*1 vein of to a discrete truly limited today this decision It is hoped statutorily mandated properly impose “in which a court does cases: those the state words, in which control,” only those cases in other period postrelease in addition to defendant’s mandatory monitoring period not obtained has majority opinion that the broad My fear is sentence. prison sen- mandates, other “void” creating statutory other apply potential full then modified without and infinitely appealable, may tences 2929.19(A). under R.C. rehearing
IV. Conclusion from the void-sentence arising easily problems can correct We make the imposing sentences clarifying mistakes by simply doctrine I is, appeal. voidable, subject reversed on direct merely sentence dissent. respectfully therefore Di- Walsh, Attorney, and Heaven County Prosecuting
Sherri Bevan Summit Martino, Attorney, appellee. Prosecuting Assistant Cahoon, Defender, Assistant Public and R.
Timothy Ohio Public Claire Young, Defender, appellant. Association of Criminal Curtis, for amicus curiae Ohio
Kelly urging R. reversal Attorneys. Defense Defender, Martin, T. Tobik, Public and John Cuyahoga County L.
Robert County Defender, Cuyahoga for amicus curiae urging Public reversal Assistant Public Defender. Carly J. Jr., County Prosecuting Attorney, Montgomery
Mathias J. Heck
for amicus curiae
urging affirmance
Prosecuting Attorney,
Assistant
Ingram,
Attorneys Association.
Prosecuting
Ohio
Appellee.
Johnson,
Ohio, Appellant,
v.
State
Johnson,
107,
[Cite (No. 2010.) May 2009-1469 Submitted 2010 Decided December *2 J. Lanzinger, case, In this we are asked to determine whether there is missing
culpable mental state having offense of weapons while under disability, a felony of the third degree. Johnson, Appellee, Steven was convicted of this 2923.13(A)(3), as defined by R.C. based on two previous convictions for drug-related offenses. The question before this court is whether R.C. 2923.13(A)(3)requires proof of the mens rea of recklessness with respect to a prior defendant’s conviction. We now hold that the state need not culpable mental state for the element that a defendant is under indictment for or has been any convicted of offense involving illegal possession, use, sale, administration, distribution, or trafficking any drug of abuse for a conviction 2923.13(A)(3). under R.C. We therefore reverse the judgment of the court of appeals and remand
for consideration of Johnson’s remaining assignments of error.
I. Facts Johnson was fight arrested after a in a apartment Cleveland early morning 3, 2008, of April and was discovered in possession of a firearm. He was charged with a third-degree felony, violating 2923.13(A)(3),1 which criminal R.C. 2923.13 {¶ a} provides: knowing izes indictment for or has possession firearm under “[a] * * * any been convicted of indict involving abuse.” The charged “knowingly ment tracked the of the statute and Johnson * * * * * * had, carried, or acquired, having used firearm been convicted of * * * * * * Possession, 2925.11, in violation Drug having been [R.C.] and/or Substance, convicted of the crime of Counterfeit Possession of Controlled violation of [R.C.] 2925.37.”* trial, instructed During' judge jury “there has been stipulation” that Johnson had convicted of the two offenses listed indictment, but neither the indictment nor jury instructions mentioned a culpable mental state to be proved regard prior to the convictions. The jury was told that the was required prove beyond a reasonable doubt knowingly Johnson possessed the firearm but was not told the state had to *3 prove any with mental state to his respect prior convictions or that he was aware that they prohibited him from a possessing firearm. Johnson was found and in guilty year was sentenced to one prison. He
{¶ 5} conviction, appealed his trial arguing structurally his was flawed because the indictment allege, consider, failed to the jury failed to whether he knew or was recklessly prior unaware that his prohibited convictions him from possessing a firearm. On appeal, the Eighth District Court of Appeals determined that
{¶ 6}
state
required
to show that Johnson had knowingly
a
possessed
firearm and
that he had done so
recklessly
regard
knowledge
that “he had been
convicted of an
that prohibited him from having weapon.”
a
offense
sic.)
Johnson,
8th
of law: disability “When a is on conviction, based a prior is not required State “(A) provided Code, Unless from relieved as {¶ b} section 2923.14 of the Revised no person knowingly have, acquire, carry, any ordnance, shall dangerous any or use or firearm following apply: “ * * * {¶ c} “(3) person any The is under indictment or involving {¶ d} has been of convicted offense use, sale, administration, illegal possession, distribution, trafficking any drug or of abuse or has adjudicated delinquent that, a adult, child for the commission by of an offense if committed an use, involving illegal sale, administration,
would have been possession, distribution, an offense trafficking any drug of abuse.” argued appeals possession Johnson before the court of that his conviction for of a counterfeit disabling controlled substance was a argues not conviction. That issue is not before He us. also impose that to process strict would violate due of law. Because Johnson did not raise that argument appeals error, separate assignment before the court of in a we decline to address it. prior conviction knowledge that in his is reckless that a defendant prove danger- firearm or knowing possession disability that criminalizes creates that a law and hold state’s proposition with the agree ordnance.” We ous under as defined weapons while having conviction of the offense for the require proof not does any for or been convicted is under indictment that the offender distribution, sale, administration, use, possession, involving illegal offense further hold of abuse. We trafficking of mens is a absence complete unless there the mens rea recklessness supply indication of plain offense and there in the section rea liability. Legal Analysis II. Liability Criminal 2901.21
A. Basic Requirements —R.C. to convict an accused analyze As we what ais statute offense, we that all conduct is innocent unless there recognize an first 2901.03(A) (“No a criminal conduct constitutes it. that criminalizes See Code”). as an offense in the Revised the state unless it is defined against offense accompanied by act prohibited will be defined terms Generally, state, mind. R.C. 2901.21 sets forth guilty mental the “mens rea” or requirements liability. provides: for criminal statute basic (B) section, “(A) of this Except provided division following apply: of an offense unless both of *4 “(1) a on conduct that includes either liability The based person’s {¶ 10} act, duty person capable to an act or voluntary perform an omission or of performing; “(2) each element person requisite The has the
{¶ 11} for defining the section specified as to which a mental state is “ * * * {¶ 12} “(D) in this section: As used
{¶ 13} “ ** *
{¶ 14} “(3) recklessness, knowledge, negligence, or ‘Culpability’ purpose, means {¶ 15} added.) (Emphasis of the Revised Code.” as defined section 2901.22 (1) a act or failure Thus, up voluntary criminal offense is made every {¶ 16} (2) for each element that is a and a mental state duty to act when there 2901.21(A). a mental state. R.C. specifies
Ill
2901.21(B)
B. The Statute that
Mental
Supplies Missing
States —R.C.
2901.21(A)(2) shows,
As the
emphasized portion
separate
mental state need
be
for
of an
every
although
offense. And
general
state,
rule for criminal
liability requires
culpable mental
guilty
(1959),
necessary
every
intent is not
for
offense. State v. Morello
169 Ohio St.
213,
192,
8 O.O.2d
{¶ 18} 2901.21(B) General Assembly set forth in test that indicates whether an offense is a strict liability offense: “When the section defining an does not offense specify any degree culpability, plainly a purpose impose indicates section, strict criminal the conduct described in the then is not for a person of the offense. When the section neither specifies culpability nor plainly purpose indicates a to impose liability, strict recklessness is sufficient culpability to commit the offense.” 2901.21(B) The first sentence R.C. explains that an is a strict liability offense when the defining the offense not specify a mens rea and the section also plainly indicates impose liability. strict second sentence instructs us impose the default mens rea of recklessness when the section defining the not specify offense does a mens rea and the section does plainly indicate intent to impose liability. strict
1. Previous interpretations Prior cases under R.C. have focused on whether the statute in question indicated a plainly purpose to liability. In some those cases, a complete we addressed absence of a mens rea in the section (1980), 151, offense.3 In State v. 152-153, Adams 16 O.O.3d example, 404 N.E.2d we at child endangering, looked as formerly defined 2919.22(B)(2)(now (B)(3)): in R.C. “(B) No shall do to a following child under eighteen mentally physically handicapped child under twenty-one: *5 State v. Adams (1980), (R.C. 2919.22(B)(2));
3.
62
See
Ohio St.2d
16 O.O.3d
{¶ 22} disciplinary “(2) physical or other punishment corporal Administer {¶ 23} prolonged a for a in cruel manner or measure, the child or restrain physically the circum- or is excessive under discipline, restraint which period, punishment, child.” harm to the physical risk of serious a substantial stances and creates Assembly specify did not the General Because {¶ 24} we held liability, a indicate plainly and did not must recklessness. that the state element, of a mens rea complete absence
(¶ involving case another in a as defined robbery, felony degree, of the second the offense of we considered 375, 172. 2911.02(A)(1). (1999), 715 N.E.2d v. 86 Ohio St.3d State Wharf inor committing a theft offense or person, attempting “No That statute states: * * deadly shall* attempt [h]ave after the or immediately fleeing control.” We or under the offender’s on or about the offender’s weapon the General stated, of the statute leads us conclude reading “Our committed while an offender Assembly that a theft intended beyond no intent weapon, robbery and deadly or control possession statutory to the proven. According must required for theft offense all to elevate theft deadly weapon language, possession a plain This held that there was robbery.” Id. at 377. court therefore intent for to be a strict cases, analyzed we offenses which the General In a second line
{¶ 26} clause or subsection of a mens rea in one discrete Assembly specified or not in another clause subsection.4 defining the offense but 2915.03, operating house: example, gambling for defines offense of lessee, control, “(A) having custody, or No the owner or person,
{¶ 27} shall: supervision premises, “(1) violation of section occupy premises gambling Use or such Code;
2915.02 the Revised
“(2)
occupied
Recklessly
such
be used
permit
premises
of the Revised Code.”
gambling in violation
2915.02
recklessly
the mental state of
Because the General
(A)(1),
(A)(2)
we
rea for
specify
mens
subsection
but did
subsection
(A)(1)
plain
was a
indication of
mens rea
missing
determined
(R.C. 2915.02(A)(1)
2915.03(A)(1));
(1981), 68
State v. Wac
N.E.2d 428
Ohio St.2d
428
See
Maxwell,
(R.C. 2923.17);
v.
(2000),
95
State
601
Ohio
State v. Jordan
Ohio St.3d
733 N.E.2d
89
Lozier,
(R.C.
2907.321(A)(6));
State
113
2915.03(A)(1).
criminal
impose
liability
strict
for a violation of R.C.
(1981),
22
State Wac
O.O.3d
2. Clarification of R.C. recognize discerning We the General Assembly’s intent {¶ 32} strict criminal has fraught I. difficulty. Phipps, See Felicia Liability Strict or Untangling Recklessness: the Web of Confusion Created 2901.21(B) (2010), Ohio Revised Code Section 35 A U.Dayton L.Rev. 199. close reading statute shows the of previous interpretation application. error a. The mens rea of can supplied only recklessness the definition as a missing the offense whole is a mens rea element 2901.21(B) Both sentences R.C. require defining offense lack any degree culpability. Although R.C. provides the possibility rea, that each element of an may offense have its own there mens is no requirement every have one. Our statute contrasts with 2.02(1) Code, Section of the Model Penal which requires proof as to each element of the except offense for minor noneriminal punishable by violations only. fine 2901.21(B) requires tous examine the section defining whole; 2901.21(B)
as a it an require element-by-element does not analysis. R.C. offers default rule to use when an defining offense fails to include culpability. Unless plain there indication of liability, recklessness sufficient culpability However, for the offense. if the General specified a mens rea in part one of the section then the defining 2901.21(A) requirements have been satisfied and there is no need 2901.21(B). analysis under R.C. designed apply only is a complete when there absence of the section Legislative 1973 Service Commission comment to 1972 Am.Sub.H.B. No. supports this determination. It explains, part “The first of this section codifies the fundamental distinction between conduct on the one hand that, and innocent or conduct accident on the other: generally, offense is committed unless act forbidden or fails to meet prescribed duty, but also has a certain of mind at act guilty state the time his mind, one, rea, several, failure. The state of the mens may attach to (blameworthy) mental different offense, and all the elements anof on the depending in the same to different elements may attach states *7 defining the offense. statute determining rule for a uniform part provides of the section “The second 36}
{¶ the is silent to is when the statute culpability whether offender’s entirely is not Although the case law offense. at the time of the a specify to the statute clear, the rule is that even apparent if fails unless the state, applied will not liability be strict mental culpable liability. In to strict legislature impose intended plainly indicates statute rule, to that when an intention essence, provides and also section codifies this the to recklessness sufficient liability apparent, strict is not impose commit the offense.” a mental words, Assembly impose culpable the can In General other 37}
{¶ all, some, of an offense. Because R.C. or none of the elements state on whole, 2901.21(B) not examine as a we should is concerned with the offense a look assigned mental state. We culpable element has been particular whether a fails Assembly to include defining the offense. When the General to the section 2901.21(B) offense, to apply the we R.C. any defining mens rea in the section must a offense or whether we whether the offense is determine to But the the when default mens rea of recklessness impose the offense. offense, an it mens rea for each specify chooses to element Assembly General 2901.21(B) not apply. that R.C. does clear not, attach Assembly may, but need b. The General of an rea to each element specific mens offenses, in which the represents category a third Johnson’s case rea for one element but not the other has included mens Assembly General offenses, if the For these the General defining in the elements section rea, it to their own mens must Assembly carry for the additional elements intends for those Otherwise, proved mental need elements. say culpable state so. and, case, in this the of the Model Penal Code adopt approach dissent would indictment for or to the element of “under “knowingly” would apply 2.02(4) of Penal Section the Model of’ offense.5 [having] been convicted among the distinguishing without prescribed that when a mens rea Code states to all the material applies that mens rea material elements 2901.21(A)(2) correctly, by citing it reads out certain Although begins then dissent proof “of expressly provides a criminal offense absent that a is not defining culpable section to mental state is for each element as which separately, to focusing every the dissent fails understand In on element the offense." every specify may a mens rea for element. choose not to General contrast, elements. that a mental provides only specified. attaches the element Our determination that R.C. those applies offenses
for which complete there is absence of mental state is consistent two-part Maxwell, test we created 2002-Ohio- 2121, 767 deciding N.E.2d 242. When whether a missing mens rea must be into inserted the definition of “a court must be able to answer in the negative following two questions applying before recklessness 2901.21(B): (1) pursuant specify any section an offense (2) degree of culpability, and does the plainly indicate ¶ liability?” words, strict criminal at 21. In Id. other section defining rea, offense contains a we mens answer the first question “yes” and do not insert recklessness into the definition of the offense. We also do not need to determine *8 whether the defining the offense contains a indication to plain strict criminal liability. Although recently we addressed the offense of having weapons
{¶
while
40}
under
Clay,
C. No 2923.13(A)(3) Additional Mens Rea Required R.C. for Johnson charged with having weapons {¶ 41} while under * * * 2923.13(A)(3): “(A) defined R.C. person [N]o shall knowingly acquire, have, carry, use any dangerous ordnance, firearm or any the following * * * (3) apply: person under indictment for or has been convicted any offense involving illegal use, possession, sale, administration, distribution, or * * trafficking any added.) drug of abuse *.” (Emphasis In defining the the General Assembly chose to specify culpable mental state for the element of possession of a it weapon, but did assign an additional mens rea for the additional elements of being under having indictment or 2923.13(A), been convicted. Because R.C. which is part the definition of already contains the mens rea of “knowingly,” R.C. 2901.21(B) does not apply. We therefore need not determine whether is a there plain indication of purpose to impose for these additional elements. Furthermore, because R.C. not apply, there is statutory provision allows us insert the mens rea recklessness into the statute. As result, for the of having offense weapons while under disability defined by 2923.13(A)(3),the state is not required prove a culpable mental state for the element that a defendant is under indictment for or has been convicted any involving offense abuse.
III. Conclusion having reasons, for the offense hold that we foregoing For 2923.13(A)(3), the defined disability as under while weapons prove required but is knowing possession for or has been is under indictment that a defendant for the administration, use, sale, illegal involving possession, convicted of abuse. any drug distribution, trafficking and remand appeals court of judgment reverse the therefore We of error. remaining assignments consideration
Judgment reversed remanded. and cause Lundberg Stratton, Cupp, JJ., concur. Pfeifer, O’Connor, J., only. in judgment O’Donnell, concurs
Brown, C.J., dissents.
Brown, C.J., dissenting. that a is not expressly provides as to which each element “of proof offense absent the offense.” the section specified by state is culpable mental mandate, determines statutory majority contrary to this Directly element but a mens rea for one Assembly “has included *9 that where General offense,” mental the no defining in the the elements section not for other sic.) Majority opinion, (Emphasis latter elements. required for the state will be offenses, Assembly ¶ the General these “[f]or concludes majority 38. The rea, say it must so.” own mens carry to their for the elements intends additional untold scope produce will breathtaking holding potentially this of Id. I fear that counsel, to struggle and courts defense as litigation prosecutors, confusion and it.6 apply by 2913.02(A), crime of theft establishes the By way example, R.C. which of consider
6. {¶ a} providing: services, knowingly property shall deprive owner of person, with the “No {¶ b} following ways: the propeHy in of or services over either the or exert control obtain “(1) give person consent.” the authorized the of owner or consent Without {¶ c} requirement expressly as to the subsection culpability stated Presumably, because {¶ d} crime, theft in the absence of (A)(1) majority conviction for even the would allow negligent he or she lacked the as to whether alleged reckless or proof offender knew was 2901.21(B) R.C. establishes the of determining required degree rules (or rea), if culpability any, mens where section of criminal code fails to the 2901.21(B) rea. specify majority mens The states R.C. does not apply prosecutions for of the criminal in which Assembly violations code “the General has in a mens rea one discrete clause or of a subsection section offense,” defining the not in Majority but another discrete clause or subsection. ¶at opinion majority 2923.23(A)(3), 31. The includes R.C. the forbidding statute (“WUD”), having weapons while under a in I category this cases. agree. however, I disagree, with the analytical step next taken the majority. 2901.21(B)
Having offense, found that R.C. to a apply majority WUD the express determines that the degree of culpability specified by the General Assembly for conviction a WUD offense (“knowingly”) applies only to the element of possessing weapons and not to the remainder of set in elements forth the statute. WUD The majority concludes may imposed to some of a statutorily elements despite defined the express inclusion of state of culpability another “discrete clause or of a subsection section defining offense.” Id. 2901.21(A)(2) person establishes that a is not criminal proof
offense absent
“of
each element as to which a culpable
added)—
mental
specified by
state is
defining
section
(emphasis
offense”
not a statutory subsection or subdivision or “discrete clause”
contained
The
defining
general
rule
established
applies, by
express
statute,
where the General
included
required degree
within
a section
the code
offenses,
offense. As to those
the strict-liability fallback rules of R.C.
view,
are irrelevant.
Accordingly, my
and consistent with R.C.
2901.21(A)(2),conviction of a WUD offense
be dependent
proof
should
upon
required degree of culpability (“knowingly”)
for “each element” of that
(1)
i.e.,
(2)
possession
both
a weapon and
the fact that
created the
carrying
(as
of weapon, e.g., conviction of
certain
offenses
the case
bar)
(as
at
or indictment for certain drug
Clay,
offenses
1000).
beware of the car. the the conclusion that justifies of the WUD statute in the text Nothing word drafting expressly repeat not to the legislative choice Assembly’s General (A)(3) determination that legislative reflects in subsection “knowingly” (A)(3) Indeed, the the element. as to subsection requirement exists generally accepted in accordance with be drawn contrary inference should See, culpabili- the dictionary for definition example, of criminal law. principles (9th Ed.2009) Dictionary “Except 435: cases Law stated Black’s ty that acted the culpability requires showing liability, absolute to each material respect knowingly, recklessly negligently purposely, contrast, this court Clay, In the element of offense.” culpabili- than was the “recklessly” “knowingly” rather determined indictment. to status under required proved to as the defendant’s ty to of the is, held that order obtain a conviction WUD That the court 2923.13(A)(3) rea required the was to the mens state established to that he had been as the defendant’s awareness element of recklessness Clay Had I of the court in when State indicted. been member answer the decided, question I have taken that the correct position would pending of the indictment Knowledge certified to the court7 was follows: disability pursuant for while under required having weapon for conviction 2923.13(A)(3) on a indictment. But pending when the based is a two recognize Clay barely otherwise. I case decided Clay court in held precedent. acknowledge controlling and I its status as years ago, at Clay it difficult to case appeals apply The court did find bar, expressly provided proof nor should it have. The General also acted “knowingly” proof that an accused acted constitutes defendant 2901.22(E) (“When suffices to establish an ele- “recklessly.” R.C. recklessness knowledge ment is also sufficient then element”). Thus, Clay, state in the at bar could such in accordance with case required have mental of recklessness for a WUD proved the knew, by demonstrating actually conviction that Johnson or was at least reckless previously he had knowing, possessing weapon, in not at the time of been difficulty of a The state would have had little drug-abuse charge. convicted prosecution this fact in its of Johnson —its burden could have proving that the defendant knew that he had been production proof satisfied needed to introduce drug-abuse charge. prosecutor convicted from the earlier criminal undoubt- proceedings evidence record —Johnson following Clay, Appeals court: had certified the issue to this 8th District Court of having weapon knowledge pending indictment conviction for “Whether disability pursuant pending is based on a while under when indictment.”
edly during sentencing was told the after conviction process drug of the offenses he drug that had been found offenses. state, Contrary suggestion of the court in appeals the case
at did not require prove bar the state that the defendant in not was reckless knowing legal consequences under indictment. Nowhere in its opinion did the court of appeals suggest prove the state was the defendant knew that the fact that he under indictment was meant that he could not legally carry a Nor weapon. opinion Clay imply does this court’s in requirement. Clay effect of was that the state in prosecutions WUD prove must that if the did actually defendant not know he under indictment was or had been convicted of a he at drug was least reckless in not knowing that fact at the time he possessed weapon. Nothing Clay warrants conclusion that additionally the state must that a person charged with a knew, WUD offense or was reckless in not that a knowing, legal consequence of an indictment or conviction that he prohibited or she was from by law do possessing weapon. To so would principle contradict the well-established ignorance of the law is no excuse. Clay I not can logically distinguished do believe that from the case at 2923.13(A)(3)just bar. Johnson was convicted of R.C. as Clay though was—even in Clay from an resulted indictment for drug offenses and the from drug Thus, Johnson resulted convictions of offenses. factual at underpinnings that, the case bar differ from Clay only the facts in case, this Johnson not had but had indicted also been convicted of I believe that these two present circumstances a distinction without a for purposes difference legal analysis culpability requirements for a WUD conviction and that attempts rationally Clay from distinguish case before us are futile. view, my the court of appeals correctly applied Clay. I do believe
that adequate justification existed for this court to at accept the case bar for I review. would therefore dismiss the state’s appeal this case as having been improvidently accepted. being majority There votes favor of that it is disposition, my opinion judgment appeals the court of should be affirmed. I respectfully therefore dissent. Mason,
William D. Cuyahoga County Prosecuting Attorney, and Thorin Free- Van, man and Daniel Prosecuting Attorneys, Assistant for appellant. Tobik, Defender,
Robert L. Cuyahoga County Martin, Public T. and John Defender, Assistant Public for appellee. curiae, Ohio Association for amicus Timothy Huey, urging affirmance
D. Lawyers. Defense Criminal *12 Appellant. Cook, Ohio, Appellee,
The State