State v. Shingleton
| Docket Number | 29363 |
| Decision Date | 29 December 2022 |
| Citation | 204 N.E.3d 1214 |
| Parties | STATE of Ohio, Plaintiff-Appellee v. George Russell SHINGLETON, Defendant-Appellant |
| Court | Ohio Court of Appeals |
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422, Attorney for Plaintiff-Appellee.
MAX HERSCH, Atty. Reg. No. 0099043, Office of the Ohio Public Defender, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215, Attorney for Defendant-Appellant.
{¶ 1} Defendant-Appellant, George Russell Shingleton, appeals from a trial court judgment denying his motion to be removed from the Violent Offender Database ("VOD"). According to Shingleton, the trial court erred in these ways: (1) by denying his as-applied retroactivity claim; (2) by finding that his ex post facto claim was barred; (3) in deeming that his as-applied due process claim was underdeveloped; and (4) by also deeming that his equal protection claim was underdeveloped.
{¶ 2} For the reasons discussed below, we conclude that Shingleton's assignments of error are without merit. Accordingly, the judgment of the trial court will be affirmed.
{¶ 3} After a jury found Shingleton guilty of aggravated murder and aggravated robbery in 1981, he was sentenced to life in prison for the aggravated murder conviction. We affirmed the conviction in April 1982. See State v. Shingleton , 2d Dist. Montgomery No. 7375 (April 29, 1982).1 Subsequently, in 1999, we affirmed the denial of Shingleton's petition for post-conviction relief. See State v. Shingleton , 2d Dist. Montgomery No. 17546, 1999 WL 961153 (July 9, 1999). In 2013, we also affirmed the trial court's denial of Shingleton's motion for resentencing. See State v. Shingleton , 2d Dist. Montgomery No. 25679, 2013-Ohio-3943, 2013 WL 5172952.
{¶ 4} On October 28, 2019, Shingleton filed a pro se motion asking the trial court to find that he was not required to enroll in the VOD as required by "Sierah's Law," which was codified in R.C. 2903.41 through 2903.44. The law became effective on March 20, 2019.
{¶ 5} Shingleton's pro se motion alleged that the law was unconstitutional as retroactively applied to him, in violation of Article II, Section 28 of the Ohio Constitution and the Ex Post Facto Clause of the United States Constitution. The motion further alleged that the law violated Shingleton's equal protection rights under Article I, Section 2 of the Ohio Constitution and the Equal Protection Clause of the United States Constitution, by distinguishing between offenders who were confined and those who were not confined, but who had been convicted of or had pled guilty to the offenses listed in R.C. 2903.41(A)(1) (various violent offenses). A third branch of Shingleton's motion alleged that he was not required to register in the VOD because he was not a principal offender in this case.
{¶ 6} On December 20, 2019, Shingleton filed another motion, contending that after his release from prison, the Montgomery County Sheriff's Department had improperly enrolled him in the VOD on November 6, 2019. After determining that Shingleton was indigent, the trial court appointed counsel for him on December 23, 2019.
{¶ 7} On February 7, 2020, Shingleton's appointed counsel filed a supplemental memorandum in support of the original pro se motion. This memorandum raised only retroactivity in violation of Article I, Section 28 of the Ohio Constitution and whether Shingleton was a principal offender for purposes of registration. Counsel also filed a second supplemental memorandum the same day addressing the motion to remove Shingleton's name from the VOD. The State then filed a response to the motions and supplements on February 28, 2020.
{¶ 8} On September 30, 2020, the trial court filed an entry concluding that Shingleton had been the principal offender, based on the court's review of all three volumes of the trial transcript and all exhibits. The court also stayed constitutional rulings pending decisions in cases the Supreme Court of Ohio then had under review. On October 16, 2020, the court granted a motion to substitute the Ohio Public Defender ("OPD") as counsel for Shingleton. The OPD then filed a notice of appeal from the trial court's September 30, 2020 decision. The appeal was docketed as Montgomery App. No. 28947.
{¶ 9} We subsequently dismissed the appeal for lack of a final appealable order. See State v. Shingleton , 2d Dist. Montgomery No. 28947 (Decision & Entry, Feb. 10, 2021). On April 14, 2021, the original papers in the case were returned to the trial court.
{¶ 10} After the case was returned, the OPD filed a motion on August 11, 2021, seeking to supplement Shingleton's original pro se motion. The purpose of the motion was to raise "as-applied" constitutional challenges. A supporting memorandum was filed the same day. According to the memorandum, application of Sierah's Law to Shingleton's situation violated "the Retroactivity Clause of the Ohio Constitution, the Due Process Clause of the United States Constitution, and Ohio's equivalent due process provision." Memorandum in Support of Motion to Supplement Oct. 28, 2019 Motion (Aug. 11, 2021), p. 2.
{¶ 11} On August 16, 2021, the court granted the motion to supplement and stated that it would consider the memorandum OPD had filed. Subsequently, on August 25, 2021, the State filed a response, asking the court to deny the motion to supplement.
{¶ 12} The trial court filed a final order on December 16, 2021, dismissing the facial and as-applied challenges to the statute. The court relied on two decisions of the Supreme Court of Ohio ( State v. Hubbard , 167 Ohio St.3d 77, 2021-Ohio-3710, 189 N.E.3d 720, and State v. Jarvis , 167 Ohio St.3d 118, 2021-Ohio-3712, 189 N.E.3d 754 ), both of which had found that applying Sierah's Law to conduct occurring before the law's effective date did not violate the retroactivity provision in Article I, Section 28 of the Ohio Constitution. Final Appealable Decision, Order and Entry Denying Defendant's Motion Regarding Enrollment in the Violent Offender Database (Dec. 16, 2021) ("Final Order"), p. 2-3. The court also relied on our opinion in State v. Wright , 2d Dist. Montgomery No. 28368, 2021-Ohio-4107, 2021 WL 5410651, which was issued shortly after Hubbard and Jarvis . Id. at p. 3. The decision also reaffirmed the finding that Shingleton was a principal offender.
{¶ 13} On January 6, 2022, the OPD filed a request for the court to issue findings of fact and conclusions of law concerning issues the court had not resolved. The court then filed a decision on January 18, 2022, denying the request. Previously that day, Shingleton had filed a notice of appeal from the December 16, 2021 judgment.2
{¶ 14} After the appeal was docketed as Montgomery App. No. 29363 (the current appeal), Shingleton filed a motion asking that we transfer the preparation of summaries of docket and judgment entries of Montgomery App. No. 28947 and the transcripts of Montgomery C.P. No. 1981-CR-76 to the current appeal. We granted the motion, and the pertinent records were thereafter transferred to this case. See State v. Shingleton , 2d Dist. Montgomery No. 29363 (Order, Apr. 6, 2022).
{¶ 15} With this background in mind, we will consider Shingleton's assignments of error.
{¶ 16} Shingleton's first assignment of error states that:
The Trial Court Erred When It Found That Mr. Shingleton's As-Applied Retroactivity Claim Was Barred by Hubbard and Jarvis .
{¶ 17} Under this assignment of error, Shingleton contends that the trial court erred in declining to consider the merits of his as-applied retroactivity challenge. According to Shingleton, the decisions of the Supreme Court of Ohio in Hubbard and Jarvis only decided facial challenges to the VOD's retroactivity, and as-applied challenges are still viable.
{¶ 18} Before we consider this point, we must address the issue of which order and issues may be considered in this appeal. Although the State has not challenged jurisdiction, this is an issue we may raise on our own motion. E.g., Nemcic v. Phelps , 2014-Ohio-3952, 19 N.E.3d 554, ¶ 14 (2d Dist.).
{¶ 19} Shingleton filed a request for findings of fact and conclusions of law on January 6, 2022, and the trial court denied the request on January 18, 2022. The denial occurred after Shingleton's notice of appeal was filed, and no notice of appeal was filed after the January 18, 2022 decision; instead, the notice of appeal that was previously filed specified only an appeal from the December 16, 2021 decision.
{¶ 20} An argument might be made that the notice of appeal was prematurely filed. The Supreme Court of Ohio has held that "when a party files a premature notice of appeal of a judgment, it is not ineffective; it merely becomes effective once the judgment is final."
State ex rel. Conrath v. LaRose , Ohio Slip Opinion No. 2022-Ohio-3594, ––– N.E.3d ––––, ¶ 15, citing App.R. 4(C) and State v. Craig , 159 Ohio St.3d 398, 2020-Ohio-455, 151 N.E.3d 574, ¶ 27. However, the judgment in question here was a final judgment, as it disposed of Shingleton's facial and as-applied claims, found that the VOD applied to Shingleton, and reaffirmed the court's prior decision that Shingleton was the principal offender and "must enroll in the VOD and abide by its regulations." Final Order at p. 3. The decision was final at that point, and if the court committed error in failing to consider some arguments, any such error could be raised on appeal.
{¶ 21} Furthermore, we cannot construe the notice of appeal to include the judgment the trial court issued the same day. Compare S. Christian Leadership Conference v. Combined Health Dist. , 191 Ohio App.3d 405, 2010-Ohio-6550, 946 N.E.2d 282, ¶ 11 (2d Dist.) (...
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