The Akron Legal News

Sex offender classification cannot be vacated if it is not on the record

JESSICA SHAMBAUGH
Special to the Legal News
Published: September 4, 2015

A three-judge appellate panel recently ruled that the Butler County Court of Common Pleas properly denied a man’s request to vacate his Tier III sex offender classification because a classification was not on the record and therefore could not be vacated.

The 12th District Court of Appeals overruled William Halsey’s argument that the trial court should have vacated his sex offender classification, stating that the trial court could not vacate something that was not there.

The facts of the case state that Halsey was charged with a single count of rape in 2009. He eventually pleaded guilty a lesser charge of sexual battery.

At Halsey’s sentencing hearing, the common pleas court informed him that he would be classified as a Tier III sex offender, which required him to register every 90 days for the rest of his life. Halsey indicated that he understood and signed a written form stating as much.

However, the trial court failed to file that form with the clerk of courts and it was not placed on the record. The state conceded that it could not locate the form to place in the appellate record.

The trial court also ordered Halsey to serve three years of community control. After violating the terms of his probation once, he ultimately completed his community control and the trial court terminated his case in February 2012.

Still, the Butler County Sheriff’s Department continued to enforce the Tier III sex offender registration and reporting requirements as it had done since Halsey’s sentencing in October 2009.

In September 2014, Halsey filed a motion asking the trial court to vacate his Tier III sex offender classification. He asserted that the classification was void because the sentencing entry did not state that he was a sex offender as required by the Ohio revised code. He further stated that because his case was terminated in 2012, the trial court lacked jurisdiction to resentence him as a sex offender.

The state countered that the problem could be fixed through a nunc pro tunc entry.

The trial court summarily denied Halsey’s motion without an explanation.

He then appealed to the 12th District and asserted that his motion should have been granted.

Upon review, the appellate panel maintained that the classification was not entered into the record and that the state never moved for the trial court to correct that omission. The trial court also did not utilize a nunc pro tunc entry to add the classification.

“Therefore, we need not address whether appellant is now subject to resentencing and whether it is proper to correct the sentencing entry to include the imposition of the Tier III sex offender classification. Rather, we only address whether the trial court properly denied appellant’s motion to vacate,” Presiding Judge Michael Powell wrote for the court.

Holding that a trial court speaks only through its journal entries, not through its oral announcements, the trial court ruled that Halsey’s sentencing entry did not label him as a Tier III sex offender.

“As a result, the trial court did not err in denying appellant’s motion to vacate his Tier III sex offender classification as there was nothing for the trial court to vacate,” Powell stated.

Judges Stephen Powell and Robert Hendrickson concurred.

The case is cited State v. Halsey, 2015-Ohio-3405.

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