasons stated in our accompanying Memorandum-Opinion on file, the 

judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to 

appellant. 

 _________________________________ 

 _________________________________ 

 _________________________________ 

 JUDGES