State v. McArtor
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[Cite as State v. McArtor, 2010-Ohio-5803.] COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vsLARRY E. McARTOR Defendant-Appellant : : : : : : : : : JUDGES: Hon. Julie A. Edwards, P. J. Hon. William B. Hoffman, J. Hon. John W. Wise, J. Case No. 10 CA 13 OPINION CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 02-CR-289 & 02-CR-300 JUDGMENT: Vacated, Reversed and Remanded DATE OF JUDGMENT ENTRY: November 23, 2010 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant KENNETH W. OSWALT PROSECUTING ATTORNEY TRACY F. VAN WINKLE ASSISTANT PROSECUTOR 20 South Second Street, Fourth Floor Newark, Ohio 43055 TERRI B. JAMISO-GARY 580 South High Street Suite 200 Columbus, Ohio 43215-5644 [Cite as State v. McArtor, 2010-Ohio-5803.] Wise, J. {¶1} Defendant-Appellant Larry E. McArtor appeals his sexual offender classification under the Tier system. {¶2} Plaintiff-Appellee is the State of Ohio. STATEMENT OF THE CASE AND FACTS {¶3} On November 21, 2002, a jury found Appellant Larry E. McArtor guilty on three counts of gross sexual imposition in violation of R.C. 2907.05 and one count of rape in violation of R.C. 2907.02. The jury also found Appellant had purposely compelled the victim to submit by force or threat of force. {¶4} Appellant was sentenced to one year in prison on each of the gross sexual imposition counts, to be served consecutively, and to life in prison on the rape charge, to which the gross sexual imposition charges were to run concurrent. Appellant was also adjudicated a Sexually Oriented Offender. {¶5} On December 16, 2009, the State filed a motion to resentence because the original sentencing entry failed to include a mandatory imposition of post-release control. {¶6} At the re-sentencing hearing held on January 5, 2010, the trial court again imposed a sentence of one year on each of the gross sexual imposition counts, to be served consecutively, and to life in prison on the rape charge, to which the gross sexual imposition charges were to run concurrent. At that time Appellant was also advised that upon his release he would be re-classified as a Tier One offender. {¶7} It is from this re-sentencing that Appellant now appeals, raising the following sole assignment of error: Licking County, Case No. 10 CA 13 3 ASSIGNMENT OF ERROR {¶8} I. APPELLANT S SEXUAL OFFENDER CLASSIFICATION UNDER THE TIER SYSTEM WAS UNCONSTITUTIONAL AS DETERMINED IN STATE V. BODYKE, 2010-OHIO-2424 (SUPREME COURT OF OHIO). I. {¶9} In Appellant s first assignments of error, Appellant argues that the trial court erred in reclassifying him as a Tier I offender. We agree. {¶10} The Ohio Supreme Court recently held in State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, that R.C. §2950.031 and §2950.032, which require the attorney general to reclassify sex offenders whose classifications have already been adjudicated by a court and made the subject of a final order, violate the separation-of-powers doctrine by requiring the opening of final judgments. The Court reaffirmed the principle that the authority to review, affirm, modify, or reverse trial courts' judgments is strictly limited to appellate courts under the Ohio Constitution. Therefore, R.C. §2950.031 and R.C. §2950.032 may not be applied to offenders previously adjudicated by judges under Megan's Law, and the classifications and communitynotification and registration orders imposed previously by judges are reinstated. Bodyke at ¶ 66. The Court severed those provisions from R.C. Chapter 2950. Id. {¶11} The State of Ohio conceded that Appellant herein was reclassified based on sections of the law that the Supreme Court declared unconstitutional in Bodyke. {¶12} Based on the foregoing, we find Appellant s sole assignment of error welltaken and hereby sustain same. Licking County, Case No. 10 CA 13 4 {¶13} Appellant s reclassification by the Court of Common Pleas, Licking County, Ohio, is vacated and this matter is reversed and remanded for further proceedings consistent with this opinion. By: Wise, J., Edwards, P.J., and Hoffman, J., concur _________________________________ _________________________________ _________________________________ JUDGES JWW/d 1028 [Cite as State v. McArtor, 2010-Ohio-5803.] IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellant -vsLARRY E. McARTOR Defendant-Appellee : : : : : : : : : : : JUDGMENT ENTRY CASE NO. 10 CA 013 For the reasons stated in our accompanying Memorandum-Opinion, the judgment entry of reclassification entered in the Court of Common Pleas, Licking County, Ohio, is vacated and this matter is reversed and remanded for further proceedings consistent with this opinion. Costs assessed to Appellee. _________________________________ _________________________________ _________________________________ JUDGE [Cite as State v. McArtor, 2010-Ohio-5803.]
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