Southerland v. State
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[Cite as Southerland v. State, 2009-Ohio-5070.] IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY JEFFREY SOUTHERLAND, Plaintiff-Appellant, : : : - vs - CASE NO. CA2009-02-040 OPINION 9/28/2009 : STATE OF OHIO, Defendant-Appellee. : : CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV2008-01-0516 Timothy R. Evans, 29 North "D" Street, P.O. Box 687, Hamilton, Ohio 45013, for plaintiff-appellant, Jeffrey Southerland Elizabeth A. Matune, Assistant Attorney General, 150 E. Gay Street, 16 Columbus, Ohio 43215, for defendant-appellee, State of Ohio th Floor, HENDRICKSON, J. {¶1} Defendant-appellant, Jeffrey Southerland, appeals a decision of the Butler County Court of Common Pleas dismissing his petition challenging his sex offender reclassification without a hearing. For the reasons outlined below, we reverse the decision of the trial court and remand. {¶2} In December 2007, appellant received written notice from the Ohio Attorney General informing him that he had been reclassified from a sexually oriented Butler CA2009-02-040 offender to a Tier II sex offender with the corresponding 25-year registration requirement. In January 2008, appellant filed a petition challenging his reclassification. The trial court initially stayed the proceedings pending guidance from a higher court on Ohio's newly-enacted Adam Walsh Act. The state moved to dismiss appellant's petition. Following the issuance of this court's decision in State v. Williams, Warren App. No. CA2008-02-029, 2008-Ohio-6195, the trial court summarily dismissed appellant's petition without a hearing. Appellant timely appeals, raising two assignments of error. {¶3} Assignment of Error No. 1: {¶4} "DID THE COURT ERR IN DISMISSING PLAINTIFF'S COMPLAINT WITHOUT A HEARING, AND WITHOUT NOTICE IN VIEW OF ITS PREVIOUS DECISION GRANTING RELIEF AND STAYING FURTHER PROCEEDINGS?" {¶5} Appellant first argues that the trial court erred in dismissing his petition without a hearing. In State v. Brewer, Butler CA2009-02-041, 2009-Ohio-3157, this court held that a sex offender reclassified under Ohio's Adam Walsh Act is entitled to a hearing upon a timely and properly filed petition under R.C. 2950.031(E). The record indicates that appellant's petition was timely and properly filed. Therefore, on the basis of Brewer, we find that appellant was entitled to a hearing on his petition challenging his sex offender reclassification in accordance with R.C. 2950.031(E). {¶6} Appellant's first assignment of error is sustained. {¶7} Assignment of Error No. 2: {¶8} "IS THE ADAM WALSH ACT, SENATE BILL 10 UNCONSTITUTIONAL AS APPLIED TO PLAINTIFF?" {¶9} Appellant's second assignment of error, which challenges the constitutionality of Ohio's Adam Walsh Act, is overruled on the basis of this court's decision in State v. Williams, Warren App. No. CA2008-02-029, 2008-Ohio-6195 -2- Butler CA2009-02-040 (upholding Ohio's Adam Walsh Act on numerous constitutional grounds). {¶10} The trial court's order dismissing appellant's petition is reversed and this matter is remanded so that the trial court can conduct a hearing on appellant's petition in accordance with R.C. 2950.031(E). {¶11} Judgment reversed and remanded. YOUNG, P.J., concurs. RINGLAND, J., concurs in part and dissents in part. RINGLAND, J., concurring in part and dissenting in part. {¶12} I respectfully dissent with the majority s resolution of the second assignment of error based upon my analysis in Sears v. State, Clermont App. No. CA2008-07-068, 2009-Ohio-3541, finding that the retroactive modification of judiciallydetermined sex offender classifications by the Adam Walsh Act violates the separation of powers doctrine. I concur with the majority's resolution of the remaining issues. -3-
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