IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY

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1 [Cite as State v. Powell, 2011-Ohio-1986.] IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY STATE OF OHIO : : Appellate Case No CA-58 Plaintiff-Appellee : : Trial Court Case No. 07-CRB-1752 v. : : CHARLES POWELL : (Criminal Appeal from Fairborn : (Municipal Court) Defendant-Appellant : : O P I N I O N Rendered on the 22 nd day of April, BETSY A. DEEDS, Atty. Reg. # , City of Fairborn Prosecutor s Office, 510 West Main Street, Fairborn, Ohio Attorney for Plaintiff-Appellee CHARLES POWELL, 1751 Laredo Avenue, Niceville, Florida Defendant-Appellant, pro se HALL, J { 1} Charles Powell, defendant, appeals from his misdemeanor conviction for obstructing official business, R.C He argues that the municipal court should have dismissed the charge because the statute of limitations for it had expired. We disagree. { 2} On July 21, 2007, Powell was cited by the Fairborn Police Department for three

2 misdemeanor offenses: obstructing official business, criminal trespass, and voyeurism. In June 2008, pursuant to a plea agreement, Powell pleaded guilty to voyeurism and, in exchange, the state dismissed the other two charges. The municipal court sentenced Powell to 2 years of unsupervised probation. The court also designated him a Tier I sex offender. The court further determined that recent amendments made by Senate Bill 10 1 made Powell subject to Ohio s sex offender registration and notification requirements. Although Senate Bill 10 went into effect on January 1, 2008, after Powell committed the offense, the court determined that it applied to Powell retroactively. So the court ordered Powell to comply with the requirements. { 3} Around a year later, in April 2009, Powell filed a pro se Petition for Relief of Sexual Offender Classification, followed by a pro se Addendum to 1st Petition, or Motion for Post-Conviction Relief. Powell argued, among other things, that he received ineffective assistance of counsel and that he was not subject to the classification and registration requirements under Senate Bill 10. The municipal court deemed Powell s filings a request to vacate his plea and held a hearing. In August 2009, the court denied Powell s vacation request. Powell appealed pro se. { 4} In July 2010, this court concluded that Powell had shown a manifest injustice that demanded he be permitted to withdraw his plea. See State v. Powell, 188 Ohio App.3d 232, 2010-Ohio-3247, at 58. We noted that this was Powell s first criminal conviction and that the victim of the voyeurism offense was not a minor. We said that, under the pre-senate 2 1 Senate Bill 10 was enacted in order to bring Ohio sex offender registration laws into compliance with the federal Adam Walsh Child and Safety Protection Act. The Adam Walsh Act increased the severity of sex offender registration and classification, requiring more strict and stringent supervision of people convicted of sex offenses.

3 Bill 10 sex offender registration and notification requirements, in effect at the time Powell committed the offense, voyeurism is presumed to be exempt from these requirements, unless the court issues an order that expressly removes the presumption against registration. We found that defense counsel failed to tell Powell this. We also found that counsel misled Powell by telling him that the registration requirement could be expunged within a short period of time, which it could not be. Finally, we said that the municipal court erred by designating Powell a Tier I sex offender subject to registration because, before ordering registration, the court did not expressly remove the presumption against registration, as it was required to do. We therefore vacated Powell s plea and remanded the case. { 5} On remand, the municipal court vacated Powell s conviction for voyeurism, and the three misdemeanor charges were reinstated. Powell filed a motion to dismiss the charges. On August 2, 2010, the municipal court held a hearing on the motion, and, after the hearing, overruled it. The next day, August 3, pursuant to another plea agreement, Powell pleaded no contest to obstructing official business and, in exchange, the state dismissed the voyeurism and trespassing charges. The court imposed a 60-day suspended jail sentence. { 6} Powell appealed. { 7} In his pro se brief, Powell alleges: { 8} Appellant s motion to dismiss was wrongly overruled. Trial court showed prejudice and bias in regards to appellant s case. Trial court erred in stating appellant was sentenced as sex offender due to retroactive application of SB10. Trial court erred in stating statute of limitations had not run on appellant s charges. { 9} The state argues that the issue of whether Powell should have been required to 3

4 register as a sex offender and the issue of whether Senate Bill 10 applied retroactively are moot because the voyeurism conviction was vacated and the charge was dismissed. We agree. The resolution of either issue would no longer have any practical significance in this case. Besides, we resolved both issues in our previous decision. { 10} The statute-of-limitations issue with regard to the obstructing official business charge, however, remains real. The applicable statute of limitations provides that a prosecution for a misdemeanor offense (other than a minor misdemeanor) must commence within two years after the offense is committed. R.C (A)(1)(b). 2 A prosecution is commenced on the date a citation for the offense is issued. R.C (E). 3 Here, Powell committed the offense on July 21, 2007; Fairborn Police issued him a citation the same day. So a prosecution was commenced for the misdemeanor offense of obstructing official business on July 21, The limitations period for the offense did not accrue a single day. { 11} Powell argues that the limitations period began to run in June 2008 when the charge for obstructing official business was dismissed. So, he argues, the 2-year limitations 4 2 (A)(1) Except as provided in division (A)(2) or (3) of this section or as otherwise provided in this section, a prosecution shall be barred unless it is commenced within the following periods after an offense is committed: * * * (b) For a misdemeanor other than a minor misdemeanor, two years; * * *. R.C (E) A prosecution is commenced on the date an indictment is returned or an information filed, or on the date a lawful arrest without a warrant is made, or on the date a warrant, summons, citation, or other process is issued, whichever occurs first. * * * R.C

5 period had expired the month before the charge was reimposed in July Powell bases his argument on R.C (D): An offense is committed when every element of the offense occurs. In the case of an offense of which an element is a continuing course of conduct, the period of limitation does not begin to run until such course of conduct or the accused s accountability for it terminates, whichever occurs first. Powell says that his accountability for the offense terminated when it was dismissed, starting the clock. But the second sentence does not apply in this case. This case is not one in which an element of the offense is a continuing course of conduct. We have interpreted division (D) to refer to those offenses for which a continuing course of conduct is a necessary element for commission of the offense itself. State v. Hensley (March 19, 1990), Montgomery App. No , affirmed in part and reversed on other grounds (1991), 59 Ohio St.3d 136. For example, we have said, this court has held that under R.C (D) the statute of limitations on a zoning violation begins to run when the continuing violation ends, or the defendant s accountability for it ends ( i.e., the defendant sells the property), whichever occurs first. Hensley, citing State v. Cox (Jan. 20, 1988), Montgomery App. No { 12} Since a prosecution commenced against Powell the day he committed the offense, there is no statute of limitations violation. Therefore, the municipal court did not err by overruling Powell s motion to dismiss. { 13} Moreover, a plea bargain is a contract, and both parties, the defendant and the state, are entitled to the benefit of their bargain. The State benefitted from Defendant s guilty plea to the offense of voyeurism. Defendant was benefitted by the State s dismissal of the three misdemeanor charges. Implied in the parties agreement was a condition that those 5

6 6 circumstances would remain constant. { 14} When Defendant was successful in being able to withdraw his guilty plea to the voyeurism offense, the State was deprived of the benefit of the bargain it had made. As a result, the parties were restored to the status quo ante the plea bargain agreement, causing the three misdemeanor offense charges to be reinstated to the date on which they were dismissed. Because those charges had been filed well within the applicable statute of limitations, the trial court did not err when it denied the motion to dismiss that Defendant filed. { 15} The sole assignment of error is overruled. { 16} The judgment of the municipal court is Affirmed.... GRADY, P.J., and DONOVAN, J., concur. Copies mailed to: Betsy A. Deeds Charles Powell Hon. Beth W. Root