IN THE SUPREME COURT OF OHIO2014

STATE OF OHIO,

Plaintiff-Appellant,

-vs-

Case No.f``f

On Appeal from the

Franklin County Courtof Appeals, TenthAppellate District

JEREMIAH HOLLEY,

Defendant-AppelleeCourt of AppealsCase No. 14AP-134

MEMORANDUM OF PLAINTIFF-APPELLANT STATE OF OHIOSUPPORTING JURISDICTION

RON O'BRIEN 0017245Franklin County Prosecuting Attorney373 South High Street, 13th FloorColumbus, Ohio 43215Phone: 614-525-3555Fax: 614-525-6103E-mail: staylor@franklincountyohio.gov

and

STEVEN L. TAYLOR 0043876 (Counsel of Record)Chief Counsel, Appellate Division

COUNSEL FOR APPELLANT STATE OF OHIO

Jeremiah Holley#597-152Chillicothe Correctional Inst.P.O. Box 5500Chillicothe, Ohio 45601

Pro se .;... .,

„^., :^^^:^,

TABLE OF CONTENTS

EXPLANATION OF WHY THIS COURT SHOULD ACCEPTJURISDICTION

STATEMENT OF FACTS

ARGUMENT 6

Proposition of Law No. 1: Constitutional challenges to AWA Tierclassifications are not jurisdictional, and the failure to timely raise suchchallenges results in the waiver and forfeiture of the challenges and resultsin the application of res judicata and other finality doctrines. 6

Proposition of Law No. 2: The AWA made only minimal, non-punitivechanges as to sex offenders who were or would have been aggravatedsexually oriented offenders under Megan's Law. Such changes do notviolate the prohibition against retroactive laws as to such offenders. 13

CERTIFICATE OF SERVICE

APPENDIX

6-3-14 Memorandum Decisioii A-1

16

6-3-14 Judgment A-7

EXPLANATION OF WHY THIS COURT SHOULD ACCEPT JURISDICTION

The present case should be considered as a companion case here to State v. Salser

(filed the same day).

The initial question presented is the applicability of res judicata and other finality

doctrines. The Tenth District and other appellate districts are treating challenged AWA

Tier classifications as "void," regardless of the sex offender's failure to timely raise the

challenge in the trial court, regardless of the offender's failure to timely appeal, and

regardless of the many months (and sometime years) of delay. In effect, the Tenth

District and other districts are contending that this Court's decision in Williams cut a wide

swath through all finality doctrines and allows retroactive-law challenges years later.

Treating the classification as "void" raises at least two problems. First, nothing in

State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, addressed

issues of finality, since the sex offender therein had raised his retroactive-law challenge in

a timely manner in the trial court and on direct appeal. Williams is simply not dispositive.

Second, and more importantly, this Court itself has held that constitutional

challenges are not jurisdictional, even on direct appeal. State v. Awan, 22 Ohio St.3d

120, 121-22, 489 N.E.2d 277 (i986). When this Courtheld in In re Nf.D., 38 Ohio St.3d

149, 527 N.E.2d 286 (1988), that the Awan doctrine is discretionary on direct appeal,

such "discretion" necessarily meant that the challenge would not be "jurisdictional." If

the challenge were truly "jurisdictional," the appellate court would have no "discretion."

In State v. Salser, an earlier Tenth District panel had attenzpted to straddle both

the "jurisdictional" and "discretionary" approaches. On the one hand, the Salser panel

had repeatedly referred to the classification as being "void," thereby emphasizing the

"jurisdictional" approach (as did the later Holley panel).

On the other hand, when the State sought reconsideration in Salser, the State

pointed out that the court had failed to address Awan's "not jurisdictional" holding. In

denying reconsideration, the Salser panel now emphasized (twice) that the Awan doctrine

"is discretionary." Salser 5-22-14 Memo Decision, ¶¶ 6-7.

These are polar-opposite conclusions, and the Tenth District (and the other

districts) have failed to appreciate that fact. A waived/forfeited constitutional challenge

cannot be both "jurisdictional" and "discretionary," especially in a collateral attack.

The conflict between these two concepts is heightened by the overall failure of

these courts to actually address the Awan holding that constitutional challenges are not

jurisdictional. In the present case and Salser, the State specifically relied on the "not

jurisdictional" language from pages 121-22 of the Awan opinion, but the Tenth District

never addressed it. In denying reconsideration, the Salser panel at least acknowledged the

Awan syllabus but never acknowledged Awan's underlying "not jurisdictional" premise.

The Holley panel never even acknowledged Awan.

Nothing in YVilliams compels the conclusion that untimely retroactive-law

challenges must be treated as "jurisdictional." Under Awan, such challenges are not

jurisdictional, and a Tier classification entered long ago is not "void." Res judicata

applies to bar a "motion" filed years later. Under the Ali non-retroactivity doctrine,

Williams would not even apply to long-final Tier classifications. Time limits on post-

conviction review also should apply.

Williams does not create its own exception to these finality doctrines. "There is

no merit to [the] claim that res judicata has no application where there is a change in the

2

law due to a judicial decision of this court." State v. Szefcyk, 77 Ohio St.3d 93, 95, 671

N.E.2d 233 (1996) (subsequent appellate decision in another case does not overcome res

judicata bar); State v. Reynolds, 79 Ohio St.3d 158, 161-62, 679 N.E.2d 1131 (1997)

(same); Doe v. TNunabull Cty. Children Services, 28 Ohio St.3d 128, 131, 502 N.E.2d 605

(1986), syllabus. A constitutional challenge does not magically become "jurisdictional"

because a merits ruling has eventuated in another challenger's favor in a later case.

By allowing sex offenders to file motions years later, the Tenth District and other

appellate courts have ensured that this issue will not be going away. But the appellate

courts have not cogently squared their "void" conclusions with Awan's "not

jurisdictional" holding. This Court should intervene to enforce stare decisis as to Awan.

This dynamic is not unusual. When this Court issues a constitutional ruling like

Williams, lower courts are often wont to overlook finality principles in order to apply the

new ruling. In follow-on litigation, however, this Court will establish exactly how far the

new constitutional ruling will reach in terms of its application to old, already-final cases.

One helpful example is this Court's Foster ruling invalidating certain provisions

allowing judicial fact-finding in sentencing. Some appellate courts applied the Foster

ruling even though the issue was not preserved in the trial court. It eventually took a

ruling from this Court to rein in the lower courts on this point, holding that the issue had

been forfeited. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306. A

similar dynamic occurred when this Court enforced res judicata in Szefcyk and Reynolds.

Questions of finality are important. Having loose standards for vacating

unappealed judgments many months or years later encourages the often-endless post-

judgment litigation that occurs.

3

The State has fully preserved these finality issues. It is important for this Court to

address whether these finality doctrines apply to old cases that became final before

Williams. This Court should enforce Awan rather than let lower courts disregard it.

The present case includes an important second proposition of law not involved in

Salser. Convicted of rape by force, defendant would have been an "aggravated sexually

oriented offender" under Megan's Law. As such, he would have been already subject to

the highest levels of registration and community notification. The AWA made only

minimal, non-punitive changes as to such offenders. But vvhen the State argued under its

proposed fifth assignment of error that it should prevail on the merits, the Holley panel

wrongly treated this merits issue as disposed by Salser. In fact, Salser did not involve

this merits question. The State should at least receive a fair hearing on this merits issue.

Finally, the posture of this case should not deter review. Although courts of

appeal can exercise discretion on whether to grant leave to appeal, the Tenth District here

was not purporting to exercise discretion. Rather, the Tenth District relied strictly on a

legal analysis in denying the State's motion. Questions of law are governed by a de novo

standard of review. State v. Codeluppi, _ Ohio St.3d , 2014-Ohio- 1574 ¶ 9. "When

a court's judgment is based on an erroneous interpretation of the law, an abuse-of-

discretion standard is not appropriate." State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-

5590, 918 N.E.2d 497, ¶ 6, quoting Med lVlut. of Ohio v. Schlotterer, 122 Ohio St.3d 181,

2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13. Even under an "abuse of discretion" standard, an

abuse of discretion occurs when the court fails to exercise sound, reasonable, and legal

decision-making. State v. Beechler, 2nd Dist. No. 09-CA-54, 2010-Ohio-1900, ¶ 62.

Because the Tenth District denied the motion for leave based solely on a legal

4

analysis, the case receives de novo review here. Review would not be hindered by any

abuse-of-discretion standard, especially since the State claimed an appeal of right on the

legal question of whether defendant's "motion" should be treated as a time-barred post-

conviction petition.

This felony case presents questions of public and great general interest, warrants

granting leave to appeal, and presents a substantial constitutional question.

STATEMENT OF FACTS

Defendant was indicted in 2004 on single counts of rape and gross sexual

imposition for acts committed on May 14, 2004. The indictment alleged the same victim

in each count and further alleged that the victim was less than thirteen, i.e., four years old.

The arrest warrant was executed in January 2008, and defendant eventually

pleaded guilty to forcible rape under R.C. 2907.02(A)(2) under count one on January 12,

2009. The parties jointly recommended an eight-year prison sentence. The Entiy of

Guilty Plea noted that the plea would result in a "Tier 3 sex offender classification."

The common pleas court imposed the recommended eight-year sentence. The

court also recognized that defendant is a "Tier III" sex offender with lifetime registration,

verification every 90 days, and community notification. The court's judgment was

entered on January 15, 2009. Defendant did not appeal.

Over 57 months later, on October 17, 2013, defendant filed a "petition to

invalidate the classification, registration, and notification requirements of Ohio Revised

Code, Chapter 2950; under the A.W.A. and Megan's Law." Defendant contended that

the 'I`ier III classification under the Adam Walsh Act ("AWA") was uncoiYstitutional

under the Bodyke and Williams decisions. Defendant also contended that, since the AWA

5

repealed the Megan's Law scheme, he would not be subject to Megan's Law either.

On October 18, 2013, the State filed a memorandum opposing the petition,

preserving all of the arguments being made here.

On January 16, 2014, the common pleas court filed a decision and entry sustaining

the "motion" in part and overruling the "motion" in part. The court concluded that, under

the Tenth District's decision in State v. Salser, the Tier III classification under AWA was

"void" in light of Williams and must be vacated. The court rejected defendant's argument

that he was not subject to any registration requirements at all. The court vacated the Tier

III classification and ordered that defendant would be reclassified under Megan's Law.

The State sought to appeal by filing a motion for leave to appeal, contending that

it possessed an appeal of right and that leave to appeal was warranted based on five

proposed assignments of error. The court denied the motion and dismissed the appeal.

ARGUMENT

Proposition of Law No. 1: Constitutional challenges to AWA Tierclassifications are not jurisdictional, and the failure to timely raise suchchallenges results in the waiver and forfeiture of the challenges and resultsin the application of res judicata and other finality doctrines.

Various finality doctrines should have led to the rejection of defendant's tardy

retroactive-law challenge.

A.

It was too late for defendant to raise the retroactive-law challenge. "Failure to

raise at the trial court level the issue of the constitutionality of a statute or its application,

which issue is apparent at the time of trial, constitutes a waiver of such issue and a

deviation from this state's orderly procedure, and therefore need not be heard for the first

6

time on appeal." Awan, syllabus. Such claims of unconstitutionality are not

jurisdictional, even on direct appeal. Id. at 121-22. Nor would it be jurisdictional that the

statute under which defendant was sentenced was unconstitutional. Payne, ¶¶ 27-29.

The defense could have raised the retroactive-law issue in the trial court before

coiiviction or on direct appeal from the entry classifying him as a Tier III offender. State

v. Clayborn, 125 Ohio St.3d 450, 2010-Ohio-2123, 928 N.E.2d 1093. But defendant

failed to challenge the new scheme in the trial court and failed to pursue any appeal.

The issue was therefore waived/forfeited, as it was not timely presented. "[T]he

question of the constitutionality of a statute must generally be raised at the first opportunity

and, in a criminal prosecution, this means in the trial court." Awan, 22 Ohio St.3d at 122.

"Constitutional rights may be lost as finally as any others by a failure to assert them at the

proper time." State v. Childs, 14 Ohio St.2d 56, 62, 236 N.E.2d 545 (1968). The waiver

rule is "strict." State v. Long, 53 Ohio St.2d 91, 96, 372 N.E.2d 804 (1978).

B.

The Tenth District and other courts have contended that the retroactive-law

challenge makes the classification "void." But that argument was long ago discarded by

Awan and its progeny, wliich reject the notion that constitutional challenges are

perpetually raisable because they affect the jurisdiction of the court.

As the Tenth District conceded in State v. Richey, 10th Dist. No. 09AP-36, 2009-

Ohio-4487: "In Awan, the Supreme Court of Ohio held that whether a statute used to

prosecute a defendaiit is constitutional is not a question that relates to the trial court's

jurisdiction, and it can be forfeited." Id. ¶ 12. "Awan `is a repudiation' of the contention

that the constitutionality of a statute used to prosecute a defendant is never forfeited." Id.,

7

citing State v. 1981 Dodge Ram Van, 36 Ohio St.3d 168, 171, 522 N.E.2d 524 (1988).

C.

The Tenth District referenced the fact that Williams is a new decision. But, as

stated supra, this Court has recognized that the issuance of a new decision does not create

an exception to res judicata and other finality doctrines. The newness or novelty of a

legal claim can be grounds for excusing a failure to object if the legal claim was so novel

that its legal basis was not reasonably available at the time the objection should have been

made. See, e.g., Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140

L.Ed.2d 828 (1998); Engle v. Isaac, 456 U.S. 107, 133, 102 S.Ct. 1558, 71 L.Ed.2d 783

(1982). But defendant's retroactive-law claim is hardly novel. Retroactive-law

challenges had been raised against the prior Megan's Lativ scheme and were repeatedly

being raised against the AWA Tier scheme.

D.

Although an issue is waived through lack of objection, the Criminal Rules provide

that "[p]lain errors or defects affecting substantial rights may be noticed although they were

not brought to the attention of the court." Crim.R. 52(B). But this rule represents a narrow

exception to the waiver/forfeiture doctrine. State v. Wamsley, 117 Ohio St.3d 388, 2008-

Ohio-1195, 884 N.E.2d 45,^, 19. Moreover, review under the plain-error standard is only

available on direct appeal. United States v. Frady, 456 U.S. 152, 163, 164, 102 S.Ct. 1584,

71 L.Ed.2d 816 (1982).

Plain-eiror review does not aid defendant anyway. Plain error will justify reversal

only if: ( 1) there was error; (2) the error was plain at the time it was committed; and (3) the

error affected substantial rights. State v. Barnes, 94 Ohio St.3d 21, 27-28, 759 N.E.2d 1240

8

(2002). Under the last criterion, the error must have clearly affected the outcome of the

proceeding. Id. at 27, citing Long, paragraph two of the syllabus.

Defendant's retroactive-law challenge would not satisfy the plain-error standard.

The error to be recognized under a retroactive-law challenge "was not `plain' at the time

that the trial court committed it." Barnes, 94 Ohio St.3d at 28. The law was unsettled, and

it was not plain at the time of defendant's sentencing in 2008 that Williams eventually

would sustain a retroactive-law challenge. In the absence of error reversible as plain error,

there would be no discretion to disregard the waiver/forfeiture, even on direct review.

E.

The waiver/forfeiture doctrine applies with extra force here because it is likely that

the defense saw that treating defendant as a Tier III offender under the AWA would make

no material difference in comparison to the Megan's Law scheme. Defendant was

convicted of forcible rape under R.C. 2907.02(A)(2), which meant that, at the very least, he

would have been an aggravated sexually oriented offender under the Megan's Law scheme

because the offense occurred after July 31, 2003. Former R.C. 2950.01(O). Even under

Megan's Law, defendant faced lifetime registration, quarterly verification, and

community notification as a matter of law regardless of whether he was found to be a

"sexual predator." Former R.C. 2950.06(B)(l); former R.C. 2950.07(B)(l); former R.C.

2950.11(F)(l)(c). By going along with the Tier III classification, the defense also avoided

the possibility of defendant being classified as a "sexual predator" because of a likelihood

to reoffend.

The defense likely preferred to accept the label of "Tier III" in lieu of the being

labeled in as a "predator" or "aggravated sexually oriented offender." Even on direct

9

appeal, the defense cannot obtain reversal based on a waivedlforfeited issue when the

failure to object was tactical. State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189 (1980).

F.

Another ground for rejecting defendant's "motion" is res judicata. "Res judicata is

applicable in all postconviction relief proceedings." Szefcyk, 77 Ohio St.3d at 95. It

applies to any claim that could have been raised by the defendant in the trial court before

conviction or on timely direct appeal thereafter. State v. Perry, 10 Ohio St.2d 175, 226

N.E.2d 104 (1967). "[A]ny issue that could have been raised on direct appeal and was

not is res judicata and not subject to review in subsequent proceedings." State v. Saxon,

109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 16.

A defendant wishing to challenge his AWA Tier requirements can do so by direct

appeal. Clayborn, supra. As a result, if defendant was going to challenge the Tier

designation, he should have done so by raising a timely challenge before conviction or by

making a timely direct appeal. As stated earlier, the Tier classification is not rendered

"void" by the constitutional challenge.

G.

The decision in Williams does not apply retroactively to cases that already became

final before the announcement of that decision. As stated in Ali v. State, 104 Ohio St.3d

328, 2004-Ohio-6592, 819 N.E.2d 687, ¶ 6, "[a] new judicial ruling may be applied only

to cases that are pending on the announcement date. * * * The new judicial ruling may

not be applied retroactively to a conviction that has become final, i.e., where the accused

has exhausted all of his appellate remedies." The present case becaine final in 2009 when

defendant failed to appeal; it was "final" by the time Williams was decided in July 2011.

10

H.

Defendant's "motion" should have been construed to be a post-conviction

petition. Such a "petition" would have been time barred, having been filed a number of

years after the post-conviction deadline, which expired in 2009, 180 days after the time

for direct appeal expired. R.C. 2953.21(A)(2).

Defendant cannot rely on the narrow exception that would allow untimely filing if

he was unavoidably prevented from discovering the facts supporting his retroactive-law

claim. R.C. 2953.23(A)(1)(a). The timing of AWA in relation to defendant's offenses

was apparent at the time of sentencing. Moreover, this exception does not apply to new

legal developments. State v. Gulertekiyz, 10th Dist. No. 99AP-900 (2000).

Defendant also cannot rely on the narrow exception that would allow untimely

filing if the United States Supreme Court recognized a new federal or state right that

applies retroactively. R.C. 2953.23(A)(1)(a). Defendant does not rely on any United

States Supreme Court decision that post-dated the time for timely filing a post-conviction

petition. See State v. Rutledge, 10th Dist. No. I lAP-853, 2012-Ohio-2036, ¶ 11.

Moreover, Williams is not retroactively applicable to defendant's case. Ali, supra.

Even if defendant could show that a retroactive right had been recognized after

the deadline, defendant could not make the further showing required under R.C.

2953.23(A)(1)(b). This provision does not allow a court to entertain a tardy post-

conviction challenge to a non-capital sentence. State v. Martin, l Oth Dist. No. 06AP-

798, 2007-Ohio- 1844, ¶ 10. If AWA is considered to be "punitive," as Williams

contends, then defendant's motion constituted a challenge to his sentence, and therefore

his motion could not be entertained at that point.

11

I.

The Awan doctrine or res judicata cannot be avoided by the contention that

Williams created an exception to those doctrines. Williams arose on direct appeal, and the

retroactive-law issue had been fully preserved in the lower courts in that case. Williams,

¶¶ 2-4. As a result, Williams naturally had nothing to say about whether a future

Williams-based retroactive-law challenge would be immune from the Awan doctrine,

whether such a challenge would be retroactive to previously-final cases, or whether such

a challenge would be immune from res judicata. Williams emphasized that it was only

addressing a"narrow" issue. Williams, ¶ 6. Later, in In re Bruce S., 134 Ohio St.3d 477,

2012-Ohio-5696, 983 N.E.2d 350, the Court emphasized that Williams was not

dispositive of an issue not directly addressed in that case. Id. at ¶ 6 (Williams "never

addressed the discrete issue presented here"). In short, nothing in Williams compels its

application to defendant's long-final Tier II classification. Nothing in Willianis contends

that the constitutional challenge was "jurisdictional" or "void."

Nor did the summary disposition in State v. Lees, 135 Ohio St.3d 136, 2012-Ohio-

5909, 984 N.E.2d 1056, indicate any overruling of the Awan doctrine. This Court has

specifically rejected the concept of "implicit" precedent in Payne, which held that the

"perceived implications" of its Foster decision were not binding and that later summary

dispositions were "entitled to no consideration whatever as settling * * * a question not

passed upon or raised at the time of the adjudication." Payne, ¶¶ 10-12; see, also, B.F

Goodrich v. Peck, 161 Ohio St. 202, 118 N.E.2d 525 (1954), paragraph four of the

syllabus; State v. Lester, 123 Ohio St.3d 396, 2009-Ohio-4225, 916 N.E.2d 1038, ¶ 31

("summary-remand decision of this court does not settle for future cases unaddressed

12

issues"); State ex r°el. United Auto., Aerospace & Agricultural Implement Workers ofAm.

v. Bur. of WoNkers' Comp., 108 Ohio St.3d 432, 2006-Ohio-1327, 844 N.E.2d 335, ¶ 46.

Nothing in Lees actually overruled the Awan doctrine.

To be sure, the merits ruling in Williams was that an AWA Tier classification

resulting in material changes to registration requirements cannot be applied to offenders

who committed their offenses before the effective date of AWA. But the merits ruling in

Williams should not be confused with the separate procedural-default questions of

whether such challenges would be immune from the Awan doctrine, whether Williams

would be retroactive to previously-final cases, or whether Williams would be immune

from res judicata.

If a favorable merits ruling were an exception to these doctrines, then these

doctrines would be rendered entirely ineffectual, as it would always be necessary to rule

on the merits before finding the constitutional challenge waived/forfeited/barred. But a

court applying Awan or res judicata does not decide the merits first. Instead, it simply

avoids ruling on the merits.

Proposition of Law No. 2: The AWA made only minimal, non-punitivechanges as to sex offenders who were or would have been aggravatedsexually oriented offenders under Megan's Law. Such changes do notviolate the prohibition against retroactive laws as to such offenders.

As stated earlier, Williams would not be applicable to defendant's Tier III

classification, which became final long before Williams was decided. A retroactive-law

challenge does not create a jurisdictional problem that can be raised over 57 months after

conviction and classification.

Even if Williams is applicable, however, defendant failed to demonstrate beyond

13

a reasonable doubt that Williams would compel the constitutional invalidation of his Tier

III classification. The retroactive-law holding of Williams was based on the view that

the AWA is "punitive" in applying a Tier classification to pre-AWA offenders. But

Williams did not involve a forcible rape victimizing a young child. Nor did it involve a

sex offender who, even under Megan's Law, would have automatically faced lifetime

registration, quarterly verification, and comniunity notification as at least an "aggravated

sexually oriented offender." Williams said it was addressing offenders who were

appreciably worse off under AWA, contending that, under AWA, "an offender is now

subject to additional reporting and registration requirements and is subject to those

requirements for a longer time." Williams, ¶ 7. The Court emphasized that "[t]he issue

before us is whether these changes, when applied to a person whose crime was

committed prior to the enactment of S.B. 10, violate * * * the prohibition against

retroactive laws * * *." Id. ¶ 7 (emphasis added). The Court characterized the issue

before it as "narrow." Id. ¶ 6. The Court based its ruling on "all the changes enacted by

S.B. 10 in aggregate". Id. ¶ 21.

The State asserts that the AWA changes were not "punitive" as applied to rapists

of young children who would automatically qualify for the highest registration level

under prior law. The differences in being treated as a Tier III offender under AWA and

as an aggravated sexually oriented offender under Megan's Law are minimal and are

fully justified by the remedial and regulatory purposes of the law in seeking to provide

some measure of protection from offenders like defendant who raped a four-year-old

child. The same remedial and regulatory purposes that underlay Megan's Law, which

are discussed in cases like State v. Cook, 83 Ohio St.3d 404, 418, 700 N.E.2d 870

14

(1998), readily justify the minimal AWA changes as to this offender and other sex

offenders victimizing young children. Indeed, the regulatory and remedial justifications

for AWA are at their zenith in such cases and should serve to avoid invalidation of AWA

on retroactive-law grounds in such cases. The minimal changes are not "punitive" as

applied to this defendant, and therefore the logic of Williams is inapplicable.

Defendant would likely contend that the syllabus of Williams is broad in holding

that AWA Tier classifications would be invalid as to sex offenders whose crimes

predated AWA. But it must be kept in mind that the Williams Court itself characterized

its focus as "narrow" on the question of whether the AWA changes in aggregate were

punitive. Given the minimal AWA changes involved here, that logic is inoperative as to

rapists like defendant who victimized a young child.

It is noteworthy too that the Williams syllabus as written actually would have

been dispositive in the Bruce S. decision but was disregarded in Bruce S. The issue in

Bruce S. was whether the June 2007 enactment date controlled in the legal analysis or

whether the January 2008 effective date controlled. The Williams syllabus expressly

said "enactment," but the Court in Bruce S. found that such language was not controlling

because Williams "never addressed the discrete issue presented here". Bruce S., T 6.

Given that the Court has already narrowly construed Williams, it would make little sense

to broadly apply the Williams syllabus to a fact pattern that was not before it.

Respectfully submitted,

STEVEN L. TAYLOR 043876 (Counsel of Record)Chief Counsel, Appellate Division

15

CERTIFICATE OF SERVICE

A true and accurate copy of the foregoing was sent by regular U. S. Mail on June

30, 2014, to Jeremiah Holley, #597-152, P.Q. Box 5500, Chillicothe, Ohio 45601, pro se.

STEVEN L. TAYLO

16

AllO - 065

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio,

V.

Defendant-Appellee.

No. 14AP-134(C.P.C. No. 04CR-05-3425)

(REGULAR CALENDAR)

MEMORANDUM DECISION

Rendered on June 3, 2014

Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, forappellant.

Jeremiah Holley, pro se.

ON MOTION FOR LEAVE TO APPEAL

Plaintiff-Appellant,

Jeremiah Holley,

SADLER, P.J.

{¶ 1} Plaintiff-appellant, State of Ohio, has filed a motion, pursuant to App.R.

5(C), for leave to appeal from a judgment of the Franklin County Court of Common Pleas

sustaining in part and overruling in part the motion of defendant-appellee, Jeremiah

Holley, to invalidate his sex offender classification under the Adam Walsh Act.

1. FACTUAL AND PROCEDURAL BACKGROUND

{¶ 2} Appellee was indicted in 2004 on one count of rape and one count of gross

sexual imposition related to acts that occurred on May 14, 2004. An arrest warrant was

executed in January 2oo8, and in January 2009, appellee pleaded guilty to one count of

rape in violation of R.C. 2907.o2(A)(2). The trial court imposed the jointly recommended

A-001

A11C3 - 066

No. 14AP-134 2

eight-year sentence, and appellee was classified as a Tier III sex offender. No appeal was

taken.

}¶ 3} On October 17, 2013, appellee filed a "Petition to Invalidate the

Classification, Registration, and Notification Requirements of Ohio Revised Code,

Chapter 2950; tinder the A.W.A. and Megan's Law." In said motion, appellee argued that,

pursuant to State v. Williams, 129 Ohio St.3d 344, 2011-01lio-3374, retroactive

application of Am.Sub. S.B. No. 1o ("S.B. 1o"), also known as the Adam Walsh Act, was in

error such that his sex offender classification was void, and he should not be classified as a

sex offender. The state asserted appellee's arguments had been waived, were untimely,

and were barred by the doctrine of res judicata.

{¶ 4} By decision and entry filed on January 16, 2014, appellee's motion was

sustained in part and ovei-ruled in part. The trial court agreed with appellee that,

pursuant to Williams, he could not be classified as a Tier III offender for conduct that

occurred in 2004. However, the trial court rejected appellee's contention that he should

not be subject to any sex offender classification and, instead, concluded that appellee was

entitled to a classification hearing in accordance with the law in effect at the time the

offense was committed. The state now seeks to appeal from the trial court's decision.

II. THE STATE'S RIGHT TO APPEAL

{¶ 5} The state's right to appeal a trial court's decision is governed by R.C.

2945.67(A), which provides, in relevant part:

A prosecuting attorney * * * may appeal as a matter of rightany decision of a trial court in a criminal case * * * whichdecision grants a motion to dismiss all or any part of anindictment, complaint, or information, a motion to suppressevidence, or a motion for the return of seized property orgrants post conviction relief pursuant to sections 2953.21 to2953.24 of the Revised Code, and may appeal by leave of thecourt to which the appeal is taken any other decision, exceptthe final verdict, of the trial cotirt in a criminal case.

{¶ 6} This statute grants the state a substantive, but limited, right of appeal. State

v. Slatter, 66 Ohio St.2d 452, 456-57 (1981). The state's absolute right of appeal is only

available where the trial court's decision falls within one of four categories stated in the

statute: (i) a motion to dismiss all or part of an indictment, complaint or information,

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No.14AP-134 3

(2) a motion to suppress evidence, (3) a motion for the return of seized property, or (4) a

petition for postconviction relief pursuant to R.C. 2953.21 to 2953.24. State v. Matthews,

$1 Ohio St.3d 375, 377-78 (1998).

{¶ 7} The state first argues the trial court's decision, in essence, granted appellee

postconviction relief, and, therefore, the decision is appealable as a matter of right

pursuant to R.C. 2945.67(A). We disagree.

{¶ S} In State v. Salser, loth Dist. No. 12AP-792, 2014-Ohi0-$7, this court

reviewed the trial court's denial of a 2012 "motion to correct registration and

classification" of a defendant who was classified as a Tier II sex offender under S.B. lo,

though the acts giving rise to his convictions occurred in 2007. Id. at ¶ 3. In rejecting the

state's argument that said motion should be construed as a petition for postconviction

relief, this court stated "where a defendant seeks recognition by the trial court that his

purported classification under the Adam Walsh Act is void, 'which the trial court has

inherent authority to do, independently of the provision in R.C. 2953.21 for petitions for

post-conviction relief,' a trial court 'may substitute the correct classification under the sex

offender classification law preceding enactment of the Adam Walsh Act.' " Id. at ¶ 11,

quoting State v. Knowles, 2d Dist. No. 2o11-CA-17, 2012-Ohio-2543, ¶ 12. Accordingly,

we reject the state's invitation to treat appellee's motion as a motion for PostconvictionL relief, pursuant to R.C. 2953.21, such that the state's appeal should proceed as an appeal

of right.

{¶ 9} Pursuant to R.C. 2954.67(A), the state may also appeal "any other decision"

of the trial court, such as the present decision, only if the state first obtains leave from the

appellate court to take the appeal. The decision to grant or deny leave for the state to

appeal rests solely within the discretion of the court of appeals. State v. Fisher, 35 Ohio

St.3d 22, 23 (1988); State U. Caulley, loth Dist. No. 12AP-100, 2012-Ohio-2649; State U.

Johnson, ioth Dist. No. 95APAlo-138o (Apr. 4, 1996). The state must demonstrate a

probability that the claimed errors did, in fact, occur. App.R. 5(C); Caulley; State v.

Burke, loth Dist. No. o6AP-656, 2oo6-Ohio-4597; State v. Garcia, loth Dist. No.

94APA11-1646 (May 2, 1995)•

{¶ 10} The state has presented five claimed assignments of error:

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No. 14AP-134

[I.] The trial court erred and abused its discretion inconcluding that defendant's untimely retroactive-lawchallenge to his Tier III classification rendered theclassification "void."

[II.] The trial court erred and abused its discretion in failingto apply res judicata to bar defendant's untimely retroactive-law challenge.

[III.] The trial court erred and abused its discretion in findingthat the decision in State v. Williams, 129 Ohio St.3d 344,2o11-Ohio-3374, 952 N.E.2d 11o8, applied to defendant'slong-final classification.

[IV.] The trial court erred and abused its discretion in failingto treat defendant's "petition" as a time-barred post-conviction petition.

4

[V.] The trial court erred and abused its discretion in applyingWilliams to invalidate a Tier III classification as applied to asex offender who committed forcible rape against a four-year-old child.

A. First Claimed Error

{¶ 11} In its first claimed error, the state contends the trial court erred in

concluding that appellee's Tier III classification was void. In Salser, this court rejected a

similar proposition and recognized that, "[i]n applying Williams, Ohio appellate courts

have held that a retroactive classification of a sex offender under S.B. io for an offense

committed before the effective date of that act is 'void.' " Salser at ¶ 8, citing State v.

Lawson, 1st Dist. No. G-120077, 2012-Ohio-5281, ¶ 18 ("Because Lawson committed his

offenses before the effective date of S.B.1o, the trial court could not lawfully impose upon

him S.B. 1o's registration requirements. Therefore, Lawson's classification under S.B. io

as a Tier III sex offender is void."); see also State v. Eads, 197 Ohio App.3d 493, 2011-

Ohio-63o7, 118 (2d Dist.) (construiiig Williams to hold that retroactive application of

S.B. 1o to persons who committed sex offenses prior to the effective date of that statute "is

a nullity" and, therefore, such classification "is void"); State v. Alsip, 8th Dist. No. 98921,

2013-Ohio-1452, ¶ 8("Where a defendant whose offenses were committed prior to the

effective date of the Adam Walsh Act is improperly classified under the Act in violation of

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No. 14AP-134 5

Williams, such classification is void."); State v. Carr, 4th Dist. No. 11CA3256, 2012-Ohio-

5425, ¶ 11 ("Because Carr committed his sex offense prior to S.B. lo's enactment, his Tier

III sex offender classification under S.B. lo violates Ohio's Retroactivity Clause and is

void.").

{¶ 12} Accordingly, we conclude the state has not sufficiently demonstrated a

probability that its first claimed error did, in fact, occur.

B. Second Claimed Error

{¶ 13} In its second claimed error, the state contends appellee's arguments are

barred by the doctrine of res judicata. Both of these contentions were recently rejected by

this court in Salser, wherein we stated "we fmd unpersuasive the state's contention that

waiver and/or res judicata bar appellant's attempt to benefit from Williams because of his

failure to directly appeal his classification." Id. at 1I lo, citing Eads at ¶ 23; In re M.D., 38

Ohio St.3d 149 (1988); State v. Clemons, 7th Dist. No. ii BE 26, 2012-Ohio-5362; State v.

Dudley, 2d Dist. No. 244o8, 2012-Ohio-3844.

{¶ 14} Accordingly, we conclude the state has not sufficiently demonstrated a

probability that its second claimed error did, in fact, occur.

C. Third Claimed Error

,

{¶ 15} In its third claimed error, the state contends the trial court erred in

concluding that Williams applies to appellee's case. Here, the state argues Williams does

not apply retroactively to cases that already became final before the announcement of that

decision.

{¶ 16} This argument, like those in the state's first and second claimed errors, was

rejected by this court in Salser. In Salser, this court applied I47illiams to a defendant who

was convicted in March 2oo8, prior to when Williams was decided.

{¶ 17} Accordingly, we conclude the state has not sufficiently demonstrated a

probability that its third claimed error did, in fact, occur.

D. Fourth Claimed Error

{¶ 18} In its fourth claimed error, the state contends the trial court erred in failing

to treat appellee's motion as a time-barred postconviction petition. Again, Salser is

dispositive on this issue. As discussed supra, the court in Salser rejected the state's

position that motions such as the one by appellee shotild be construed as petitions for

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No. 14AP-134 6

postconviction relief. Moreover, as stated in Salser, "[f]urther, even assuming [the

defendant's] motion should be construed as a petition for post-conviction relief, 'a trial

court retains jurisdiction to correct a void judgment.' " Id. at ¶ 12, quoting Lawson at ¶ 8.

{¶ 19} Accordingly, we conclude the state has not sufficiently demonstrated a

probability that its third claimed error did, in fact, occur.

E. Fifth Claimed Error

{¶ 20} In the final claimed assignment of error, the state argues the trial court

erred in applying Williams to invalidate appellee's Tier III classification.

{¶ 21} Despite the state's claims to the contrary, Salser undoubtedly applied

W%lliams to vacate a sex offender classification imposed under S.B. 1o, but regarding

conduct that occurred prior to the effective date of the same. As held in Salser,

"[p]ursuant to Williams, 'the remedy for improper classification is to remand the matter

to the trial court for a classification hearing in accordance with the law in effect at the time

the offense was committed.' Alsip at ¶ 1o. Accordingly, the trial court's classification of

appellant as a Tier II offender under S.B. zo is vacated, and this matter is remanded to the

trial court for the limited purpose of holding a hearing to classify appellant pursuant to

the law that existed at the time he committed his offenses." Id. at ¶ 13.

{¶ 22} Here, appellee was classified as a Tier III sex offender in 2009 with respect

to conduct that occurred in 2004. Pursuant to Williams, the trial court vacated appellee's

Tier III classification and ordered that appellee would be returned to the court for a

reclassification hearing. Given this court's holding in Salser and the authority cited

therein, we conclude the state has not sufficiently demonstrated a probability that its fifth

claimed error did, in fact, occur.

ITI. CONCLUSION

{¶ 23} Because the state has failed to demonstrate a probability that its claimed

dismissed.

errors did, in fact, occur, the motion for leave to appeal is denied, and the appeal is

Moiion for leave to appeal denied;appeal dismissed.

TYACK and CONNOR, JJ., concur.

A-006

A11o P30

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio,

Plaintiff-Appellant,

V.

Jeremiah Holley,

Defendant-Appellee.

No.14AP-1S4(C.P.C. No. 04CR-o5-3425)

(REGULAR CALENDAR)

^

{

JUDGMENT ENTRY

For the reasons stated in the memorandum decision of this court rendered

herein on June 3, 2014, it is the judgment and order of this court that appellant's motion

for leave to file to appeal is denied, and the appeal is dismissed. Costs shall be assessed.

against appellant.

SADLER, P.J., TYACK, and CONNOR, JJ.

/S/ JUDGE

A-007

A110 - P31

Tenth District Court of Appeals

Date:

Case Title:

Case Number:

Type:

06-03-2014

STATE OF OHIO -VS- JEREMIAH HOLLEY

14AP000134

JEJ - JUDGMENT ENTRY

So Ordered

..........

!sl Judge Lisa L. Sadler

,

{

Electronically signed on 2014-Jun-03 page 2 of 2

A-008