[Cite as State v. Byers,
2011-Ohio-2845.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HARDIN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 6-10-14
v.
JESSIE L. BYERS, OPINION
DEFENDANT-APPELLANT.
Appeal from Hardin County Common Pleas Court
Trial Court No. 20042150 CRI
Judgment Reversed and Cause Remanded
Date of Decision: June 13, 2011
APPEARANCES:
Todd A. Workman for Appellant
Bradford W. Bailey for Appellee
Case No. 6-10-14
PRESTON, J.
{¶1} Defendant-appellant, Jessie L. Byers (hereinafter “Byers”), appeals
the Hardin County Court of Common Pleas’ judgment entry of sentence
reclassifying him as a Tier III sexual offender under the Adam Walsh Act
following a post-release control resentencing hearing. We reverse.
{¶2} On December 15-16, 2004, the Hardin County Grand Jury indicted
Byers on counts one and two of rape, violations of R.C. 2907.02(A)(1)(b), first
degree felonies, and both with a specification that the victim was under the age of
10; count three of kidnapping, a violation of R.C. 2905.01(A)(4), a first degree
felony; and count four of intimidation of an attorney, victim, or witness in a
criminal case, a violation of R.C. 2921.04(B), a third degree felony. (Doc. No. 1).
{¶3} On January 10, 2005, Byers was arraigned and entered pleas of not
guilty to all counts of the indictment. (Doc. No. 9).
{¶4} On March 1, 2005, the trial court held a change of plea hearing. (Doc.
No. 29). Byers pled guilty to count one, and the State dismissed the remaining
charges. (Id.). The trial court found Byers guilty based upon his plea and ordered
a pre-sentence investigation, a psychological evaluation, and social history. (Doc.
No. 31); (Mar. 1, 2005 Tr. at 18); (Mar. 15, 2005 JE, Doc. No. 34).
{¶5} On May 18, 2005, the trial court held a joint sentencing and sexual
classification hearing. The trial court sentenced Byers to life in prison and
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classified him as a sexual predator under former R.C. 2950.01(E)(1), also known
as Megan’s Law. (May 18, 2005 Tr. at 33-34, 39); (June 9, 2005 JE, Doc. No. 38).
{¶6} On July 6, 2005, Byers appealed the trial court’s sexual predator
classification, but we affirmed on November 21, 2005. (Doc. Nos. 43, 51); State v.
Byers, 3d Dist. No. 6-05-07, 2005-Ohio-6169.
{¶7} On August 12, 2010, the State filed a motion for re-sentencing
pursuant to State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124, 2010-Ohio-
2671,
931 N.E.2d 110 and R.C. 2929.191 for the trial court to properly impose the
mandatory five-year term of post-release control upon Byers. (Doc. No. 52).
{¶8} On October 12, 2010, the trial court held a resentencing hearing, and
the trial court resentenced Byers to the same mandatory term of life imprisonment
as it had previously imposed. (Oct. 12, 2010 Tr. at 7); (Oct. 20, 2010 JE, Doc. No.
62). The trial court also advised Byers that he was subject to five years of
mandatory post-release control and the consequences of violating post-release
control. (Id. at 7-8); (Id.). The trial court then reclassified Byers as a Tier III
sexual offender under the current version of R.C. 2950.01, also known as the
Adam Walsh Act. (Id. at 8); (Id.).
{¶9} On November 5, 2010, Byers filed a notice of appeal. (Doc. No. 63).
Byers now appeals raising one assignment of error for our review.
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ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED WHEN IT RECLASSIFIED
APPELLANT AS A TIER THREE SEX OFFENDER UNDER
THE ADAM WALSH ACT WHEN APPELLANT WAS
ORIGINALLY SENTENCED IN MARCH 2005 UNDER
MEGAN’S LAW AS A SEXUAL PREDATOR AND SUCH
RECLASSIFICATION IS UNCONSTITUTIONAL AS
DETERMINED BY THE OHIO SUPREME COURT IN
STATE V. BODYKE (2010), 128 OHIO ST.3D 366.
{¶10} In his sole assignment of error, Byers argues that the trial court erred
by reclassifying him as a Tier III sexual offender under the Adam Walsh Act in
light of the Ohio Supreme Court’s holding in State v. Bodyke, 126 Ohio St.3d 266,
2010-Ohio-2424,
933 N.E.2d 753. Byers further argues that his 2005 sexual
offender classification was final, and that the trial court was only permitted to
correct the post-release control portion of his sentence under State v. Fischer,
128
Ohio St.3d 92,
2010-Ohio-6238,
942 N.E.2d 332.
{¶11} The Ohio Supreme Court in State v. Bodyke held that R.C. 2950.031
and 2950.032, which required the attorney general to reclassify sex offenders who
had already been classified by court order under former law, violated the
separation-of-powers doctrine by impermissibly instructing the executive branch
to review past decisions of the judicial branch and by requiring the opening of
final judgments. 2010-Ohio-2424, at ¶¶60, 61, 67. The Ohio Supreme Court
severed R.C. 2950.031 and 2950.032 from the Adam Walsh Act and concluded
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that “R.C. 2950.031 and 2950.032 may not be applied to offenders previously
adjudicated by judges under Megan’s Law, and the classifications and community-
notification and registration orders imposed previously by judges are reinstated.”
Id. at ¶66.
{¶12} This case is distinguishable from Bodyke, however, because Byers
was not reclassified by the attorney general pursuant to R.C. 2950.031 or
2950.032—those sections declared unconstitutional and severed from Chapter
2950 in State v. Bodyke, 2010-Ohio-2424. Rather, Byers was notified by the trial
court that he would be a Tier III sexual offender at a resentencing hearing held for
the purpose of properly imposing a mandatory five-year term of post-release
control as required by McCormick,
2010-Ohio-2671. Therefore, Bodyke is not
controlling here as Byers argues.
{¶13} Since the trial court here failed to impose the mandatory term of
post-release control as required under R.C. 2967.28(B)(1) and Byer’s original
sentencing was prior to the effective date of R.C. 2929.191, the trial court was
required to conduct a “de novo sentencing hearing in accordance with decisions of
the Supreme Court of Ohio” to properly impose post-release control. State v.
Singleton, 124 Ohio St.3d 173,
2009-Ohio-6434,
920 N.E.2d 958, paragraph one
of the syllabus. At a de novo sentencing hearing, “the trial court may not merely
inform the offender of the imposition of postrelease control and automatically
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reimpose the original sentence. Rather, the effect of vacating the trial court’s
original sentence is to place the parties in the same place as if there had been no
sentence. Therefore, the decision to vacate [the offender’s] void sentence []
require[s] the trial court to resentence [the offender] as if there had been no
sentence.” State v. Bezak, 114 Ohio St.3d 94,
2007-Ohio-3250,
868 N.E.2d 961,
¶13 (emphasis in original). See, also, State v. Simpkins,
117 Ohio St.3d 420, 2008-
Ohio-1197,
884 N.E.2d 568, ¶22; State v. Boswell,
121 Ohio St.3d 575, 2009-
Ohio-1577,
906 N.E.2d 422, ¶10. Thus, under Ohio Supreme Court precedent in
effect at the time of Byers’ resentencing hearing, the trial court was required to
sentence Byers “as if there had been no sentence.” Bezak at ¶13. This would
include providing Byers notice of his Tier III sexual offender status under the
Adam Walsh Act, which was in effect at the time of Byers’ resentencing hearing.
R.C. 2950.01(G)(1)(1) (Tier III sex offenders include offenders, like Byers, who
pled guilty to a violation of R.C. 2907.02); R.C. 2929.19(B)(4)(a)(ii) (trial court
required to give notice that offender is a Tier III sex offender).
{¶14} After the March 12, 2010 resentencing hearing and while Byers’
appeal was pending, however, the Ohio Supreme Court released State v. Fischer,
which changed the scope of the post-release control resentencing hearings for
those defendants who were originally sentenced prior R.C. 2929.191’s effective
date. 2010-Ohio-6238. The Court in Fischer held, in pertinent part:
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… that when a judge fails to impose statutorily mandated
postrelease control as part of a defendant’s sentence, that part of
the sentence is void and must be set aside. Neither the
Constitution nor common sense commands anything more.
This principle is an important part of the analysis of void
sentences that we have not focused upon in prior cases involving
postrelease control, including Bezak, 114 Ohio St.3d 94, 2007-
Ohio-3250, 868 N.E.2d 961. Thus, we reaffirm the portion of the
syllabus in Bezak that states “[w]hen a defendant is convicted of
or pleads guilty to one or more offenses and postrelease control
is not properly included in a sentence for a particular offense,
the sentence for that offense is void,” but with the added proviso
that only the offending portion of the sentence is subject to review
and correction.
However, we now modify the second sentence in the Bezak
syllabus as ill-considered. That sentence states that the offender
is entitled to a new sentencing hearing for the offense for which
postrelease control was not imposed properly. 114 Ohio St.3d 94,
2007-Ohio-3250,
868 N.E.2d 961. It does not recognize a
principle that we overlooked in Bezak: when an appellate court
concludes that a sentence imposed by a trial court is in part void,
only the portion that is void may be vacated or otherwise amended.
Therefore, we hold that the new sentencing hearing to which an
offender is entitled under Bezak is limited to proper imposition of
postrelease control.
2010-Ohio-6238, at ¶¶26-29 (emphasis added).1 Although Fischer was not
released prior to the resentencing hearing, this Court has an obligation to apply
Ohio Supreme Court precedent released during the pendency of an appeal—an
obligation the State concedes in its brief. (Appellee’s Brief at 7); State v. Lynn
1
This writer fails to fully comprehend the concept of a “partially void judgment” but has attempted to
follow the law as currently created by the Ohio Supreme Court.
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(1966), 5 Ohio St.2d 106, 108,
214 N.E.2d 226; State v. Evans (1972),
32 Ohio
St.2d 185, 186,
291 N.E.2d 466; State v. Gonzalez (2000),
138 Ohio App.3d 853,
859,
742 N.E.2d 710.
{¶15} In light of Fischer, we must agree with Byers that there is error as a
result of the resentencing hearing, which classified him as a Tier III sexual
offender under the Adam Walsh Act, because a resentencing hearing is now
limited to the proper imposition of post-release control. Therefore, Byers’s 2005
classification as a sexual predator under Megan’s Law turns out to be final and not
subject to review. Several other districts have similarly concluded that a trial court
may not reclassify sexual offenders under the Adam Walsh Act at a post-release
control resentencing hearing. State v. Gimbrone, 2d Dist. No. 23810, 2011-Ohio-
632; State v. Gibson, 2d Dist. No. 2009 CA 47, 2010-Ohio-3447; State v. Hudson,
2d Dist. No. 23776,
2010-Ohio-5386; State v. Pearson, 2d Dist. No. 23974, 2011-
Ohio-245; State v. Jenkins, 2d Dist. No. 24117,
2011-Ohio-634; State v. Possiant,
5th Dist. No. 08 CA7,
2009-Ohio-4235; State v. McArtor, 5th Dist. No. 10 CA 13,
2010-Ohio-5803; State v. Williams (9th Dist.),
177 Ohio App.3d 865, 2008-Ohio-
3586,
896 N.E.2d 725.
{¶16} For all these reasons, Byers’ assignment of error is, therefore,
sustained.
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{¶17} Having found error prejudicial to the appellant herein in the
particulars assigned and argued, we reverse the judgment of the trial court and
remand for further proceedings consistent with this opinion.
Judgment Reversed and
Cause Remanded
ROGERS, P.J. and WILLAMOWSKI, J., concur.
/jlr
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