State v. GillespieState v. Gillespie
{¶1} On February 23, 2011, appellant Joseph Gillespie [“Gillespie“] was indicted by the Tuscarawas County Grand Jury on one count of Passing Bad Checks, in violation of
{¶2} On October 5, 2011, Gillespie pleaded guilty to the charge.
{¶3} On January 9, 2012, Gillespie was sentenced to 2 years of Community Control. The trial court reserved a six-month term of local incarceration in the event Gillespie was convicted of violating the terms of his Community Control sanctions.
{¶4} Gillespie timely appeals his conviction and sentence raising the following assignment of error:
{¶5} “I. THE TRIAL COURT ERRED WHEN IT CONVICTED MR. GILLESPIE OF A FIFTH-DEGREE FELONY, WHEN THE GENERAL ASSEMBLY INTENDED THE OFFENSE COMMITTED BY MR. GILLESPIE TO BE CATEGORIZED AS A FIRST-DEGREE MISDEMEANOR.”
I.
{¶6} On September 30, 2012, after the date of Gillespie‘s plea but before the date of his sentencing,
(2) Except as otherwise provided in this division or division (B)(3), (4), (5), (6), (7), or (8) of this section, a violation of this section is petty theft, a misdemeanor of the first degree. If the value of the property or services stolen is one thousand dollars or more and is less than seven thousand five hundred dollars or if the property stolen is any of the
property listed in section 2913.71 of the Revised Code , a violation of this section is theft, a felony of the fifth degree.
{¶7} The effect of this amendment was to raise the minimum value of property stolen to constitute a felony theft from $500.00 to $1,000.00. Gillespie argues that since he was sentenced following the effective date of the amended statute,
{¶8} The state argues that Gillespie is correct that the new value provisions for theft became effective on September 30, 2011 and that
ANALYSIS
{¶9}
The issue of whether a statute may constitutionally be applied retrospectively does not arise unless there has been a prior determination that the General Assembly has specified that the statute so apply. Upon its face,
R.C. 1.48 establishes an analytical threshold which must be crossed prior to inquiry underSection 28, Article II . As we pronounced in Kiser v. Coleman (1986), 28 Ohio St.3d 259, 262, 28 OBR 337, 339, 503 N.E.2d 753, 756, where “there is no clear indication of retroactive application, then the statute may only apply to cases which arise subsequent to its enactment.”
Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489(1988), superseded on other grounds by statute as stated in Hannah v. Dayton Power & Light Co., 82 Ohio St.3d 482, 484, 696 N.E.2d 1044(1998).
{¶10} In the case at bar, 2011 Am.Sub.H.B. No. 86 provided in relevant part,
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) ofsection 1.58 of the Revised Code makes the amendments applicable.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 ... 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).
{¶11}
(A) The reenactment, amendment, or repeal of a statute does not, except as provided in division (B) of this section:
(1) Affect the prior operation of the statute or any prior action taken thereunder;
(2) Affect any validation, cure, right, privilege, obligation, or liability previously acquired, accrued, accorded, or incurred thereunder;
(3) Affect any violation thereof or penalty, forfeiture, or punishment incurred in respect thereto, prior to the amendment or repeal;
(4) Affect any investigation, proceeding, or remedy in respect of any such privilege, obligation, liability, penalty, forfeiture, or punishment; and the investigation, proceeding, or remedy may be instituted, continued, or enforced, and the penalty, forfeiture, or punishment imposed, as if the statute had not been repealed or amended.
(B) 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.
{¶12} When reading 2011 Am.Sub.H.B. No. 86 and its specific reference to division (B) of
{¶13} Having determined that the statute at issue meets the threshold test for retroactive application contained in
{¶14} In its simplest form, to constitute a theft offense it need only be proven that some property of value has been taken.
{¶15} The amendment to
{¶16} Recently, the United States Supreme Court held that the more lenient penalties of the Fair Sentencing Act, which reduced the crack-to-powder cocaine disparity, applied to those offenders whose crimes preceded the effective date of the Act, but who were sentenced after that date. Dorsey v. United States, 567 U.S.__, 132 S.Ct. 2321, 2332 (June 21, 2012). Although the Court interpreted the federal statutory scheme, which is somewhat different from the one presently under consideration in the case at bar, we share the Court‘s concern that,
[A]pplying the 1986 Drug Act‘s old mandatory minimums to the post-August 3 sentencing of pre-August 3 offenders would create disparities of a kind that Congress enacted the Sentencing Reform Act and the Fair Sentencing Act to prevent. Two individuals with the same number of prior offenses who each engaged in the same criminal conduct involving the same amount of crack and were sentenced at the same time would receive radically different sentences.
* * *
Moreover, unlike many prechange/postchange discrepancies, the imposition of these disparate sentences involves roughly contemporaneous sentencing, i.e., the same time, the same place, and even the same judge, thereby highlighting a kind of unfairness that modern sentencing statutes typically seek to combat...
567 U.S.__, 132 S.Ct. at 2333. The same is true in this case. Two individuals accused of the same conduct could be treated differently and receive different sentences, one a felony and one a misdemeanor, after the amendments had become effective even though both were sentenced on the same date. We find no strong countervailing considerations between pre-amendment offenders such as Gillespie sentenced after September 30, 2011 and post-amendment offenders that make a critical difference to require them to be treated differently. Dorsey at 2335.
By Gwin, P.J.,
Wise, J., and
Edwards, J., concur
HON. W. SCOTT GWIN
HON. JOHN W. WISE
HON. JULIE A. EDWARDS
WSG:clw 0712
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Tuscarawas County Court of Common Pleas is reversed, and this case is remanded for proceedings in accordance with our opinion and the law. Costs to appellee.
HON. W. SCOTT GWIN
HON. JOHN W. WISE
HON. JULIE A. EDWARDS