State v. Gillespie , 2012 Ohio 3485 ( 2012 )

[Cite as State v. Gillespie, 2012-Ohio-3485.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Julie A. Edwards, J.
:
-vs- :
: Case No. 2012-CA-6
JOSEPH GILLESPIE :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Tuscarawas
County Court of Common Pleas, Case No.
2011CR050139
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: July 30, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RYAN STYER GERALD LATANICH
550 North College Street 153 North Broadway
Newcomerstown, OH 43832 New Philadelphia, OH 44663
[Cite as State v. Gillespie, 2012-Ohio-3485.]
Gwin, P.J.
{¶1} On February 23, 2011, appellant Joseph Gillespie [“Gillespie”] was
indicted by the Tuscarawas County Grand Jury on one count of Passing Bad Checks, in
violation of R.C. 2913.11(B), a felony of the fifth degree.
{¶2} On October 5, 2011, Gillespie pleaded guilty to the charge.
{¶3} On January 9, 2012, Gillespie was sentenced to 2 years of Community
Control. The trial court reserved a six-month term of local incarceration in the event
Gillespie was convicted of violating the terms of his Community Control sanctions.
{¶4} Gillespie timely appeals his conviction and sentence raising the following
assignment of error:
{¶5} “I. THE TRIAL COURT ERRED WHEN IT CONVICTED MR. GILLESPIE
OF A FIFTH-DEGREE FELONY, WHEN THE GENERAL ASSEMBLY INTENDED THE
OFFENSE COMMITTED BY MR. GILLESPIE TO BE CATEGORIZED AS A FIRST-
DEGREE MISDEMEANOR.”
I.
{¶6} On September 30, 2012, after the date of Gillespie’s plea but before the
date of his sentencing, R.C. 2913.02 was amended as part of 2011 Am.Sub.H.B. No.
86. R.C. 2913.02(B) was amended to provide that,
(2) Except as otherwise provided in this division or division (B)(3),
(4), (5), (6), (7), or (8) of this section, a violation of this section is petty
theft, a misdemeanor of the first degree. If the value of the property or
services stolen is one thousand dollars or more and is less than seven
thousand five hundred dollars or if the property stolen is any of the
Tuscarawas County, Case No. 2012-CA-6 3
property listed in section 2913.71 of the Revised Code, a violation of this
section is theft, a felony of the fifth degree.
{¶7} The effect of this amendment was to raise the minimum value of property
stolen to constitute a felony theft from $500.00 to $1,000.00. Gillespie argues that since
he was sentenced following the effective date of the amended statute, R.C. 1.58
requires that he receive the benefit of the lesser sentence provided for in the amended
statute, which reduced the penalty from that prescribed for a felony of the fifth degree to
that prescribed for a misdemeanor of the first degree.
{¶8} The state argues that Gillespie is correct that the new value provisions for
theft became effective on September 30, 2011 and that R.C. 1.58 would appear to
indicate that Gillespie is entitled to the "misdemeanor sanctions”; however, the state
argues he is not entitled to have the theft offense reclassified as a misdemeanor.
ANALYSIS
{¶9} R.C. 1.48 provides, “A statute is presumed to be prospective in its
operation unless expressly made retrospective.” Thus, a statute may not be applied
retroactively unless the court finds a “clearly expressed legislative intent” that the statute
so apply. State v. Cook, 83 Ohio St.3d 404, 410, 700 N.E.2d 570(1988).
The issue of whether a statute may constitutionally be applied
retrospectively does not arise unless there has been a prior determination
that the General Assembly has specified that the statute so apply. Upon
its face, R.C. 1.48 establishes an analytical threshold which must be
crossed prior to inquiry under Section 28, Article II. As we pronounced
in Kiser v. Coleman (1986), 28 Ohio St.3d 259, 262, 28 OBR 337, 339,
Tuscarawas County, Case No. 2012-CA-6 4
503 N.E.2d 753, 756, where “there is no clear indication of retroactive
application, then the statute may only apply to cases which arise
subsequent to its enactment.”
Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489(1988),
superseded on other grounds by statute as stated in Hannah v. Dayton Power & Light
Co., 82 Ohio St.3d 482, 484, 696 N.E.2d 1044(1998).
{¶10} In the case at bar, 2011 Am.Sub.H.B. No. 86 provided in relevant part,
The amendments to sections...2913.02... of the Revised Code that
are made in this act apply to a person who commits an offense specified
or penalized under those sections on or after the effective date of this
section and to a person to whom division (B) of section 1.58 of the
Revised Code makes the amendments applicable.
The provisions of sections...2913.02...of the Revised Code in
existence prior to the effective date of this section shall apply to a person
upon whom a court imposed sentence prior to the effective date of this
section for an offense specified or penalized under those sections. The
amendments to sections...2913.02... that are made in this act do not apply
to a person who upon whom a court imposed sentence prior to the
effective date of this section for an offense specified or penalized under
those sections.
(Emphasis added).
{¶11} R.C. 1.58 effect of reenactment, amendment, or repeal of statute on
existing conditions provides,
Tuscarawas County, Case No. 2012-CA-6 5
(A) The reenactment, amendment, or repeal of a statute does not,
except as provided in division (B) of this section:
(1) Affect the prior operation of the statute or any prior action taken
thereunder;
(2) Affect any validation, cure, right, privilege, obligation, or liability
previously acquired, accrued, accorded, or incurred thereunder;
(3) Affect any violation thereof or penalty, forfeiture, or punishment
incurred in respect thereto, prior to the amendment or repeal;
(4) Affect any investigation, proceeding, or remedy in respect of any
such privilege, obligation, liability, penalty, forfeiture, or punishment; and
the investigation, proceeding, or remedy may be instituted, continued, or
enforced, and the penalty, forfeiture, or punishment imposed, as if the
statute had not been repealed or amended.
(B) If the penalty, forfeiture, or punishment for any offense is
reduced by a reenactment or amendment of a statute, the penalty,
forfeiture, or punishment, if not already imposed, shall be imposed
according to the statute as amended.
{¶12} When reading 2011 Am.Sub.H.B. No. 86 and its specific reference to
division (B) of R.C.1.58 we conclude that the legislature expressed its intention that the
amended version of R.C. 2913.02 apply to a person who is sentenced on and after
September 30, 2011 unless ex post facto concerns are present. Although the
Constitution’s Ex Post Facto Clause prohibits applying a new Act’s higher penalties to
Tuscarawas County, Case No. 2012-CA-6 6
pre-Act conduct, it does not prohibit applying lower penalties. See Dorsey v. United
States, 567 U.S.__, 132 S.Ct. 2321, 2332 (June 21, 2012).
{¶13} Having determined that the statute at issue meets the threshold test for
retroactive application contained in R.C. 1.48, we must now inquire whether it
contravenes the ban upon retroactive legislation set forth in Section 28, Article II of the
Ohio Constitution. Van Fossen, 36 Ohio St.3d at 106.
{¶14} In its simplest form, to constitute a theft offense it need only be proven that
some property of value has been taken. R.C. 2913.02 does not require the indictment to
allege, or the evidence to establish, any particular value of the property taken. The
offense of theft therein defined is complete and the offender becomes guilty of theft
without respect to the value of the property or services involved. However, it becomes
necessary to prove the value of the property taken, and likewise necessary that the jury
find the value and state it in the verdict in order to measure the penalty. “Therefore, in
such case, the verdict must find the value to enable the court to administer the
appropriate penalty.” State v. Whitten, 82 Ohio St. 174, 182, 92 N.E.2d 79(1910).
(Emphasis added).
{¶15} The amendment to R.C. 2913.02 raising the line of demarcation from five
hundred dollars to one thousand dollars relates only to the penalty. 2011 Am.Sub.H.B.
No. 86 operates, when the value of the property stolen falls between these two
limitations, to reduce the penalty from that prescribed for a felony of the fifth degree to
that prescribed for a misdemeanor of the first degree. Accordingly, the amendment
comes within the provisions of R.C. 1.58(B), requiring, in the instant case, that the
amendment be applied, and that the penalty be imposed according to the amendment.
Tuscarawas County, Case No. 2012-CA-6 7
That penalty is a misdemeanor offense with a misdemeanor sentence not a felony
offense with a misdemeanor sentence. Several cases have applied R.C. 1.58(B) to
situations in which the defendants committed theft offenses prior to, but were sentenced
after, the effective date of legislation which reduced their offenses from felonies to
misdemeanors. State v. Collier, 22 Ohio App.3d 25, 27, 488 N.E.2d 887(1984); State v.
Coffman, 16 Ohio App.3d 200, 475 N.E.2d 139(1984); State v. Burton, 11 Ohio App.3d
261, 464 N.E.2d 186(1983).
{¶16} Recently, the United States Supreme Court held that the more lenient
penalties of the Fair Sentencing Act, which reduced the crack-to-powder cocaine
disparity, applied to those offenders whose crimes preceded the effective date of the
Act, but who were sentenced after that date. Dorsey v. United States, 567 U.S.__, 132
S.Ct. 2321, 2332 (June 21, 2012). Although the Court interpreted the federal statutory
scheme, which is somewhat different from the one presently under consideration in the
case at bar, we share the Court’s concern that,
[A]pplying the 1986 Drug Act's old mandatory minimums to the
post-August 3 sentencing of pre-August 3 offenders would create
disparities of a kind that Congress enacted the Sentencing Reform Act
and the Fair Sentencing Act to prevent. Two individuals with the same
number of prior offenses who each engaged in the same criminal conduct
involving the same amount of crack and were sentenced at the same time
would receive radically different sentences.
***
Tuscarawas County, Case No. 2012-CA-6 8
Moreover, unlike many prechange/postchange discrepancies, the
imposition of these disparate sentences involves roughly
contemporaneous sentencing, i.e., the same time, the same place, and
even the same judge, thereby highlighting a kind of unfairness that
modern sentencing statutes typically seek to combat...
567 U.S.__, 132 S.Ct. at 2333. The same is true in this case. Two individuals accused
of the same conduct could be treated differently and receive different sentences, one a
felony and one a misdemeanor, after the amendments had become effective even
though both were sentenced on the same date. We find no strong countervailing
considerations between pre-amendment offenders such as Gillespie sentenced after
September 30, 2011 and post-amendment offenders that make a critical difference to
require them to be treated differently. Dorsey at 2335.
Tuscarawas County, Case No. 2012-CA-6 9
{¶17} Accordingly, Gillespie’s sole assignment of error is sustained, the
judgment of the Tuscarawas County Court of Common Pleas is reversed, and this case
is remanded for proceedings in accordance with our opinion and the law.
By Gwin, P.J.,
Wise, J., and
Edwards, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JOHN W. WISE
_________________________________
HON. JULIE A. EDWARDS
WSG:clw 0712
[Cite as State v. Gillespie, 2012-Ohio-3485.]
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
JOSEPH GILLESPIE :
:
:
Defendant-Appellant : CASE NO. 2012-CA-6
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Tuscarawas County Court of Common Pleas is reversed, and this case is remanded
for proceedings in accordance with our opinion and the law. Costs to appellee.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JOHN W. WISE
_________________________________
HON. JULIE A. EDWARDS