State v. Wilson , 2012 Ohio 5912 ( 2012 )

[Cite as State v. Wilson, 2012-Ohio-5912.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 25057
Plaintiff-Appellant :
: Trial Court Case No. 11-CR-2817
v. :
:
JENNIFER WILSON : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellee :
:
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OPINION
Rendered on the 14th day of December, 2012.
...........
MATHIAS H. HECK, JR., by KIRSTEN A. BRANDT, Atty. Reg. #0070162, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellant
ADELINA E. HAMILTON, Atty. Reg. #0078595, Law Office of the Public Defender, 117
South Main Street, Suite 400, Dayton, Ohio 45422
Attorney for Defendant-Appellee
.............
FAIN, J.
{¶ 1} Plaintiff-appellant the State of Ohio appeals, pursuant to R.C. 2945.67, from a
judgment convicting and sentencing defendant-appellee Jennifer Wilson. The State contends
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that the trial court erred by convicting Wilson of a first-degree misdemeanor rather than a
fifth-degree felony. According to the State, Wilson was entitled, by virtue of 2011
Am.Sub.H.B. No. 86, to the benefit of a lesser sentence associated with a misdemeanor of the
first degree, but she was not entitled to a reclassification of her offense from a felony to a
misdemeanor.
{¶ 2} Based on our recent decision in State v. Arnold, 2d Dist. Montgomery No.
25044, 2012-Ohio-5786, we conclude that the trial court correctly sentenced Wilson for a
misdemeanor of the first degree. Accordingly, the judgment of the trial court is Affirmed.
I. Course of the Proceedings
{¶ 3} Jennifer Wilson committed a theft offense during the Summer of 2011. On
November 8, 2011, a Montgomery County Grand Jury indicted Wilson on one count of Theft
of property having a value of $500 or more in violation of R.C. 2913.02(A)(1), a felony of the
fifth degree. Wilson pled guilty.
{¶ 4} In January 2012, the trial court sentenced Wilson to community control
sanctions for a period not to exceed five years. In the amended judgment of conviction and
sentence, the trial court identified Wilson’s violation of R.C. 2913.02(A)(1) as a first-degree
misdemeanor. From this judgment, the State appeals.
II. 2011 Am.Sub.H.B. No. 86 Reduced Wilson’s Penalty To A Misdemeanor
{¶ 5} The State’s assignment of error is as follows:
H.B. 86 ENTITLED WILSON TO THE BENEFIT OF A SENTENCE
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ASSOCIATED WITH A MISDEMEANOR OF THE FIRST DEGREE, BUT
IT DID NOT ENTITLE HER TO RECLASSIFICATION OF HER OFFENSE
FROM A FELONY TO A MISDEMEANOR.
{¶ 6} On June 29, 2011, the governor signed into law 2011 Am.Sub.H.B. No. 86
(“H.B.86”). Prior to the effective date of H.B. 86, a defendant (like Wilson) convicted of
Theft of property having a value of five hundred dollars or more was guilty of violating R.C.
2913.02(A)(1), a felony of the fifth degree. See former R.C. 2913.02(B)(2). H.B. 86
amended R.C. 2913.02 to provide that a person (like Wilson) convicted of Theft of property
having a value of less than one thousand dollars is guilty of committing a misdemeanor of the
first degree. R.C. 2913.02(B)(2).
{¶ 7} H.B. 86 became effective on September 30, 2011. The General Assembly
expressly provided in H.B. 86 when the amendments were to be applicable: “The amendments
* * * 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(B) of the Revised Code makes the amendments applicable.”
{¶ 8} R.C. 1.58(B) identifies which law to apply when a statute is amended after the
commission of a crime, but before sentence is imposed: “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.”
{¶ 9} The State concedes that Wilson is entitled to the lesser sentence made
applicable through the application of H.B. 86 and R.C. 1.58(B). In other words, the State
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concedes that the amendments in H.B. 86 apply to Wilson and that she is entitled to receive
the lesser sentence for a first-degree misdemeanor rather than the sentence for a fifth-degree
felony. However, the State contends that Wilson is not entitled to have her “offense” reduced
from a fifth-degree felony (pre-H.B. 86) to a first-degree misdemeanor (post-H.B. 86). We
do not agree.
{¶ 10} We recently rejected an identical argument by the State in State v. Arnold, 2d
Dist. Montgomery No. 25044, 2012-Ohio-5786. Based on our holding in Arnold, we reject
the State’s argument in the present case. Accord State v. David, 5th Dist. Licking No.
11-CA-110, 2012-Ohio-3984, ¶ 15 (affirming the trial court’s reduction of the defendant’s
charges for theft and passing bad checks from fifth-degree felonies to first-degree
misdemeanors based on H.B. 86 and R.C. 1.58).
{¶ 11} The State’s assignment of error is overruled.
III. Conclusion
{¶ 12} The State’s sole assignment of error having been overruled, the judgment of
the trial court is Affirmed.
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DONOVAN and FROELICH, JJ., concur.
Copies mailed to:
Mathias H. Heck
Kirsten A. Brandt
Adelina E. Hamilton
Hon. Frances E. McGee