THE STATE OF OHIO, APPELLEE, v. BOLLAR, APPELLANT.
Nos. 2021-0756 and 2021-0769
SUPREME COURT OF OHIO
December 9, 2022
2022-Ohio-4370
FISCHER, J.
APPEAL from and CERTIFIED by the Court of Appeals for Stark County, No. 2020 CA 00077, 2021-Ohio-1578.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Bollar, Slip Opinion No. 2022-Ohio-4370.]
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-4370
THE STATE OF OHIO, APPELLEE, v. BOLLAR, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Bollar, Slip Opinion No. 2022-Ohio-4370.]
Criminal law—
(Nos. 2021-0756 and 2021-0769—Submitted April 13, 2022—Decided December 9, 2022.
APPEAL from and CERTIFIED by the Court of Appeals for Stark County, No. 2020 CA 00077, 2021-Ohio-1578.
FISCHER, J.
{¶ 1} In this case, we are asked to determine whether an offender must receive separate prison terms for multiple firearm specifications when the criminal offenses to which those firearm specifications are attached have been merged as allied offenses. Because the plain language of
{¶ 2} Appellant, Marquis Bollar, pleaded guilty to three felonies: involuntary manslaughter, felonious assault, and having weapons while under a disability. The count for each offense was accompanied by a firearm specification.
{¶ 3} During the sentencing hearing, Bollar argued that the involuntary-manslaughter and felonious-assault counts should be merged for purposes of sentencing. Appellee, the state, argued that
{¶ 4} The trial court merged the involuntary-manslaughter and felonious-assault counts; however, it imposed a three-year prison term for each of the firearm specifications linked to those counts.
{¶ 5} The Fifth District Court of Appeals affirmed in a two-to-one decision. 2021-Ohio-1578, 172 N.E.3d 499, ¶ 32. In doing so, the appellate court rejected Bollar‘s argument that because the involuntary-manslaughter and felonious-assault counts merged, he could be sentenced for only one firearm specification. Id. at 13. The court reasoned that
{¶ 6} A dissenting judge reasoned that without the imposition of a sentence for the felonious-assault count, the trial court lacked the “ability to impose a related sentence-enhancing specification.” Id. at ¶ 36 (Wise, J., dissenting). In so concluding, the dissenting judge noted that he agreed with the analyses set forth in the Ninth District‘s decision in State v. Roper, 9th Dist. Summit Nos. 26631 and 26632, 2013-Ohio-2176, and in the Eighth District‘s decision in State v. Doyle, 2019-Ohio-979, 133 N.E.3d 890 (8th Dist.). 2021-Ohio-1578 at ¶ 38-40 (Wise, J., dissenting).
{¶ 7} On Bollar‘s motion, the Fifth District certified that its decision was in conflict with the decisions in Roper and Doyle. We subsequently determined that a conflict exists and ordered briefing on the following issue:
Whether Ohio‘s legislature has specifically authorized cumulative punishments for multiple firearm specifications that were committed as part of the same act or transaction
under the narrowly tailored, specifically designated circumstances set forth in R.C. 2929.14(B)(1)(g) , when the underlying felonies attendant to the firearm specifications are merged at sentencing as allied offenses of similar import pursuant toR.C. 2929.14(C)(4) .
164 Ohio St.3d 1409, 2021-Ohio-2795, 172 N.E.3d 178. We also accepted jurisdiction over the sole proposition of law in Bollar‘s discretionary appeal: “Trial courts cannot impose a prison sentence for a specification attached to an offense that merged under
ANALYSIS
{¶ 8} Bollar argues that a person cannot be sentenced for a firearm specification unless the person was convicted of the underlying offense. Bollar asserts that because he was not convicted of the merged count of felonious assault, he cannot be sentenced for the specification attached to that count. He further argues that to uphold the Fifth District‘s decision, this court would have to overrule State v. Ford, 128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d 498, and conclude that
{¶ 9} The state responds that the plain language of
{¶ 10} As we have explained before, when analyzing an issue of statutory interpretation, ” ‘[t]he question is not what did the general assembly intend to enact, but what is the meaning of that which it did enact.’ ” State v. Hudson, ___ Ohio St.3d ___, 2022-Ohio-1435, ___ N.E.3d ___, ¶ 21, quoting Slingluff v. Weaver, 66 Ohio St. 621, 64 N.E. 574 (1902), paragraph two of the syllabus. If the statute‘s language is plain and unambiguous, we apply it as written. Portage Cty. Bd. of Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d 478, ¶ 52, citing State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545, 660 N.E.2d 463 (1996).
{¶ 11}
{¶ 12} As explicitly noted in
If an offender is convicted of or pleads guilty to two or more felonies, if one or more of those felonies are aggravated murder, murder, attempted aggravated murder, attempted murder, aggravated robbery, felonious assault, or rape, and if the offender is convicted of or pleads guilty to a specification of the type described under division (B)(1)(a) of this section in connection with two or more of the felonies, the sentencing court shall impose on the offender the prison term specified under division (B)(1)(a) of this section for each of the two most serious specifications of which the offender is convicted or to which the offender pleads guilty and, in its discretion, also may impose on the offender the prison term specified under that division
for any or all of the remaining specifications.
{¶ 13} In resolving the conflict that exists among the courts of appeals regarding whether
{¶ 14} In State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 23, this court emphasized that
{¶ 15} In Whitfield, this court defined “conviction” as encompassing both a guilty verdict and the imposition of a sentence. Id. at ¶ 24. This definition may be seen as creating tension with
{¶ 16} We now clarify that this court‘s definition of “conviction” in Whitfield does not apply to
{¶ 17} The Eighth District avoided this reading of the statute by looking to this court‘s decision in Ford. Specifically, the Eighth District relied on language in Ford providing that a ” ’ “firearm specification is contingent upon an underlying felony conviction” ’ ” (emphasis added in Doyle), Doyle at ¶ 19, quoting Roper, 2013-Ohio-2176, at ¶ 10, quoting Ford, 128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d 498, at ¶ 16. We note that the court in Ford also provided that a firearm specification is “a sentence enhancement that attaches to a predicate offense.” Id. at ¶ 16.
{¶ 18} We emphasize, however, that the analysis in Ford centered on the question whether the underlying criminal offense and a firearm specification are allied offenses subject to merger under
{¶ 20} This application of the plain language of the statute furthers the apparent legislative goal in enacting
{¶ 21} We note that
{¶ 22} A different conclusion is reached in the dissenting opinion, which relies on
{¶ 23} Ultimately, this is a distinction without a difference, because
{¶ 24} In other words, whereas the plain language of
CONCLUSION
{¶ 25} Because the plain language of
Judgment affirmed.
O‘CONNOR, C.J., and KENNEDY and DEWINE, JJ., concur.
DONNELLY, J., dissents, with an opinion joined by STEWART and BRUNNER, JJ.
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DONNELLY, J., dissenting.
{¶ 26} Respectfully, I dissent. There is no tension between the two statutes at issue in this appeal. One statute,
{¶ 27} Appellant, Marquis Bollar, pleaded guilty to three felony offenses: involuntary manslaughter, felonious assault, and having a weapon while under a disability. Bollar also pleaded guilty to the firearm specifications that were attached to each of
Standard of Review
{¶ 28} Our standard of review in cases that turn on the meaning of statutes is de novo. New York Frozen Foods, Inc. v. Bedford Hts. Income Tax Bd. of Rev., 150 Ohio St.3d 386, 2016-Ohio-7582, 82 N.E.3d 1105, ¶ 8. When a statute is unambiguous, courts must apply it rather than interpret it. Specialty Restaurants Corp. v. Cuyahoga Cty. Bd. of Revision, 96 Ohio St.3d 170, 2002-Ohio-4032, 772 N.E.2d 1165, ¶ 11. Only ambiguous language requires deciphering. See Wingate v. Hordge, 60 Ohio St.2d 55, 58, 396 N.E.2d 770 (1979); Carney v. Shockley, 2014-Ohio-5829, 26 N.E.3d 1228, ¶ 33 (7th Dist.) (DeGenaro, P.J., concurring in judgment only) (“Courts are guided by canons of statutory construction when asked to construe ambiguous statutory language in order to decipher legislative intent“). We may not create ambiguity or “modify an unambiguous statute under the guise of judicial interpretation.” State ex rel. Sears, Roebuck & Co. v. Indus. Comm., 52 Ohio St.3d 144, 148, 556 N.E.2d 467 (1990). Nor may we create a conflict between statutes that are capable of being harmonized. Humphrys v. Winous Co., 165 Ohio St. 45, 133 N.E.2d 780 (1956), paragraph one of the syllabus (“Where there are contradictory provisions in statutes and both are susceptible of a reasonable construction which will not nullify either, it is the duty of the court to give such construction thereto“).
Law and Analysis
{¶ 29} The Fifth District Court of Appeals certified that its decision here was in conflict with State v. Doyle, 2019-Ohio-979, 133 N.E.3d 890 (8th Dist.) and State v. Roper, 9th Dist. Summit Nos. 26631 and 26632, 2013-Ohio-2176, in which the Eighth and Ninth District Courts of Appeals held that no prison term could be imposed for a firearm specification that was attached to an offense that had been merged for purposes of sentencing. Doyle at ¶ 27; Roper at ¶ 11. The majority‘s assertion that the approach taken by the courts of appeals in Doyle and Roper is “in tension with the plain language of
{¶ 30} Three statutory provisions inform this analysis. The first is the statute governing the merger of certain offenses: “Where the same conduct by defendant can be construed to constitute two or more
{¶ 31} The second statutory provision that is critical to the analysis is
{¶ 32} Allied offenses of similar import are offenses committed in the same time frame and with the same animus that are so similar that commission of one will result in the commission of the other. State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, ¶ 14, abrogated in part by State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, abrogated in part by State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892. The “same act or transaction” referred to in
{¶ 33} The third statutory provision that is relevant to this analysis is
If an offender is convicted of or pleads guilty to two or more felonies, if one or more of those felonies are aggravated murder, murder, attempted aggravated murder, attempted murder, aggravated robbery, felonious assault, or rape, and if the offender is convicted of or pleads guilty to a specification of the type described under division (B)(1)(a) of this section in connection with two or more of the felonies, the sentencing court shall impose on the offender the prison term specified under division (B)(1)(a) of this section for each of the two most serious specifications of which the offender is convicted or to which the offender pleads guilty * * *.
(Emphasis added.)
{¶ 34} If a trial court were to apply the foregoing statutory schemes as written, it could impose all applicable sentencing enhancements to the offenses that remain after merger, but it could not impose a sentence for any specifications attached to the counts that were merged. The majority reaches the opposite conclusion based on what it purports to be an application of the plain language of the applicable statutes, but the majority‘s analysis belies this claim. Instead, the majority opinion creates ambiguity by focusing on the discussion of
{¶ 35} The majority finds it important that both
{¶ 36} This court recognized in Whitfield that
{¶ 37} The dissenting opinion in Whitfield pointed out that the majority‘s definition of “convicted” for purposes of
[T]he use of the term “convicted” throughout the Revised Code, while not defined, clearly implies only the finding of guilt.
See, e.g.,
R.C. 2929.01(EE) (” ‘Sentence’ means the sanction or combination of sanctions imposed by the sentencing court on an offender who is convicted of or pleads guilty to an offense“) (emphasis added);R.C. 2929.19(A) (“The court shall hold a sentencing hearing before imposing a sentence under this chapter upon an offender who was convicted of or pleaded guilty to a felony * * *“) (emphasis added);R.C. 2929.16(E) (“If a person who has been convicted of or pleaded guilty to a felony is sentenced to community residential sanction“) (emphasis added);R.C. 2930.19(C) (“The failure of any person or entity to provide a right, privilege, or notice to a victim under this chapter does not constitute grounds for declaring a mistrial or new trial, for setting aside a conviction, sentence, adjudication, or disposition, or for granting postconviction release to a defendant or alleged juvenile offender“) (emphasis added).
Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, at ¶ 33 (Lanzinger, J., dissenting). Thus, we already know that this court‘s definition of the term “convicted” as set forth in Whitfield applies only to the narrow context of
{¶ 38} The difference between the meaning of “convicted” in
{¶ 39} Whatever insight Whitfield‘s definition of “convicted” provides for the process of merging allied offenses of similar import prior to sentencing, it provides no insight into the process of merging firearm specifications that are attached to the remaining offenses.
{¶ 40} Applying
{¶ 41} The principle of law that forms the basis of the decision in Ford is that a “firearm specification is contingent upon an underlying felony conviction.” Id., 128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d 498, at ¶ 16. This court specifically tied its reasoning to the wording of the firearm-specification-sentencing provisions contained in
{¶ 42} In the only portion of its decision that resembles a plain-language analysis, the majority now holds that a trial court must impose prison terms for firearm specifications even though the felony underlying the specification has been merged, because
{¶ 43} Finally, the majority proceeds in its analysis to apply canons of statutory construction as if the language in
{¶ 44} Bollar pleaded guilty to involuntary manslaughter, felonious assault, and having a weapon while under a disability. Bollar also pleaded guilty to three firearm specifications of the type described in
{¶ 45} The two convictions for which Bollar was sentenced—involuntary manslaughter and having a weapon while under a disability—were not allied offenses subject to merger, but they were part of the same act or transaction. The trial court would normally be prohibited from imposing more than one prison term for the specifications under
{¶ 46} Because the statutes are reconcilable as described above, we must apply their plain language and give effect to each. The imposition of prison terms for two firearm specifications is required under the facts of this case, but not for the two offenses identified by the majority and the Fifth District and not for the reasons articulated by the majority opinion. The trial court must impose prison terms for the firearm specifications connected to the offenses of involuntary manslaughter and having a weapon while under a disability, based on the plain language of
{¶ 47} I would therefore reverse the judgment of the Fifth District Court of Appeals, which affirmed the trial court‘s sentencing decision, and I would remand the cause to the trial court with instructions to vacate the three-year sentence imposed for the firearm specification that was attached to the merged felonious-assault offense and to impose a three-year sentence for the firearm specification that was attached to the having-a-weapon-while-under-a-disability offense.
{¶ 48} Accordingly, I respectfully dissent.
STEWART and BRUNNER, JJ., concur in the foregoing opinion.
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Kyle L. Stone, Stark County Prosecuting Attorney, and Timothy E. Yahner, Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Max Hersch, Assistant Public Defender, for appellant.
Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, and Byers Emmerling, Assistant Attorney General, urging affirmance for amicus curiae, Ohio Attorney General Dave Yost.