State v. BoltzState v. Boltz
Paul A. Dobson, Wood County Prosecuting Attorney, Aram M. Ohanian and David E. Romaker, Jr., Assistant Prosecuting Attorneys, for appellant.
Timothy Young, State Public Defender, and Stephen A. Goldmeier, Assistant State Public Defender, for appellee.
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DECISION AND JUDGMENT
PIETRYKOWSKI, J.
{¶ 1} The state appeals a March 9, 2012 judgment of the Wood County Court of Common Pleas in criminal proceedings against Nicholas Boltz, appellee. In the judgment, the trial court accepted a guilty plea by Boltz to two misdemeanors—receiving
{¶ 2} The criminal charges in the case were brought by indictment. Both indictments were for felonies. An August 18, 2011 indictment charged Boltz with receiving stolen property valued at $500 or more and less than $5,000, a violation of
{¶ 3} Boltz failed to appear at a scheduled pretrial on the pending receiving stolen property charge on September 26, 2011, and was consequently charged under an October 20, 2011 indictment with failure to appear, in violation of
{¶ 4} H.B. 86 went into effect on September 30, 2011, after the offense dates on both the receiving stolen property and failure to appear charges. On January 23, 2012, the trial court ordered both parties to submit briefs on the issue of how statutory changes made by H.B. 86 applied to the charges against Boltz.
{¶ 5} The trial court issued a judgment on March 5, 2012. The court ruled that changes under H.B. 86 applied to both pending charges against Boltz. The court held that
{¶ 6} On March 6, 2012, the trial court incorporated these determinations in its Crim.R. 11 plea colloquy with Boltz before accepting his guilty plea to the offenses.
{¶ 7} The state appeals the March 9, 2012 judgment that accepted the guilty plea, convicting Boltz of two first degree misdemeanors, and imposed sentence. The state asserts one assignment of error on appeal:
Appellant‘s Assignment of Error
I. The trial court improperly modified Boltz‘s charges when it reduced his fifth-degree felony actions to a misdemeanor based on the amended theft threshold of H.B. 86.
{¶ 8} H.B. 86 amended
{¶ 9} H.B. 86, Section 4, expressly provides to whom the amendments are applicable:
The amendments to sections * * *
2913.51 * * * of the Revised Code that are made in this act apply to a person who commits an offense specified or penalized under those sections on or after the effective date of this section and to a person whom division B of section 1.58 of the Revised Code makes the amendments applicable.The provisions of sections * * *
2913.51 * * * of the Revised Code in existence prior to the effective date of this section shall apply to a person upon whom a court imposed sentence prior to the effective date of this section for an offense specified or penalized under those sections. The amendments to sections * * *2913.51 * * * that are made in this act do not apply to a person who upon whom a court imposed sentence prior to the effective date of this section for an offense specified or penalized under those sections. (Emphasis added).
{¶ 10} Section (B) of
If the penalty, forfeiture, or punishment for any offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture, or
punishment, if not already imposed, shall be imposed according to the statute as amended.
{¶ 11} Appellant concedes appellee is entitled to the lesser sentencing to the receiving stolen property charge under H.B. 86, but disputes the trial court‘s ruling that classification and sentence both are altered on pending cases after H.B. 86 went into effect. In addition, appellant argues when appellee failed to appear for the pretrial conference on the receiving stolen property charge, that offense was still properly classified as a felony since H.B. 86 was not yet in effect. Failure to appear for a felony charge is a felony in the fourth degree, while failure to appear for a misdemeanor charge is only a misdemeanor offense.
{¶ 12} Numerous trial and appellate courts in Ohio have addressed the question before us in this case since H.B. 86 went into effect on September 30, 2011. The First, Second, Fifth, Tenth, and Eleventh Appellate Districts have found that criminal defendants charged before the effective date of H.B. 86 but sentenced after that date were not only entitled to a reduction in their sentences under H.B. 86, but also to a reduction in the classifications of their crimes. State v. Solomon, 2012-Ohio-5755, 983 N.E.2d 872, ¶ 54 (1st Dist.) (classification reduced from fifth degree felony to fourth degree felony due to H.B. 86 amendments); State v. Arnold, 2d Dist. No. 25044, 2012-Ohio-5786, ¶ 13
{¶ 13} Appellee undoubtedly falls within the language contained in H.B. 86 since
{¶ 14} The relevant question is whether the reference contained in
{¶ 15} First, the legislative intention behind the amendments to H.B. 86 indicates that appellee is entitled to the benefit of a reduced classification of his crime. For instance, the Ohio Legislative Service Commission‘s Bill Analysis on H.B. 86 stated:
Under existing law, the penalties for many theft-related offenses and for certain other non-theft-related offenses are increased as the value of the victim‘s loss, or the value of the property or loss that otherwise was the subject of the offense, increases. Generally, for the offenses, a default penalty (generally a misdemeanor) is provided and that penalty applies unless the value of the property or loss involved in the offense reaches or exceeds a specific threshold. If the specific threshold is reached or
exceeded, an increased penalty (generally a felony) is provided. Pg. 19. (Emphasis added.)
{¶ 16}
{¶ 17} Second, it would be illogical to sentence appellee according to the amendments made under H.B. 86 making his crime a misdemeanor while simultaneously classifying that crime as a felony. As the Fifth District held in Gillespie:
In its simplest form, to constitute a theft offense it need only be proven that some property of value has been taken.
R.C. 2913.02 does not require the indictment to allege, or the evidence to establish, any particular value of the property taken. The offense of theft therein defined is complete and the offender becomes guilty of theft without respect to the value of the property or services involved. However, it becomes necessaryto prove the value of the property taken, and likewise necessary that the jury find the value and state it in the verdict in order to measure the penalty. “Therefore, in such case, the verdict must find the value to enable the court to administer the appropriate penalty.” State v. Whitten, 82 Ohio St. 174, 182, 92 N.E. 79 (1910). (Emphasis in original.) The amendment to
R.C. 2913.02 raising the line of demarcation from five hundred dollars to one thousand dollars relates only to the penalty. 2011 Am.Sub.H.B. No. 86 operates, when the value of the property stolen falls between these two limitations, to reduce the penalty from that prescribed for a felony of the fifth degree to that prescribed for a misdemeanor of the first degree. Accordingly, the amendment comes within the provisions ofR.C. 1.58(B) , requiring, in the instant case, that the amendment be applied, and that the penalty be imposed according to the amendment. That penalty is a misdemeanor offense with a misdemeanor sentence not a felony offense with a misdemeanor sentence. Several cases have appliedR.C. 1.58(B) to situations in which the defendants committed theft offenses prior to, but were sentenced after, the effective date of legislation which reduced their offenses from felonies to misdemeanors. State v. Collier, 22 Ohio App.3d 25, 27, 488 N.E.2d 887 (1984); State v. Coffman, 16 Ohio App.3d 200, 475 N.E.2d 139 (1984); State v. Burton, 11Ohio App.3d 261, 464 N.E.2d 186 (1983). Gillespie, 5th Dist. No. 2012-CA-6, 2012-Ohio-3485, 975 N.E.2d 492, at ¶ 14-15. (Emphasis added.)
{¶ 18} We find this reasoning to be persuasive and reject the contrary reasoning in Steinfurth. It is not reasonable to sentence a criminal defendant under one classification while simultaneously classifying the crime under a different classification. In this case, appellee is clearly entitled under operation of
{¶ 19} Last, we agree with the Eleventh District Court of Appeals that classification of a conviction as a felony rather than a misdemeanor alone imposes additional penalties other than the sentence:
This court agrees there is a benefit to being convicted of a misdemeanor instead of a felony because there are increased collateral penalties associated with a felony conviction by way of forfeiture of certain rights and privileges, i.e., to vote; to be a juror; to hold an office of honor, trust, or profit; circulate or serve as a witness for the signing of any declaration of candidacy and petition, voter registration application, or nominating, initiative referendum or recall position,
R.C. 2961.01 , and having a weapon while under disability,R.C. 2923.13 . By acknowledging the existence of a benefit of being convicted of only a misdemeanor, one
must also acknowledge an additional penalty to conviction of a felony as previously stated. If it is an additional penalty,
R.C. 1.58 dictates conviction of a misdemeanor only. Cefalo, 11th Dist. No. 2011-L-163, 2012-Ohio-5594, ¶ 24.
{¶ 20} As indicated by
{¶ 21} For those reasons, we follow the holdings of the First, Second, Fifth, Tenth, and Eleventh Districts and reject the logic of the Eighth and Ninth Districts. Since appellee fell within the statutory language of Section 4 of H.B. 86 and
{¶ 23} For the foregoing reasons, the state‘s assignment of error is not well-taken. We find that the trial court did not err when it accepted appellee‘s guilty plea to a first degree misdemeanor of receiving stolen property due to the impact of amendments contained in H.B. 86.
{¶ 24} On consideration whereof, we affirm the judgment of the Wood County Court of Common Pleas. Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal.
Judgment affirmed.
Mark L. Pietrykowski, J.
JUDGE
Arlene Singer, P.J.
JUDGE
Thomas J. Osowik, J.
CONCUR.
JUDGE
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.