Appellant contends, however, that the court in Bodyke would not have selected severance as a remedy had it intended to declare R.C. 2950.031 and 2950.032 unconstitutional only "as applied" (rather than facially) to those offenders who had been previously adjudicated sex offenders by a judge in Ohio. {¶ 27} In a recent decision, State v. Hazlett, 191 Ohio App.3d 105, 2010-Ohio-6119, 944 N.E.2d 1220, this court considered a case in which an appellant-offender was convicted in 1980 but never judicially classified as a sexual offender, i.e., the appellant's classification arose by operation of law. Under the facts of that case, the appellant received notification by the office of the Ohio Attorney General in 2007 that he would be reclassified as a Tier III offender pursuant to S.B. No. 10.
September 21, 2011. Franklin App. No. 09AP-1069, 191 Ohio App.3d 105, 2010-Ohio-6119. Appeal Not Accepted For Review
"Under Megan's Law, sex offenders fell into one of three classifications, sexually oriented offenders, habitual sexual offenders, or sexual predators, based upon the crime committed and the findings made by the trial court at a sexual-classification hearing." State v. Hazlett, 191 Ohio App.3d 105, 2010-Ohio-6119, ¶ 3 (10th Dist.). {¶10} In 2007, Megan's Law was replaced with the AWA, which set forth a "tier system" that automatically classified sex offenders according to their crime.
"Under Megan's Law, sex offenders fell into one of three classifications, sexually oriented offenders, habitual sexual offenders, or sexual predators, based upon the crime committed and the findings made by the trial court at a sexual-classification hearing." State v. Hazlett, 191 Ohio App.3d 105, 2010-Ohio-6119, ¶ 3 (10th Dist.) (emphasis added).
"Under Megan's Law, sex offenders fell into one of three classifications, sexually oriented offenders, habitual sexual offenders, or sexual predators, based upon the crime committed and the findings made by the trial court at a sexual-classification hearing." State v. Hazlett, 191 Ohio App.3d 105, 2010-Ohio-6119, 944 N.E.2d 1220, ¶ 3 (10th Dist.). {¶ 10} In 2007, Megan's Law was replaced with the AWA, 2007 Am.Sub.S.B. No. 10, which set forth a "tier system" that automatically classified sex offenders according to their crime.
have repeatedly rejected similar arguments by the state that relief under Bodyke is not available in the absence of a prior judicial classification. See, e.g., State v. Johnson, 10th Dist. No. 10AP-932, 2011-Ohio-2009, ¶ 15 ("even if appellee's classification as a sexually oriented offender did not arise from a specific judicial determination to which Bodyke would apply, we have nevertheless recognized that offenders whose pre-Adam Walsh Act classification arose purely as a matter of law still must receive the benefit of the Bodyke remedy returning those offenders to their pre-Adam Walsh Act classifications because of Bodyke's complete severance of the statutory provisions governing reclassification by the attorney general"); State v. Gardner, 10th Dist. No. 09AP-1192, 2011-Ohio-4360, ¶ 10 (rejecting state's argument that appellant was not entitled to relief under Bodyke because his original classification attached as a matter of law, and not as a result of a judicial classification); State v. Hazlett, 191 Ohio App.3d 105, 2010-Ohio-6119, ¶ 11 (10th Dist.), discretionary appeal not allowed, State v. Hazlett, 129 Ohio St.3d 1477, 2011-Ohio-4751 (the severance under Bodyke "makes no distinction between those classified judicially and those classified by operation of law"); Core v. Ohio, 191 Ohio App.3d 651, 2010-Ohio-6292, ¶ 28 (10th Dist.), discretionary appeal allowed by Core v. State, 128 Ohio St.3d 1556, 2011-Ohio-2905, appeal dismissed by In re Cases Held for the Decision in State v. Williams, 130 Ohio St.3d 254, 2011-Ohio-5348 (applying Bodyke relief to case where the defendant's conviction arose in California and defendant had never been determined to be a sexually oriented offender by a judge of an Ohio common pleas court). {¶11} Further, shortly before briefing was due in this appeal, the Supreme Court released its decision in State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, a case involving a defendant's prosecution for failure to verify.
Specifically, this court has "`recognized that, notwithstanding the severance of the statutory provisions under which the reclassification petitions were filed, petitioners such as appellee are entitled to orders directing their return to those previous classifications.'" Id., quoting Hosom v. State, 10th Dist. No. 10AP-671, 2011-Ohio-1494, ¶ 8, citing State v. Watkins, 10th Dist. No. 09AP-669, 2010-Ohio-4187; State v. Miliner, 10th Dist. No. 09AP-643, 2010-Ohio-6771; State v. Hazlett, 191 Ohio App.3d 105, 2010-Ohio-6119; Core v. State, 191 Ohio App.3d 651, 2010-Ohio-6292; and Cook v. State, 10th Dist. No. 10AP-641, 2011-Ohio-906. {¶ 11} In light of the above precedent, the state's first assignment of error is overruled.
{¶ 16} Moreover, even if petitioner's classification as a sexually oriented offender "did not arise from a specific judicial determination to which Bodyke would apply, we have nevertheless recognized that offenders whose pre-Adam Walsh Act classification arose purely as a matter of law still must receive the benefit of the Bodyke remedy returning those offenders to their pre-Adam Walsh Act classifications" since Bodyke completely severed the statutory provisions governing attorney general reclassification. Id. at ¶ 15, citing State v. Hazlett, 191 Ohio App.3d 105, 2010-Ohio-6119 and Core v. Ohio, 10th Dist. No. 09AP-192, 2010-Ohio-6292. {¶ 17} Because the trial court did not err in rejecting the state's contention that Bodyke does not apply to the facts of petitioner's case, we overrule the state's second assignment of error.
However, the Tenth District has previously addressed and rejected the very arguments raised by the State in this appeal, holding that Bodyke applies to individuals whose sex offender classifications under Megan's Law arose by operation of law. See State v. Hazlett, 191 Ohio App.3d 105, 2010-Ohio-6119, 944 N.E.2d 1220; Core v. State, 10th Dist. No. 09AP-192, 2010-Ohio-6292; State v. Johnson, 10th Dist. No. 10AP-932, 2011-Ohio-2009. {¶ 12} The Hazlett court analyzed the Bodyke holding in light of Chojnacki v. Cordray, 126 Ohio St.3d 321, 2010-Ohio-3212, 933 N.E.2d 800, which was decided shortly after Bodyke.
Therefore, offenders whose pre-AWA classification arose purely as a matter of law still must receive the benefit of the Bodyke remedy returning those offenders to their pre-AWA classifications because of Bodyke's complete severance of the statutory provisions governing reclassification by the attorney general. See Core v. Ohio, Franklin App. No. 09AP-192, 2010-Ohio-6292 (applying Bodyke to a case in which the offender's classification resulted from an out-of-state conviction); State v. Hazlett, 191 Ohio App.3d 105, 2010-Ohio-6119, 944 N.E.2d 1220 (applying Bodyke to a case in which the offender was never judicially classified and whose classification therefore arose purely as a matter of law). See, also, Robinson v. State, Franklin App. No. 10AP-647, 2011-Ohio-1600; State v. Johnson, Franklin App. No. 10AP-932, 2011-Ohio-2009.