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Date: 04-23-2022
Case Style:
STATE OF OHIO vs. ROBERT DENIKE
Case Number: C-210126
Judge: Marilyn Zayas
Court:
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
On appeal from The Hamilton County Court of Common Pleas
Plaintiff's Attorney: Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ernest W. Lee, Jr.,
Assistant Prosecuting Attorney
Defendant's Attorney:
Description:
Cincinnati, Ohio - Criminal Defense lawyer represented Defendant-appellant with appealing his classification as a sexual predator.
In 2003, Denike was indicted for attempted murder, rape, and
felonious assault. All counts carried repeat-violent-offender and sexually-violentpredator specifications. In exchange for the dismissal of the attempted-murder
count and the specifications to all counts, on June 25, 2003, Denike pleaded guilty to
rape and felonious assault. The trial court imposed an agreed aggregate term of 15
years’ imprisonment.
{¶3} After Denike was released from prison on parole, he was returned to
the trial court on May 16, 2018, for a sexual-offender-classification hearing under
former R.C. Chapter 2950, Ohio’s version of Megan’s Law. Denike was already
registering as a habitual sexual offender pursuant to a March 6, 2000 order entered
in another case.
{¶4} Denike filed written objections to the trial court’s jurisdiction to hold
the sexual-offender-classification hearing, and his counsel also made an oral
objection at the hearing. The state contended at the hearing that it was proceeding
under former R.C. 2950.09(C)(2)(a), and argued that the trial court had jurisdiction
to hold the sexual-offender-classification hearing under that statute. The trial court
agreed with the state’s argument, overruled Denike’s objections, and held a hearing
at which the state submitted an exhibit showing that Denike had been classified as a
habitual sexual offender in 2000, along with court clinic reports on Denike’s
OHIO FIRST DISTRICT COURT OF APPEALS
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dangerousness and likelihood to sexually reoffend. The court classified Denike as a
sexual predator. Denike appealed his classification.
{¶5} On appeal, this court vacated Denike’s sexual-predator classification
because former R.C. 2950.09(C)(2)(a) applied to an offender who was convicted of or
pleaded guilty to a sexually-oriented offense prior to January 1, 1997, if the offender
was not sentenced on or after January 1, 1997. Denike pleaded guilty to rape and was
sentenced on June 25, 2003. He did not plead guilty to a sexually-oriented offense
prior to January 1, 1997, and he was sentenced after January 1, 1997. Therefore,
former R.C. 2950.09(C)(2)(a) did not apply to Denike, and it could not have
provided the trial court with jurisdiction to hold the sexual-offender-classification
hearing. We vacated Denike’s sexual-predator classification. State v. Denike, 1st
Dist. Hamilton No. C-180299, 2019-Ohio-3805.
{¶6} On March 5, 2020, the state filed a motion in the trial court to classify
Denike as a sexual predator under former R.C. 2950.09(B), to which Denike filed an
objection. The trial court ordered court clinic reports on Denike’s risks for
dangerousness and sexual recidivism. Those reports are dated November 18, 2020,
and were submitted by the state as exhibits 1 and 2 at the January 21, 2021 hearing.
The trial court classified Denike as a sexual predator. Denike has appealed.
Assignments of Error
{¶7} Denike’s first assignment of error alleges that the trial court erred in
classifying Denike as a sexual predator because the court had no jurisdiction to
classify him and he had never been convicted of a sexually-violent-predator
specification.
Res Judicata/Law of the Case
{¶8} Denike first argues that this court decided in Denike, 1st Dist.
Hamilton No. C-180299, 2019-Ohio-3805, that the trial court had no jurisdiction to
OHIO FIRST DISTRICT COURT OF APPEALS
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classify him under former R.C. 2950.09, and that therefore res judicata and the lawof-the-case doctrine preclude this court from “revisiting” this issue. This court held
in Denike, that Denike could not be classified as a sexual predator under former R.C.
2950.09(C), so we vacated the trial court’s judgment classifying him under that
section. This court did not hold that Denike could not be classified as a sexual
predator, only that the trial court had no authority to classify him under former R.C.
2950.09(C) because he clearly did not fall under that section.
Timing of Hearing
{¶9} Denike next argues that the trial court had no jurisdiction to hold a
sexual-predator-classification hearing after he had been released from prison. The
Megan’s Law registration requirements are civil and remedial and do not implicate
the defendant’s sentence. State v. Cook, 83 Ohio St.3d 404, 700 N.E.2d 570 (1998).
The statutory requirement regarding the timing of a sexual-predator hearing is not
jurisdictional. State v. Bellman, 86 Ohio St.3d 208, 714 N.E.2d 381 (1999) (the
statutory requirement regarding the timing of a sexual-predator hearing is not
jurisdictional and a defendant may waive it); State v. Sturgill, 2017-Ohio-2736, 90
N.E.3d 44 (4th Dist.) (the trial court had jurisdiction to conduct the reclassification
hearing after the defendant had served his prison sentence and had been released for
two years); State v. Bell, 12th Dist. Clermont No. CA2015-10-077, 2016-Ohio-7363
(the language in former R.C. 2950.09(B) referring to the timing of the sexualpredator hearing was not jurisdictional and the trial court had jurisdiction to classify
the defendant a year after he had been released from prison); State v. Jones, 12th
Dist. Butler No. CA2020-07-080, 2021-Ohio-2149 (the trial court had jurisdiction to
classify the defendant “several years after his conviction and sentencing”). Denike’s
release from prison did not operate to deprive the trial court of jurisdiction to hold
the sexual-predator hearing.
OHIO FIRST DISTRICT COURT OF APPEALS
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Dismissal of Sexually-Violent-Predator Specifications
{¶10} Denike next argues, citing State v. Jones, 93 Ohio St.3d 391, 754
N.E.2d 1252 (2001), and State v. Robinson, 7th Dist. Mahoning No. 00 CA 190,
2002-Ohio-6734, that former R.C. 2950.09 precluded the sexual-predator
classification because the state dismissed the sexually-violent-predator
specifications.
The Applicable Statutes
{¶11} The appropriate version of Megan’s Law to apply is that in place at the
time Megan’s law was repealed. See State v. Howard, 134 Ohio St.3d 467, 2012-
Ohio-5738, 983 N.E.2d 341, ¶ 22 (holding that the penalty to be applied for violation
of the Megan’s Law registration requirements is the version of Megan’s Law in effect
immediately before it was repealed). Therefore, as the state pointed out in its motion
to classify Denike as a sexual predator, the version of former R.C. 2950.01 et seq.
effective from January 2, 2007, to December 31, 2008, applies in this case.
{¶12} Former R.C. 2950.09(A) provided that if a person was convicted of a
sexually-oriented offense and was adjudicated a sexually-violent predator in relation
to that offense, he was automatically classified as a sexual predator. In all other
cases, a person convicted of a sexually-oriented offense could be classified as a sexual
predator “only in accordance with division (B) or (C) of this section.” Former R.C.
2950.09(A). Denike was not subject to automatic classification as a sexual predator
because he was not adjudicated a sexually-violent predator in relation to his sexuallyoriented offense, as the sexually-violent-predator specifications had been dismissed.
We held in Denike’s first appeal that division (C) did not apply to him. Therefore,
the only section that could apply to Denike is former R.C. 2950.09(B).
{¶13} Former R.C. 2950.09(B)(1)(a) provided that where a person had been
convicted of a sexually-oriented offense, the sentencing judge “shall” conduct a
OHIO FIRST DISTRICT COURT OF APPEALS
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hearing to determine whether the person is a sexual predator if certain
circumstances apply. Former R.C. 2950.09(B)(1)(a)(i) only applies to those who
committed a sexually-oriented offense that is not a sexually-violent offense. Since
Denike committed rape, a sexually-violent offense, former R.C. 2950.09(B)(1)(a)(i)
does not apply to him.
{¶14} Former R.C. 2950.09(B)(1)(a)(ii) provided for a sexual-predatorclassification hearing where
Regardless of when the sexually oriented offense was committed, the
offender is to be sentenced on or after January 1, 1997, for a sexually
oriented offense * * * and either of the following applies: the sexually
oriented offense is a violent sex offense other than a violation of
division (A)(1)(b) of section 2907.02 of the Revised Code committed
on or after the effective date of this amendment and other than
attempted rape committed on or after that date when the offender is
also convicted of or pleads guilty to a specification * * * and a sexually
violent predator specification was not included in the indictment,
count in the indictment, or information charging the violent sex
offense; or the sexually oriented offense is a designated homicide,
assault, or kidnapping offense and either a sexual motivation
specification or a sexually violent predator specification, or both such
specifications, were not included in the indictment, count in the
indictment, or information charging the designated homicide, assault,
or kidnapping offense.
(Emphasis added.)
{¶15} Former R.C. 2950.09(B)(1)(a)(iii) provided that a sexual-predator
hearing was to be held if the offender was to be sentenced on or after May 7, 2002,
OHIO FIRST DISTRICT COURT OF APPEALS
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for a sexually-oriented offense and the offender was acquitted of a sexually-violentpredator specification that had been included in the indictment. Former R.C.
2950.09(B)(5) stated that a hearing under division (B) shall not be conducted if “(a)
the sexually oriented offense in question is a sexually violent offense, the indictment,
count in the indictment, or information charging the offense also included a sexually
violent predator specification, and the offender is convicted of or pleads guilty to that
sexually violent predator specification.” Therefore, under the relevant version of
former R.C. 2950.09(B), a sexual-predator hearing could be held if the offender was
acquitted of a sexually-violent-predator specification, but not if the offender was
convicted of or pleaded guilty to a sexually-violent-predator specification.
{¶16} The state argues that former R.C. 2950.09(B)(5) precludes a sexualpredator-classification hearing only if the offender was ultimately convicted of or
pleaded guilty to a sexually-violent-predator specification. A hearing was precluded
in such a case because the offender was automatically classified as a sexual predator
if he was convicted of or pleaded guilty to a sexually-violent-predator specification.
Denike’s indictment included sexually-violent-predator specifications that were
dismissed at the state’s request pursuant to the plea deal.
The Prior Statute
{¶17} Prior to the version of former R.C. 2950.09 applicable in this case, the
statute provided in R.C. 2950.09(B)(4) that “A hearing shall not be conducted under
division (B) of this section regarding an offender if the sexually oriented offense in
question is a sexually violent offense and the indictment * * * charging the offense
also included a sexually violent predator specification.”
{¶18} In Jones, 93 Ohio St.3d 391, 754 N.E.2d 1252, the Supreme Court of
Ohio held that that provision of former R.C. 2950.09(B)(4) precluded a trial court
from conducting a sexual-predator hearing where the offender was acquitted of a
OHIO FIRST DISTRICT COURT OF APPEALS
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sexually-violent-predator specification that had been included in the indictment.
The court stated, “Clearly, R.C. 2950.09(B)(4) precludes a trial court from
conducting a sexual predator hearing when, as in the case before us, the indictment
charging the offender included a sexually violent predator specification.” Jones at
396. “R.C. 2950.09 precludes a trial court from classifying a defendant as a sexual
predator once that defendant has been acquitted of a sexually violent predator
specification.” Id. at 397. See State v. Macht, 1st Dist. Hamilton No. C-980676, 1999
WL 387058 (June 11, 1999); State v. Harrod, 1st Dist. Hamilton No. C-990018, 1999
WL 797980 (Oct. 8, 1999); State v. Wynn, 8th Dist. Cuyahoga No. 75281, 1999 WL
1087497 (Dec. 2, 1999) (all holding under prior statutes that an offender who had
been acquitted of a sexually-violent-predator specification could not be classified as a
sexual predator).
{¶19} The Seventh Appellate District applied the holding of Jones in
Robinson, 7th Dist. Mahoning No. 00 CA 190, 2002-Ohio-6734, and held that where
the state had “voluntarily dismissed” a sexually-violent-predator specification the
court could not hold a sexual-predator hearing. The Robinson court noted that “the
language in R.C. 2950.09(B)(4) refers only to the charging instrument, making no
distinctions between dismissals or acquittals[.]” Robinson at ¶ 82. Because the
indictment had contained a sexually-violent-predator specification, the court had no
authority to hold a sexual-predator hearing. Id.
The State’s Argument
{¶20} The state argues that after the Jones decision, the legislature amended
the statute to the version applicable in this case and recodified former R.C.
2950.09(B)(4) in former R.C. 2950.09(B)(5), which specifically provided that a
sexual-predator hearing is precluded if the offender is convicted of or pleads guilty to
a sexually-violent-predator specification. Therefore, the state argues, the only time a
OHIO FIRST DISTRICT COURT OF APPEALS
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sexual-predator hearing is precluded is when the offender is convicted of or pleads
guilty to a sexually-violent-predator specification. This is especially true, the state
argues, in light of former R.C. 2950.09(B)(1)(a)(iii), which provided for a sexualpredator hearing where the offender was acquitted of a sexually-violent-predator
specification. The statutes, the state argues, express the legislative intent to preclude
classification only where the offender was ultimately convicted of or pleaded guilty to
a sexually-violent-predator specification, because in such a case the offender would
automatically be classified as a sexual predator. In all other cases, such as when the
offender is acquitted of a sexually-violent-predator specification, a sexual-predatorclassification hearing is to be held.
Analysis
{¶21} Denike was convicted of rape, a violent sex offense. If Denike is to be
classified as a sexual predator, it must be under former R.C. 2950.09(B)(1)(a)(ii).
That is the only section under which he might fit. But that section provides for a
sexual-predator-classification hearing where the indictment did not contain a
sexually-violent-predator specification. Denike’s indictment did contain sexuallyviolent-predator specifications, which the state ultimately dismissed in the plea
bargain. Therefore, Denike cannot be classified as a sexual predator under that
section. This may not have been the result the legislature intended when it amended
the statute after Jones, especially since the legislature specifically provided for a
sexual-predator hearing for offenders who had been acquitted of sexually-violentpredator specifications, but this is the result that the statute requires. The statute, as
amended, specifically provides for sexual-predator hearings after acquittals of
sexually-violent-predator specifications, but it does not mention dismissals of those
specifications. Because sexually-violent-predator specifications were included in
Denike’s indictment and because dismissals of those specifications are not included
OHIO FIRST DISTRICT COURT OF APPEALS
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in the section allowing for sexual-predator hearings after acquittals, Denike cannot
be classified as a sexual predator under the statute. While this may not be the result
the legislature intended when it amended the statute, this court must apply the
statute as written.
{¶22} We hold that the trial court erred in holding the sexual-offenderclassification hearing under former R.C. 2950.09(B), because it had no authority to
do so. Therefore, the trial court’s judgment classifying Denike as a sexual predator
must be vacated. The first assignment of error is sustained.
{¶23} Because we have held that Denike’s sexual-predator classification must
be vacated, his second assignment of error, which alleges that the trial court erred in
classifying Denike as a sexual predator because the state failed to meet its burden to
prove by clear and convincing evidence that Denike is a sexual predator, is moot and
we decline to address it.
Outcome: The judgment of the trial court classifying Denike as a sexual predator
is vacated, and Denike is not required to register as a sexual predator.
Plaintiff's Experts:
Defendant's Experts:
Comments: