State v. Pribble (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Pribble, Slip Opinion No. 2019-Ohio-4808.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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the opinion is published.
SLIP OPINION NO. 2019-OHIO-4808THE STATE OF OHIO, APPELLANT, v. PRIBBLE, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Pribble, Slip Opinion No. 2019-Ohio-4808.]
Criminal law—Sentencing—Trial court correctly sentenced defendant convicted of
illegal assembly or possession of chemicals for manufacture of
methamphetamine under R.C. 2925.041(C)(1) to mandatory five-year
prison term rather than under R.C. 2929.14(A)(3)(b) to one to three years
in prison—Court of appeals’ judgment reversed and sentence reinstated.
(No. 2017-1758—March 6, 2019—Decided November 26, 2019.)
APPEAL from the Court of Appeals for Adams County,
No. 17CA1041, 2017-Ohio-8499.
_________________
KENNEDY, J.
{¶ 1} This is a discretionary appeal from the Fourth District Court of
Appeals concerning which of two sentencing statutes applies to violations of R.C.
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2925.041(A)—knowingly assembling or possessing one or more chemicals that
may be used to manufacture a controlled substance with the intent to manufacture
a controlled substance—when the drug in question is methamphetamine and the
defendant has committed certain prior offenses. R.C. 2925.041(C)(1) specifies a
mandatory punishment for violations of R.C. 2925.041(A) by certain repeat
offenders: “one of the prison terms prescribed for a felony of the third degree that
is not less than five years.” But R.C. 2929.14(A)(3)(b), a sentencing statute that
applies more broadly to third-degree felonies, caps sentences at 36 months in prison
for third-degree felonies not listed in R.C. 2929.14(A)(3)(a), and a violation of R.C.
2929.041(A) is not included in that list. The court of appeals held that R.C.
2925.041(C)(1) and 2929.14(A)(3)(b) are in conflict, and applying the rule of
lenity—codified in R.C. 2901.04(A) (“sections of the Revised Code defining
offenses or penalties shall be strictly construed against the state, and liberally
construed in favor of the accused”)—determined that R.C. 2929.14(A)(3)(b) and
its lesser, three-year maximum penalty prevails.
{¶ 2} We agree that the two statutes conflict, but applying the rule of
statutory construction codified in R.C. 1.51, we conclude that the mandatory five-
year sentence prescribed by R.C. 2925.041(C)(1) is a special provision that prevails
as an exception to the general statute, R.C. 2929.14(A)(3)(b). Because applying
R.C. 1.51 resolves the conflict between the two statutes, it is unnecessary to invoke
the rule of lenity. We therefore conclude that R.C. 2925.041(C)(1) applies to the
defendant in this case and reverse the judgment of the court of appeals.
I. THE TEXT AND HISTORY OF R.C. 2925.041 AND 2929.14(A)(3)
{¶ 3} R.C. 2925.041(A) defines the offense at issue in this case: “No person
shall knowingly assemble or possess one or more chemicals that may be used to
manufacture a controlled substance in schedule I or II with the intent to manufacture
a controlled substance in schedule I or II in violation of section 2925.04 of the
Revised Code.” Under R.C. 2925.04, “[n]o person shall knowingly cultivate
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marihuana or knowingly manufacture or otherwise engage in any part of the
production of a controlled substance.” R.C. 2925.04(A). Absent certain
circumstances not at issue here, a violation of R.C. 2925.041(A) is a third-degree
felony pursuant to R.C. 2925.041(C). If the drug involved is methamphetamine
and the offender previously has been convicted of or pleaded guilty to a felony
drug-abuse offense two or more times, R.C. 2925.041(C)(1) requires a prison
sentence of at least two years. And if the offender two or more times previously
has been convicted of or pleaded guilty to a felony drug-abuse offense, at least one
of which involved the manufacture of methamphetamine or another controlled
substance, the penalty increases to a mandatory prison term of at least five years:
If the violation of division (A) of this section is a felony of the third
degree under this division and if the chemical or chemicals
assembled or possessed in violation of division (A) of this section
may be used to manufacture methamphetamine, there either is a
presumption for a prison term for the offense or the court shall
impose a mandatory prison term on the offender, determined as
follows:
(1) Except as otherwise provided in this division, there is a
presumption for a prison term for the offense. If the offender two or
more times previously has been convicted of or pleaded guilty to a
felony drug abuse offense, except as otherwise provided in this
division, the court shall impose as a mandatory prison term one of
the prison terms prescribed for a felony of the third degree that is
not less than two years. If the offender two or more times previously
has been convicted of or pleaded guilty to a felony drug abuse
offense and if at least one of those previous convictions or guilty
pleas was to a violation of division (A) of this section, a violation
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of division (B)(6) of section 2919.22 of the Revised Code [allowing
a child to be in the vicinity of a controlled-substance-manufacturing
offense under R.C. 2925.04 or 2925.041], or a violation of division
(A) of section 2925.04 of the Revised Code [engaging in the
production of a controlled substance], the court shall impose as a
mandatory prison term one of the prison terms prescribed for a
felony of the third degree that is not less than five years.
(Emphasis added.) R.C. 2925.041(C).
{¶ 4} R.C. 2925.041 first included a specific penalty for methamphetamine
manufacturing in 2006. See Am.Sub.S.B. No. 53, 151 Ohio Laws, Part I, 806, 835-
836. It prescribed “as a mandatory prison term one of the prison terms prescribed
for a felony of the third degree that is not less than five years” if a violator of R.C.
2925.041(A) had one prior conviction of a drug-manufacturing offense. Former
2925.041(C)(1), 151 Ohio Laws, Part I, at 835.
{¶ 5} The other statute at issue in this case is R.C. 2929.14(A)(3), which
sets forth the prison terms applicable to third-degree felony convictions. In 2006,
when R.C. 2925.041 first addressed methamphetamine manufacturing, R.C.
2929.14(A)(3) read, “For a felony of the third degree, the prison term shall be one,
two, three, four, or five years.” Am.Sub.H.B. No. 473, 150 Ohio Laws, Part IV,
5707, 5731.
{¶ 6} In 2011, R.C. 2929.14(A)(3) was amended by 2011 Am.Sub.H.B. No.
86 (“H.B. 86”), which enacted substantial changes to Ohio’s felony-sentencing
scheme. H.B. 86 divided R.C. 2929.14(A)(3) into subdivisions (a) and (b). Under
the amendment, R.C. 2929.14(A)(3)(a) narrows the applicability of third-degree-
felony sentences longer than three years; it specifically identifies violations for
which a judge may impose prison terms from 12 to 60 months. As amended, R.C.
2929.14(A)(3)(b) limits sentences to three years for third-degree felonies to which
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division (A)(3)(a) does not apply. The version of R.C. 2929.14(A)(3) that is
applicable in this case read:
(a) For a felony of the third degree that is a violation of
section 2903.06, 2903.08, 2907.03, 2907.04, or 2907.05 of the
Revised Code or that is a violation of section 2911.02 or 2911.12 of
the Revised Code if the offender previously has been convicted of
or pleaded guilty in two or more separate proceedings to two or more
violations of section 2911.01, 2911.02, 2911.11, or 2911.12 of the
Revised Code, the prison term shall be twelve, eighteen, twenty-
four, thirty, thirty-six, forty-two, forty-eight, fifty-four, or sixty
months.
(b) For a felony of the third degree that is not an offense for
which division (A)(3)(a) of this section applies, the prison term shall
be nine, twelve, eighteen, twenty-four, thirty, or thirty-six months.
2014 Am.Sub.H.B. No. 234.
{¶ 7} H.B. 86 also amended R.C. 2925.041(C)(1). That amendment added
a requirement for imposing the mandatory five-year sentence, restricting its
application to certain third-strike offenders: the offender must have committed two
prior felony drug-abuse offenses, one of which involved the manufacture of a
controlled substance.
II. FACTUAL AND PROCEDURAL BACKGROUND
{¶ 8} In May 2016, defendant-appellee, Darian J. Tribble, was indicted in
the Adams County Court of Common Pleas on one count of illegal assembly or
possession of chemicals for the manufacture of a controlled substance—
specifically, methamphetamine—in violation of R.C 2925.041(A), a third-degree
felony. On February 3, 2017, a jury convicted Pribble of the charge.
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{¶ 9} There is no dispute that given Pribble’s prior convictions of a felony
drug-manufacturing offense in 2009 and a felony drug-possession offense in 2015,
he met the prior-convictions requirement that triggers sentencing pursuant to the
third-strike provision in R.C. 2925.041(C)(1). The issue here is whether the
mandatory five-year sentence prescribed by R.C. 2925.041(C)(1) applies to anyone
given the limits established by R.C. 2929.14(A)(3) regarding the imposition of five-
year sentences for third-degree felonies. The trial court determined that R.C.
2925.041(C)(1) prevailed over R.C. 2929.14(A)(3)(b) and sentenced Pribble to a
five-year prison term. Pribble appealed the sentence.
{¶ 10} Citing its decision in State v. Clark, 4th Dist. Highland No. 14CA20,
2015-Ohio-5003, the Fourth District Court of Appeals reversed Pribble’s sentence.
The court held that R.C. 2929.14(A)(3)(b) conflicts with R.C. 2925.041(C)(1) and
that pursuant to the rule of lenity, R.C. 2929.14(A)(3)(b), the less punitive
sentencing statute, applies. We accepted the state’s jurisdictional appeal. 152 Ohio
St.3d 1442, 2018-Ohio-1600, 96 N.E.3d 298. The state asserts a single proposition
of law:
When a defendant is convicted of a third-degree felony
charge of illegal assembly of chemicals for the manufacture of drugs
pursuant to R.C. 2925.041(A), the chemicals could have been used
to manufacture methamphetamine, and the defendant has two or
more prior felony drug abuse convictions, at least one of which is
listed in R.C. 2925.041(C)(1), the trial court is required to sentence
the defendant under R.C. 2925.041(C)(1) to a mandatory prison
term of “not less than five years.”
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III. LAW AND ANALYSIS
{¶ 11} Both R.C. 2925.041(C)(1) and R.C. 2929.14(A)(3) address
sentencing for third-degree felonies. R.C. 2925.041(C)(1) is clear in its
requirement that two-time felony drug-abuse offenders with at least one prior
conviction involving the production of methamphetamine receive five-year prison
terms. Neither party argues that R.C. 2925.041(C)(1) fails to establish that
legislative intent. Although R.C. 2925.041(C)(1) does not itself set forth the five-
year sentence, it states that “the court shall impose as a mandatory prison term one
of the prison terms prescribed for a felony of the third degree that is not less than
five years.” (Emphasis added.) A five-year prison term is indeed an available term-
of-years sentence in the sentencing scheme for third-degree felonies. The question
before us is whether R.C. 2929.14(A)(3)—and its limitation of the third-degree
felonies for which sentences greater than three years may be imposed—somehow
foils the plain legislative intent behind R.C. 2925.041(C)(1).
{¶ 12} “It is a well-settled rule of statutory interpretation that statutory
provisions be construed together and the Revised Code be read as an interrelated
body of law.” State v. Moaning, 76 Ohio St.3d 126, 128, 666 N.E.2d 1115 (1996).
“ ‘This court in the interpretation of related and co-existing statutes must harmonize
and give full application to all * * * statutes [concerning the same subject matter]
unless they are irreconcilable and in hopeless conflict.’ ” United Tel. Co. of Ohio
v. Limbach, 71 Ohio St.3d 369, 372, 643 N.E.2d 1129 (1994), quoting Johnson’s
Mkts., Inc. v. New Carlisle Dept. of Health, 58 Ohio St.3d 28, 35, 567 N.E.2d 1018(1991); State v. Cook, 128 Ohio St.3d 120, 2010-Ohio-6305, 942 N.E.2d 357, ¶ 45.
But when statutes conflict, as R.C. 2925.041(C)(1) and 2929.14(A)(3)(b) do in this
case, “we must resort to statutory interpretation and construe the statutes so as to
give effect to the legislature’s intent.” Summerville v. Forest Park, 128 Ohio St.3d
221, 2010-Ohio-6280, 943 N.E.2d 522, ¶ 24.
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A. Application of R.C. 1.51
{¶ 13} “It is a well-settled principle of statutory construction that when an
irreconcilable conflict exists between two statutes that address the same subject
matter, one general and the other special, the special provision prevails as an
exception to the general statute.” State v. Conyers, 87 Ohio St.3d 246, 248, 719
N.E.2d 535 (1999). R.C. 1.51, the statutory version of this general/specific canon,
recognizes that optimally, conflicting statutes should be construed “so that effect is
given to both” but provides that “[i]f the conflict between the provisions is
irreconcilable, the special or local provision prevails as an exception to the general
provision, unless the general provision is the later adoption and the manifest intent
is that the general provision prevail.” The rationale behind the general/specific
canon is that “ ‘the particular provision is established upon a nearer and more exact
view of the subject than the general, of which it may be regarded as a correction.’
Or think of it this way: the specific provision comes closer to addressing the very
problem posed by the case at hand and is thus more deserving of credence.” Scalia
& Garner, Reading Law: The Interpretation of Legal Texts 183 (2012), quoting
Jeremy Bentham, General View of a Complete Code of Laws, reprinted in 3 The
Works of Jeremy Bentham 210 (John Bowring Ed.1843).
1. R.C. 2925.041(C)(1) is the more specific statute
{¶ 14} Here, R.C. 2925.041(C)(1) purports to address “the very problem
posed by the case at hand,” Scalia & Garner at 183—the methamphetamine crisis,
a specific problem caused by a specific drug—and is thus more deserving of
credence.1
1. A compelling moment from Pribble’s trial demonstrates why the General Assembly might seek
a mandatory lengthy sentence for repeat methamphetamine manufacturers. The trial judge spoke
eloquently about the large number of potential jurors who could not serve on the jury in this case,
because they could not be fair to Pribble given the effect that drug abuse had had on their own lives.
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{¶ 15} R.C. 2925.041(C)(1) is the more specific of the two statutes. It
addresses sentencing for violations involving the manufacture of a specific drug,
methamphetamine, by a narrow group of offenders, two-time felony drug-abuse
offenders with at least one conviction or guilty plea involving the manufacture of a
controlled substance. R.C. 2929.14(A)(3), on the other hand, is a general
sentencing statute for third-degree felonies.
{¶ 16} R.C. 2925.041(C)(1) is also more specific as to the sentence
prescribed—five years—as opposed to the sentencing options available under R.C.
2929.14(A)(3), which run from nine months to five years. If the General Assembly
had wanted the five-year sentence prescribed by R.C. 2929.14(A)(3)(a) to be
available under R.C. 2925.041(C)(1), why would it not simply add R.C.
2925.041(C)(1) to the third-degree felonies listed in R.C. 2929.14(A)(3)(a) for
which a five-year sentence may be imposed? Because that would defeat the
purpose of instituting a mandatory five-year sentence for certain
methamphetamine-production offenses—penalties for the offenses listed in R.C.
2929.14(A)(3)(a) have a range of discretionary sentences available that begin at 12
months. And unlike R.C. 2925.041(C)(1), which prescribes a mandatory five-year
sentence, the statutes listed in R.C. 2929.14(A)(3)(a) at the time of Pribble’s offense
did not themselves specify sentencing ranges for violations; the most specific
statute simply stated that “[t]he court shall impose * * * a mandatory prison term
equal to one of the prison terms prescribed in section 2929.14 of the Revised Code
for a felony of the third degree,” 2007 Am.Sub.S.B. No. 10, former R.C.
2907.05(C)(2).
{¶ 17} Because it includes wide, discretionary sentencing ranges, R.C.
2929.14(A)(3) could not accommodate the General Assembly’s intent specifically
regarding punishment for third-strike methamphetamine manufacturers—namely,
to withhold from trial courts the discretion to impose a sentence of less than five
years on two-time felony drug-abuse offenders convicted of this particular crime.
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The General Assembly reflected that specific intent by separately prescribing the
penalty in a more specific statute. R.C. 2925.041(C)(1) is a clear exception to R.C.
2929.14(A)(3)(b).
2. The applicable portion of R.C. 2929.14(A)(3) was not enacted later in time
{¶ 18} Still, under R.C. 1.51, when a specific and a general provision are in
irreconcilable conflict, the general provision prevails if it was enacted later in time
“and the manifest intent is that the general provision prevail.” The general
provision here, however, was not enacted later than the specific provision.
{¶ 19} As discussed above, special penalties for methamphetamine
production were first instituted in 2006. However, in 2011, R.C. 2925.041(C)(1)
was amended in the same bill, H.B. 86, that amended R.C. 2929.14(A)(3), the third-
degree-felony-sentencing provision. H.B. 86 constrained the already limited
application of R.C. 2925.041(C)(1)—before 2011, that statute also limited the
number of third-degree felonies to which the mandatory five-year sentence
applied—by adding the requirement that an offender have at least two prior felony
drug-abuse convictions, including one conviction involving drug manufacturing.
The change to R.C. 2925.041(C)(1) happened at the same time as the relevant
changes to R.C. 2929.14(A)(3), and therefore, the general provision was not the
later adoption. Further, there was no change to R.C. 2929.14(A)(3) from the
enactment of H.B. 86 until the time of Pribble’s offense.2 Therefore, we need not
address what would be the next consideration under R.C. 1.51—whether “the
manifest intent is that the general provision prevail.” See, e.g., State ex rel. Dublin
Securities, Inc. v. Ohio Div. of Securities, 68 Ohio St.3d 426, 431, 627 N.E.2d 993(1994). We note, however, that even if that analysis were necessary, “[i]t has been
2. Effective March 21, 2017, 2016 Sub.H.B. No. 470 added assisting suicide, R.C. 3795.04, to the
offenses listed in R.C. 2929.14(A)(3)(a). Effective March 22, 2019, Am.Sub.S.B. No. 201 added
certain child-pornography offenses, R.C. 2907.321, 2907.322, and 2907.323, to the offenses listed
in R.C. 2929.14(A)(3)(a).
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a long-standing rule that courts will not hold prior legislation to be impliedly
repealed by the enactment of subsequent legislation unless the subsequent
legislation clearly requires that holding,” State v. Frost, 57 Ohio St.2d 121, 124,
387 N.E.2d 235 (1979).
{¶ 20} Upon applying R.C. 1.51, R.C. 2925.041(C)(1) prevails over R.C.
2929.14(A)(3)(b). R.C. 2925.041(C)(1) provides an exception to general third-
degree-felony sentencing.
B. R.C. 1.47(C) provides an additional relevant consideration
{¶ 21} “In enacting a statute, it is presumed that * * * [a] just and reasonable
result is intended.” R.C. 1.47(C). Here, an incongruous result would occur if R.C.
2929.14(A)(3)(b) applied to offenders like Pribble who are eligible to be sentenced
under the third-strike provision in R.C. 2925.041(C)(1). Under R.C.
2925.041(C)(1), a defendant with two prior felony drug-abuse offenses that do not
include a previous drug-manufacturing offense faces a mandatory prison term of
“not less than two years.” If R.C. 2929.14(A)(3)(b) controlled the sentencing of a
defendant convicted under R.C. 2925.041(A) whose two prior offenses do include
drug manufacturing, that defendant could be sentenced to as little as nine months
in prison, given the discretionary range available under that provision. Therefore,
the defendant without the prior conviction for drug manufacturing could end up
with a harsher sentence than the defendant who did have a previous drug-
manufacturing conviction. The legislature could not have intended that result.
C. The rule of lenity does not apply
{¶ 22} In holding that R.C. 2929.14(A)(3)(b) prevails over R.C.
2925.041(C)(1), the court of appeals relied on another rule of construction, the rule
of lenity. “The rule of lenity is a principle of statutory construction that provides
that a court will not interpret a criminal statute so as to increase the penalty it
imposes on a defendant if the intended scope of the statute is ambiguous.” State v.
Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, 912 N.E.2d 582, ¶ 38. The
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codification of the rule in R.C. 2901.04(A) states that “sections of the Revised Code
defining offenses or penalties shall be strictly construed against the state, and
liberally construed in favor of the accused.”
{¶ 23} Are we again at odds, this time between statutes that instruct us how
to construe statutes? No, because the rule of lenity is not the first place to turn when
interpreting conflicting criminal statutes. The rule of lenity is properly applied
when, “after all the legitimate tools of interpretation have been applied, ‘a
reasonable doubt persists.’ ” Scalia & Garner, Reading Law: The Interpretation of
Legal Texts, at 299, quoting Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct.
461, 112 L.Ed.2d 449 (1990). The United States Supreme Court has also noted the
limited applicability of the rule of lenity: “That rule, as we have repeatedly
emphasized, applies only if, ‘after considering text, structure, history and purpose,
there remains a grievous ambiguity or uncertainty in the statute such that the Court
must simply guess as to what Congress intended.’ ” Abramski v. United States, 573
U.S. 169, 188, 134 S.Ct. 2259, 189 L.Ed.2d 262 (2014), fn. 14, quoting Maracich
v. Spears, 570 U.S. 48, 76, 133 S.Ct. 2191, 186 L.Ed.2d 275 (2013). We agree that
if other principles of construction resolve a conflict between two criminal statutes,
there is no need to apply the rule of lenity. “ ‘ “The rule comes into operation at
the end of the process of construing what Congress has expressed, not at the
beginning as an overriding consideration of being lenient to wrongdoers.” ’ ”
Elmore at ¶ 40, quoting Gozlon-Peretz v. United States, 498 U.S. 395, 410, 111
S.Ct. 840, 112 L.Ed.2d 919 (1991), quoting Callanan v. United States, 364 U.S.
587, 596, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961). There is no need to perpetuate the
idea that there is an intractable conflict requiring application of the rule of lenity
when another rule of statutory construction resolves the conflict, as R.C. 1.51 does
here.
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IV. CONCLUSION
{¶ 24} The trial court followed the applicable statute, R.C. 2925.041(C)(1),
in sentencing Pribble. That statute conflicts with R.C. 2929.14(A)(3)(b), but we
conclude that the rule of statutory construction codified in R.C. 1.51 resolves the
conflict: the mandatory five-year sentence prescribed by R.C. 2925.041(C)(1) is a
special provision that prevails as an exception to the general statute, R.C.
2929.14(A)(3)(b). Because applying R.C. 1.51 resolves the conflict between the
two statutes, it is unnecessary to invoke the rule of lenity. R.C. 2925.041(C)(1)
applies to Pribble, and the court of appeals therefore erred in reversing his sentence.
Accordingly, we reverse the court of appeals’ judgment and reinstate the sentence
imposed by the trial court.
Judgment reversed
and sentence reinstated.
FRENCH and STEWART, JJ., concur.
O’CONNOR, C.J., and FISCHER, J., concur in judgment only.
DEWINE, J., dissents, with an opinion.
DONNELLY, J., dissents, with an opinion.
_________________
DEWINE, J., dissenting.
{¶ 25} We are confronted with conflicting statutory directives as to the
permissible punishment for a crime. One statute says a judge must impose a prison
sentence of 9 to 36 months; another statute ordains a flat five-year sentence. The
lead opinion applies a tool of statutory construction to conclude that the longer
sentence must be imposed. But in my view, that tool fails to provide a satisfactory
answer in this case. I would turn to the rule of lenity and hold that the shorter
sentencing range applies.
{¶ 26} The crime here is the assembly or possession of chemicals for use in
making methamphetamine, codified in R.C. 2925.041 (“the illegal-assembly
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statute”). A provision of that statute (“the illegal-assembly provision”) provides
that for certain third-time drug offenders, the punishment shall be “one of the prison
terms prescribed for a felony of the third degree that is not less than five years.”
R.C. 2925.041(C)(1).
{¶ 27} The above language was added to the illegal-assembly statute in
2006. See Am.Sub.S.B. No. 53, 151 Ohio Laws, Part I, 806, 835. At the time, R.C.
2929.14—the statute that prescribes offenses for felonies (“the felony-sentencing
statute”)—authorized a sentence of one to five years for third-degree felonies. See
Am.Sub.H.B. No. 473, 150 Ohio Laws, Part IV, 5707, 5731. Thus, in 2006, a five-
year sentence was permissible under both statutes and there was no real dispute that
the law required that sentence to be imposed.
{¶ 28} Some years later, the General Assembly changed tack and rewrote
the felony-sentencing statute. It reduced the sentencing range for most third-degree
felonies to 9 to 36 months and enumerated certain offenses eligible for a heightened
sentence of 12 to 60 months. See R.C. 2929.14(A)(3) (“the sentence-shortening
provision”); 2011 Am.Sub.H.B. No. 86 (“H.B. 86”). Illegal assembly was not
among the enumerated offenses subject to the longer sentencing range. Thus,
beginning in 2011, a trial court confronted with a third-time felony drug offender
convicted of illegally assembling chemicals to produce methamphetamine was
instructed to impose a term of 9 to 36 months under the sentence-shortening
provision and to impose a term of “not less than five years” under the illegal-
assembly provision.
{¶ 29} The lead opinion looks to R.C. 1.51 to resolve the conflict between
the two statutes. That section instructs that in the event of an irreconcilable conflict,
a “special” provision applies over a “general” provision, unless the general
provision was adopted later in time and the General Assembly manifested an intent
that the general provision prevail. The lead opinion ultimately concludes that the
illegal-assembly provision is a special provision that takes precedence over the
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general sentence-shortening provision. Thus, the lead opinion applies the five-year
term set forth in the illegal-assembly provision. Lead opinion at ¶ 2.
{¶ 30} I am not convinced. As I see it, the general/special rule does not
persuasively resolve the conflict between the statutes. First, as Justice Donnelly
illustrates in his dissenting opinion, it is by no means clear that the lead opinion has
correctly labeled these statutes as “specific” and “general.” A strong argument can
be made that both are specific. The illegal-assembly provision can be said to be
specific in that it explicitly names the illegal-assembly offense and sets forth a
minimum penalty for the offense. But the sentence-shortening provision can also
be said to be specific in that it explicitly lists every third-degree felony for which a
judge may impose a sentence longer than three years.
{¶ 31} If both provisions are specific, then R.C. 1.51 does not apply and,
under R.C. 1.52, the more recently enacted provision prevails. The lead opinion
says that both the felony-sentencing statute and the illegal-assembly statute were
amended as part of the same bill and, therefore, neither can be said to be the later
enactment. Lead opinion at ¶ 19. See 2011 Am.Sub.H.B. No. 86. The problem
with this assertion is that the illegal-assembly provision was not among the
provisions of the illegal-assembly statute amended in 2011. We are told that “[a]
statute which is reenacted or amended is intended to be a continuation of the prior
statute and not a new enactment, so far as it is the same as the prior statute.” R.C.
1.54. The “key language” in the illegal-assembly statute—that imposing “one of
the prison terms prescribed for a felony of the third degree that is not less than five
years,” R.C. 2925.041(C)(1)—was untouched by the amendments enacted as part
of H.B. 86. See In re Petition to Annex 320 Acres to the Village of S. Lebanon, 64
Ohio St.3d 585, 595, 597 N.E.2d 463 (1992). That provision therefore dates back
to the time of its original enactment in 2006. Conversely, the pertinent provision
in the felony-sentencing statute—the sentence-shortening provision—was
substantively amended by H.B. 86 in 2011. Thus, it seems only fair to view the
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sentence-shortening provision as the later adoption. If both provisions are
considered to be specific, then the later-enacted sentence-shortening provision
applies. See R.C. 1.51; R.C. 1.52.
{¶ 32} But even if we accept the lead opinion’s characterizations of the
illegal-assembly provision as specific and the sentence-shortening provision as
general, we must still grapple with the manifest-intent portion of R.C. 1.51. If the
general provision is the later adoption, R.C. 1.51 requires us to examine whether
the General Assembly revealed a manifest intent that the general provision prevail.
The lead opinion does not reach this issue, but there is some evidence of such an
intent. H.B. 86—the bill creating the new felony-three sentencing range—states
that it was enacted in part “to revise some of the penalties * * * for all third degree
felony drug offenses that currently have mandatory prison terms” and “to change
the sentencing structure * * * for felonies of the third degree that are not specified
types of offenses.” That statement of intent directly addresses enactments such as
the illegal-assembly provision. Thus, I am not persuaded that R.C. 1.51 supports
the result reached by the lead opinion.
{¶ 33} There is an additional problem with the lead opinion’s logic. Even
if we accept its questionable conclusions that (1) the illegal-assembly provision is
specific and the sentence-shortening provision general and (2) the sentence-
shortening provision is not the later enactment, the lead opinion still fails to account
for the ambiguity within the text of the illegal-assembly provision itself. By its
terms, the illegal-assembly provision requires both that the trial court impose “one
of the prison terms prescribed for a felony of the third degree” and that the court
impose a prison term of “not less than five years.” R.C. 2925.041(C)(1). This
directive made sense under the prior version of the felony-sentencing statute when
all third-degree felonies were subject to a maximum five-year prison term. Under
the current version, however, different third-degree felonies are subject to different
sentencing ranges, and a five-year sentence is no longer prescribed for the third-
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degree felony offense of illegal assembly. Thus, for a court to follow the statute’s
directive and impose one of the penalties “prescribed for a felony of the third degree
that is not less than five years,” it would need to impose a penalty “prescribed” for
a different felony of the third degree—that is, it would need to impose a penalty
that was specifically not prescribed for the illegal-assembly offense.
{¶ 34} All of this is a long way of saying that the rule of statutory
construction relied on by the lead opinion doesn’t convincingly answer the question
in front of us. Nor do any of our other ordinary tools of statutory construction. In
such a situation, the legislature has instructed that “sections of the Revised Code
defining offenses or penalties shall be strictly construed against the state, and
liberally construed in favor of the accused.” R.C. 2901.04(A). This statutory
provision is a codification of the rule of lenity, the idea that “ambiguous criminal
laws [are] to be interpreted in favor of the defendants subjected to them,” United
States v. Santos, 553 U.S. 507, 514, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008)
(Scalia, J.). There are good reasons for such a rule:
This venerable rule not only vindicates the fundamental principle
that no citizen should be held accountable for a violation of a statute
whose commands are uncertain, or subjected to punishment that is
not clearly prescribed. It also places the weight of inertia upon the
party that can best induce Congress to speak more clearly and keeps
courts from making criminal law in Congress’s stead.
Id.{¶ 35} It is true that we employ traditional methods of textual interpretation
to determine at the outset whether the provision at issue is truly ambiguous; the rule
of lenity “operates only at the end of the process of construction.” (Cleaned up.)
United States v. R.L.C., 503 U.S. 291, 311, 112 S.Ct. 1329, 117 L.Ed.2d 559 (1992)
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(Thomas, J., concurring in part and concurring in judgment). But when those
methods fail to yield a satisfactory construction, the rule of lenity instructs that we
must choose the construction that favors the criminal defendant.
{¶ 36} That is precisely the situation here. Our well-established methods of
statutory construction do not convincingly resolve the conflict between the statutes,
nor do they clarify the ambiguous language regarding punishment within the
illegal-assembly provision. The rule of lenity compels us to opt for the shorter
sentencing range. Because the lead opinion concludes otherwise, I respectfully
dissent.
_________________
DONNELLY, J., dissenting.
{¶ 37} I dissent. The Fourth District Court of Appeals got it exactly right
when it held that the General Assembly created an irreconcilable conflict between
R.C. 2929.14(A)(3) and 2925.041(C)(1), and frustrating as it may be, courts are
obligated to strictly construe those statutes against the state until the General
Assembly reconciles their discordant language. The conflict between the statutes
cannot be resolved as the majority has decided without contorting the nature of the
conflict, the text of the statutes themselves, and the role of strict construction in the
process. The correct outcome here is to affirm the judgment of the court of appeals.
I. Introduction
{¶ 38} Before I enter into the jumble of numbers and letters that inevitably
piles up when picking apart statutory provisions, I want to frame this conflict in
plain English. This matter does not actually involve a clean conflict; it does not
involve two statutes that independently prescribe conflicting sentences. The two
statutory provisions at issue in this case are interrelated. One statute used to
prescribe a range of prison sentences. The other statute incorporated that
sentencing range but added an extra requirement. Subsequently, the sentencing-
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range statute changed in a way that made it impossible to satisfy the extra
requirement.
{¶ 39} One solution to this problem would be to pretend that the extra-
requirement statute is actually a stand-alone sentencing provision that no longer
incorporates the sentencing-range statute (despite the fact that the extra-
requirement statute still says that it incorporates the sentencing-range statute) and
that the specific nature of the extra requirement indicates that the General Assembly
meant for it to be a stand-alone exception to the sentencing-range statute. Another
solution would be to modify the extra requirement so that it can remain at least
partially effective in light of the sentencing-range statute that the extra-requirement
statute expressly incorporates.
{¶ 40} The lead opinion concludes that the former solution is the only
possible choice when considering the canon of statutory construction that favors a
specific over a general provision. I would hold that the latter solution is the better
choice, even when using the lead opinion’s chosen analytical tools. I would also
hold that the appropriate analytical tool for this conflict in penal statutory language
is the rule of strict construction, also called the rule of lenity. And under the rule
of lenity, the latter solution is all but required.
II. A proper understanding of the statutes involved
{¶ 41} The allegedly general statute in this conflict is R.C. 2929.14(A)(3)
(“F3 statute”), which prescribes a range of prison sentences for third-degree
felonies. It is divided into one general and one specific provision. For most third-
degree felonies, it prescribes prison terms of “nine, twelve, eighteen, twenty-four,
thirty, or thirty-six months.” R.C. 2929.14(A)(3)(b) (“general F3 provision”). For
a special subset of enumerated third-degree felony offenses, it prescribes prison
terms of “twelve, eighteen, twenty-four, thirty, thirty-six, forty-two, forty-eight,
fifty-four, or sixty months.” R.C. 2929.14(A)(3)(a) (“specific F3 provision”).
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{¶ 42} The allegedly specific statute in this conflict is a provision within
R.C. 2925.041, which governs the offense of illegal assembly or possession of
chemicals for the manufacture of drugs. The specific provision at issue provides
that for certain third-strike offenders who have violated the statute, “the court shall
impose as a mandatory prison term one of the prison terms prescribed for a felony
of the third degree that is not less than five years.” R.C. 2925.041(C)(1) (“third-
strike provision”).
{¶ 43} The plain language of the foregoing statutes, as well as their
interrelationship, reveal that the F3 statute is not necessarily a general statute, the
third-strike provision is not an independent specific statute, the third-strike
provision conflicts with both the general and specific F3 provisions, and the true
conflict lies within the third-strike provision itself.
A. R.C. 2929.14(A)(3) is no longer just a general statute
{¶ 44} When the third-strike provision was added to R.C. 2925.041 in 2006,
the version of the F3 statute that was in effect could fairly be characterized as a
general statute, with nothing in particular to prevent the judiciary from inferring
special exceptions in other statutes that address specific offenses. At that time, it
stated: “For a felony of the third degree, the prison term shall be one, two, three,
four, or five years.” Former R.C. 2929.14(A)(3), Am.Sub.H.B. No. 473, 150 Ohio
Laws, Part IV, 5707, 5731.
{¶ 45} But in 2011, the General Assembly revamped the F3 statute to
prescribe a range of definite sentences from 9 to 36 months for most third-degree
felony offenses in the general F3 provision, R.C. 2929.14(A)(3)(b). 2011
Am.Sub.H.B. No. 86 (“H.B. 86”). The General Assembly also created an exception
for certain specified felonies, prescribing a range of 12 to 60 months in the specific
F3 provision, R.C. 2929.14(A)(3)(a).
{¶ 46} The specific F3 provision, R.C. 2929.14(A)(3)(a), lists many
offenses for which a sentence of up to five years may be imposed, including
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vehicular homicide (R.C. 2903.06), aggravated vehicular assault (R.C. 2903.08),
sexual battery (R.C. 2907.03), unlawful sexual conduct with a minor (R.C.
2907.04), gross sexual imposition (R.C. 2907.05), and certain types of robbery and
burglary offenses (R.C. 2911.02 and 2911.12). It is quite a variety. But it is not a
variety wide enough to characterize R.C. 2929.14(A)(3)(a) either as a general
statute, or as anything other than a specific exception to the general F3 provision,
R.C. 2929.14(A)(3)(b), for particular offenses deemed by the General Assembly to
be more severe in nature than most third-degree felonies.
{¶ 47} To remove any suspicion that the specific F3 provision could
somehow be generally applied to other unenumerated offenses by judicial inference
alone, the F3 statute further specifies that the general F3 provision—and not the
specific F3 provision—must apply to any “felony of the third degree that is not an
offense for which division (A)(3)(a) of this section applies.” (Emphasis added.)
R.C. 2929.14(A)(3)(b).
{¶ 48} The F3 statute is no longer the general statute that it was in 2006. It
is now bifurcated into two separate provisions. Even assuming that R.C.
2929.14(A)(3)(b) is a general statutory provision, R.C. 2929.14(A)(3)(a) remains a
specific provision of limited application.
B. R.C. 2925.041(C)(1) is not an independent variable
{¶ 49} The third-strike provision in R.C. 2925.041(C)(1) is not a stand-
alone sentencing provision. Rather than prescribing a definite sentence or range
for repeat offenders, the third-strike provision states that “one of the prison terms
prescribed for a felony of the third degree” applies. R.C. 2925.041(C)(1). In other
words, the third-strike provision does not prescribe the prison terms involved; the
F3 statute does.
{¶ 50} What makes the third-strike provision an allegedly specific statute is
that it narrows the sentencing range prescribed in the F3 statute by raising the floor
of that range to “not less than five years,” R.C. 2925.041(C)(1). It is not a full
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exception: it does not purport to alter the ceiling of the range provided in the F3
statute, and it does not provide its own sentence or range of sentences independent
of the F3 statute.
{¶ 51} Without using a sentencing range prescribed by the F3 statute, the
third-strike provision in R.C. 2925.041(C)(1) would have no independent force; it
would impose a five-year minimum on nothing.
C. The five-year minimum in R.C. 2925.041(C)(1) conflicts with both the
specific and the general sentencing provisions in R.C. 2929.14(A)(3)
{¶ 52} There was no conflict between the third-strike provision of R.C.
2925.041(C)(1) and the F3 statute, R.C. 2929.14(A)(3), in 2006. The five-year
minimum in the third-strike provision made some sense when it was enacted in
2006, because the F3 statute provided a general range of one to five years for all
third-degree felonies at the time. I stress that it made only some sense. This is
because the practical result of combining a five-year minimum in the third-strike
provision with a five-year maximum in the F3 statute in 2006 was the requirement
of a sentence of exactly five years, with no discretion left to the sentencing court.
{¶ 53} Why the General Assembly decided to add the aura of judicial
discretion to the third-strike provision when none existed is unclear. What matters,
though, is that the General Assembly did not choose to simply state in the third-
strike provision of R.C. 2925.041(C)(1) that a mandatory five-year sentence—no
more and no less—applied; it chose to make the third-strike provision dependent
upon the range permitted in the F3 statute.3
3. It is at this point that the justices joining the lead opinion most deviate from the text of the statutes
to achieve their desired result. The lead opinion characterizes R.C. 2925.041(C)(1) as imposing a
singular, independent “mandatory five-year sentence,” lead opinion at ¶ 16, despite the fact that the
actual text provides only a minimum and is entirely dependent upon the sentences prescribed in R.C.
2929.14(A)(3). The lead opinion also claims that the “purpose” behind R.C. 2925.041 is
inconsistent with linking division (C)(1) to an entire range of sentences in R.C. 2929.14(A)(3), lead
opinion at ¶ 16, despite the fact that the text of R.C. 2925.041(C)(1) expressly creates that exact
link.
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{¶ 54} In 2011, the five-year floor in the third-strike provision ceased to
make any sense at all. The five-year minimum is not allowed by the general F3
provision, R.C. 2929.14(A)(3)(b), because the new general range allows sentences
of up to only three years. And the five-year minimum is not allowed by the specific
F3 provision, R.C. 2929.14(A)(3)(a), because the plain language of that provision
prohibits the application of its 12-to-60-month sentencing range to offenses that are
not listed. As noted above, the offenses listed in the specific F3 provision are
diverse. But they do not include the offense defined in R.C. 2925.041, nor do they
include any offenses that are similar to that offense.
{¶ 55} This court has already held that if an offense is not listed in the
specific F3 provision, R.C. 2929.14(A)(3)(a), then the 9-to-36-month range in the
general F3 provision—and not the five-year range in the specific F3 provision—
applies. State v. South, 144 Ohio St.3d 295, 2015-Ohio-3930, 42 N.E.3d 734, ¶ 18.
In South, the court considered a sentencing provision, R.C. 2929.14(B)(4),
prescribing a discretionary sentencing range of “ ‘any duration specified’ ” in the
F3 statute for certain offenses for operating a vehicle while under the influence of
alcohol or drugs (“OVI”). South at ¶ 18. Similarly to this case, the reference in
R.C. 2929.14(B)(4) to the F3 statute signified a potential sentence of “one, two,
three, four, or five years” prior to 2011, former R.C. 2929.14(A)(3), Am.Sub.H.B.
No. 473, 150 Ohio Laws, Part IV, at 5731, but when the F3 statute was amended in
H.B. 86, the meaning of the reference changed.
{¶ 56} There was no statutory conflict for this court to resolve in South,
because the language of R.C. 2929.14(B)(4) was flexible and still had meaning,
albeit a different meaning, after H.B. 86 became effective in 2011. See South at
¶ 7. The court was able to harmonize the language in the specific OVI-sentencing
provision with the general sentencing range in R.C. 2929.14(A)(3)(b), leaving no
reason to further discuss the significance of the 12-to-60-month sentencing range
in the specific F3 provision, R.C. 2929.14(A)(3)(a).
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{¶ 57} Unlike the language of R.C. 2929.14(B)(4) at issue in South, the
language of the third-strike provision of R.C. 2925.041(C)(1) is not flexible and
cannot be harmonized with the general F3 provision, R.C. 2929.14(A)(3)(b). Also
unlike in South, our consideration of the statutory language here does not stop at
the general F3 provision. We must also consider the exception provided in the
specific F3 provision, R.C. 2929.14(A)(3)(a). The additional consideration is
significant to how we must resolve the conflict between the third-strike provision
and the F3 statute. The majority cannot conclude merely that the third-strike
provision is intended to be an exception to the general F3 provision, R.C.
2929.14(A)(3)(b); it would also have to determine that the third-strike provision is
intended to be an exception to the exclusive nature of the exception created by the
specific F3 provision, R.C. 2929.14(A)(3)(a).
III. The applicable tools of interpretation
{¶ 58} Given the context provided above regarding the nature of the statutes
and the conflict, I disagree with the lead opinion’s conclusion that “the mandatory
five-year sentence prescribed by R.C. 2925.041(C)(1) is a special provision that
prevails as an exception to the general statute, R.C. 2929.14(A)(3)(b),” lead opinion
at ¶ 24. Instead, the third-strike provision of R.C. 2925.041(C)(1) does not
independently prescribe a five-year sentence, the analysis does not stop at the
general F3 provision, R.C. 2929.14(A)(3)(b), and the appropriate canons of
statutory interpretation must be applied to the conflict between the third-strike
provision and the specific F3 provision, R.C. 2929.14(A)(3)(a).
A. The general/specific canon and R.C. 1.51
{¶ 59} The lead opinion primarily relies on the general/specific canon of
interpretation articulated in R.C. 1.51 and Scalia & Garner, Reading Law: The
Interpretation of Legal Texts 183 (2012). In the event of an irreconcilable conflict
between statutory provisions, the canon instructs that “the special or local provision
prevails as an exception to the general provision, unless the general provision is the
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later adoption and the manifest intent is that the general provision prevail.” R.C.
1.51. With a proper understanding of the statutes involved, it is doubtful that the
general/specific canon is particularly relevant to the conflict. But even if we
consider it to be the most relevant rule, the application of this rule renders a result
different from the one reached by the lead opinion.
1. R.C. 2925.041(C)(1) is not the more specific statute
{¶ 60} As explained above, the third-strike provision in R.C.
2925.041(C)(1) is not a stand-alone sentencing provision. Thus, it is not quite
accurate to characterize the third-strike provision as a specific statute that can apply
instead of the F3 statute. Even assuming that it is proper to call the third-strike
provision a specific statute in this context, it is not more specific than provisions
within the F3 statute.
{¶ 61} R.C. 2925.041(C) addresses the punishments that may be applicable
to the specific offense of illegal assembly or possession of chemicals for the
manufacture of methamphetamine. It is certainly more specific than R.C.
2929.14(A)(3)(b), which prescribes sentences for third-degree felony offenses in
general. But the specific F3 provision, R.C. 2929.14(A)(3)(a), enumerates specific
offenses that are considered to be more severe in nature than most third-degree
felonies and allows a special range of more severe punishments to apply to those
enumerated offenses.
{¶ 62} The specific F3 provision, R.C. 2929.14(A)(3)(a), is, at the very
least, on equal footing with the third-strike provision in R.C. 2925.014(C)(1) in
terms of specificity. The exclusivity of the enumerated list of offenses in the
specific F3 provision, as well as the instruction in R.C. 2929.14(A)(3)(b) that the
12-to-60-month sentencing range is unavailable for any “felony of the third degree
that is not an offense for which division (A)(3)(a) of this section applies,” prohibits
the inference that the third-strike provision is an exception to division (A)(3)(a) or
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(A)(3)(b). Accordingly, the third-strike provision cannot prevail as the more
specific statute.
2. The sentencing ranges of both the specific and the general provisions of R.C.
2929.14(A)(3) were enacted later in time
{¶ 63} The offense of illegal assembly or possession of chemicals for the
manufacture of drugs, R.C. 2925.041, was first established in 2001. Sub.H.B. No.
7, 149 Ohio Laws, Part II, 4000, 4012-4013. Originally, any violation of R.C.
2925.041 was a third-degree felony. Id. In 2004, the legislature added a felony-
level enhancement to R.C. 2925.041(C): the offense remained a third-degree felony
but was raised to a second-degree felony for violations committed near a juvenile
or a school. Am.Sub.S.B. No. 58, 150 Ohio Laws, Part V, 7494, 7504-7505.
{¶ 64} In 2006, the General Assembly added sanction-level enhancements
for violations involving methamphetamines by requiring certain sentencing
minimums: under R.C. 2925.041(C)(1) for third-degree felony offenses and under
division (C)(2) for second-degree felony offenses. Am.Sub.S.B. No. 53, 151 Ohio
Laws, Part I, 806, 834-836. Each subdivision had two enhancement steps: the first
step applied to any violation involving methamphetamine manufacturing and the
second step applied if the offender also had a prior conviction for certain drug
offenses—specifically, drug manufacturing or drug-related child endangerment.
The sentencing minimums for the first and second steps were two and five years
for third-degree felonies and three and five years for second-degree felonies.
{¶ 65} In 2011, the General Assembly changed the aggravating
circumstances that qualified for the enhancement steps in R.C. 2925.041(C)(1).
2011 Am.Sub.H.B. No. 86. Now, the first step for third-degree-felony violations
applies if the offender has two or more prior convictions for any felony drug
offense, and the second step applies if at least one of those convictions was for drug
manufacturing or drug-related child endangerment. But the sentencing structure
for the steps remained the same; the sentencing minimums for the first and second
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steps are still two and five years for third-degree felonies, and they are still three
and five years for second-degree felonies.
{¶ 66} Meanwhile, for decades, R.C. 2929.14(A)(3), the F3 statute, had
provided the same sentencing structure for third-degree felony offenses: a simple
range of one to five years. See Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136,
7464. But in 2011, the General Assembly completely overhauled the sentencing
structure for third-degree felonies in the F3 statute, creating the bifurcated special
and general sentencing ranges described above.
{¶ 67} The statutory conflict here is not related to the nature of an offender’s
violation of R.C. 2925.041 or what the offender has done to qualify for certain
felony or sanction enhancements within R.C. 2925.041. The conflict arises from
the structure of the sanctions imposed on those felony-enhancement or sanction-
enhancement steps. Although some aspects of R.C. 2929.041 have changed, the
actual sentencing structure and minimum terms for the enhancement steps in R.C.
2929.041(C) have remained the same since 2006. See R.C. 1.54 (“A statute which
is reenacted or amended is intended to be a continuation of the prior statute and not
a new enactment, so far as it is the same as the prior statute”). The significant
changes to the sentencing structure of the F3 statute were enacted later in time.
3. The result of employing the general/specific canon
{¶ 68} Because R.C. 2929.14(A)(3)(a) is a specific statute and prohibits the
inference that the third-strike provision is an exception to division (A)(3)(a) or
(A)(3)(b), the third-strike provision of R.C. 2925.041(C)(1) cannot prevail as the
more specific statute. Because the prison-term ranges in the F3 statute were enacted
later in time than the minimum ranges in the third-strike provision, the ranges in
the F3 statute must prevail.
{¶ 69} Irrespective of the result, though, application of the general/specific
canon of interpretation (and its later-in-time exception) do not truly address the
conflict in this case. This is not the kind of case in which we must resolve a conflict
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between two completely separate statutes that make no reference to each other and
that prescribe conflicting penalties of independent force. The conflict that needs to
be resolved is actually within the third-strike provision itself. The language of the
third-strike provision at issue here is: “the court shall impose as a mandatory prison
term one of the prison terms prescribed for a felony of the third degree that is not
less than five years,” R.C. 2925.041(C)(1). The first part of this provision indicates
that the general rule for third-degree felonies applies, and the second part states a
number that cannot apply under the general rule for third-degree felonies. When
an irreconcilable conflict of this nature “occurs with penal provisions, the result
should favor the accused.” Scalia & Garner at 190. In other words, the rule of
lenity must apply.
B. The rule of lenity and R.C. 2901.04(A)
{¶ 70} Contrary to the lead opinion’s representation, when it comes to
criminal statutes, the rule of lenity is not always the last kid picked in gym class.
As the lead opinion notes, see lead opinion at ¶ 23, some leading authorities have
advised that the rule of lenity can apply only “after all the legitimate tools of
interpretation have been applied, ‘a reasonable doubt persists.’ ” Scalia & Garner
at 299, quoting Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 112
L.Ed.2d 449 (1990). But those same authorities have also argued that many tools
of interpretation are not appropriate in the context of criminal statutes. See, e.g.,
Moskal at 132 (Scalia, J., dissenting) (inferences regarding legislative purpose
should not be used to construe an ambiguous penal statute against a criminal
defendant); United States v. R.L.C., 503 U.S. 291, 307, 112 S.Ct. 1329, 117 L.Ed.2d
559 (1992) (Scalia, J., dissenting) (legislative history should not be used to construe
an ambiguous penal statute against a criminal defendant). Further, the same
authorities have argued that the rule of lenity is not limited to instances of
“ ‘grievous ambiguity,’ ” Scalia & Garner at 299, quoting Muscarello v. United
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States, 524 U.S. 125, 139, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998). Instead, they
have argued, the breadth of the rule’s use should be increased:
On the whole, it might fairly be said that the rule of lenity is
underused in modern judicial decision-making—perhaps the
consequence of zeal to smite the wicked. The defendant has almost
always done a bad thing, and the instinct to punish the wrongdoer is
a strong one. But a fair system of laws requires precision in the
definition of offenses and punishments. The less the courts insist on
precision, the less the legislatures will take the trouble to provide it.
(Footnote omitted.) Id. at 301.
{¶ 71} I think the rule of lenity ought to apply to the interpretation of
criminal statutes far more than it has been applied in recent years. Although
criminal laws should not be “construed so strictly as to defeat the obvious intention
of the legislature,” we should first and foremost value the fact that the age-old rule
of lenity “is founded on the tenderness of the law for the rights of individuals [as
well as] the plain principle that the power of punishment is vested in the legislative,
not in the judicial department.” United States v. Wiltberger, 18 U.S. 76, 77, 95, 5
L.Ed. 37 (1820). And if we are to say with a straight face that ignorance of the law
is no excuse, then we must insist that lack of clarity in the law is no excuse either.
See McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 75 L.Ed. 816 (1931)
(“it is reasonable that a fair warning should be given to the world in language that
the common world will understand, of what the law intends to do if a certain line is
passed”).
{¶ 72} Further, even if the rule of lenity is considered a last resort by some
conservative modern authorities on statutory interpretation, it cannot be considered
a last resort in Ohio criminal law, because our General Assembly has specifically
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instructed otherwise in R.C. 2901.04(A): “[S]ections of the Revised Code defining
offenses or penalties shall be strictly construed against the state, and liberally
construed in favor of the accused.” The instruction in R.C. 2901.04(A) is a
“specific” rule that prevails over other general rules of construction in R.C. Chapter
1 by the very terms of one of those rules. See R.C. 1.51 (general/specific canon).
{¶ 73} The lead opinion dismisses the General Assembly’s own instruction
on its intent by invoking judicially created canons of statutory interpretation and by
citing cases suggesting that the rule of lenity should be applied only as a last resort
after considering all other canons of interpretation. As a general notion, I disagree
that there is a hierarchy of canons of interpretation that is as immutable as the lead
opinion and its cited cases let on. Regardless, the alleged hierarchy of canons of
interpretation does not trump the legislature’s clear expression of its intent to us in
R.C. 2901.04(A): “Dear judicial branch, if there is an ambiguity or conflict in these
statutes, our intent was to take the more lenient course of action.” That is as crystal
clear as legislative intent can get. Canons of statutory interpretation are certainly
not more authoritative than the statutes themselves and therefore cannot undo the
explicit intent of the legislature.
{¶ 74} Accordingly, the rule of lenity is the appropriate canon of
interpretation to use in attempting to resolve the conflicting language in the third-
strike provision, R.C. 2925.041(C)(1).
IV. Resolution of the conflict through the rule of lenity
{¶ 75} The nature of the conflict here is clear: the General Assembly made
a mistake. Either it meant (but failed) to reduce the minimum prison term in the
third-strike provision of R.C. 2925.041(C)(1) to match the new, lesser maximum
prison term permitted by the 9-to-36-month range in the general F3 statute, R.C.
2929.14(A)(3)(b), or it meant (but failed) to either divorce the third-strike provision
from the F3 statute or include it in the list of exceptions in the specific F3 provision.
We should not fix the mistake for the General Assembly; it is not our place to step
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into the shoes of the legislature to speak on its behalf. See Bell v. United States,
349 U.S. 81, 83, 75 S.Ct. 620, 99 L.Ed. 905 (1955) (the rule of lenity, rather than a
judicial fix, must apply “when Congress leaves to the Judiciary the task of imputing
to Congress an undeclared will”). We must therefore strictly construe the third-
strike provision in R.C. 2925.041(C)(1) until the General Assembly provides
language that is capable of being harmonized within the criminal code.
{¶ 76} In order to strictly construe R.C. 2925.041(C)(1), we would not need
to invalidate the third-strike provision in its entirety. When invalidation becomes
necessary, a court “ ‘should refrain from invalidating more of the statute than is
necessary.’ ” Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684, 107 S.Ct. 1476, 94
L.Ed.2d 661 (1987), quoting Regan v. Time, Inc., 468 U.S. 641, 652, 104 S.Ct.
3262, 82 L.Ed.2d 487 (1984) (plurality opinion). The portion of the third-strike
provision that incorporates the F3 statute but raises the mandatory minimum
sentence to the maximum sentence allowable by the F3 statute is just as valid now
as it was before the F3 statute was amended. The only part of the third-strike
provision that cannot currently be applied is the extent to which it exceeds the three-
year maximum in the general sentencing range in R.C. 2929.14(A)(3)(b).
Accordingly, to strictly construe the third-strike provision while preserving it to the
extent that it can be applied, we need only reduce the number five to the number
three.
{¶ 77} Because the rule of lenity allows for a reasonable resolution of the
internal conflict within the language of the third-strike provision of R.C.
2925.041(C)(1) and its external conflict with the general and specific provisions of
the F3 statute, the lead opinion’s appeal to the absurd-result principle, embodied in
R.C. 1.47(C), is unavailing. Although the terms of the F3 statute prevail over the
terms of the third-strike provision, they do not render the third-strike provision
completely inoperative. A defendant facing punishment pursuant to the third-strike
provision of R.C. 2925.041(C)(1) would be sentenced to a mandatory prison term
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of not less than three years and could not be sentenced to as little as nine months in
prison as the lead opinion claims.
{¶ 78} Finally, it bears noting that the lead opinion’s solution requires
deletion of most of the relevant language in the third-strike provision of R.C.
2925.041(C)(1): “the court shall impose as a mandatory prison term one of the
prison terms prescribed for a felony of the third degree that is not less than five
years.” My solution of changing the number five to the number three is far simpler.
It also reflects the fairest possible reading of the applicable statutes and does the
least violence to the language. Thus, in addition to providing a just and logical
result, applying the rule of lenity to this particular conflict provides the simplest,
most straightforward solution.
V. Conclusion
{¶ 79} Although the lead opinion implies otherwise, its objective cannot be
to allow the third-strike provision of R.C. 2925.041(C)(1) to independently apply
as its own specific sentencing provision to the exclusion of the provisions of R.C.
2929.14(A)(3), the F3 statute. Quite the opposite; the justices joining the lead
opinion know that the F3 statute must apply: the third-strike provision in R.C.
2925.041(C)(1) expressly requires as much. The problem is that the lead opinion
is trying to insinuate the third-strike provision into the special, harsher sentencing
range permitted in the later-enacted R.C. 2929.14(A)(3)(a) despite the fact that the
plain language of R.C. 2929.14(A)(3)(a) does not allow the third-strike provision
of R.C. 2925.041(C)(1) to be included.
{¶ 80} It is possible that the General Assembly’s intent was exactly as the
justices joining the lead opinion infer, and it is just as possible that its intent was
otherwise. Regardless, we should not speculate to resolve this kind of conflict,
especially in the context of penal statutes. Until the General Assembly makes its
intent clear in the general and specific sentencing provisions of the F3 statute and
the third-strike provision of R.C. 2925.041(C)(1), we should strictly construe the
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third-strike provision so that its sentencing minimum does not exceed the maximum
allowed by the general sentencing provision in R.C. 2929.14(A)(3)(b). The Fourth
District Court of Appeals understood this quite well, and I would therefore affirm
its judgment.
_________________
David C. Kelley, Adams County Prosecuting Attorney, and Mark R.
Weaver, Assistant Prosecuting Attorney, for appellant.
Timothy Young, Ohio Public Defender, and Allen Vender, Assistant Public
Defender, for appellee.
_________________
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