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Trial court erred in sex offender classification
TRACEY BLAIR
Legal News Reporter
Published: May 15, 2013
A Portage County trial court erred by not using Megan’s Law to classify a sexual offender, according to a recent 11th District Court of Appeals opinion.
Dale Brandon was indicted in 2007 on one count of gross sexual imposition and one count of attempted rape with an attempted child rape specification. He pleaded guilty to gross sexual imposition, but then later filed a motion to vacate the plea.
After he failed to appear for a January 2009 hearing, a warrant was issued for Brandon’s arrest, according to court records. He was found in Las Vegas, where he was held pending extradition.
Before being extradited, Brandon filed a pro se motion to withdraw his guilty plea. The appellant showed up with counsel to an August 2009 hearing. The trial court, which had previously overruled the pro se motion, proceeded to sentencing
Brandon appealed the judgment, and the 11th District remanded the issue for a proper hearing on his motion to vacate.
On remand, the trial court granted the motion to vacate in February 2011. Brandon then entered an Alford Plea to one gross sexual imposition count and one count of failure to appear. He was sentenced to four years in prison and classified a Tier II sexual offender, pursuant to Senate Bill 10, which went into effect on Jan. 1, 2008.
Brandon argued the trial court was required to instead have classified him pursuant to Senate Bill 5, or Ohio’s Megan’s Law, the classification scheme that existed at the time of the offense.
In Brandon’s case, the sexual offense occurred on July 29, 2007.
“Because appellant committed his offense before Senate Bill 10s effective date of Jan. 1, 2009, the trial court erred in applying Senate Bill 10 to him,” 11th District Judge Timothy P. Cannon wrote in a 3-0 opinion.
The appellate court also found merit in Brandon’s other assignment of error - that the lower court failed to award him credit for time spent in a Nevada jail awaiting extradition on the underlying charges.
Cannon pointed out that the 11th District previously held in State v. Painter (No. 2009-A-0016, 2009-Ohio-4929), that a defendant is entitled to credit for time spent awaiting extradition. The state has the burden to establish a defendant is not entitled to credit.
“In this matter, the trial court expressly declined to award credit for the 13 days appellant was awaiting extradition in Nevada,” Cannon stated. “From the bench, the court observed: `We can’t credit you out of state time, that’s the whole problem, that’s why you don’t get credit. That’s dead time when you’re held in Vegas.’
“Pursuant to Painter, the trial court erred when it concluded it was without authority to give credit for out-of-state time served. We therefore reverse the trial court’s judgment on this issue and remand the matter to the trial court for the purpose of determining whether applicant’s confinement in Nevada arose from the Ohio offense and, if so, to recalculate appellant’s sentence in light of the jail-time credit to which he would be entitled.”
Appellate judges Cynthia Westcott Rice and Colleen Mary O’Toole concurred.
The case, cited State v. Brandon, No. 2012-P-0016, was posted April 29.