THE STATE OF OHIO, APPELLEE, v. ASHCRAFT, APPELLANT.
No. 2021-1491
Supreme Court of Ohio
December 23, 2022
2022-Ohio-4611
FISCHER, J.
Submitted July 13, 2022. APPEAL from the Court of Appeals for Knox County, No. 21CA000002, 2021-Ohio-3842.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Ashcraft, Slip Opinion No. 2022-Ohio-4611.]
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 formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2022-OHIO-4611
THE STATE OF OHIO, APPELLEE, v. ASHCRAFT, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Ashcraft, Slip Opinion No. 2022-Ohio-4611.]
(No. 2021-1491—Submitted July 13, 2022—Decided December 23, 2022.
APPEAL from the Court of Appeals for Knox County, No. 21CA000002, 2021-Ohio-3842.
FISCHER, J.
{¶ 1} In this discretionary appeal from the Fifth District Court of Appeals, this court is asked to determine whether a defendant may be subject to a sentence imposed under
Facts
{¶ 2} In 2013, appellant, Michael Ashcraft, was convicted of unlawful sexual conduct with a minor, a third-degree felony. Ashcraft‘s conviction required him to register as a sex offender and comply with the requirements in
{¶ 3} In 2020, Ashcraft was charged with another violation of
{¶ 4} Ashcraft appealed, arguing that the nine-month term of imprisonment imposed in addition to the three-year term was contrary to law because it was not authorized by Ohio‘s sentencing statutes. Ashcraft argued that
{¶ 5} Finding that Ashcraft had failed to object to his sentence in the trial court, the court of appeals reviewed Ashcraft‘s sentence for plain error. Reviewing the statutes at issue, the court held that
{¶ 6} This court accepted jurisdiction over Ashcraft‘s appeal to determine whether his sentence is contrary to law. See 166 Ohio St.3d 1405, 2022-Ohio-461, 181 N.E.3d 1194.
Standard of Review
{¶ 7} Statutory interpretation is a matter of law, and thus we review this matter de novo. State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, 11 N.E.3d 1175, ¶ 9. When interpreting a statute, we must first look at the language of the statute itself. Id. If the language is clear and unambiguous, as it is in this case, we must apply it as written. Id.; Wilson v. Lawrence, 150 Ohio St.3d 368, 2017-Ohio-1410, 81 N.E.3d 1242, ¶ 11.
The Statutes
R.C. 2950.99(A)(2)(b)—the repeat-violation provision
{¶ 8} Ashcraft violated
{¶ 9} Relevant here, division (A)(1)(b)(ii) states that a repeat violation will be a felony of the same degree as the original offense that required the defendant to register as a sex offender if the original offense was a felony of the first, second, or third degree.
R.C. 2929.14—the base penalty statute
{¶ 10}
Analysis
{¶ 11} In this case, the trial court imposed a nine-month prison term under the base penalty statute for the third-degree felony and a three-year prison term under the repeat-violation provision. The repeat-violation provision requires the three-year prison term to be imposed “[i]n addition to any penalty or sanction imposed under * * * any other provision of law.”
{¶ 12} However, the repeat-violation provision also singles out divisions (A)(1)(b)(i), (ii), and (iii) of
{¶ 13} The second dissenting opinion says that the three-year penalty is to be imposed ”in addition to whatever penalties or sanctions are imposed under the law” and that the court must impose a prison sanction “and” a three-year term of imprisonment. (Emphasis added.) Dissenting opinion of Stewart, J., ¶ 43. But then it concludes that the three-year prison term “is not an additional prison term,” id., because the phrase “any penalty or sanction imposed under division (A)(1)(b)(i), (ii), or (iii)” in
{¶ 14} Furthermore, the statutory structure for first-time offenders provides guidance on how the statute should be read for repeat offenders and, again, requires courts to impose prison sentences under the base penalty statute. For first-time offenders, the court must apply
{¶ 15} The punishment for repeat offenders is laid out in the exact same way. The court must refer to
{¶ 16} Ashcraft argues that the General Assembly did not intend the three-year prison sentence in the repeat-violation provision to apply in addition to a prison
{¶ 17} There are multiple problems with his argument. The first problem is that clear statutory language refutes Ashcraft‘s argument. The repeat-violation provision clearly states that the three-year term must be imposed “[i]n addition to” any penalty or sanction imposed under any other provision of law.
{¶ 18} The second problem with Ashcraft‘s argument is that it is far from clear that the repeat-violation provision does not apply to fourth-degree felonies. While the provision does omit division (A)(1)(b)(iv) from its list of specified divisions, it concludes the list with the phrase “any other provision of law.”
{¶ 19} The final problem with Ashcraft‘s argument is that even if the statutory language were ambiguous, and even if it were clear that the provision did not apply to fourth-degree felonies, the omission would not demonstrate the intent that Ashcraft argues it does. Ashcraft argues that the General Assembly would have included fourth-degree felonies if it had intended the three-year mandatory prison term to apply in addition to other prison terms imposed. But a felony of the fourth degree is the least serious felony conviction that a defendant may receive for a repeat violation of the
{¶ 20} Next, Ashcraft argues that the terms “penalty” and “sanction” can mean fines, court costs, and postrelease control and that their meanings are not limited to prison time. While this is true, the terms also include prison time. While neither “sanction” nor “penalty” is defined in
{¶ 22} The second dissenting opinion argues that the repeat-violation provision cannot impose a three-year prison term “in addition to” another sentence, because such a provision would violate the Fifth Amendment to the United States Constitution and be void for vagueness. But we cannot rewrite the statute to avoid constitutional issues. We must interpret the statute as it is written. Reading the statute in the way the dissenting opinions propose would require us to bend over backwards to completely ignore words that the General Assembly chose to include in the statute. Furthermore, none of the parties in this case have challenged the constitutionality of the statute, so that analysis remains for another day.
{¶ 23} Therefore, under the unambiguous language of
Conclusion
{¶ 24} The statutory language at issue is clear and unambiguous. The three-year prison term in the repeat-violation provision is to be imposed “[i]n addition to” any sanction imposed “under division (A)(1)(b)(i), (ii), or (iii)” of
Judgment affirmed.
KENNEDY and DEWINE, JJ., concur.
O‘CONNOR, C.J., concurs, with an opinion joined by BRUNNER, J.
DONNELLY, J., dissents, with an opinion.
STEWART, J., dissents, with an opinion.
O‘CONNOR, C.J., concurring.
{¶ 25} I agree with the majority opinion that under the plain language of the statute, a sentence may be imposed under the repeat-violation provision,
{¶ 26} The repeat-violation provision is quite convoluted. Alluding to as much, the majority avoids quoting much of the language in
{¶ 27} For starters, the repeat-violation provision commences with the following phrase: “In addition to any penalty or sanction imposed under division (A)(1)(b)(i), (ii), or (iii) of [
If the most serious sexually oriented offense or child-victim oriented offense that was the basis of the * * * change of address notification * * * requirement that was violated under the prohibition is a felony of the first, second, or third degree * * *, the offender is guilty of a felony of the same degree as the most serious sexually oriented offense or child-victim oriented offense that was the basis of the * * * change of address * * * requirement that was violated under the prohibition * * *.
(Emphasis added.) Because
{¶ 28} After stating, “In addition to any penalty or sanction imposed under division (A)(1)(b)(i), (ii), or (iii) of this section or any other provision of law,” the repeat-violation provision continues, “the court imposing a sentence upon the offender shall impose a definite prison term of no less than three years.” (Emphasis added.)
{¶ 29} Moreover, while the trial court in this case sentenced appellant, Michael Ashcraft, to only three years of imprisonment in relation to the repeat-violation offense, the repeat-violation provision seems to suggest that the court could have chosen any number of years for his prison term, as long as it was at least three years. I find this grant of discretion unusually expansive and suggestive that the provision‘s plain language could lead to unintended consequences.
{¶ 30} Indeed, these shortcomings of the repeat-violation provision have led to a strange result in this case. Rather than a single sanction for his second violation of his requirement to notify of a change of address, Ashcraft received a three-year prison term imposed under the repeat-violation provision in addition to a nine-month prison term imposed under the general sentencing statute,
BRUNNER, J., concurs in the foregoing opinion.
DONNELLY, J., dissenting.
{¶ 31} I respectfully dissent. I would reverse the court of appeals’ judgment and reduce the prison sentence of appellant, Michael Ashcraft, because the trial court twice imposed a third-degree felony prison term for a single offense: once with the enhanced minimum term of three years as required by
{¶ 32} My reasons for dissenting here are largely similar to the reasons I expressed in my dissent in State v. Pribble, 158 Ohio St.3d 490, 2019-Ohio-4808, 145 N.E.3d 259. Like Pribble, this case involves a statute that applies to criminal sentencing for repeat offenders. The statute at issue in Pribble—
{¶ 33} The trouble with Pribble is that a plurality of this court treated
{¶ 34} Even more trouble abounds in today‘s decision. A majority of this court is treating
{¶ 35} The way that
{¶ 36} However,
{¶ 37} The majority‘s claim that the “clear and unambiguous” language of
{¶ 38} Ashcraft‘s repeated failure to provide a change-of-address notification for his sex-offender registration was a third-degree felony due to the felony level of his underlying sex offense. He was therefore subject to a prison term of three years—no more, no less—under
STEWART, J., dissenting.
{¶ 39} The language of
The language of R.C. 2950.99(A)(2)(b) is ambiguous and therefore the rule of lenity applies
{¶ 40}
In addition to any penalty or sanction imposed under division (A)(1)(b)(i), (ii), or (iii) of this section or any other provision of law for a violation of a prohibition in section
2950.04 ,2950.41 ,2950.05 , or2950.06 of the Revised Code, if the offender previously has been convicted of or pleaded guilty to * * * a violation of a prohibition in section2950.04 ,2950.41 ,2950.05 , or2950.06 of the Revised Code * * * the court imposing a sentence upon the offender shall impose a definite prison term of no less than three years.
(Emphasis added.) The majority opinion reaches the conclusion that
{¶ 41} To reach this determination the majority opinion makes the following assertions:
Those divisions [
R.C. 2950.99(A)(1)(b)(i) , (ii), and (iii)] do not impose penalties or sanctions independently, but they do determine the degree of the felony for the repeat violation. Therefore, in the repeat-violation provision, “penalty or sanction imposed under division (A)(1)(b)(i), (ii), or (iii)” means any penalty or sanction imposed on the defendant for the degree of felony determined under those divisions. And courts impose sanctions based on the degree of felony under the base penalty statute. Therefore, even if the repeat-violation provision had not used thesweeping phrase “any other provision of law,” the remaining language in the statute would still impose a three-year sentence in addition to any sentence imposed under the base penalty statute.
(Emphasis added.) Majority opinion, ¶ 12.
{¶ 42} The problem with the majority‘s analysis here is that it makes the mistake of simply assuming that the phrase “any penalty or sanction imposed” refers to trial-court action—specifically, the imposition of a sentence2 including the penalty or sanction of a prison term applicable to the felony level for a repeat violation of
{¶ 43} It is thus just as reasonable to read
{¶ 44} While the majority‘s interpretation may be reasonable, it certainly is not the only reasonable interpretation of the statute, as demonstrated above. Nor is it the most reasonable interpretation, as explained in the next section. The point here is that when two reasonable interpretations exist, a statute is ambiguous. And when a statute defining offenses or penalties is ambiguous,
The majority‘s interpretation runs headlong into a void-for-vagueness problem
{¶ 45} As the concurring opinion and other dissenting opinion point out, the majority‘s
This Court has held that the Due Process Clause prohibits the Government from “taking away someone‘s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” Johnson [v. United States], 576 U.S. [591], at 595, 135 S.Ct. [2551, 192 L.Ed.2d 569 (2015)] (citing Kolender v. Lawson, 461 U.S. 352, 357-358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983)). Applying this standard, the Court has invalidated two kinds of criminal laws as “void for vagueness“: laws that define criminal offenses and laws that fix the permissible sentences for criminal offenses.
For the former, the Court has explained that “the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Id., at 357. For the latter, the Court has explained that “statutes fixing sentences,” Johnson, supra, at 596, (citing United States v. Batchelder, 442 U.S. 114, 123, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979)), must specify the range of available sentences with “sufficient clarity,” id., at 123; see also United States v. Evans, 333 U.S. 483, 68 S.Ct. 634, 92 L.Ed. 823 (1948); cf. Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966).
(Emphasis added.) Id. at 137 S.Ct. at 892. Applying the majority‘s interpretation of the statute,
{¶ 46} For all the above reasons, the language of
Charles T. McConville, Knox County Prosecuting Attorney, and Nicole E. Derr, Assistant Prosecuting Attorney, for appellee.
Todd W. Barstow, for appellant.
Steven L. Taylor, urging affirmance on behalf of amicus curiae, Ohio Prosecuting Attorneys Association.