State v. Solomon, 983 N.E.2d 872

Solomon was a passenger in a car stopped by police; a bottle of Oxycodone and crack cocaine were found in the vehicle.
Grand jury indicted Solomon on three counts: aggravated possession of Oxycodone (fifth degree), aggravated trafficking in Oxycodone (fifth degree but charged as a different tier), and possession of cocaine (fourth degree under old law).
At a bench trial in Oct. 2011, the court convicted Solomon of aggravated possession of Oxycodone as a third-degree felony, increasing the charged degree, and convicted possession of cocaine as a fourth-degree felony.
Count two (aggravated trafficking) was acquitted; sentences followed, including three years of community control and a three-year driver’s-license suspension.
HB 86 amended R.C. 2925.11 and related statutes, lowering penalties and eliminating differences between crack and powder cocaine; the amendments became effective Sept. 30, 2011.
Solomon appealed, challenging the court’s misapplication of the statute and the sentencing under HB 86.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did the trial court plain-err in convicting count one as a third-degree felony?	Solomon: indictment charged fifth degree; conviction amended the charge.	State: no issue; error conceded.	Yes, plain error; conviction incorrect.
Whether HB 86 amendments and R.C. 1.58(B) require applying amended penalties to pre-sentencing offenders.	Solomon: 1.58(B) applies to reduce level/penalty; should have reduced offense and penalties.	State: apply only reduced penalty, not reduced offense; Kaplowitz controls.	The court applies 1.58(B) to grant reduced punishment; but held that the level/degree reduction applies to this case; remand to apply amended offense and penalty.
Does R.C. 1.58(B) apply to give Solomon a reduced offense level under HB 86 despite pre-September 30, 2011 conduct?	Solomon: 1.58(B) allows reductions for those sentenced after HB 86; amendments apply.	State: 1.58(B) does not reduce offense level; Kaplowitz controls.	Court adopts interpretation that amended statute applies and reduce offense level for those sentenced after HB 86; but reverses conviction to reflect two fifth-degree felonies and resentence.
Was Solomon denied effective assistance of counsel for failing to object to the degree of count one?	Solomon: counsel failed to object to third-degree conviction.	State: not addressed; no procedural waiver shown.	Yes, ineffective assistance established; remand for resentencing on corrected counts.

State v. Davis, 121 Ohio St.3d 239 (2008-Ohio-4537) (plain-error framework for mischarging a crime)
State v. Rush, 83 Ohio St.3d 53 (1998) (savings clause interpretation for amended penalties)
State v. Lawrence, 74 Ohio St.38 (1906) (historic interpretation of savings provisions)
State v. Collier, 22 Ohio App.3d 25 (1984) (amendment reducing penalty affects sentencing)
State v. Coffman, 16 Ohio App.3d 200 (1984) (support for overlapping statute interpretations)
State v. David, 2012-Ohio-3984 (5th Dist. 2012) (retroactivity of HB 86 under 1.58)
State v. Gillespie, 2012-Ohio-3485 (5th Dist. 2012) (HB 86 retroactivity considerations)
State v. Limoli, 2012-Ohio-4502 (10th Dist. 2012) (Limoli on applying 1.58(B) to amended statutes)
State v. Gatewood, 2012-Ohio-4181 (2d Dist. 2012) (HB 86 applicability to cocaine offenses)
State v. Steinfurth, 2012-Ohio-3257 (8th Dist. 2012) (1.58(B) scope; reduced penalty vs reduced offense)
State v. Kaplowitz, 100 Ohio St.3d 205 (2003-Ohio-5602) (1.58(B) does not reduce offense level)