State v. Bellman

[This opinion has been published in Ohio Official Reports at 

86 Ohio St.3d 208

.]




            THE STATE OF OHIO, APPELLANT, v. BELLMAN, APPELLEE.
                      [Cite as State v. Bellman, 

1999-Ohio-95

.]
Criminal procedure—Classification as a sexual predator—Defendant may waive
        R.C. 2950.09(B)(1) requirement that a sexual predator hearing precede
        sentencing—Defendant cannot be required to register as a sexual predator
        under R.C. 2950.04, when.
1.      A defendant may waive the R.C. 2950.09(B)(1) requirement that a sexual
        predator hearing precede sentencing.
2.      Where a defendant was both sentenced for a sexually oriented offense and
        released prior to July 1, 1997, and was not previously required to register
        under R.C. Chapter 2950, that defendant cannot be required to register
        under R.C. 2950.04.
       (No. 98-651—Submitted April 20, 1999—Decided August 25, 1999.)
     APPEAL from the Court of Appeals for Hamilton County, No. C-970169.
                                  __________________
        {¶ 1} Robert Bellman, Jr. was found guilty of offenses qualifying him for
review as a sexual predator. At his February 1997 sentencing, the parties and the
trial court agreed to delay Bellman’s sexual predator hearing until the following
month. When the sexual predator hearing was held, as agreed, the trial court
adjudicated Bellman a sexual predator and notified him of his future, ongoing duty
to register with the county sheriff. Thereafter, Bellman was released from jail prior
to the July 1, 1997 effective date of R.C. 2950.04.
        {¶ 2} Bellman appealed the sexual predator adjudication arguing, inter alia,
that he was not required to register as a sexual predator because he did not fit within
any of the statutory classes of persons required to do so. The First District Court
of Appeals agreed. The court also sua sponte determined that the trial court lost
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authority to adjudicate Bellman a sexual predator because it failed to hold the sexual
predator hearing prior to sentencing. The court of appeals vacated the order of the
trial court adjudicating Bellman a sexual predator and requiring him to register with
the sheriff.
        {¶ 3} The cause is now before this court pursuant to the allowance of a
discretionary appeal.
                               __________________
        Michael K. Allen, Hamilton County Prosecuting Attorney, and Paula E.
Adams, Assistant Prosecuting Attorney, for appellant.
        Sirkin, Pinales, Mezibov & Schwartz, Martin S. Pinales and John
Feldmeier, for appellee.
                               __________________
        COOK, J.
        {¶ 4} We decide here that the statutory requirement regarding the timing of
the sexual predator hearing is not jurisdictional and a defendant may waive it. We
also decide that a defendant who was sentenced for a sexually oriented offense,
released prior to July 1, 1997, and not previously required to register under R.C.
Chapter 2950, cannot be required to register as a sexual predator under R.C.
2950.04.
                            I. Sexual Predator Hearing
        {¶ 5} R.C. 2950.09(B)(1), part of Ohio’s sexual predator law, provides:
“The judge shall conduct the [sexual predator] hearing prior to sentencing and, if
the sexually oriented offense is a felony, may conduct it as part of the sentencing
hearing * * *.” R.C. 2950.09(B)(1).
        {¶ 6} On the day of Bellman’s sentencing, the parties were unprepared to
proceed with the sexual predator hearing. The trial judge noted the requirement to
hold the sexual predator hearing prior to sentencing, but suggested delaying the
hearing in order that the parties might prepare for it. Bellman’s counsel agreed to




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this extension, stating: “I want the record to be perfectly clear I am waiving any
defect for the hearing to occur then.”
       {¶ 7} The court conducted the sexual predator hearing at the later date, as
agreed, and adjudicated Bellman a sexual predator. Bellman appealed. The court
of appeals reversed the adjudication, finding, sua sponte, that under the terms of
the statute, the trial court had no authority (jurisdiction) to adjudicate Bellman a
sexual predator after the sentencing hearing was concluded. We differ with the
court of appeals on this point.
       {¶ 8} “As a general rule, a statute providing a time for the performance of
an official duty will be construed as directory so far as time for performance is
concerned, especially where the statute fixes the time simply for convenience or
orderly procedure.” State ex rel. Jones v. Farrar (1946), 

146 Ohio St. 467

, 

32 O.O. 542

, 

66 N.E.2d 531

, at paragraph three of the syllabus. This is so “unless the object
or purpose of a statutory provision requiring some act to be performed within a
specified period of time is discernible from the language employed.” 

Id.

       {¶ 9} Generally, then, it is only where a statutory time requirement evinces
an object or purpose to limit a court’s authority that the requirement will be
considered jurisdictional. For example, R.C. 2941.401 involving speedy trial rights
for untried indictments provides that if the action is not brought within the required
time, “no court any longer has jurisdiction thereof, the indictment * * * is void, and
the court shall enter an order dismissing the action with prejudice.”
       {¶ 10} By contrast, the language of R.C. 2950.09(B)(1) “does not establish
that its time periods are for anything other than convenience and orderly
procedure,” see State ex rel. Harrell v. Streetsboro Bd. of Edn. (1989), 

46 Ohio St.3d 55, 63

, 

544 N.E.2d 924, 932

, and it “does not include any expression of intent
to restrict the jurisdiction of the court for untimeliness.” See In re Davis (1999),

84 Ohio St.3d 520, 522

, 

705 N.E.2d 1219

, 1222; see, also, State ex rel. Smith v.
Barnell (1924), 

109 Ohio St. 246, 255

, 

142 N.E. 611, 613

. The provision, then, is




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not jurisdictional, and a defendant may waive the requirement in R.C.
2950.09(B)(1) that the sexual predator hearing precede sentencing.
        {¶ 11} In this case, Bellman’s counsel explicitly waived the time
requirement when he agreed to the postponement. We therefore reverse the
judgment of the court of appeals on this issue and reinstate the trial court’s
adjudication of Bellman as a sexual predator.
                                II. Duty to Register
        {¶ 12} The sexual predator law also includes a provision regarding
registration requirements for sexually oriented offenders. R.C. 2950.04. Effective
July 1, 1997, this statute provided:
        “(A) Each offender who is convicted of or pleads guilty to * * * a sexually
oriented offense and who is described in division (A)(1), (2), or (3) of this section
shall register * * *:
        “(1) Regardless of when the sexually oriented offense was committed, if the
offender is sentenced for the sexually oriented offense to a prison term * * * and if,
on or after [July 1, 1997], the offender is released in any manner from the prison
term * * *.
        “(2) Regardless of when the sexually oriented offense was committed, if
the offender is sentenced for a sexually oriented offense on or after [July 1, 1997],
and if division (A)(1) of this section does not apply * * *.
        “(3) If the sexually oriented offense was committed prior to [July 1, 1997],
if neither division (A)(1) nor division (A)(2) of this section applies, and if,
immediately prior to [July 1, 1997], the offender was a habitual sex offender who
was required to register under Chapter 2950. of the Revised Code.”
        {¶ 13} The court of appeals found Bellman had no duty to register as a
sexual predator because he fit into none of the above categories. He does not fit
section (A)(1) because he was released prior to July 1, 1997. He evades (A)(2)
because he was sentenced prior to July 1, 1997. And, he evades (A)(3) because he




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                                 January Term, 1999




was never adjudicated a habitual sex offender and was not required to register under
R.C. Chapter 2950.
        {¶ 14} “ ‘Where the words of a statute are plain, explicit, and unequivocal,
a court is not warranted in departing from their obvious meaning, although from
considerations arising outside of the language of the statute, it may be convinced
that the legislature intended to enact something different from what it did in fact
enact.’ ” Hough v. Dayton Mfg. Co. (1902), 

66 Ohio St. 427

, 437, 

64 N.E. 521

,
524, quoting D.T. Woodbury & Co. v. Berry (1869), 

18 Ohio St. 456

, paragraph
one of the syllabus. There is a gap in the R.C. 2950.04 coverage, and Bellman’s
situation fits into it. While we might believe the gap created by the statute was a
legislative oversight, “we cannot take the will for the deed. It is our legitimate
function to interpret legislation, but not to supply its omissions.” 

Hough at 438

, 64
N.E. at 524. Therefore, where a defendant was both sentenced for a sexually
oriented offense and released prior to July 1, 1997, and was not previously required
to register under R.C. Chapter 2950, that defendant cannot be required to register
under R.C. 2950.04.
        {¶ 15} We conclude, then, that although Bellman is properly adjudicated a
sexual predator under the new law, he has no duty to register because he does not
fit within the plain language of R.C. 2950.04 describing categories of compulsory
registrants. We thus affirm the judgment of the court of appeals vacating the order
requiring Bellman to register pursuant to this statute.
        {¶ 16} For the foregoing reasons, the judgment of the court of appeals is
affirmed in part and reversed in part.
                                                          Judgment affirmed in part
                                                               and reversed in part.
        MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON,
JJ., concur.
        DOUGLAS, J., dissents.




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