State v. Pendergrass (Slip Opinion), 164 N.E.3d 306

Gerald Pendergrass was convicted in Sept. 2016 of unlawful sexual conduct with a minor and was later indicted in Sept. 2017 for separate alleged misconduct that occurred between May 2013 and May 2015 (i.e., before the 2016 conviction).
The 2017 indictment sought to elevate the offense from a fourth-degree felony to a second-degree felony under R.C. 2907.04(B)(4), which applies when an "offender previously has been convicted of" certain listed sex offenses.
Pendergrass moved to dismiss the enhancement, arguing the prior conviction must exist at the time the charged offense was committed; the trial court granted the motion.
The court of appeals reversed, concluding any prior qualifying conviction entered before the new indictment is sufficient to trigger the enhancement.
The Ohio Supreme Court reversed the court of appeals and reinstated the trial-court judgment, holding that the statutory text (and, at minimum, the rule of lenity) supports the view that the qualifying conviction must have existed when the offense was committed.
A dissent argued the statute is plain and unambiguous: the phrase "previously has been convicted" requires only that a qualifying conviction be on the record when new charges are filed.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Pendergrass)	Held
Whether the phrase "previously has been convicted" in R.C. 2907.04(B)(4) means "previous to the indictment" or "previous to the charged conduct"	The word "previously" requires only that a qualifying conviction predate filing of the new indictment; charging order/policy supports this reading	"Previously" refers to convictions that existed at the time the offense was committed; otherwise defendants could be punished retroactively and the statute is ambiguous so rule of lenity applies	The Court held the enhancement applies only when the defendant had the qualifying conviction at the time of the charged criminal act (and resolved remaining doubt in defendant's favor under the rule of lenity)

State v. Smith, 818 N.E.2d 283 (Ohio 2004) (addressed whether an enhancement could be premised on a conviction in the same indictment; discussed temporal referent "prior to the indictment")
State v. Brantley, 205 N.E.2d 391 (Ohio 1965) (interpreted "first" vs "subsequent" offense language in a statutory penalty scheme)
Deal v. United States, 508 U.S. 129 (U.S. 1993) (criticized allowing prosecutorial charging order to alter statutory punishment)
United States v. Santos, 553 U.S. 507 (U.S. 2008) (plurality discussing rule of lenity in ambiguous criminal statutes)
United States v. Talley, 16 F.3d 972 (8th Cir. 1994) (construed "previous convictions" in a federal sentencing enhancement)
State v. Elmore, 912 N.E.2d 582 (Ohio 2009) (explained Ohio's rule of lenity and that criminal statutes should not be read to increase penalties when ambiguous)
State v. Gwen, 982 N.E.2d 626 (Ohio 2012) (prior convictions that affect degree of offense must be alleged and proven beyond a reasonable doubt)