The STATE of Ohio, Appellee, v. TOWNSEND, Appellant, 181 Ohio App. 3d 53

Christine T. McMonagle, Judge. {¶ 1} Defendant-appellant, Lawrence Townsend, appeals the December 18, 2007 trial court judgment adjudicating him a sexual predator. Townsend raises five assignments of error for our review. Upon review of the first and second assignments, we reverse and remand with instructions to vacate. {¶ 2} The record before us indicates that Townsend was convicted of rape in a multicount indictment on August 17, 1972. He was sentenced on May 22, 1973, “for an indeterminate period.” The parties stipulate in their briefs that Townsend was paroled on August 31, 1984.

It is unclear from the record before us, but it appears that subsequent to this incarceration, he was returned to prison at least once for a nonsexual offense (not a parole violation). The record is silent as to the date of his return to prison for the nonsexual offense and is likewise silent as to his date of release.

At the time of his H.B. 180 hearing on December 17, 2007, however, Townsend was no longer incarcerated on any charge. {¶ 3} The only evidence before the trial court on his convictions and sentences indicated that his sentence for the sexual offense was completed in 1984 and that thereafter he was never again convicted of a sexual offense. In his first and second assignments of error, Townsend contends, respectively, that R.C. 2950.04 (the sexual-predator-registration statute) did not apply to him and that the court did not have jurisdiction to adjudicate him a sexual predator. We agree. {¶ 4} In State v.

Champion, 106 Ohio St.3d 120, 2005-Ohio-4098, 832 N.E.2d 718, the Ohio Supreme Court unanimously held that R.C. 2950.04 applies only to those who were convicted and sentenced to prison for a sexually oriented offense and who were released from prison on that sexually oriented offense on or after July 1,1997. The Ohio Supreme Court stated as follows: {¶ 5} “As in Bellman and Taylor, we must follow the statutory language carefully. R.C. 2950.04(A)(1)(

a) states: ‘Regardless of when the sexually oriented offense was committed, an offender who is sentenced for the sexually oriented offense to a prison term* * * and, on or after July 1, 1997, is released in any manner from the prison term’ must register. The language says released ‘from the prison term,’ not released from any prison term, as the state would have it. * * * Champion’s GSI [gross sexual imposition] sentence was two to five years, but his concurrent terms caused him to serve almost 11 years before his first release in 1989.

The GSI prison sentence had been completed, at the very latest, in 1983 (assuming the maximum sentence of five years). Champion could not, therefore, have been released from prison on or after July 1, 1997, on his GSI conviction.” (Emphasis sic.) Id. at ¶ 9. {¶ 6} Under the authority of Champion, the trial court was without jurisdiction to require Townsend to register as a sexual predator. {¶ 7} Subsequent to Champion, this court followed that same logic in State v. Jones, Cuyahoga App.

No. 86251, 2006-Ohio-1338, 2006 WL 727682, as did the United States District Court for the Southern District of Ohio in Coston v. Petro (2005), 398 F.Supp.2d 878. All of these cases hold that to be required to register as a sex offender under R.C. 2950.04(A)(1), an offender must have served a term of imprisonment for the sexually oriented offense on or after July 1, 1997. {¶ 8} Champion was decided in August 2005, Coston in November 2005, and Jones in March 2006.

The dissent states that Townsend “relies upon statutes and case law which were no longer effective at the time the State requested the sexual predator hearing in December 2006 or at the time he was released from prison in January 2007” and cites Champion as one of the cases. The dissent believes that the short-lived April 2005 amendment to R.C. 2950.04(A)(4), which required registration if the offender was adjudicated a sexual predator, effectively overruled Champion. We are not persuaded.

First, the April 2005 amendment was in effect at the time the Ohio Supreme Court decided Champion, and it did not impact the holding; rather, the Supreme Court decided Champion on R.C. 2950.04(A)(1). Second, if by the 2005 amendment to R.C. 2950.04(A)(4), the legislature had intended for all offenders to register, it would have stated that explicitly in R.C. 2950.04(A)(1); it did not.

We therefore believe that Champion, Jones, and Coston are good law as to offenders, like Townsend, who were released from prison on a sentence for a sexually oriented offense before July 1, 1997, were sentenced prior to July 1, 1997, and were never adjudicated habitual sexual offenders. {¶ 9} The dissent further relies on R.C. 2950.09(C) (repealed January 1, 2008) as the applicable

section of the Revised Code to be used in the resolution of this issue. That statute, however, governed the labeling of a defendant convicted of a sexually oriented offense, not the registration of a sexual predator. This distinction was noted by the Ohio Supreme Court. In Taylor, 100 Ohio St.3d 172, 2003-Ohio-5452, 797 N.E.2d 504, the court stated, “Accordingly, we conclude that, even though Taylor and Wilson have been adjudicated to be sexual predators, R.C. 2950.04 does not require them to register as such.” Id. at ¶ 9.

Similarly, in Bellman, 86 Ohio St.3d 208, 714 N.E.2d 381, the court noted “that although Bellman is properly adjudicated a sexual predator under the * * * law, he has no duty to register because he does not fit within the plain language of R.C. 2950.04 describing categories of compulsory registrants.” Id. at 212, 714 N.E.2d 381. See also State v. Kelly, Mahoning App. No. 07 MA 27, 2007-Ohio-6228, 2007 WL 4145793.

The dissent’s reliance on R.C. 2950.09 regarding the issue of registration is misplaced. {¶ 10} Accordingly, consistent with Champion from the Ohio Supreme Court in 2005, Coston from the Southern District of Ohio in 2005, and Jones from this court in 2006, we hold that in order to be required to register as a sex offender in Ohio, an offender must have served a term of imprisonment for a sexually oriented offense on or after July 1, 1997.

Townsend, having completed his sentence for a sexually oriented offense in 1984, is not subject to any registration requirements. {¶ 11} The first and second assignments of error are sustained, the case is reversed, and the sexual-predator adjudication is vacated. The remaining assignments of error are moot and will not be considered. App.R. 12(A)(1)(c). Judgment accordingly. Sweeney, J., concurs. Rocco, P.J., dissents. . Champion was sentenced to an indefinite term of two to five years as a result of a guilty plea to gross sexual imposition (a sexually oriented offense).

The sentence was to be served concurrently with two other sentences. He was released in 1989, only to be returned to prison twice for nonsexually oriented offenses. "There appears to be no evidence that he [Champion] was released from prison on a sexually oriented offense after July 1, 1997.” Champion at 122, 2005-Ohio-4098, 832 N.E.2d 718. . State v. Bellman (1999), 86 Ohio St.3d 208, 714 N.E.2d 381; State v. Taylor, 100 Ohio St.3d 172, 2003-Ohio-5452, 797 N.E.2d 504. . R.C. 2950.04 was again amended, effective January 1, 2008, and that amendment completely rewrote the statute.