STATE OF OHIO, Plaintiff-Appellee, vs. BRANDON D. JOHNSON, Defendant-Appellant.
APPEAL NO. C-120250
TRIAL NO. B-1105638-C
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
February 26, 2016
[Cite as State v. Johnson, 2016-Ohio-781.]
CUNNINGHAM, Presiding Judge.
Judgment Appealed From Is: Affirmed in Part, Sentences Vacated In Part, and Cause Remanded
Date of Judgment Entry on Appeal: February 26, 2016
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Matthew S. Schuh, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
O P I N I O N.
{¶1} In this reopened appeal, defendant-appellant Brandon D. Johnson presents two assignments of error, challenging the sentences imposed by the trial court and the effective assistance of his prior appellate counsel. Because the trial court had failed to sentence Johnson under the amended sentencing scheme of 2011
{¶2} In early September 2011, Johnson had been indicted on multiple counts of theft and passing bad checks and a single count of aggravated theft for his role in a 2007 check-kiting scheme.
{¶3} In February and March 2012, the trial court conducted a four-week jury trial. After the jury had returned a guilty verdict for each offense, the trial court entered convictions upon the verdicts and ordered the sentences for each of the third-, fourth-, and fifth-degree-felony offenses to be served consecutively, for an aggregate prison term of 172 months. While the trial court had imposed sentences more than six months after the effective date of H.B. 86, it employed the pre-H.B. 86 property values in determining the degrees of the theft-related offenses.
{¶4} In his initial appeal, Johnson did not challenge the length of the sentences imposed, or whether they had been imposed under the pre-H.B. 86 scheme. Instead, he raised three assignments of error claiming presentence trial error. In June 2013, we overruled the assignments of error and affirmed the judgment of the trial court. See State v. Johnson, 2013-Ohio-2719, 994 N.E.2d 896, ¶ 1 (1st Dist.).
{¶5} In September 2014, Johnson filed a motion, under
Verdict Forms Failed to Comply with R.C. 2945.75
{¶6} In his first assignment of error, Johnson argues that the trial court erred in employing the pre-H.B. 86 sentencing scheme to elevate the degree of each offense that he committed. He also contends that, under
{¶7} As noted in the entry reopening this appeal, Johnson was sentenced more than six months after the effective date of H.B. No. 86. Thus, he was entitled to have been sentenced under its provisions. See State v. Taylor, 138 Ohio St.3d 194, 2014-Ohio-460, 5 N.E.3d 612, ¶ 20.
{¶8} These provisions included an increase in the value thresholds required to support more serious convictions for theft-related offenses. See Taylor at ¶ 16. Generally, a default misdemeanor penalty applies to these offenses unless the value of the lost property reaches or exceeds a specific threshold. If the specified threshold value is reached or exceeded, the felony penalty is increased. See
{¶10}
When the presence of one or more additional elements makes an offense one of more serious degree: * * * [a] guilty verdict shall state either the degree of the offense of which the offender is found guilty, or that such additional element or elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the offense charged.
{¶11} The Ohio Supreme Court has held that “[p]ursuant to the clear language of
{¶12} Although Johnson failed to object to the verdict forms at trial, the Ohio Supreme Court has held that there must be strict compliance with the mandates of
{¶13} But in its most recent pronouncement, the Ohio Supreme Court reiterated its holding in Pelfrey that “in cases involving offenses for which the addition of an element or elements can elevate the offense to a more serious degree, the verdict form itself is the only relevant thing to consider in determining whether the dictates of
{¶14} Thus to comply with
Johnson‘s Sentences
{¶15} Johnson concedes that he was properly sentenced for passing a bad check in the amount of $14,995, as alleged in count one of the indictment. While the verdict form submitted to the jury did not specify the degree of the offense, the
{¶16} Since the special-verdict form reflects that the jury made the additional value finding necessary to elevate the degree of the offense, the verdict form complied with the dictates of
{¶17} But for each of the remaining 18 counts for which the trial court imposed sentence, the verdict forms did not comply with the statutory mandates of
The Fifth-Degree-Felony Offenses
{¶18} Johnson was convicted of 14 counts of theft or passing bad checks punishable as fifth-degree felonies. For each count, the trial court imposed an eight-month prison term.
{¶19} The jury had returned signed verdict and special-verdict forms for each count. For example, count five of the indictment had alleged that Johnson had deprived the owners of the Stephenson Oil Co. of property or services worth $500 or more. The verdict form employed did not specify the degree of the offense. It provided only that, “We, the Jury, in the issue joined, find the defendant, BRANDON JOHNSON, GUILTY of Theft, as charged in Count Five of the Indictment.”
{¶20} An accompanying special-verdict form provided that if the jury returned a guilty verdict for count five, it was also to determine the value of the
{¶21} In no instance did the verdict forms employed for the fifth-degree offenses state the degree of the offense. Thus, for these offenses to be considered fifth-degree felonies, the verdict forms had to demonstrate the jury‘s finding of an additional or aggravating element. See
{¶22} But the special-verdict forms signed by the jury only found that Johnson had stolen property of at least $500 in value, or had issued checks for payment of $500 or more and less than $5,000. Under this finding, employing the H.B. 86 sentencing scheme, the offenses were punishable only as first-degree misdemeanors.
{¶23} Since the verdict forms for these offenses did not include either the degree of the offense or the value finding to support the felony convictions, the verdict forms were insufficient to convict Johnson of fifth-degree felonies. Pelfrey at ¶ 14; McDonald, 137 Ohio St.3d 517, 2013-Ohio-5042, 1 N.E.3d 374, at ¶ 16. The failure to comply with
{¶24} We can conclude from the special-verdict forms only that the jury made a value finding of at least $500 for each of these offenses. Under
The Third-Degree Offense
{¶25} In count 16, Johnson was charged with aggravated theft, punishable as a third-degree felony. The trial court imposed a two-year prison term for this offense. The verdict forms did not state the degree of the offense. Thus, for this offense to constitute a third-degree felony, the verdict forms must demonstrate the jury‘s finding describing the value of the property stolen. Under H.B. 86, for a theft offense to constitute a third-degree felony, the jury must make an additional finding that the value of the property stolen was at least $150,000 and less than $750,000.
{¶26} Here, the special-verdict form stated, and the jury found, only that Johnson had stolen property of $100,000 or more in value. Under this finding, employing the H.B. 86 sentencing scheme, the aggravated-theft offense constituted only a fourth-degree felony.
{¶27} Since the verdict forms in count 16 did not include either the degree of the offense or the value element to support a third-degree felony, as required by
{¶28} We can conclude from the special-verdict form only that the jury made a value finding of at least $100,000. Under
The Fourth-Degree-Felony Offenses
{¶29} For each of the three remaining offenses, charged in counts 6, 21, and 24, Johnson was convicted of theft punishable as a fourth-degree felony. For each count, the trial court imposed a nine-month prison term. As before, the verdict forms failed to state the degrees of the offenses, and the jury‘s special verdicts found property values below those required to sustain convictions as fourth-degree felonies. See
{¶30} Here, the special-verdict form stated, and the jury found, only that Johnson had stolen property of $5,000 or more in value. Under this finding, employing the H.B. 86 sentencing scheme, the offenses constituted only fifth-degree felonies.
{¶31} Since the verdict forms did not include either the degree of the offense or the value element to support fourth-degree felonies, as required by
{¶32} We can conclude from the special-verdict form only that the jury made a value finding of at least $5,000. Under
{¶33} The first assignment of error is sustained.
Ineffective Assistance of Prior Appellate Counsel
{¶34} In his second assignment of error, Johnson argues that the “representation by [his] prior appellate counsel was deficient and that [Johnson] was prejudiced by that deficiency.”
{¶35} Prior appellate counsel‘s failure to challenge the sentences imposed prejudiced Johnson. Therefore, the second assignment of error is sustained.
Conclusion
{¶36} Having found that the performance of Johnson‘s prior appellate counsel was deficient and that he was prejudiced by that deficiency, in accordance with
{¶37} We also vacate the sentences imposed by the trial court in its April 4, 2012 judgment entry, except the sentence imposed for the offense described in count one of the indictment, and remand this cause to the trial court solely for
Judgment accordingly.
DEWINE and STAUTBERG, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.