THE STATE OF OHIO, APPELLEE, v. PENDERGRASS, APPELLANT.
No. 2018-1814
Supreme Court of Ohio
June 17, 2020
Slip Opinion No. 2020-Ohio-3335
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Pendergrass, Slip Opinion No. 2020-Ohio-3335.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2020-OHIO-3335
THE STATE OF OHIO, APPELLEE, v. PENDERGRASS, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Pendergrass, Slip Opinion No. 2020-Ohio-3335.]
Criminal law—Statutory interpretation—Rule of lenity—Unlawful sexual conduct with a minor—Sentencing enhancement in
(No. 2018-1814—Submitted January 29, 2020—Decided June 17, 2020.)
APPEAL from the Court of Appeals for Montgomery County, No. 27814, 2018-Ohio-3813.
{¶ 1} The statute that criminalizes unlawful sexual conduct with a minor,
{¶ 2} The state maintains that the enhancement applies if at the time of indictment the offender has previously been convicted of a qualifying sex crime. Gerald Pendergrass, the appellant in this case, says no, the enhancement only applies if at the time of the offense the offender has previously been convicted of a qualifying sex crime. Looking to the text of the statute, and mindful of the rule of lenity, we conclude that Pendergrass has the better of the argument. As a consequence, we reverse the judgment of the court of appeals below and reinstate the judgment of the trial court.
Facts and procedural history
{¶ 3} In September 2016, Pendergrass was convicted of one count of unlawful sexual conduct with a minor, in violation of
{¶ 4} Pendergrass moved to dismiss the indictment on the ground that the enhancement does not apply when the alleged criminal conduct predates the prior conviction. The trial court agreed with Pendergrass and granted his motion. The state appealed and the court of appeals reversed. The majority of the panel agreed with the state that any conviction for a qualifying offense prior to the indictment
was sufficient to trigger the
The statutory text
{¶ 5} In interpreting a statute, we begin with the statutory language.
(B) Whoever violates this section is guilty of unlawful sexual conduct with a minor.
(1) Except as otherwise provided in divisions (B)(2), (3), and (4) of this section, unlawful sexual conduct with a minor is a felony of the fourth degree.
* * *
(4) If the offender previously has been convicted of or pleaded guilty to [rape, sexual battery, or unlawful sexual conduct with a minor], unlawful sexual conduct with a minor is a felony of the second degree.
{¶ 6} On its face, the statute does not directly answer the question. There is no obvious textual referent to the word “previously.” Nonetheless, both the state and Pendergrass argue that the statutory language supports their preferred interpretation. Because our initial reading of the statute does not provide an obvious answer to the question in front of us, we turn to the arguments of each party.
The state‘s argument lacks textual support
{¶ 7} The state, in its brief, insists that the plain meaning of the statutory language unambiguously requires only that the qualifying conviction predate the new indictment. But the state doesn‘t engage in any actual analysis of the statutory text. Instead, it relies largely upon arguments about case law and public policy to support its preferred reading.
{¶ 8} The state hangs its hat primarily on this court‘s decisions in State v. Smith, 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283, and State v. Brantley, 1 Ohio St.2d 139, 205 N.E.2d 391 (1965). Smith dealt with a sexually-violent-predator specification that imposed a greater penalty on a person convicted of a sexually violent offense when that person was found to be a “sexually violent predator“—defined as one “‘who has been convicted of or pleaded guilty to committing * * * a sexually violent offense and is likely to engage in the future in one or more sexually violent offenses.‘” (Emphasis in Smith.) Smith at ¶ 8. At issue was whether the sexually-violent-predator enhancement could be premised on the conviction for a sexually violent offense in the same indictment or whether there had to be a prior conviction for a sexually violent offense. This court said that there had to be a conviction “prior to the indictment“—language upon which the state seizes. Id. at ¶ 32. But given that the statutory language and the legal question under dispute in Smith are wholly unlike those presented here, it is hard to see how Smith is a relevant precedent.
{¶ 9} The same goes for Brantley. In that case, a gambling statute imposed a misdemeanor penalty “for the first offense” and a felony penalty “for each subsequent offense.” Id. at 140. The defendant violated the statute in 1961 and was convicted for that violation in March of 1962. Id. at 141. He violated the statute a second time in February 1962. Id. This court had to decide whether the defendant could be indicted for a “subsequent offense” even though the second crime had been committed prior to the first conviction. This court reasoned that since the statute referenced the first or subsequent offense and not first or subsequent conviction, it did not matter that the conviction for the first offense occurred after the commission of the second offense—the second offense was a subsequent one. Id. For obvious reasons, Brantley is of limited use here:
{¶ 10} The state and the dissenting opinion argue that had the General Assembly
{¶ 11} In a similar vein, the state and the dissenting opinion contend that Pendergrass‘s interpretation would require us to insert words into the statute so as to limit its application to cases where the qualifying conviction came before the charged criminal act. Again, this line of reasoning makes little sense when confronted with an interpretive dispute arising from a statute‘s failure to explicitly differentiate between two competing interpretations. In such a case, making either interpretation explicit will require inserting additional words. In essence, the state and the dissenting opinion seem to share the view that because Pendergrass‘s interpretation is more restrictive than the state‘s, insofar as it makes the enhancement apply in fewer cases, the state‘s interpretation wins. But when interpreting criminal statutes, close calls don‘t go to the state, and in the face of an ambiguity, we don‘t default to interpreting the statute so as to allow the state to punish more rather than less. Indeed, the exact opposite is true. See
{¶ 12} Finally, the state makes a policy argument based on the fact that children often delay in reporting instances of sex abuse, and hence, someone like Pendergrass might avoid the heightened penalty altogether if victims come forward in a certain order. But that argument illustrates one of the problems with hypothesizing about the General Assembly‘s preferred policy outcomes—one tends to hypothesize the policy outcomes that they personally endorse.
{¶ 13} Indeed, if one takes to divining statutory meaning through guesses about the legislature‘s preferred policy outcomes, it is not hard to come up with outcomes that cut against the state‘s interpretation. For example, on the state‘s interpretation, when a defendant has committed multiple violations of
the crime is prosecuted and not on differences in what a defendant did. As the United States Supreme Court has commented, it is a “strange consequence[]” for a statute to allow the prosecution to increase the punishment solely by altering the manner—i.e., the order—of charging the crimes. Deal v. United States, 508 U.S. 129, 134, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993).
{¶ 14} Further, the state‘s interpretation allows for the harsher punishment of a person for something that he hasn‘t yet done at the time he commits the criminal act. Remember that Pendergrass is being prosecuted for a crime that he is alleged to
{¶ 15} The point is that it is not our role, and we are ill-equipped, to divine statutory meaning based on hunches about policy outcomes we suspect the legislature might have preferred. And here, there is no more reason to presume that legislators would want to include a heightened penalty whenever a person is convicted of a crime a second time, than that they would want to include a heightened penalty only when a person fails to correct his ways again after having once been punished. See Deal at 136.
{¶ 16} Thus, after working through the state‘s arguments, we still don‘t have a credible answer to the question “previous to what,” and we are largely where we started. The dissenting opinion suggests that in not accepting the state‘s interpretation, this court is making the mistake of “search[ing] for ambiguity before looking at the specific language of the statute.” Dissenting opinion at ¶ 33. But as we have explained, the specific language of the statute presents an interpretive puzzle that cannot be glossed over—the word “previously” needs a referent that
can answer the question “previous to what?” And the statutory language provides no obvious answer to that question. While it is true that a court ought not create an ambiguity where none exists, it is equally true that a court ought not ignore a bona fide interpretive puzzle that must be resolved.
{¶ 17} Towards the conclusion of its opinion, the dissent insists that ”
The best textual argument supports Pendergrass‘s interpretation
{¶ 18} Pendergrass argues that the plain reading of the text as a whole—as well as federal and state case law—supports his interpretation. At the very least, he says, the statute is ambiguous, and thus he should win under the rule of lenity.
{¶ 19} We find some merit in his textual argument. Where we are is that one cannot resolve the interpretive dispute by a casual glance at the face of the text, because there is no obvious referent for the word “previously” in
{¶ 20} Looking to the broader statutory language, rather than just subdivision (B)(4) in isolation, reveals some basis for thinking that the referent is the criminal act.
{¶ 21} Here again is the relevant statutory language in
(B) Whoever violates this section is guilty of unlawful sexual conduct with a minor.
(4) If the offender previously has been convicted of [a qualifying offense], unlawful sexual conduct with a minor is a felony of the second degree.
(Emphasis added.)
{¶ 22} Read together then, the statute provides: If “whoever violates this section” “previously has been convicted” of a qualifying offense then “unlawful sexual conduct with a minor is a felony of the second degree.” Thus, in context, the passages suggest that the “previously has been convicted” language refers to “whoever violates.” The combination of the present tense “violates” with “previously has been convicted” indicates that the existence of the enhancement depends on a previous conviction at the time of the violation.
{¶ 23} To illustrate why this is the most natural reading, consider another grammatically analogous statement. Consider a house rule that provides: “Whoever steals cookies from the cookie jar gets no dessert tonight, and if he has previously been caught stealing from the cookie jar, he gets no dessert for a week.” The intuitive meaning here is that if you steal cookies again after you were caught the first time, you don‘t get dessert for a week.
{¶ 24} So, based on the broader statutory language there is reason to think that the referent for the word “previously” in subdivision (B)(4) is the violation, not the indictment. This suggests that in order for the enhancement to apply, a defendant must have a qualifying conviction when he commits the charged offense.
At a minimum, the case should be decided in Pendergrass‘s favor based on the rule of lenity
{¶ 25} As we have explained, looking to the language of the statute, Pendergrass has the more plausible interpretation. But even if there are remaining doubts, the statute is at least ambiguous.
Conclusion
{¶ 26} We reverse the court of appeals and reinstate the trial court‘s judgment.
Judgment reversed.
O‘CONNOR, C.J., and KENNEDY and DONNELLY, JJ., concur.
STEWART, J., concurs in judgment only.
FISCHER, J., dissents, with an opinion joined by FRENCH, J.
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FISCHER, J., dissenting.
{¶ 27} Respectfully, I must dissent.
{¶ 28} This case simply asks this court to interpret only the meaning of the phrase “previously has been convicted” in
the
The Statute Is Unambiguous
{¶ 29}
(A) No person who is eighteen years of age or older shall engage in sexual conduct with another, who is not the spouse of the offender, when the offender knows the other person is thirteen years of age or older but less than sixteen years of age, or the offender is reckless in that regard.
(B) Whoever violates this section is guilty of unlawful sexual conduct with a minor.
(1) Except as otherwise provided in divisions (B)(2), (3), and (4) of this section, unlawful sexual conduct with a minor is a felony of the fourth degree.
(2) Except as otherwise provided in division (B)(4) of this section, if the offender is less than four years older than the other person, unlawful sexual conduct with a minor is a misdemeanor of the first degree.
(3) Except as otherwise provided in division (B)(4) of this section, if the offender is ten or more years older than the other person, unlawful sexual conduct with a minor is a felony of the third degree.
(4) If the offender previously has been convicted of or pleaded guilty to a violation of section 2907.02 [rape], 2907.03 [sexual battery], or 2907.04 of the Revised Code or a violation of former section 2907.12 of the Revised Code, unlawful sexual conduct with a minor is a felony of the second degree.
(Emphasis added.)
{¶ 30} On its face, this statute is clear. The applicable words are unambiguous: “If the offender previously has been convicted of or pleaded guilty to a [a qualifying offense], unlawful sexual conduct with a minor is a felony of the second degree.” Id. That wording could not be clearer. The only way to make
The Plain Language of
{¶ 31} A person commits the offense of unlawful sexual conduct with a minor when his actions satisfy the elements of the offense set forth in division (A) of the statute. However, unlike division (A), subdivision (B)(4) provides an element that enhances the degree of the offense when the charging document provides notice that the additional element is alleged to exist and it is then proved beyond a reasonable
the existence of a prior conviction affects the degree of the offense * * * it must be proven beyond a reasonable doubt before the level of the offense may be increased“).
{¶ 32} Because a qualifying prior conviction has no bearing on whether a person commits a violation of unlawful sexual conduct with a minor under
{¶ 33} We must be careful not to search for ambiguity before looking at the specific language of the statute—that is, we must avoid the risk of creating an ambiguity where none exists by getting lost in our attempts to analyze the statute rather than simply looking to the plain meaning of the statute‘s specific wording at the outset. We must look to the statute first to determine whether its meaning is plain. State ex rel. Herman v. Klopfleisch, 72 Ohio St.3d 581, 584, 651 N.E.2d 995
(1995); see also Iddings v. Jefferson Cty. School Dist. Bd. of Edn., 155 Ohio St. 287, 290, 98 N.E.2d 827 (1951) (“When the meaning is plain from the language employed, an attempt to construe it only tends to make ambiguous that which is simple and clear“). Since
{¶ 34} I would reject Pendergrass‘s argument that if
If previous convictions meant those convictions a defendant had accumulated prior to sentencing, Congress could have omitted the word previous because, at sentencing, a district court could never consider convictions not yet in existence.
Thus, adoption of the government‘s interpretation of previous convictions effectively would render the term previous superfluous.
(Emphasis sic.) Id. at 975-976.
{¶ 35} Unlike the Eighth Circuit in Talley, in addressing the offense-level-enhancement issue before us, this court should not conclude that the word “previously” is rendered meaningless unless we interpret
charged subsequently. Within
{¶ 36} The inclusion of the word “previously” in
Plain Language
{¶ 37} This case boils down to nothing more than the plain and unambiguous language of a statute. Although
Conclusion
{¶ 38} I agree with the state that the plain and unambiguous language of the phrase “previously has been convicted” in
qualifying offense before the state initiates criminal proceedings for a violation of
{¶ 39} For these reasons, I must respectfully dissent and would affirm the judgment of the Second District Court of Appeals.
FRENCH, J., concurs in the foregoing opinion.
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Mathias H. Heck, Montgomery County Prosecuting Attorney, and Heather N. Ketter and Lisa M. Light, Assistant Prosecuting Attorneys, for appellee.
Timothy Young, Ohio Public Defender, and Victoria A. Bader, Assistant State Public Defender, for appellant.
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