State v. CefaloState v. Cefalo
R. Paul LaPlante, Lake County Public Defender, and Vanessa R. Clapp, Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-Appellant).
O P I N I O N
THOMAS R. WRIGHT, J.
{¶1} Appellant, James J. Cefalo, appeals from a judgment of the Lake County Court of Common Pleas. Appellant challenges the trial court’s denial of his motion to dismiss or amend the information and its finding that he was guilty of a fifth-degree felony theft offense.
{¶3} Based on the statutory reclassification of his offense as a first-degree misdemeanor, appellant filed a motion to dismiss or amend the information and the State responded. On November 22, 2011, the trial court held a hearing on the motion. Following the trial court’s denial of the motion, appellant waived his right to indictment and pled “no contest” to the fifth-degree felony charge in the information. Appellant was sentenced to 147 days in jail, for which he received credit for time served, and was immediately released from jail.
{¶4} In its November 22, 2011 judgment entry, the court stated that it was permitting appellant “to plead ‘No Contest’ solely to allow [him] to vacate his plea to a felony of the fifth degree and immediately enter a plea to a misdemeanor of the first degree should it be determined that House Bill 86 requires that the offense be modified in that regard.” The court proceeded to retain jurisdiction in order to re-address the plea
{¶5} “The trial court erred in finding that House Bill 86 reduced only the defendant-appellant’s potential sentence but not the level of seriousness of his theft offense.”
{¶6} In his single assignment of error, appellant argues the trial court erred in finding him guilty of a fifth degree felony theft when H.B. 86 retroactively altered the threshold levels for misdemeanor thefts to $1,000 or less. We agree that the reforms in H.B. 86 with respect to {¶7} Addressing the effective date, H.B. 86 states the following in Section 4: {¶8} “The amendments to sections ***2913.02 *** 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 to whom division (B) of section 1.58 of the Revised Code makes the amendments applicable.” {¶9} Accordingly, the amendments apply to two classes of people: (1) a person who committed an offense after the effective date of the new act, and (2) a person to {¶10} {¶11} Appellant submits that since he had neither entered a plea nor been sentenced as of September 30, 2011, the effective date of H.B. 86, the amendments to {¶12} The state agrees that appellant appropriately received a reduced sentence because the term “punishment” refers to the amount of jail time imposed. However, the state disagrees that the language of {¶13} The language in the second paragraph of Section 4 of H.B. 86 contains a statement of implicit legislative intent to make the amendments retroactive to a person who has committed the offense prior to the effective date, but not sentenced until after the effective date: {¶14} “The provisions of sections *** 2913.02 *** 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 *** 2913.02 *** of the Revised Code 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.) {¶15} {¶16} This and other Ohio appellate courts have followed suit in their interpretation of the reforms created by H.B. 86. See State v. Stalnaker, 11th Dist No. 2011-L-151, 2012-Ohio-3028, ¶15 (amendment to {¶17} This interpretation is further buttressed by the comments by the Ohio Legislative Service Commission’s Bill Analysis, p. 19: {¶18} 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 specified threshold value is reached or exceeded, an increased penalty (generally a felony) is provided.” (Emphasis added.) {¶19} Furthermore, even without a statement of legislative intent, the theft statute itself, {¶20} Moreover, to interpret this provision otherwise, as the trial court did, would render the term “penalty” mere surplusage, a result that violates the rules of statutory construction. There is a general presumption that the legislature intends a difference in meaning from its use of different language. Huntington National Bank v. 199 South Fifth Street Co., LLC, 10th Dist. No. 10AP-1082, 2011-Ohio-3707, ¶18; see also D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 96 Ohio St. 3d 250, 2002-Ohio-4172, ¶26 (stating basic rule of statutory construction requires that words in statutes should not be construed to be redundant, nor should any words be ignored so that no part is treated as superfluous). {¶21} In support of its position, the dissenting opinion relies in part on two cases emanating from the Eighth Appellate District, State v. Steinfurth, 8th Dist. No. 97549, 2012-Ohio-3257, and State v. Saplak, 8th Dist. No. 97825, 2012-Ohio-4281. Specifically the Eighth District found that: {¶22} ” {¶23} However, the Eighth District’s opinions do not discuss the statutory language considered in this opinion at paragraph 16, supra, regarding the meaning of “penalty” as set forth in {¶24} 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 priviledges, 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 {¶25} All of the above supports the view that the terms “penalty” and “punishment” mean two different things for purposes of {¶26} For the foregoing reasons, appellant’s sole assignment of error is well taken. The judgment of the Lake County Court of Common Pleas is reversed and remanded for further proceedings consistent with this opinion. TIMOTHY P. CANNON, P.J., concurs, DIANE V. GRENDELL, J., dissents with a Dissenting Opinion. {¶27} I dissent from the majority’s conclusion that the trial court erred by failing to reduce Cefalo’s conviction from a fifth-degree felony to a first-degree misdemeanor, based on its finding that {¶28} Cefalo argued that since he was sentenced after the effective date of H.B. 86, which changed the dollar amount required for a theft offense to be classified as a {¶29} As it relates to the amendment of theft offenses, H.B. 86 did two things. First, it changed the offense level for future thefts, depending on the value of the items stolen. It did not state that the offense level for crimes committed prior to its effective date should be changed or reduced. Second, it allowed for a corresponding reduction in penalties for thefts committed prior to the statute’s effective date, through the application of {¶30} Several sources provide support for this contention. The Eighth District, in considering the meaning of the word “penalty” in similar circumstances, has determined that it does not include the level of the offense. That court found that while ” {¶31} The majority notes that the Eighth District cases do not address the argument that “penalty” means level of offense under {¶32} The majority also asserts that since the Eighth District recognized a reduced offense level as a “benefit,” it must also acknowledge that a felony conviction is a “penalty” under {¶33} Another source of support for the conclusion that the term “penalty” should not be equated with the level of offense is {¶34} Although the majority asserts that {¶35} For the foregoing reasons, I respectfully dissent and would affirm the trial court’s decision to give Cefalo a reduced sentence, but to also classify his offense as a fifth-degree felony rather than a first-degree misdemeanor.