State v. Solomon , 2012 Ohio 5755 ( 2012 )

[Cite as State v. Solomon, 2012-Ohio-5755.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO : APPEAL NO. C-120044
TRIAL NO. B-1103104
Plaintiff-Appellee, :
vs. :
O P I N I O N.
DEANDREAN SOLOMON, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: December 7, 2012
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Michael Trapp, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
C UNNINGHAM , Judge.
{¶1} Defendant-appellant Deandrean Solomon appeals the judgment of
the Hamilton County Court of Common Pleas convicting him on one count of
aggravated possession of drugs, a third-degree felony offense, and one count of
possession of cocaine, a fourth-degree felony offense. Solomon contends that the
trial court convicted him of higher-degree offenses than authorized by law. For the
reasons that follow, we agree.
I. Background Facts
{¶2} Solomon was a passenger in an automobile stopped by Springfield
Township police officers in May 2011. During a search of the automobile, the police
found a bottle of Oxycodone pills and a bag containing crack cocaine on the floor
below where Solomon had been sitting.
{¶3} The grand jury indicted Solomon for three offenses: aggravated
possession of Oxycodone, “in an amount less than bulk,” in violation of R.C.
2925.11(A) (count one); aggravated trafficking in Oxycodone, “in an amount that
equaled or exceeded the bulk amount but was less than five times the bulk amount,”
in violation of R.C. 2925.03(A)(2) (count two); and possession of cocaine, in crack
cocaine form, “in an amount that equaled or exceeded one gram but was less than
five grams,” in violation of R.C. 2925.11(A) (count three).
{¶4} At a bench trial held in October 2011, the trial court found Solomon
guilty on count one, the aggravated-possession-of-Oxycodone offense, as a third-
degree felony, even though the indictment had only charged him with a fifth-degree
felony offense based on the quantity of the drug. And the trial court found him guilty
on count three, the possession-of-cocaine offense, as a fourth degree-felony offense,
which was authorized by the version of R.C. 2925.11 in effect at the time Solomon
committed the offense, but not authorized by the amended version of the statute
enacted in Am.Sub.H.B. No.86 (“H.B. 86”) that was in effect at the time of Solomon’s
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OHIO FIRST DISTRICT COURT OF APPEALS
trial and sentencing. The court acquitted Solomon on count two, the aggravated-
trafficking offense. 1
{¶5} The trial court sentenced Solomon to three years of community
control with conditions, including that Solomon serve 180 days in the Hamilton
County Justice Center. The court also imposed a mandatory three-year-driver’s-
license suspension. The court notified Solomon that if he violated the terms of his
community control, he was subject to imprisonment for three years, the maximum
term of imprisonment for a third-degree felony.
II. Count One: Aggravated Possession of Oxycodone
{¶6} In his first assignment of error, Solomon contends that the trial
court committed plain error by entering a conviction for the aggravated possession of
Oxycodone as a third-degree felony offense where the state had indicted him for the
aggravated possession of Oxycodone as a fifth-degree felony offense. The state
concedes the error, and we agree with both parties that the trial court erred.
{¶7} Count one of the indictment charged that Solomon had possessed
Oxycodone in “an amount less than bulk,” an offense classified as felony of the fifth
degree since 2008. R.C. 2925.11(C)(1)(a). By convicting Solomon of a third-degree
felony, the trial court in effect amended the indictment to increase the degree of the
charged offense, in violation of Crim.R. 7(D). See State v. Davis, 121 Ohio St.3d 239,
2008-Ohio-4537, 903 N.E.2d 609.
{¶8} Although Solomon did not bring the error to the attention of the
trial court, the error clearly affected Solomon’s substantial rights and produced an
outcome that would have been otherwise but for the error. See Davis at ¶ 12. The
court convicted Solomon on a charge materially different from that found by the
1 The court’s first sentencing entry was corrected in a nunc pro tunc entry to include the acquittal
on count two.
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OHIO FIRST DISTRICT COURT OF APPEALS
grand jury and subjected Solomon to greater penalties. See id. And we must correct
the error to prevent a manifest miscarriage of justice. See Davis at ¶ 11 and 12.
{¶9} Thus, we hold that Solomon has demonstrated plain error.
Accordingly, we sustain the first assignment of error.
III. Count Three: Possession of Cocaine
{¶10} After Solomon’s indictment, the General Assembly enacted H.B.
86, which implemented changes to Ohio’s criminal and juvenile laws. Relevant to
this case, H.B. 86 amended several statutes to eliminate the difference between crack
and powder cocaine, which are both now included in the definition of “cocaine.” R.C.
2925.01(X). The statutes proscribing three drug offenses involving crack and powder
cocaine were amended to equalize the amount needed for each level of an offense,
and to ultimately equalize the penalties for offenses involving both forms of the drug.
See R.C. 2925.03(C)(4)(c)-(g); R.C. 2925.05(A)(3); R.C. 2925.11(C)(4)(b)-(e).
{¶11} The amendments to R.C. 2925.11, the statute that criminalizes the
possession of drugs, had the effect of lowering the level of the offense charged in
count three of Solomon’s indictment from a fourth-degree felony to a fifth-degree
felony, subjecting Solomon to reduced sanctions. See former R.C. 2925.11(C)(4)(b)
and amended R.C. 2925.11(C)(4)(a). Instead of facing a prison term of six to 18
months, Solomon was subject to a prison term of only six to 12 months under the
amended version of R.C. 2925.11. H.B. 86 became effective on September 30, 2011,
before the trial court sentenced Solomon.
{¶12} In his second assignment of error, Solomon contends that the trial
court erred by failing to impose a sentence consistent with the “reduced penalties”
enacted by H.B. 86. He argues that because he was sentenced after the effective date
of H.B. 86, the provisions of R.C. 1.58(B) required the trial court to find him guilty of
a “felony of the fifth degree” and to impose a punishment authorized for the lower-
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OHIO FIRST DISTRICT COURT OF APPEALS
level offense. According to Solomon, the “level of the offense” is a part of the
“penalty” for the offense.
{¶13} The state concedes that it would have been contrary to R.C. 1.58(B)
for the trial court to sentence Solomon to a “penalty” that exceeded one authorized
for a fifth-degree felony because Solomon was sentenced after the effective date of
H.B. 86. But it argues that the trial court correctly found Solomon guilty of a fourth-
degree felony offense in accordance with the law in effect when he committed the
offense, and that the court committed no error in sentencing Solomon, because the
court imposed three years of community control, an authorized penalty for the
offense under the amended version of the statute.
{¶14} We note that the record does not demonstrate that trial counsel for
Solomon raised this argument below. Accordingly, we review for plain error.
A. Legislative Intent
{¶15} The first issue before us is whether the General Assembly intended
that any of the provisions of amended R.C. 2925.11 apply to offenders like Solomon
who committed their offenses before the effective date of H.B. 86, but who were
sentenced after H.B. 86’s amendments took effect. If so, then we must decide which
provisions apply.
1. R.C. 1.58—Ohio’s Savings Clause
{¶16} In Ohio, when the General Assembly reenacts, amends, or repeals a
criminal statute, the substantive provisions of the former law apply to all pending
prosecutions, but the defendants receive the benefit of a reduced “penalty, forfeiture,
or punishment” in the statute as amended, unless the General Assembly expresses
another intent. See R.C. 1.58; State v. Rush, 83 Ohio St.3d 53, 697 N.E.2d 634(1998) (noting and giving effect to the General Assembly’s stated intent that the
amended sentencing provisions of Am.Sub.S.B. No. 2 apply only to crimes
committed on or after July 1, 1996). See also State v. Lawrence, 74 Ohio St. 38, 44-
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OHIO FIRST DISTRICT COURT OF APPEALS
45, 77 N.E. 266 (1906) (interpreting Section 79, the predecessor to R.C. 1.20-1.21,
and now R.C. 1.58). This “rule of construction” arises by virtue of Ohio’s savings
clause, R.C. 1.58, which provides:
(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 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.
{¶17} R.C. 1.58 abrogates the common law, which provided that a crime
abated when the criminal statute was repealed by amending legislation. See
Lawrence, 74 Ohio St. at 44, 77 N.E. 266; see also Calkins v. State, 14 Ohio St. 222,
230-231 (1863).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶18} Both Solomon and the state contend that this dispute should be
resolved by merely applying R.C. 1.58(B), which the General Assembly referenced in
Section 3 of H.B. 86. Solomon’s argument relies on a broad interpretation of R.C.
1.58(B). He considers the degree or level of the offense to be a part of the “penalty,
forfeiture, or punishment” for the offense. The state, arguing for a strict construction
of R.C. 1.58(B), contends that the degree or level of the offense is not a part of the
“penalty, forfeiture, or punishment” for the crime, and that Solomon has confused
the classification of the offense with the penalty or punishment for the offense.
a. Solomon’s Argument: Broad Interpretation
{¶19} Solomon’s interpretation of R.C. 1.58(B) is supported by the
decision in State v. Collier, 22 Ohio App.3d 25, 488 N.E.2d 887 (3d Dist.1984). See
also State v. Coffman, 16 Ohio App.3d 200, 475 N.E.2d 139 (10th Dist.1984). In
Collier, the defendant committed two theft offenses in violation of R.C. 2913.02.
Collier at 25-26. Before the defendant’s trial, but after the commission of the
offense, R.C. 2913.02 was amended to raise the monetary threshold for a felony theft
offense from $150 to $300. Id. at 26. The defendant argued that the application of
the amendment precluded the court from imposing felony sentences because the
state alleged only that he had stolen property valued above $150. Id.
{¶20} The Collier court held that the amendment related only to the
penalty imposed and came within the provisions of R.C. 1.58(B). Id. at 26-27.
Therefore, the appellate court required that the “amendment be applied” to the
defendant and that “the penalty be imposed according to the amendment.” Id. at 27.
{¶21} Significantly, the court further held that “[t]he amending
legislation * * * operated to reduce the[] [felony theft] counts to misdemeanor
counts.” Id. at 28. Ultimately, the court reversed the “felony theft sentences” and
remanded “for resentencing the defendant to a misdemeanor sentence for each of the
two counts of misdemeanor theft for which he was found guilty.” Id. at 28-29.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶22} The Collier court, like Solomon, equated the degree or
classification of an offense with the “penalty, forfeiture, or punishment” for an
offense because the amendment modifying the classification of the offense affected
the corresponding sanctions.
{¶23} In a case involving the retroactive application of certain provisions
of H.B. 86, the Fifth Appellate District recently adopted an interpretation of R.C.
1.58(B) similar to the Collier court’s interpretation. State v. David, 5th Dist. No. 11-
CA-110, 2012-Ohio-3984; see also State v. Gillespie, 2012-Ohio-3485, 975 N.E.2d
492 (5th Dist.).
{¶24} In David, the defendant was indicted on one count of theft, in
violation of R.C. 2913.02(A)(2), and one count of passing bad checks, in violation of
R.C. 2913.11(B), based on her deposit of three checks drawn on a closed bank account
into her Park National Bank account and her immediate withdrawal of the deposited
“funds.” David at ¶ 2-3. The value of the deposited checks totaled $947.50. Id. at
¶ 2. Both counts alleged that the amount at issue involved more than $500 but less
than $5,000, and the statutes in effect at the time of David’s indictment classified
both offenses as fifth-degree felonies. Id. at ¶ 3.
{¶25} H.B. 86 amended R.C. 2913.02 and R.C. 2913.11 such that a
violation of R.C. 2913.02 or R.C. 2913.11 involving an amount below $1000 is a first-
degree misdemeanor offense. Id. at ¶ 4. After the effective date of H.B. 86, David
entered a guilty plea to both counts. Id. at ¶ 5. The trial court determined that R.C.
1.58(B) applied, and reduced the degree of the offenses. The court convicted David
of first-degree misdemeanor offenses, and sentenced her to community control. Id.
{¶26} On appeal, the state argued that the trial court had erred by
reducing the charges to misdemeanor offenses, and that R.C. 1.58(B) did not apply.
Id. at ¶ 14. The appellate court disagreed, and held that R.C. 1.58(B) was applicable
because (1) H.B. 86 specifically referred to R.C. 1.58(B) and (2) the amendments to
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OHIO FIRST DISTRICT COURT OF APPEALS
R.C. 2913.02 and R.C. 2913.11 functioned “to reduce the penalty imposed from a
fifth-degree felony to a first-degree misdemeanor based on the valuation threshold.”
Id. at ¶ 14.
{¶27} The David court, citing the decision in Gillespie, which also
involved H.B. 86 and the passing-bad-checks statute, determined that the level of the
offense is part of the “penalty” for the offense, and that the court must reduce the
level of the offense when R.C. 1.58(B) provides the defendant with the benefit of a
reduction in the sanction for an offense. David at ¶ 15.
b. The State’s Argument
{¶28} The state argues that R.C. 1.58(B) only applies to give Solomon the
benefit of a reduced penalty, not a reduced level of the offense, and that the issue is
controlled by State v. Kaplowitz, 100 Ohio St.3d 205, 2003-Ohio-5602, 797 N.E.2d
977.
{¶29} In Kaplowitz, the defendant pled guilty to aggravated vehicular
assault and the specification that he was driving under the influence of alcohol at the
time of the offense, in violation of R.C. 2903.08. Id. at ¶ 3. After the offense, but
before Kaplowitz’s sentencing, the General Assembly amended R.C. 2903.08 to
provide for two different offenses. The first, R.C. 2903.08(A)(1), categorizes
aggravated vehicular assault while driving under the influence as a third-degree
felony. The second, R.C. 2903.08(A)(2), categorizes vehicular assault by recklessly
causing serious physical harm to another as a fourth-degree felony. Id. at ¶ 25.
{¶30} The trial court sentenced Kaplowitz for a violation of R.C.
2903.08(A)(2) under the new law, which was in effect a lesser offense than
aggravated vehicular assault with an alcohol specification and provided lesser
penalties. Id. at ¶ 4. The Eighth Appellate District reversed, holding that R.C.
1.58(B) does not apply to provide a defendant the benefit of reduced penalties for a
reduced-and-not-equivalent offense, and certified its decision as in conflict with the
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OHIO FIRST DISTRICT COURT OF APPEALS
Fifth Appellate District’s holding in State v. Kinder, 140 Ohio App.3d 235, 746
N.E.2d 1205 (5th Dist.2000). State v. Kaplowitz, 8th Dist. No. 2001-L-025, 2002-
Ohio-4217.
{¶31} In affirming the Eighth District on the certified issue, the Supreme
Court held that “R.C. 1.58(B) does not apply to give a criminal defendant the benefit
of a reduced sentence if, by applying it, the court alters the nature of the offense,
including specifications to which the defendant pled guilty or of which he was found
guilty.” Kaplowitz, 97 Ohio St.3d 1480, 2003-Ohio-5602, 797 N.E.2d 977, at
syllabus, disapproving State v. Kinder, 140 Ohio App.3d 235, 746 N.E.2d 1205 (5th
Dist.2000).
{¶32} The certified question in Kaplowitz involved the equivalency of
offenses under former and amended statutes for purposes of R.C. 1.58(B), not the
meaning of “penalty, sanction, or punishment.” In this case, it is undisputed that the
possession of cocaine offense that Solomon was charged with under former R.C.
2925.11 is equivalent to the possession of cocaine offense set forth in the amended
version of R.C. 2925.11 that Solomon seeks to be sentenced under. See State v.
Limoli, 10th Dist. No. 11AP-924, 2012-Ohio-4502; State v. Gatewood, 2d Dist. No.
2012-CA-12, 2012-Ohio-4181. And the state has taken the position that R.C. 1.58(B)
applies but that Solomon should receive only the benefit of a reduced “penalty,
forfeiture, or punishment.” Thus, Kaplowitz does not resolve the issue in this case.
{¶33} But the state’s narrow interpretation of the words “penalty,
forfeiture, or punishment” in R.C. 1.58(B) is supported by the Eighth Appellate
District’s decision in State v. Steinfurth, 8th Dist. No. 97549, 2012-Ohio-3257. That
decision, like David, addressed the application of the amendments to the theft
statute enacted in H.B. 86.
{¶34} In Steinfurth, the defendant was indicted for felony theft under R.C
2913.02 in June 2011. He later pleaded guilty to and was sentenced on one count of
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OHIO FIRST DISTRICT COURT OF APPEALS
aggravated theft, a fifth-degree felony under the version of R.C. 2913.02 in effect at
the time he had committed the offense.
{¶35} Before his sentencing hearing, H.B. 86 took effect. H.B. 86
amended R.C. 2913.02 such that the offense Steinfurth had committed was classified
as a first-degree misdemeanor instead of a fifth-degree felony. At sentencing,
Steinfurth argued that based on the incorporation of R.C. 1.58(B) into the amended
statute, the trial court could convict him of only a first-degree misdemeanor offense.
The trial court disagreed and convicted him of a fifth-degree felony offense, but the
court imposed the penalty for a first-degree misdemeanor offense. The appellate
court affirmed, rejecting Steinfurth’s broad interpretation of R.C. 1.58. The court
explained that “1.58 clearly states that a criminal defendant receives the benefit of
a reduced penalty, forfeiture, or punishment. Contrary to Steinfurth’s
argument, R.C. 1.58 makes no mention of a criminal defendant receiving the benefit
of a lesser or reduced offense itself.” (Emphasis in the original.) Id. at ¶ 15; see also
State v. Taylor, 9th Dist. No. 26279, 2012-Ohio-5403, ¶ 7, citing State v. Saplak, 8th
Dist. No. 97825, 2012-Ohio-4281, ¶ 13.
c. Definition of “Penalty,” Forfeiture,” and “Punishment” in R.C.
1.58(B)
{¶36} The parties disagree over the meaning of the terms “penalty,”
“forfeiture,” and “punishment” in R.C. 1.58(B). Our primary objective in construing
a statute is to determine and to implement the intent of the legislature, a goal best
achieved by reviewing the language that the General Assembly used, without
resorting to other means of interpretation. State v. Chappell, 127 Ohio St.3d 376,
2010-Ohio-5991, 939 N.E.2d 1234, ¶ 16. “Where the meaning of the statute is clear
and definite, it must be applied as written.” Id.11
OHIO FIRST DISTRICT COURT OF APPEALS
{¶37} The terms “penalty,” “forfeiture,” and “punishment” are not
specifically defined in the Revised Code. Therefore, they must be given their “plain
and ordinary meaning[s].” Id. at ¶ 17.
{¶38} The term “penalty” has varying definitions, including (1)
“[p]unishment imposed on a wrongdoer, usually in the form of imprisonment or
fine”; (2) “[a]n extra charge against a party who violates a contractual provision;”
and (3) “[e]xcessive stipulated damages that a contract purports to impose on a party
that breaches.” Black’s Law Dictionary 1168 (8th Ed.2004). The most relevant
definition to this case is the first one—punishment or fine.
{¶39} The term “forfeiture” has varying definitions, including (1) “[t]he
divestiture of property without compensation;” (2) “[t]he loss of a right, privilege, or
property because of a crime * * * ;” (3) “[s]omething (especially money or property)
lost or confiscated by this process; a penalty;” and (4) “[a] destruction or deprivation
of some estate or right because of the failure to perform some obligation or condition
contained in a contract.” Id. at 677.
{¶40} Finally, the term “punishment” is defined as (1) “[a] sanction—such
as a fine, penalty, confinement, or loss of property, right, or privilege—assessed
against a person who has violated the law,” and (2) “[a] negative disciplinary action
administered to a minor by a parent.” Id. at 1269-1270.
{¶41} Conversely, “degree of crime” is defined as (1) “[a] division or
classification of a single crime into several grades of guilt, according to the
circumstances surrounding the crime’s commission, such as aggravating factors
present or the type of injury suffered” and (2) “[a] division of crimes generally, such
as felonies or misdemeanors.” Id. at 457. “Degree of crime” does not fall within any
of the definitions of “penalty,” “forfeiture,” or “punishment.”
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{¶42} The degree or level of the offense does direct the penalty for the
offense. This is demonstrated by amended R.C. 2925.11(C)(4), which provides in
part:
If the drug involved in the violation is cocaine or a compound, mixture,
preparation, or substance containing cocaine, whoever violates
division (A) of this section is guilty of possession of cocaine. The
penalty for the offense shall be determined as follows:
(a) Except as otherwise provided * * *, possession of cocaine is a felony
of the fifth degree, and division (B) of section 2929.13 of the Revised
Code applies in determining whether to impose a prison term on the
offender;
(b) If the amount of the drug involved equals or exceeds five grams but
is less than ten grams of cocaine, possession of cocaine is a felony of
the fourth degree, and division (B) of section 2929.13 of the Revised
Code applies in determining whether to impose a prison term on the
offender;
(c) If the amount of the drug involved equals or exceeds ten grams but
is less than twenty grams of cocaine, possession of cocaine is a felony
of the third degree, and, except as otherwise provided in this division,
there is a presumption for a prison term for the offense. If possession
of cocaine is a felony of the third degree under this division and if the
offender two or more times previously has been convicted of or
pleaded guilty to a felony drug abuse offense, the court shall impose as
a mandatory prison term one of the prison terms prescribed for a
felony of the third degree.
(Emphasis added.)
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{¶43} The former version of R.C. 2925.11(C)(4) used the word “penalty”
in the same manner.
{¶44} As demonstrated by R.C. 2925.11(C)(4), the degree or level of the
offense generally directs the authorized penalty and it is included in the judgment
that a court formally pronounces after finding the defendant guilty. But it is not the
“penalty.”
{¶45} Although it is difficult conceptually to separate the classification of
the offense—the level or degree of the offense—from the punishment imposed for the
offense the defendant is found guilty of committing, we believe the General Assembly
did just that when it chose to use the words “penalty, forfeiture, or sanction” in R.C.
1.58(B). Thus, we reject Solomon’s argument that when R.C. 1.58(B) applies, a
defendant sentenced under an amended statute receives the benefit of a lesser or
“reduced penalty” that includes the reduced offense provided by the amendment.
{¶46} However, R.C. 1.58(B) is only a rule of statutory construction. R.C.
1.58 does not limit the General Assembly’s power to “to define, classify and prescribe
punishment for crimes” committed within Ohio and to determine the effective dates
of legislative enactments. State v. Rush, 83 Ohio St.3d 53, 57, 697 N.E.2d 634 (1998)
quoting State v. Young, 62 Ohio St.2d 370, 392, 406 N.E.2d 499 (1980) (Locher, J.,
dissenting). Because the General Assembly in H.B. 86 expressed its intent regarding
the applicability of the amendments to R.C. 2925.11, R.C. 1.58(B) has limited
application.
B. Section 3 of H.B. 86
{¶47} In Section 3 of H.B. 86 the General Assembly announced when the
courts should apply the amendments to R.C. 2925.11. That section provides, in
relevant part,
The amendments to section[] * * * 2925.11 of the Revised Code
* * * that are made in this act apply to a person who commits an
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OHIO FIRST DISTRICT COURT OF APPEALS
offense involving * * * cocaine * * * on or after the effective date of this
act and to a person to whom division (B) of section 1.58 of the Revised
Code makes the amendments applicable.
The provisions of * * * R.C. 2925.11 * * * in existence prior to
the effective date of this act shall apply to a person upon whom a court
imposed sentence prior to the effective date of this act for an offense
involving * * * cocaine. The amendments to section[] 2925.11 of the
Revised Code * * * that are made in this act do not apply to a person
upon whom a court imposed sentence prior to the effective date of this
act for an offense involving * * * cocaine * * *.
{¶48} In determining legislative intent, we look to the face of an act or
statute. We must give “significance and effect * * * to every word, phrase, sentence
and part thereof, if possible.” State v. Wilson, 77 Ohio St.3d 334, 336-337, 673
N.E.2d 1347 (1997). “It is a basic presumption in statutory construction that the
General Assembly is not presumed to do a vain or useless thing, and that when
language is inserted in a statute it is inserted to accomplish some definite purpose.”
State ex rel. Cleveland Elec. Illum. Co. v. Euclid, 169 Ohio St. 476, 479, 159 N.E.2d
756 (1959).
{¶49} Here, the General Assembly stated in Section 3 of H.B. 86 that the
“provisions” of the former act and not the “amendments” apply to those
sentenced before the effective date of the act, but that the “amendments” to R.C.
2925.11 apply to a person “to whom division (B) of section 1.58 of the Revised Code
makes the amendments applicable.” (Emphasis added.) The General Assembly
used the words “provisions” and “amendments” as opposed to “penalty,” “sanction,”
or “punishment.” The amended version of R.C. 2925.11 includes the reduction in the
degree of the offense.
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{¶50} Our analysis conflicts with the analysis of the Steinfurth court,
which reviewed the retroactivity of H.B. 86 amendments to the theft statute. In
Section 4 of H.B. 86, the General Assembly used the same language as used in
Section 3 to express its intent with respect to the retroactivity of the theft statute
amendments. After reviewing this language, the Steinfurth court concluded that
“Steinfurth would not receive the benefit of a reduced sentence except for the
inclusion of R.C. 1.58 in H.B. 86” because he committed his offense in May 2011, and
not on or after September 30, 2011, the effective date of H.B. 86.” Steinfurth at ¶ 20
(Emphasis added.) Our analysis conflicts because we disagree with this conclusion.
{¶51} We believe that without the reference to R.C. 1.58(B) in Section 3 of
H.B. 86, offenders such as Solomon who had committed the offense of possession of
cocaine in crack cocaine form before September 30, 2011, but were not sentenced
until after September 30, 2011, would have received the benefit of the reduced
punishment because the General Assembly did not express a contrary intent in the
Act and, therefore, the provisions of R.C. 1.58(B) would be read into the statute.
{¶52} Our review of the language in Section 3 of H.B. 86, including the
reference to R.C. 1.58(B), leads us to conclude that the General Assembly intended
that the amended version of the statutes specified in that section, including R.C.
2925.11, shall apply to those who had not been sentenced and who would receive the
benefit of a reduced sentence under R.C. 1.58(B). Our reading serves an evident
purpose of the H.B. 86 revision: to bring a measure of uniformity to prosecutions
involving crack and powder cocaine by eliminating disparities based on divergent
classifications of the offenses. Because we disagree with the analysis in Steinfurth,
we decline to follow it.
{¶53} Our decision is consistent with the decision of the Tenth Appellate
District in State v. Limoli, 10th Dist. No. 11AP-924, 2012-Ohio-4502, although our
analysis may differ. The Limoli court rejected the state’s argument that none of the
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OHIO FIRST DISTRICT COURT OF APPEALS
ameliatory amendments enacted in H.B. 86, including those to R.C. 2925.11, applied
to a defendant who committed the offense of possession of cocaine in crack cocaine
form before the effective date of H.B. 86. The Limoli court held that R.C. 1.58(B)
applied, and the trial court was required to impose the penalty for that offense
“ ‘according to the statute as amended’ ” by H.B. 86. Id. at ¶ 62.
{¶54} In conclusion, although we disagree with Solomon’s argument that
the “level of the offense” is a part of the “penalty” for the offense, we hold that the
trial court erred by not applying the amended version of R.C. 2925.11 when entering
the judgment of conviction. The trial court should have convicted Solomon of
possession of drugs under R.C. 2925.11 as amended, reduced the offense to a fifth-
degree felony, and imposed an appropriate sanction for a fifth-degree felony.
{¶55} While the court imposed a community-control sanction that was
authorized for the level of the offense, the trial court notified Solomon that if he
violated the terms of his community control, he was subject to imprisonment for
three years. That sanction is not authorized for the commission of a fifth-degree
felony offense. Thus, at sentencing, the trial court did not apply the amended
version of R.C. 2925.11 as intended by the legislature. This was plain error. See
Crim.R. 52(B). Accordingly, we sustain the second assignment of error.
IV. Ineffective-Assistance-of-Counsel Claim
{¶56} In his final assignment of error, Solomon argues he was denied the
effective assistance of counsel because counsel failed to inform the trial court that
count one of the indictment charged a fifth-degree felony, and not a third-degree
felony. To prevail on an ineffective assistance of counsel claim, a defendant must
show counsel’s deficient performance and resulting prejudice. See Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42
Ohio St.3d 136, 538 N.E.2d 373 (1989).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶57} As discussed under the first assignment of error, the grand jury
indicted Solomon in count one for the aggravated possession of drugs as a fifth-
degree felony offense. Counsel should have objected to the trial court’s entry of
conviction on a third-degree felony offense because the court in effect impermissibly
amended the indictment in contravention of Crim.R. 7(D). As a result, Solomon was
convicted of a higher-degree offense and subject to greater penalties.
{¶58} Because Solomon has shown trial counsel’s deficient performance
and resulting prejudice, we sustain the third assignment of error.
V. Conclusion
{¶59} The trial court erred by convicting Solomon of higher-degree
offenses than authorized under the relevant statutes, and by imposing sentences that
were contrary to law. We reverse the trial court’s judgment, and we remand the case
with instructions for the court to modify the judgments of conviction to reflect that
Solomon was convicted of two fifth-degree felony offenses, and for the court to
resentence Solomon accordingly.
VI. Certification of Conflict
{¶60} We acknowledge that our disposition of the second assignment of
error directly conflicts with the decisions of the Fifth Appellate District in State v.
David, 5th Dist. No. 11-CA-110, 2012-Ohio-3984, and State v. Gillespie, 2012-Ohio-
3485, 975 N.E.2d 492 (C.A. 5th.). We, therefore, sua sponte certify to the Supreme
Court of Ohio, pursuant to the Ohio Constitution, Article IV, Section 3(B)(4), the
following issue for review and final determination: Is the level or the degree of an
offense a part of the “penalty” for the offense that must be reduced when R.C. 1.58(B)
applies, pursuant to H.B. 86, to provide the defendant with the benefit of a reduction
in the penalty for the offense?
{¶61} And we acknowledge that our decision directly conflicts with the
decision of the Eighth Appellate District in State v. Steinfurth, 8th Dist. No. 97549,
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OHIO FIRST DISTRICT COURT OF APPEALS
2012-Ohio-3257. We, therefore, sua sponte certify to the Supreme Court of Ohio,
pursuant to the Ohio Constitution, Article IV, Section 3(B)(4), the following issue for
final review and determination: Do Sections 3 and 4 of Am.Sub.H.B. No. 86 provide
that the amended versions of the statutes specifically enumerated in those sections—
including the amendments that reduce the degree of the offense itself–apply to those
who committed the enumerated offenses before the September 30, 2011 effective
date of H.B. 86, but were sentenced after H.B. 86’s effective date?
Judgment reversed and cause remanded.
SUNDERMANN, P.J., concurs.
DINKELACKER, J., concurs in part and dissents in part.
DINKELACKER, J., concurring in part and dissenting in part.
{¶62} While I agree with the majority's resolution of Solomon's first
assignment of error, I do not agree with the majority's analysis of R.C. 1.58(B) as it
applies to his second assignment. It is from that portion of the opinion that I
respectfully dissent.
{¶63} I agree with the majority's analysis that the terms “penalty,”
“forfeiture,” and “punishment”—as those terms are used in R.C. 1.58(B)—do not
apply to H.B. 86. Had the opinion stopped at that point, I would have found no fault
with the analysis. But the opinion goes on to state that because R.C. 1.58(B) is
referenced in H.B. 86, it applies and acts to reduce the level of offense in cases such
as this one. This holding is a dramatic expansion of the retrospective application of
Ohio’s new sentencing law. I believe that the legislature would not have made such
an important legislative determination in such a nebulous or cryptic manner.
{¶64} Simply put, I believe—as does the majority—that the “level of the
offense” is not a part of the “penalty for that offense.” Rather than strike out on this new
course, I believe that this court would be well-served to follow the path set forth by the
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OHIO FIRST DISTRICT COURT OF APPEALS
Eighth Appellate District in State v. Steinfurth, 8th Dist. No. 97549, 2012-Ohio-3257.
That court concluded—utilizing a plain reading of R.C. 1.58—that R.C. 1.58 only requires
the trial court to sentence a defendant to the lesser term, but does not require the trial
court to reduce the level of the offense. "R.C. 1.58 clearly states that a criminal defendant
receives the benefit of a reduced penalty, forfeiture, or punishment. * * * [It] makes no
mention of a criminal defendant receiving the benefit of a lesser or reduced offense itself
* * *." (Emphasis in original) Id. at ¶ 15.
{¶65} Because I believe that the majority has read much more into the
language of H.B. 86 than the legislature intended, I must dissent from that portion of the
majority's opinion. I would hold that, while Solomon is entitled to a reduction in
penalty, he is not entitled to a reduction in the level of his offense. I concur with the
majority opinion in all other respects.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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