IN THE SUPREME COURT OF OHIO

DANIEL MCCOSTLIN,

Petitioner-Appellee,

V.

STATE OF OHIO,

Respondent-Appellant.

Case No. ® 9 --° 14 9 8

On Appeal from theLake County Court of Appeals,Eleventh Appellate District

Court of Appeals Case No. 2008-L-1 17

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT STATE OF OHIO

CHARLES E. COULSON (0008667)PROSECUTING ATTORNEYLAKE COUNTY, OHIO

Teri R. Daniel (0082157) (COUNSEL OF RECORD)ASSISTANT PROSECUTING ATTORNEYAdministration Building105 Main Street, P.O. Box 490Painesville Ohio 44077(440) 350-2683 Fax (440) 350-2585tdaniel@lakecountyohio.gov

COUNSEL FOR APPELLANT, STATE OF OHIO

William T. McGinty (0009285)McGinty, Hilow & Spellacy Co., LPA614 West Superior Avenue, Suite 1300Cleveland, Ohio 44113(216) 344-9220 Fax (216) 664-6999

COUNSEL FOR APPELLEE, DANIEL MCCOSTLIN

TABLE OF CONTENTS

Page

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREATGENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONALQUESTION .......................................................... 1

STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW . . . . . . . . . . . . . . . . . . . . . 3

Proposition of Law No. 1: RECLASSIFICATION OF A SEX OFFENDER,PURSUANT TO S.B. 10, DOES NOT CONSTITUTE A VIOLATION OF THESEPARATION OF POWERS DOCTRINE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

CONCLUSION ....................................................... 4

PROOF OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

APPENDIX Appx. Page

Opinion of the Eleventh District Court of Appeals(June 30,2009) .................................................... A-1

Judgment Entry of the Eleventh District Court of Appeals(June 30, 2009) ................................................ A-11

i

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLICOR GREAT GENERAL INTEREST AND INVOLVESA SUBSTANTIAL CONSTITUTIONAL QUESTION

In McCostlin v. State, 11th Dist. No. 2008-L-117, 2009-Ohio-4079, the Eleventh

District Court of Appeals misapplied longstanding principles of constitutional law and

declared that the provisions of S.B. 10 were unconstitutional. In a three-opinion decision,

the court of appeals reversed the decision of the Lake County Court of Common Pleas

finding that reclassification of a defendant pursuant to S.B. 10 was constitutional. Through

its decision, the Eleventh District Court of Appeals created an inconsistency both within the

district and among the district courts of appeals, ignored precedent from this Court, and

tied the hands of the State in its efforts to protect the community.

This Court should accept jurisdiction for three important reasons. First, there is a

constitutional provision at issue in this case, and the interpretation of this provision is the

pivotal determination that must be made by this Court. Second, the conflicts created by

this decision must be resolved for an effective administration of justice. Third, the issues

in this case have far-reaching implications. Presently, there are 18,365 sex offenders in

the State of Ohio, of which 288 reside in Lake County. See eSorn, Office of the Ohio

Attorney General, http://www.esorn.ag.state.oh.us.

For these reasons, Appellant respectfully requests that this Honorable Courtaccept

jurisdiction in this case in order to resolve the constitutional questions involving the

application of S.B. 10. Because State v. Bodyke, Case No. 2008-2502 (accepted April 8,

2009), raises the same constitutional issues that this case presents, the State requests that

1

this Court accept jurisdiction and hold this case in abeyance until this Court decides

Bodyke.

STATEMENT OF THE CASE AND FACTS

Daniel McCostlin pleaded "guilty" to one count of Sexual Battery, a felony of the

third degree, in violation of R.C. 2907.03 in Cuyahoga County Common Pleas Case No.

CR-06-477700. Prior to the enactment of Ohio's Adam Walsh Act, McCostlin was found

to be a Sexually Oriented Offender and was therefore subject to registration verification

requirements set forth in the former version of R.C. Sections 2950.04 through 2950.06 for

a period of ten years. He was reclassified as a Tier III Offender With Notification pursuant

to the new version of R.C. Chapter 2950 with reporting requirements for his lifetime.

On January 24, 2008, McCostlin filed a petition to contest his reclassification as a

violation of his constitutional rights and a motion for a preliminary injunction. The State

responded to his pleadings, and McCostlin's motion for a preliminary injunction was

granted. A hearing regarding McCostlin's petition was held on June 30, 2008. Having

considered the petition and its accompanying documents, as well as the State's response,

in addition to statements by the parties, and all relevant information relative to the

application of S.B. 10 to McCostlin, the trial court found that McCostlin was unable to

prove, by clear and convincing evidence, that his new registration requirements did not

apply in the manner specified by the Attorney General. Thus, McCostlin was properly

reclassified as a Tier III Offender.

McCostlin filed an appeal, raising one assignment of error relating to the

constitutionality of S.B. 10. After the issues were briefed and oral arguments were held,

2

the Eleventh District Court of Appeals reversed, holding that S.B. 10 violated the

Separation of Powers Doctrine.

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

PROPOSITION OF LAW NO. I

RECLASSIFICATION OF A SEX OFFENDER, PURSUANT TO S.B. 10,DOES NOT CONSTITUTE A VIOLATION OF THE SEPARATION OFPOWERS DOCTRINE.

On August 17, 2009, the Eleventh District Court of Appeals issued its opinion in

McCostlin v. State, wherein three judges provided three different analyses regarding the

constitutionality of S. B. 10. The majority determined that law regarding finality ofjudgments

mandated reversal on the grounds of separation of powers and res judicata. But in so

finding, the Court of Appeals created a conflict not only within the Eleventh District, but also

within many other appellate districts. Specifically, the appellate court held that the

defendant's reclassification pursuantto S.B. 10 constitutes a violation ofthe separation of

powers doctrine. This holding is in conflict with the following decisions from other Ohio

district courts of appeals: Seweli v. State, 1s' Dist. No. C-080503, 2009-Ohio-2335; In re

Smith, 3`a Dist. No. 1-07-58, 2008-Ohio-3234; State v. Randlett, 4'h Dist. No. 08CA3046,

2009-Ohio-112; In re Adrian R., 51" Dist. No. 08-CA-17, 2008-Ohio-6581; Montgomery v.

Leffler, 6'h Dist. No. H-08-011, 2008-Ohio-6397; State v. Byers, 7`h Dist. No. 07CO39, 2008-

Ohio-5051; In re J.M., 8'" Dist. No. 91800, 2009-Ohio-2880; State v. Reinhardt, 9'h Dist. No.

08CA0012-M, 2009-Ohio-1297; State v. Gilfillan, 10`h Dist. No. 08AP-317, 2009-Ohio-1104;

In re A.R., 12'h Dist. No. CA2008-03-036, 2008-Ohio-6566.

3

CONCLUSION

For the reasons discussed above, this case involves matters of public and great

general interest and is a substantial constitutional question. Appellant respectfully requests

that this Honorable Court grant jurisdiction and hear this case so that the important issues

may be reviewed.

Respectfully submitted,

By: Charles E. Coulson, Prosecuting Attorney

By:Teri R. D^ni^082157)Assistant Prosecuting AttorneyCounsel of Record

COUNSEL FOR APPELLANTSTATE OF OHIO

Administration Building105 Main StreetP.O. Box 490Painesville, Ohio 44077(440) 350-2683 Fax (440) 350-2585

4

PROOF OF SERVICE

A copy of the foregoing Memorandum in Support of Jurisdiction of Appellant, State

of Ohio, was sent by regular U.S. Mail, postage prepaid, to counsel for the appellee,

William McGinty, Esquire, 614 West Superior Avenue, Cleveland, OH 44113, and,

pursuant to S.Ct.R. XIV, Section 2, the Ohio Public Defender, Timothy Young, 250 East

Broad Street, Suite 1400, Columbus, Ohio 43215, on this day of August, 2009.

Teri R^. Diel (0082157)Assist^n Prosecuting Attorney

TRD/klb

5

APPENDIX

THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

DANIEL MCCOSTLIN, . O P I N I O N

Petitioner-Appellant -ws° s O ASE NO. 2008-L-117

q <: ' s s:rw Ai'?EikLS- vs -

STATE OF OHIO,AUG 1 7200911.t-.aAFEN G. KELLY

^'rv°, vHioRespondent-Appellee: <o

Civil Appeal from the Lake County Court of Common Pleas, Case No. 08 M 000032.

Judgment: Reversed.

William T. McGinty, 614 Superior Avenue, #1300, Cleveland, OH 44113 (ForPetitioner-Appellant).

Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Respondent-Appellee).

DIANE V. GRENDELL, J.

{11} Appellant, Daniel McCostlin, appeals the judgment of the Lake County

Court of Common Pleas, denying his Petition to Contest Application of the Adam Walsh

Act. The fundamental principle of the "separation of powers" doctrine, as propounded

by our forefathers in the United States Constitution and expressed in the Ohio

Constitution, is inviolate, and, therefore, mandates reversal of the decision of the court

below. However, McCostlin must still comply with the notification and registration

requirements of a sexually oriented offender as mandated in his original sentence.

A-1

{¶2} On February 2, 2007, McCostlin was convicted in Case No. CR-06-

477700-A of the Cuyahoga County Court of Common Pleas of Sexual Battery, a felony

of the third degree, in violation of R.C. 2907.03.

{¶3} McCostlin was sentenced to serve a one-year prison term, and ordered to

register annually for a period of ten years as a sexually oriented offender,

(¶4} On or about December 1, 2007, McCosUin received a Notice of New

Classification and Registration Duties from the Office of the Attorney General.

McCostlin was advised that, under the provisions of the Adam Walsh Act, he is now

classified as a Tier III Sex Offender.

{¶5} On January 24, 2008, McCostlin filed a Petition to Contest Application of

the Adam Walsh Act in the Lake County Court of Common Pleas, the county in which

he resides and currently registers. McCostlin argued that his reclassification as a Tier

III Sex Offender under the Adam Walsh Act was unconstitutional.

{¶6} On June 30, 2008, an oral hearing was held before the trial court on

McCostljn's Petition.

{17} On July 2, 2008, the trial court issued its Judgment Entry, denying

McCostlin's Petition and advising him of his duty to register as a Tier lll Sexual Offender

with the sheriff of the county in which he resides, works, and/or has established a place.

of education, with in-person verification for the remainder of his life.

{¶8} On July 21, 2008, McCostlin filed his Notice of Appeal and raised the

following assignment of error: "The trial court erred by denying defendant-appellant [sic]

his petition and ordering the reclassification of his 'sexual offender' status to a Tier III

status under the unconstitutional retroactive application of the Adam Walsh Act."

A-22

{9} Within this sole assignment of error, McCostlin challenges the

constitutionality of amended Revised Code Chapter 2950 on the following grounds: "the

retroactive application of Ohio's Adam Walsh Act violates the prohibition on ex post

facto laws in Article 1, Section 10 of the United States Constitution"; "the retroactive

application of the Adam Walsh Act violates the prohibition on retroactive laws in Article

II, Section 28 of the Ohio Constitution which forbids the enactment of certain retroactive

laws"; "the reclassification of [McCostlin] constitutes a violation of the separation of

powers' [sic] doctrine by removing the judiciary's authority to classify sexual offenders

as the courts saw fit"; and "reclassification of [McCostlin] constitutes a breach of

contract and a violation of the right to contract under the Ohio and United States

Constitutions."

{110} We shall consider the separation of powers argument first, as it is

determinative of this appeal.

{111} "Although the Ohio Constitution does not contain explicit language

establishing the doctrine of separation of powers, it is inherent in the constitutional,

framework of government defining the scope of authority conferred upon the three

separate branches of government." State v. Sterling, 113 Ohio St.3d 255, 2007-Ohio-

1790, at ¶22. "The essential principle underlying the policy of the division of powers of

government into three departments is that powers properly belonging to one of the

departments ought not to be directly and completely administered by either of the other

departments, and further that none of them ought to possess directly or indirectly an

overruling influence over the others." State ex rel. Bryant v. Akron Metro. Park Dist.

(1929), 120 Ohio St. 464, 473.

A-33

{112} The separation of powers doctrine limits the ability of the General

Assembly to exercise the powers of and exert an influence over the judicial branch of

government. "The administration of justice by the judicial branch of the government

cannot be impeded by the other branches of the government in the exercise of their

respective powers." State ex re!. Johnston v. Taulbee (1981), 66 Ohio St.2d 417, at

paragraph one of the syllabus. "It is well settled that the legislature has no right or

power to invade the province of the judiciary, by annulling, setting aside, modifying, or

impairing a final judgment previously rendered by a court of competent jurisdiction."

Cowen v. State ex rel. Donovan (1920), 101 Ohio St. 387, 394; Battlett v. Ohio (1905),

73 Ohio St. 54, 58 ("it is well settled that the legislature cannot annul, reverse or modify

a judgment of a court already rendered"); Gompf v. Wolfinger (1902), 67 Ohio St. 144,

at paragraph three of the syllabus ("[a] judgment which is final by the laws existing when

it is rendered cannot constitutionally be made subject to review by a statute

subsequently enacted").1

{113} The United States Supreme Court has demonstrated a similar

understanding of the import of Section 1, Article III of the federal Constitution. The

Court reviewed the history of separation of powers doctrine in Plaut v. Spendthrift Farm,

Inc. (1995), 514 U.S. 211:

{114} Judicial decisions in the period immediately after ratification of theConstitution confirm the understanding that it forbade [legislative] interference with thefinal judgments of courts. *** The state courts of the era showed a similarunderstanding of the separation of powers, in decisions that drew little distinctionbetween the federal and state constitutions. To choose one representative example

1. In this respect, the separation of powers doctrine as a limit to legislative action is comparable to theprinciple of res judicata, typically used as a bar to further litigation by the parties. Cf. Grava v. ParkmanTwp., 73 Ohio St.3d 379, 1995-Ohio-331, at paragraph one of the syllabus ("a valid, final judgmentf:eridered upon•the merits bars all.subsequent actions:based upon any claim arising outof the transactiomor occurrence that was the subject matter of the previous action").

A-44

from a multitude: In Bates v. Kimball, 2 Chipman 77 (Vt. 1824), a special Act of theVermont Legislature authorized a party to appeal from the judgment of a court eventhough, under the general law, the time for appeal had expired. The court, noting thatthe unappealed judgment had become final, set itself the question "Have the Legislaturepower to vacate or annul an existing judgment between party and party?" ld., at 83.The answer was emphatic: "The necessity of a distinct and separate existence of thethree great departments of government ... had been proclaimed and enforced by ...Blackstone, Jefferson and Madison," and had been "sanctioned by the people of theUnited States, by being adopted in terms more or less explicit, into all their writtenconstitutions." /d., at 84. The power to annul a final judgment, the court held (citingHaybum's Case, 2 Dall., at 410), was "an assumption of Judicial power," and thereforeforbidden.

{1g15} Id. at 223-224.

{1[16} A determination of an offender's classification under former R.C. Chapter

2950 constituted a final order. State v. Washington, 11th Dist. No. 99-L-015, 2001-

Ohio-8905, 2001 Ohio App. LEXIS 4980, at *9 ("a defendant's status as a sexually

Oriented offender *°' arises from a finding rendered by the trial court, which in turn

adversely affects a defendant's rights by the imposition of registration requirements");

State v. Dobrski, 9th Dist. No. 06CA008925, 2007-Ohio-3121, at ¶6 ("[i]nasmuch as a

sexual predator classification is an order that affects a substantial right in a special

proceeding, it is final and appealable"). Accordingly, if either party failed to appeal such

a determination within thirty days, as provided for in App.R. 4(A), the judgment became

settled.

{¶17} Subsequent attempts to overturn such judgments have been barred under

the principles of res judicata. See State v. Lucerno, 8th Dist. No. 89039, 2007-Ohio-

5537, at ¶9 (applying res judicata where the State failed to appeal the lower court's

determination that House Bill 180/Megan's Law was unconstitutional: "the courts have

barred sexual predator classifications when an initial classification request had been

;.,w disrnissed -on:kthe. .grounds ,.Ahat <the court:, believed.R C.;,,C,hapter- 2950, .to:.:be

A-55

unconstitutional") (citation omitted); State v. Hobbs, 4th Dist. No. 05CA3011, 2006-

Ohio-3121, at ¶14 ("[appellant] could have raised his claim that the court improperly

ordered him to register as a sex ofFender in a direct appeal to this court ***[;] [t]hus, res

judicata bars [appellant] from now arguing that the court improperly ordered him to

register as a sex offender").

{1[18} Since McCostlin's classification as a sexually oriented offender with

definite registration requirements constituted a final order of the lower court, McCostlin

cannot, under separation of powers and res judicata principles, now be reclassified

under the provisions of the amended Act with differing registration requirements.

{¶19} The State responds by arguing that the authority to create sex offender

classifications with their attendant registration and notification requirements resides with

the legislature and is not one of the inherent powers of the judicial branch of

government. The State relies on authority that "the General Assembly has not

abrogated final judicial decisions without amending the underlying applicable law. ***

Application of this new law does not order the courts to reopen a final judgment, but

instead simply changes the classification scheme." State v. Byers, 7th Dist. No. 0.7 CO

39, 2008-Ohio-5051, at ¶73, quoting Slagle v. State, 145 Ohio Misc.2d 98, 2008-Ohio-

593, at ¶21. This response fails to address the fundamental problem that the

reclassification of sex offenders, such as McCostlin, whose prior classifications were

rendered as part of final sentencing judgments rendered by courts of competent

jurisdiction, effectively voids portions of those judgments.

{¶20} The General Assembly's authority to enact and alter legislation imposing

.,.registration.and notification requirements and residency restrictions upon convicted sex

A-6

6

offenders is neither denied nor disputed. The fact remains that the General Assembly

"cannot annul, reverse or modify a judgment of a court already rendered." Bartlett, 73

Ohio St. at 58. McCostlin's reclassification, as a practical matter, nullifies that part of

the court's February 2, 2007 Judgment ordering him to register for a period of ten years

as a sexually oriented offender. To assert that the General Assembly has authority to

create a new system of classification does not solve the problem that McCostlin's

original classification constituted a final judgment.

{¶21} It is not "simply" the case that the classification system has been changed.

Rather, a final judicial decision has been abrogated. Following the expiration of the

period for filing an appeal, the February 2, 2007 Judgment Entry became a settled

judgment, immune to direct or collateral challenge by McCostlin as well as the State.z

The United States Supreme Court has stated that the principle of separation of powers

is violated by legislation which "depriv[es] judicial judgments of the conclusive effect that

they had when they were announced" and "when an individual final judgment is

legislatively rescinded for even the very best of reasons." Plaut, 514 U.S. at 228

(emphasis sic). To the extent the Adam Walsh Act requires the modification of existing

final sentencing judgments, such as McCostlin's sentence, it violates the doctrine of

separation of powers based on the finality of judicial judgments.

{1[22} Having concluded that McCostlin's reclassification is constitutionally

prohibited, it is unnecessary to address the other arguments raised. These arguments,.

nonetheless, have been considered and rejected in prior decisions of this court. See

Spangler v. State, 11 th Dist. No. 2008-L-062, 2009-Ohio-3178, at ¶¶55-64.

2. As a final judgment, McCostlin's sentence is also beyond the authority of the courts to vacate or;•. 'xVmoYlify: = State v Smith (1'969);142°Ohio, St:3d'•60; at paragraph one'of ttie syllabus,Jurasek v: -Gould ^

Elecs., Inc., 11th Dist. No. 2001-L-007, 2002-Ohio-6260, at¶15 (citations omitted).

A-77

{¶23} For the foregoing reasons, the judgment of the Lake County Court of

Common Pleas, reclassifying McCostlin as, a Tier III Sex Offender, is reversed.

McCostlin shall continue registering as a sexually oriented offender pursuant to the trial

court's February 2, 2007 Judgment Entry. Costs to be taxed against appellee.

TIMOTHY P. CANNON, J., concurs in judgment only with a Concurring Opinion,

MARY JANE TRAPP, P.J., dissents with a Dissenting Opinion.

TIMOTHY P. CANNON, J., concurring in judgment only.

{¶24} I concur in the ultimate judgment reached by the majority, albeit for

different reasons. I would follow this court's opinion in State v. Ettenger, 11th Dist. No.

2008-L-054, 2009-Ohio-3525. I do not believe that the application of the Adam Walsh

Act to McCostlin violates the doctrine of separation of powers. ld. at ¶75-79. Instead, I

would hold that application of the Adam Walsh Act to McCostlin violates the Ex Post

Facto Clause of the United States Constitution and the Retroactivity Clause of the Ohio

Constitution. Id. at ¶10-59. McCostlin had an expectation of finality that his prior

adjudication as a sexually oriented offender would result in a finite, ten-year reporting

period.

{125) I note that this court has found merit to an argument that reclassification

under the Adam Walsh Act constituted a breach of.contract, violating the offender's right

to contract under the Ohio and United States Constitutions. Id. at ¶60-67. However,

the record in this matter does not contain any evidence to support McCostlin's assertion

A-88

that the state agreed to a sexually oriented offender classification. There is no copy of

the prior plea agreement from the underlying case in Cuyahoga County in the record

before this court. Nor does the record contain a transcript of the plea hearing showing

the state's purported agreement. This court has consistently held that "`an appellate

court's review is strictly limited to the record that was before the trial court, no more and

no less."' Condron v. Willoughby Hills, 11th Dist. No. 2007-L-105, 2007-Ohio-5208, at

¶38. (Citation omitted.) Thus, McCostlin cannot demonstrate his claimed error that the

application of the Adam Walsh Act violates his right to contract.

{126} The judgment of the tr'fal court should be reversed.

MARY JANE TRAPP, P.J., dissents with a Dissenting Opinion.

(127) The majority rejected most of the constitutional challenges to Senate Bill

10, as this court had done in Swank; State v. Charette, 11th Dist. No. 2008-L-069,

2009-Ohio-2952; and State v. Maggy, 11th Dist. No. 2008-T-0078, 2009-Ohio-3180; but

it reversed the trial court's judgment based on Mr. McCostlin's contention that his

original classification as a sexually oriented offender constituted a final judgment and,

as such, could not be vacated or modified by the legislature without a violation of the

separation of powers doctrine.

{¶28} The majority cited State v. Washington and State v. Dobrski for the

proposition that a court's determination of a sex offender's classification constitutes a

final order or judgment, and therefore the separation of powers doctrine precludes a

reclassification. The majority's reliance on these cases is misplaced, because these

A-9

9

cases only concluded such determinations are final orders for the purposes of

appealability. Washington at 8-9 (this court held that the classification of a defendant as

a sexually oriented offender was a final appealable order and therefore properly

appealable); Dobrski at ¶6 ("[ijnasmuch as a sexual predator classification is an order

that affects a substantial right in a special proceeding, it is final and appealable").

{¶29} i do not believe Senate Bill 10 abrogates final judicial determinations in

violation of the doctrine of the separation of powers. I agree with the Fourth Appellate

District's view expressed in State v. Linville, 4th Dist, No. 08CA3051, 2009-Ohio-313,

that the sex offender classification is nothing more than a collateral consequence arising

from the underlying criminal conduct, id. at ¶24, citing Ferguson at ¶34, and that a sex

offender has no reasonable expectation that his criminal conduct would not be subject

to future versions of R.C. Chapter 2950. Id., citing State v. King, 2d Dist. No. 08-CA-02,

2008-Ohio-2594, ¶33. Reclassification does not abrogate final court judgments,

because "the classification of sex offenders into categories has always been a

legislative mandate, not an inherent power of the courts." In re Smith; 3d Dist. No. 1-07-

58, 2008-Ohio-3234, ¶39.

(1[30} For these reasons, I respectfully dissent.

08/12/2009 23 2 FAX 814 438 1053 BUDGET WISE PRINTING 16001

08/12/2009^^4:24 FA8 3306752671 S6BRYL Q002

STATE OF OHIO ))SS.

COUNTY OF LAKE

DANlEL ibiCCOSTLIN,

)

Aetttioner-Appetiant,

-ys.

STATE OF OHIO,

Responderit-Appellee.

IN THE COURT OP APPEALS

ELEVENTH DISTRICT

JUDSME>NT-ENTRY

CA91M. 248-L-117

u ! 120

For the reasons stated in the Opinion of this court, the judgmertt of the

Lake County Court of Common Pleas, reciassifying McCostiin as a Tier III Sexual

Offender, is revesed. MoCostiin shali continue registering as a Sexually

Oriented Offender pursuant to the trial court's February 2, 2002 Judgment Entry.

Costs'to be taxed against appetiee,

o Z_Z^ANE V. C7 ENdELL

TIMOTHY P. CANNON, J., conours in judgment only with a Concurring Opinion.

MARY JANE TRAPP, P.J., dissents with a Dissentirig Opinion.