COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72463 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-appellee : JOURNAL ENTRY : AND -vs- : OPINION : ALONZO HARDY : PER CURIAM : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 16, 1997 CHARACTER OF PROCEEDING: Criminal appeal from the Court of Common Pleas Case No. CR-313286 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES EDWARD S. WADE, JR., ESQ. CUYAHOGA COUNTY PROSECUTOR 75 Public Square, Suite 1111 BY: MELODY WHITE, ESQ. Cleveland, Ohio 44113 ASSISTANT COUNTY PROSECUTOR 8th Floor, Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- PER CURIAM: Defendant Alonzo Hardy appeals from the sentencing addendum entered in connection with his convictions for attempted felonious sexual penetration, attempted rape and gross sexual imposition in which the trial court determined that defendant is a sexual predator, pursuant to R.C. 2950.09(A). For the reasons set forth below, we reverse and remand for further proceedings consistent with this opinion. On August 24, 1994, defendant was indicted pursuant to a thirteen count indictment which charged him with ten counts of felonious sexual penetration, two counts of gross sexual imposition, and one count of rape in connection with the alleged abuse of four children. Defendant pleaded not guilty to the charges. On February 7, 1995, the state amended the rape count and four of the counts of felonious sexual penetration to allege that defendant attempted to commit these offenses. Defendant then pleaded guilty to these offenses, and also pleaded guilty to one count of gross sexual imposition, and the remaining charges were dismissed. On March 28, 1995, the trial court sentenced defendant to concurrent terms of eight to fifteen years on the amended charges of attempted felonious penetration and attempted rape and two years on the charge of gross sexual imposition. Defendant subsequently filed a motion for shock probation. The trial court held a hearing on this motion on April 11, 1997. At this hearing, the court indicated that it would grant the motion but further stated that it would then proceed to consider the issue -3- of whether defendant should be designated a sexual predator, habitual sexual offender or sexually oriented offender within the meaning of R.C. 2950.03. The court subsequently concluded that defendant was a sexual predator with in the meaning of that statute. Thereafter, on April 22, 1997, the trial court issued an addendum to the journal entry of defendant's sentence which indicated in relevant part as follows: Upon hearing held pursuant to R.C. 2950.09(B), the defendant is hereby adjudicated to be a Sexual Predator. A DNA specimen is ordered, and address registration and verification is ordered every 90 days for life, and annually for any remaining applicable period as set forth below after any termination of the defendant's status as a Sexual Predator. Defendant appeals herein and assigns three errors for our review. Defendant's assignments of error state: H.B. 180 IN ITS RETROACTIVE APPLICATION IS VOID AS A VIOLATION OF THE EQUAL PROTECTION, DUE PROCESS, AND DOUBLE JEOPARDY CLAUSES OF THE UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION. HOUSE BILL 180 IN ITS RETROACTIVE APPLICATION IS VOID AS A VIOLATION AGAINST EX POST FACTO LAW PROHIBITED IN ARTICLE I, SECTION 10, OF THE UNITED STATES CONSTITUTION AND THE PROHIBITION AGAINST RETROACTIVE LEGISLATION IN ARTICLE II, SECTION 28, OF THE OHIO CONSTITUTION. REGISTRATION AND NOTIFICATION PROVISIONS OF H.B. 180 CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION AND VIOLATE THE RIGHT TO PRIVACY FROM THE FIRST, THIRD, FIFTH, AND NINTH AMENDMENTS. THE TRIAL COURT ERRONEOUSLY CLASSIFIED DEFENDANT- APPELLANT AS A SEXUAL PREDATOR. Within these assignments of error, defendant asserts that -4- since he was convicted and sentenced prior to the effective date of the sexual predator registration requirements, the application of these requirements herein violates his constitutional rights. The state also maintains that the sexual predator designation must be reversed, but it asserts that the adjudication is erroneous because it resulted from the trial court's sua sponte consideration of this issue at the hearing on defendant's motion for shock probation. According to the state, the circumstances of this particular matter required that the adjudication of defendant as a sexual predator adjudication be made only after a hearing of which the parties received advanced notice. With regard to the constitution-based arguments advanced herein, we note that it is well-settled that `[w]here a case can be determined upon any other theory than that of the constitutionality of a challenged statute, no consideration will be given to the constitutional question.' State ex rel. Ruehlman v. Luken(1992), 65 Ohio St.3d 1, 4-5, citing Interstate Motor Freight Systems v. Bowers (1955), 164 Ohio St. 122, paragraph two of the syllabus. Accord Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 105. Thus, rather than address the constitutional issues presented in defendant's assignments of error, we will proceed to the issue of whether the procedural requirements of R.C. 2950.09 were met herein. R.C. 2950.09 provides in relevant part as follows: (A) * * * a person who is convicted of or pleads guilty to, or has been convicted of or pleaded guilty to, a -5- sexually oriented offense may be classified as a sexual predator for purposes of this chapter only in accordance with division (B) or (C) of this section. * * * (C)(1) If a person was convicted of or pleaded guilty to a sexually oriented offense prior to the effective date of this section, if the person was not sentenced for the offense on or after the effective date of this section, and if, on or after the effective date of this section, the offender is serving a term of imprisonment, the department of rehabilitation and correction shall determine whether to recommend that the offender be adjudicated as being a sexual predator. *** If the department determines that it will recommend that the offender be adjudicated as being a sexual predator, it immediately shall send the recommendation to the court that sentenced the offender and shall enter its determination and recommendation in the offender's institutional record, and the court shall proceed in accordance with division (C)(2) of this section. (2) If, pursuant to division (C)(1) of this section, the department of rehabilitation and correction sends to a court a recommendation that an offender who has been convicted of or pleaded guilty to a sexually oriented offense be adjudicated as being a sexual predator, the court is not bound by the department's recommendation and the court may conduct a hearing to determine whether the offender is a sexual predator. The court may deny the recommendation and determine that the offender is not a sexual predator without a hearing but shall not make a determination that the offender is a sexual predator in any case without a hearing. *** If the court schedules a hearing under this division, the court shall give the offender and the prosecutor who prosecuted the offender for the sexually oriented offense, or that prosecutor's successor in office, notice of the date, time, and place of the hearing. The hearing shall be conducted in the manner described in division (B)(1) of this section regarding hearings conducted under that division and, in making a determination under this division as to whether the offender is a sexual predator, the court shall consider all relevant factors, including, but not limited to, all of the factors specified in division (B)(2) of this section, after reviewing all testimony and evidence presented at the hearing and the factors specified in division (B)(2) of this section the court shall determine by clear and convincing evidence whether the offender is a sexual predator. -6- This statute became effective on January 1, 1997. See H.B. 180, Section 3; see, also, R.C. 2950.09, Page's Ohio Revised Code Annotated (July 1996). In this instance, defendant was not convicted of a sexually violent predator specification which was included within the indictment, and he was sentenced before the effective date of this statute. Thus, in order to adjudicate defendant as a sexual predator, the trial court was required to proceed in accordance with R.C. 2950.09(C). While this section provides for the Department of Rehabilitation and Correction to recommend that the sentencing court adjudicate the offender as being a sexual predator, it does not address numerous situations such as the instant case wherein the trial court is called upon to consider the question of defendant's continued confinement, prior to the actual completion of sentence. We therefore hold that the language regarding the recommendation from the Department of Rehabilitation and Correction merely establishes an additional mechanism by which the trial court may consider the issue of whether an offender is a sexual predator. It is not a jurisdictional requirement which must be fulfilled in order for the trial court to engage in the sexual predator determination. We further note, however, that the statute additionally requires the trial court to schedule a hearing and provide notice of the date, time and location of the hearing to the offender and the prosecuting attorney. Thus, because the trial court in this instance held the hearing without advanced notice as required by R.C. 2950.09(C), this matter must be reversed and -7- remanded for further proceedings which fulfill the notice requirements. Reversed and remanded. -8- This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is therefore considered that said appellant recover of said appellee his its costs herein. It is ordered that a special mandate be sent to said Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN DYKE, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE JOHN T. PATTON, JUDGE N.B. This entry is an announcement of the court's decision. See App. R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App. R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .