[Cite as State v. Moore,
2011-Ohio-3953.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 10-CA-59
MICHAEL R. MOORE :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court
of Common Pleas Case No. CR2010-0140
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: August 3, 2011
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
D. MICHAEL HADDOX 0004913 KYLE S. WITUCKY 0086250
Muskingum County Prosecutor Stubbins, Watson, & Bryan Co., LPA
27 N. 5th St. 59 N. 4th St., P.O. Box 488
Zanesville, Ohio 43702 Zanesville, Ohio 43702
[Cite as State v. Moore, 2011-Ohio-3953.]
Delaney, J.
{¶1} Defendant-Appellant, Michael R. Moore, appeals the judgment of the
Muskingum County Court of Common Pleas, convicting him of one count of failure to
notify, in violation of R.C. 2950.05(A), a felony of the second degree.
{¶2} In March, 1993, Appellant entered a guilty plea to one count of attempted
rape, a felony of the second degree, in violation of R.C. 2907.02. Appellant was
sentenced to five to fifteen years in prison.
{¶3} In 2004, while Appellant was incarcerated, he was classified as a sexually
oriented offender pursuant to R.C. 2950.03, and notified of his registration
requirements, which, under Megan’s law, would last for ten years upon release from
prison. The judgment entry also set forth the penalty for failure to register, pursuant to
R.C. 2950.99, as a felony of the fifth degree.
{¶4} Appellant was released from prison on February 10, 2006. At that time,
he registered as a sex offender in Muskingum County. Accordingly, Appellant is
required to comply with current registration requirements until February, 2016. In May,
2010, pursuant to his registration requirements, Appellant failed to notify authorities that
he had changed his address. Accordingly, he was indicted on one count of Failure to
Notify authorities of his change of address, in violation of R.C. 2950.05(A), a felony of
the second degree. Upon the effective date of the Adam Walsh law (S.B. 10), the
penalty for failure to notify was increased to a second degree felony, pursuant to
2950.99, as amended.
{¶5} Appellant pled guilty to the charge on September 13, 2010, and Appellant
was sentenced on the offense, as charged, on December 2, 2010, wherein he was
Muskingum County, Case No. 10-CA-59 3
sentenced to two years in prison. At the trial court level, Appellant’s counsel disagreed
with the level of offense; however, counsel never raised the issue via a motion to
dismiss and failed to raise any constitutional challenge to the charge or conviction at the
trial court level.
{¶6} Appellant now appeals the conviction, and raises one Assignment of Error
for our review:
{¶7} “I. WHEN APPELLANT WAS CONVICTED AND CLASSIFIED AS A
SEXUALLY-ORIENTED OFFENDER UNDER MEGAN’S LAW, AND NOTIFIED THAT
HIS FAILURE TO COMPLY WITH ITS REGISTRATION REQUIREMENTS WOULD BE
A FIFTH DEGREE FELONY, THE TRIAL CROUT ERRED WHEN IT FOUND THAT
APPELLANT’S FAILURE TO REGISTER UNDER R.C. 2950.05(A) IS A FELONY OF
THE SECOND DEGREE, AS PER THE ADAM WALSH ACT.”
I.
{¶1} In his sole assignment of error, Appellant argues that the trial court erred
in finding that Appellant was guilty of failure to notify under R.C. 2950.05(A) as a felony
of the second degree because to do so would violate Appellant’s constitutional rights.
Appellant argues multiple constitutional challenges, including that his conviction violated
the separation of powers doctrine, violates due process, and violates ex post facto laws.
{¶2} However, as noted earlier, Appellant did not raise a single constitutional
challenge prior to being sentenced on the underlying charge. In addition, Appellant
never moved to dismiss the indictment or reduce the level of offense at any time. We
therefore decline to address Appellant’s constitutional arguments, as they are being
raised for the first time on appeal. A defendant forfeits a constitutional challenge by
Muskingum County, Case No. 10-CA-59 4
failing to raise such a challenge in the trial court. See State v. Awan (1986), 22 Ohio
St.3d 120,
489 N.E.2d 277, syllabus (holding that a constitutional issue not raised at trial
is forfeited and “need not be heard for the first time on appeal”); accord State v. Harris,
10th Dist. No. 08AP-723,
2009-Ohio-1188, ¶ 3.
{¶3} Consequently, we find that Appellant’s constitutional challenges, which
are raised for the first time before this Court, are not subject to our review.
{¶4} It also should be noted this Court recently rejected similar constitutional
challenges to the increased penalty provision in State v. Poling, 5th Dist. No. 2009-CA-
00264, 2011-Ohio-3201, decided on June 27, 2011. See also, State v. Smith, 3rd Dist.
No. 5-07-23,
2008-Ohio-4778.
{¶5} Appellant’s assignment of error is overruled.
{¶6} The judgment of the Muskingum County Court of Common Pleas is
affirmed.
By: Delaney, J.
Gwin, P.J. and
Wise, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. JOHN W. WISE
[Cite as State v. Moore, 2011-Ohio-3953.]
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
MICHAEL R. MOORE :
:
Defendant-Appellant : Case No. 10-CA-59
:
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Muskingum County Court of Common Pleas is affirmed. Costs
assessed to Appellant.
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JOHN W. WISE
