[Cite as State v. Mestre,
2012-Ohio-5745.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98311
STATE OF OHIO
PLAINTIFF-APPELLANT
vs.
RAMON MESTRE
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-535193
BEFORE: Stewart, P.J., Cooney, J., and Keough, J.
RELEASED AND JOURNALIZED: December 6, 2012
ATTORNEYS FOR APPELLANT
Sherri Bevan Walsh
Summit County Prosecutor
Special Prosecutor for Cuyahoga County
BY: Richard S. Kasay
Assistant Summit County Prosecutor
53 University Avenue, 6th Floor
Akron, OH 44308
ATTORNEYS FOR APPELLEE
Robert L. Tobik
Cuyahoga County Public Defender
BY: Culleen Sweeney
John T. Martin
Assistant Public Defenders
310 Lakeside Avenue, Suite 200
Cleveland, OH 44113
MELODY J. STEWART, P.J.:
{¶1} The state of Ohio appeals from an order that dismissed an
indictment charging defendant-appellee Ramon Mestre with failing to verify
his address under the Adam Walsh Act, as codified in R.C. 2950.06(F).
Although the state concedes that Mestre could not be charged with a violation
of the Adam Walsh Act, it argues that the court erred by dismissing the
indictment because Mestre could have been charged with failure to verify his
address under Megan’s law.
I
{¶2} In 1988, Mestre was convicted in the state of Pennsylvania on a
charge of deviate sexual intercourse. He later moved to Ohio and, as a
sexually oriented offender, was required under Megan’s Law to verify his
address annually on the date of his original registration for a period of ten
years. Following the enactment of the Adam Walsh Act in 2007, Mestre was
reclassified as a Tier III sexual offender and was required to verify his
address every 90 days for life.
{¶3} In 2010, the state of Ohio charged Mestre with failing to verify his
address. Mestre pleaded guilty to the charge, but nine months later sought
to withdraw his guilty plea under authority of State v. Bodyke, 126 Ohio St.3d
266,
2010-Ohio-2424,
933 N.E.2d 753, which held that the reclassification of
sexual offenders under the Adam Walsh Act violated the separation-of-powers
doctrine. The court denied Mestre’s motion to withdraw his guilty plea. We
held on appeal from that ruling that the court abused its discretion by
refusing to allow Mestre to withdraw his guilty plea because Mestre had been
unlawfully reclassified under the Adam Walsh Act. State v. Mestre, 8th Dist.
No. 96820,
2011-Ohio-5677.
{¶4} On remand, Mestre filed a motion to dismiss the indictment,
arguing that his reclassification under the Adam Walsh Act was
unconstitutional, that he was actually innocent of the charged crime of failure
to verify his address, and that the supreme court had held in the second
paragraph of the syllabus to State v. Palmer, 131 Ohio St.3d 278,
2012-Ohio-580,
964 N.E.2d 406, that “[a] trial court may dismiss an
indictment for violations of R.C. Chapter 2950 when it determines that the
chapter’s regulations do not apply to the accused.” The state opposed the
motion on grounds that regardless of whether Mestre’s reclassification under
the Adam Walsh Act had been improper, it could nonetheless maintain a
prosecution against Mestre for failure to verify under Megan’s Law because
Mestre failed to verify his address on the one-year anniversary date of his
initial registration. At no point, however, did the state actually seek to
amend the indictment. Following a hearing on the motion, the court granted
the motion to dismiss.
II
{¶5} While the enactment of the Adam Walsh Act was accompanied by
the repeal of Megan’s Law, see State v. Williams, 129 Ohio St.3d,
2011-Ohio-3374,
952 N.E.2d 1108, ¶ 40, the repeal of Megan’s Law did not
affect Mestre’s reporting obligations under that act. R.C. 1.58(A)(2) states
that the repeal of a statute does not “[a]ffect any validation, cure, right,
privilege, obligation, or liability previously acquired, accrued, accorded, or
incurred thereunder[.]” In State v. Gingell,
128 Ohio St.3d 444,
2011-Ohio-1481,
946 N.E.2d 192, the supreme court noted that Bodyke
severed the reclassification provisions of the Adam Walsh Act and that the
“original classification under Megan’s Law and the associated
community-notification and registration order were reinstated” for the
offender. Id. at ¶ 8. See also State v. Proctor, 9th Dist. No. 26303,
2012-Ohio-3342, ¶ 6.
{¶6} In State v. Aaron, 9th Dist. No. 25900, 2012-Ohio-248, the Ninth
District Court of Appeals considered the same issue presented in this appeal.
Aaron had been classified as a sexual offender under Megan’s law, but
reclassified as a Tier II offender under the Adam Walsh Act. He pleaded
guilty to a charge of failing to verify his address, but asked the court to
withdraw the plea because the reclassification was unconstitutional under
Bodyke. The court granted the motion to withdraw, and Aaron then sought
dismissal of the indictment. The state agreed that Aaron could not be
charged under the Adam Walsh Act, but argued that he could be charged
under Megan’s Law and asked the court to amend the indictment under
Crim.R. 7(D). The court denied the state’s motion to amend the indictment
and granted Aaron’s motion to dismiss. On appeal by the state, the Ninth
District stated:
The Ohio Supreme Court’s statements in Gingell clarify that
sexual offenders who were improperly reclassified under the
Adam Walsh Act remained subject to Megan’s Law’s reporting
requirements during the period of their improper reclassification.
State v. Gingell, 128 Ohio St.3d 444,
2011-Ohio-1481, at ¶ 8,
946
N.E.2d 192. We, therefore, conclude that the trial court
incorrectly determined that the State could not amend the
indictment to charge Mr. Aaron with an offense under Megan’s
Law. See State v. Howard, 2d Dist. No. 24680, 195 Ohio App.3d
802,
2011-Ohio-5693, at ¶ 12,
961 N.E.2d 1196 (upholding
conviction for failure to provide notice of change of address
because the requirement was the same under Megan’s Law and
the Adam Walsh Act); State v. Bowling, 1st Dist. No. C-100323,
2011-Ohio-4946, at ¶ 23 (concluding that defendant’s failure to
notify of change of address offense was not based on an
unconstitutional reclassification because the same duty applied
under Megan’s Law and the Adam Walsh Act); State v. Stoker,
5th Dist. No. 2010-CA-00331, 2011- Ohio-3934, at ¶ 23
(concluding that defendant’s reclassification under Adam Walsh
Act had “no bearing on the outcome of his prosecution” for failing
to provide notice of his change of address). Id. at ¶ 5.
{¶7} Our decision in State v. Brunning, 8th Dist. No. 95376,
2011-Ohio-1936, appeal allowed,
129 Ohio St.3d 1488,
2011-Ohio-5129,
954
N.E.2d 661, contains language that contradicts Aaron: “Once offenders
already under the obligation to report pursuant to Megan’s Law were
reclassified pursuant to R.C. 2950.031 and 2950.032, their duties to report
were derived from the AWA.” Id. at ¶ 10. This language is contradicted by
Gingell, which makes it plain that an offender who was reclassified under
the Adam Walsh Act could still be held accountable for the yearly reporting
requirement under Megan’s Law. Gingell at ¶ 8. Indeed, even before
Gingell was issued, we implicitly recognized that a vacated plea stemming
from an alleged violation of the Adam Walsh Act might nonetheless support a
different prosecution under Megan’s Law. See, e.g., State v. Caldero, 8th
Dist. No. 96719,
2010-Ohio-11, ¶ 14 (“Whether Caldero was in compliance
with Megan’s Law is a question of fact before the trial court, not this court.”).
{¶8} Gingell settles the question raised here — even though Mestre is
not subject to the reporting requirements of the Adam Walsh Act, he is
nonetheless still subject to the reporting requirements of Megan’s Law.
{¶9} But being subject to the reporting requirements of Megan’s Law is
not the same thing as being charged with violating Megan’s Law. The state
made no attempt to amend the indictment or reindict Mestre for alleged
violations of Megan’s Law. At all times, Mestre was charged under a facially
invalid indictment because it charged him with a criminal offense under the
wrong statute. Under those circumstances, the court had no choice but to
dismiss the defective indictment. Palmer, supra. It follows that the court
did not err by dismissing the indictment.
{¶10} Judgment affirmed.
It is ordered that appellee recover of appellant his costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Court of Common
Pleas 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.
MELODY J. STEWART, PRESIDING JUDGE
COLLEEN CONWAY COONEY, J., and
KATHLEEN ANN KEOUGH, J., CONCUR
KEY WORDS:
98311
