State v. Polus (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Polus, Slip Opinion No. 2016-Ohio-655.]
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. 2016-OHIO-655
THE STATE OF OHIO, APPELLANT, v. POLUS, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Polus, Slip Opinion No. 2016-Ohio-655.]
Criminal law—Sentencing—A trial court may not impose consecutive sentences for
felony and misdemeanor convictions under R.C. 2929.41(B)(1).
(No. 2014-1062—Submitted June 24, 2015—Decided February 25, 2016.)
CERTIFIED by the Court of Appeals for Lucas County, Nos. L-13-1119 and
L-13-1120, 2014-Ohio-2321.
_________________
O’NEILL, J.
{¶ 1} Appellee, Walter Polus, pled guilty to two counts of receiving stolen
property, one a fifth-degree felony and the other a first-degree misdemeanor. The
Lucas County Court of Common Pleas ordered Polus to serve the sentences
imposed for the two offenses consecutively. Polus appealed, and the Sixth District
Court of Appeals reversed the part of the trial court’s order that imposed the two
sentences consecutively. At the request of the State of Ohio, we recognized a
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conflict, 140 Ohio St. 3d 1413, 2014-Ohio-3785, 15 N.E.3d 882, and now consider
the following issue:
“Whether a trial court may impose consecutive sentences for felony and
misdemeanor convictions under R.C. 2929.41(B)(1).”
{¶ 2} We answer the certified question in the negative, affirm the judgment
of the court of appeals, and remand the matter to the trial court for further
proceedings consistent with this opinion.
Facts and Procedural History
{¶ 3} On two occasions, Polus purchased tools that he suspected were stolen
and later offered them for sale. The state sought and acquired a grand-jury
indictment that charged Polus in February 2013 with two fifth-degree felony counts
of receiving stolen property. The state asked the trial court to amend the second
count to a first-degree misdemeanor, and in return Polus agreed to plead guilty to
those two charges.
{¶ 4} The trial court accepted the guilty pleas to the charges as amended,
sentencing Polus to serve an 11-month term in prison for the felony and a six-month
term for the misdemeanor. The court ordered Polus to serve the felony and
misdemeanor sentences consecutively.
{¶ 5} Thereafter, in a separate case involving other charges, Polus pled
guilty to—and was convicted of—two fifth-degree felony counts of receiving
stolen property. The court imposed two 11-month prison terms for these
convictions and ordered Polus to serve them consecutively to one another and to
the terms imposed in the case stemming from the February 2013 indictment.
Neither party has raised any issue with the consecutive-sentencing order in the case
involving the subsequently filed charges, and we do not address that order.
{¶ 6} Polus appealed to the Sixth District Court of Appeals. He argued that
a sentencing order running a jail term for a misdemeanor consecutively to a prison
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January Term, 2016
sentence for a felony is contrary to R.C. 2929.41(A).1 Consistent with prior
decisions from the Sixth District, the court of appeals held that the language of R.C.
2929.41(A) and 2929.41(B)(1) creates an ambiguity that must be construed against
the state under R.C. 2901.04(A). 2014-Ohio-2321, ¶ 15. The court therefore
reversed the trial court’s sentencing order insofar as it ran the misdemeanor jail
term consecutively to the felony prison sentence and modified the sentence to run
the terms of confinement concurrently. Id. at ¶ 23-24. Sua sponte, the court of
appeals certified that its holding conflicted with holdings issued by the Fifth and
Eighth District Courts of Appeals in State v. Vanmeter, 5th Dist. Fairfield No. 2011-
CA-0032, 2011-Ohio-6110; State v. Varney, 5th Dist. Perry No. 13 CA 00002,
2014-Ohio-193; and State v. Barker, 8th Dist. Cuyahoga No. 99320, 2013-Ohio-
4038. 2014-Ohio-2321, ¶ 18.
Analysis
{¶ 7} The threshold issue in this matter is whether the statute is ambiguous.
In the normal course, statutes mean what they say by their plain language. In re
T.R., 120 Ohio St. 3d 136, 2008-Ohio-5219, 896 N.E.2d 1003, ¶ 8. “If the language
is clear and unambiguous, we must apply the statute as written.” Id. When a statute
presents an ambiguity, however, the legislature has directed us in R.C. 1.49 to
consider several factors to determine legislative intent. In criminal cases, we
construe “sections of the Revised Code defining offenses or penalties * * * against
the state, and liberally * * * in favor of the accused.” R.C. 2901.04(A).
{¶ 8} R.C. 2929.41 states:
(A) Except as provided in division (B) of this section, * * *
a prison term, jail term, or sentence of imprisonment shall be served
1
The court of appeals modified Polus’s sentence for the misdemeanor conviction to substitute 180
days for six months. 2014-Ohio-2321, ¶ 20-23. The parties have not raised any issues with this
aspect of the judgment of the court of appeals.
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concurrently with any other prison term, jail term, or sentence of
imprisonment imposed by a court of this state, another state, or the
United States. Except as provided in division (B)(3) of this section,
a jail term or sentence of imprisonment for misdemeanor shall be
served concurrently with a prison term or sentence of imprisonment
for felony served in a state or federal correctional institution.
(B)(1) A jail term or sentence of imprisonment for a
misdemeanor shall be served consecutively to any other prison term,
jail term, or sentence of imprisonment when the trial court specifies
that it is to be served consecutively or when it is imposed for a
misdemeanor violation of section 2907.322, 2921.34, or 2923.131
of the Revised Code.
***
(B)(3) A jail term or sentence of imprisonment imposed for
a misdemeanor violation of section 4510.11, 4510.14, 4510.16,
4510.21, or 4511.19 of the Revised Code shall be served
consecutively to a prison term that is imposed for a felony violation
of section 2903.06, 2903.07, 2903.08, or 4511.19 of the Revised
Code or a felony violation of section 2903.04 of the Revised Code
involving the operation of a motor vehicle by the offender and that
is served in a state correctional institution when the trial court
specifies that it is to be served consecutively.
(Emphasis added.)
{¶ 9} The court of appeals determined that R.C. 2929.41 is ambiguous
because “provision (B)(1) vests the trial court with authority to impose consecutive
sentences” while the above-italicized language in R.C. 2929.41(A) “would appear
to prohibit consecutive sentences for a felony and misdemeanor unless provision
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January Term, 2016
(B)(3) applies.” 2014-Ohio-2321, ¶ 7. As the court noted and neither party
disputes, R.C. 2929.41(B)(3) is inapplicable to this matter.
{¶ 10} We find no ambiguity in R.C. 2929.41 regarding the issue that we
resolve today. The first sentence of R.C. 2929.41(A) enacts the general rule
requiring concurrent sentencing with only clearly delineated exceptions, including
the provisions in R.C. 2929.41(B) and other statutes not applicable to this matter.
The second sentence of R.C. 2929.41(A) creates a more specific rule that speaks
directly to the certified question in this matter: subject only to the exceptions stated
in R.C. 2929.41(B)(3), a trial court must impose concurrent sentences for felony
and misdemeanor convictions.
{¶ 11} Our prior authorities regarding R.C. 2929.41 do not control the
outcome of this matter, but they do support our determination. The last time we
considered this question, we held that “R.C. 2929.41(A) requires that a sentence
imposed for a misdemeanor conviction must be served concurrently with any felony
sentence.” State v. Butts, 58 Ohio St. 3d 250, 569 N.E.2d 885 (1991), syllabus.
When we decided Butts, the second sentence of R.C. 2929.41(A) stated, “In any
case, a sentence of imprisonment for misdemeanor shall be served concurrently
with a sentence of imprisonment for felony served in a state or federal penal or
reformatory institution.” (Emphasis sic.) Am.Sub.S.B. No. 258, 143 Ohio Laws,
Part I, 1307, 1438; see Butts at 251. In 2000, the General Assembly replaced the
phrase “[i]n any case” with the phrase “[e]xcept as provided in division (B)(2) of
this section.” Am.Sub.S.B. No. 22, 148 Ohio Laws, Part IV, 8353, 8389. R.C.
2929.41(B)(2) was renumbered as R.C. 2929.41(B)(3) effective in 2004,
Am.Sub.S.B. No. 123, 149 Ohio Laws, Part II, 2467, 2661, and it is substantially
the same today. This new language has no effect on our analysis, as it is undisputed
that subsection (B)(3) does not apply in this matter as an exception to the general
rule in favor of concurrent sentencing.
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{¶ 12} Although some lower courts have read R.C. 2929.41(B)(1) to
contradict our conclusion, we do not. We must presume that the General Assembly
intended every part of the statute to be effective. R.C. 1.47(B). “No part [of a
statute] should be treated as superfluous unless that is manifestly required, and the
court should avoid that construction which renders a provision meaningless or
inoperative.” State ex rel. Myers v. Spencer Twp. Rural School Dist. Bd. of Edn.,
95 Ohio St. 367, 373, 116 N.E. 516 (1917). Accordingly, we cannot say that a trial
court may impose consecutive sentences for any set of felony and misdemeanor
convictions under R.C. 2929.41(B)(1) because R.C. 2929.41(B)(3) more narrowly
circumscribes the authority of the trial courts. To do so would be to write
subsection (B)(3) out of the Revised Code. Instead, we hold that R.C.
2929.41(B)(1) merely “requires a sentencing court to impose sentences for
misdemeanor violations of R.C. 2907.322 (pandering sexually oriented matter
involving a minor), 2921.34 (escape), or 2923.131 (possession of deadly weapon
while under detention) ‘consecutively to any other prison term, jail term, or
sentence of imprisonment.’ ” State v. Johnson, 116 Ohio St. 3d 541, 2008-Ohio-69,
880 N.E.2d 896, ¶ 14, quoting R.C. 2929.41(B)(1). The reference in R.C.
2929.41(B)(1) to a trial court’s authority to “specif[y]” consecutive sentences refers
only to the authority delineated in R.C. 2929.41(B)(3).
Conclusion
{¶ 13} Accordingly, we answer the certified question in the negative, affirm
the judgment of the court of appeals, and remand the matter to the trial court for
further proceedings consistent with this opinion.
Judgment affirmed
and cause remanded.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY, and
FRENCH, JJ., concur.
O’DONNELL, J., dissents.
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January Term, 2016
_________________
Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett,
Assistant Prosecuting Attorney, for appellant.
Groth & Associates and Tim A. Dugan, for appellee.
Timothy Young, Ohio Public Defender, and Valerie Kunze, Assistant
Public Defender, urging affirmance for amicus curiae, Office of the Ohio Public
Defender.
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