THE STATE OF OHIO, APPELLANT, v. PRIBBLE, APPELLEE.
No. 2017-1758
SUPREME COURT OF OHIO
November 26, 2019
Slip Opinion No. 2019-Ohio-4808
KENNEDY, J.
January Term, 2019
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Pribble, Slip Opinion No. 2019-Ohio-4808.]
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. 2019-OHIO-4808
THE STATE OF OHIO, APPELLANT, v. PRIBBLE, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Pribble, Slip Opinion No. 2019-Ohio-4808.]
Criminal law—Sentencing—Trial court correctly sentenced defendant convicted of illegal assembly or possession of chemicals for manufacture of methamphetamine under
(No. 2017-1758—March 6, 2019—Decided November 26, 2019.)
APPEAL from the Court of Appeals for Adams County, No. 17CA1041, 2017-Ohio-8499.
{¶ 1} This is a discretionary appeal from the Fourth District Court of Appeals concerning which of two sentencing statutes applies to violations of
{¶ 2} We agree that the two statutes conflict, but applying the rule of statutory construction codified in
I. THE TEXT AND HISTORY OF R.C. 2925.041 AND 2929.14(A)(3)
{¶ 3}
If the violation of division (A) of this section is a felony of the third degree under this division and if the chemical or chemicals assembled or possessed in violation of division (A) of this section may be used to manufacture methamphetamine, there either is a presumption for a prison term for the offense or the court shall impose a mandatory prison term on the offender, determined as follows:
(1) Except as otherwise provided in this division, there is a presumption for a prison term for the offense. If the offender two or more times previously has been convicted of or pleaded guilty to a felony drug abuse offense, except as otherwise provided in this division, the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the third degree that is not less than two years.
If the offender two or more times previously has been convicted of or pleaded guilty to a felony drug abuse offense and if at least one of those previous convictions or guilty pleas was to a violation of division (A) of this section, a violation of division (B)(6) of section 2919.22 of the Revised Code [allowing a child to be in the vicinity of a controlled-substance-manufacturing offense under R.C. 2925.04 or 2925.041], or a violation of division (A) of section 2925.04 of the Revised Code [engaging in the production of a controlled substance], the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the third degree that is not less than five years.
(Emphasis added.)
{¶ 4}
{¶ 5} The other statute at issue in this case is
{¶ 6} In 2011,
(a) For a felony of the third degree that is a violation of section 2903.06, 2903.08, 2907.03, 2907.04, or 2907.05 of the Revised Code or that is a violation of section 2911.02 or 2911.12 of the Revised Code if the offender previously has been convicted of or pleaded guilty in two or more separate proceedings to two or more violations of section 2911.01, 2911.02, 2911.11, or 2911.12 of the Revised Code, the prison term shall be twelve, eighteen, twenty-four, thirty, thirty-six, forty-two, forty-eight, fifty-four, or sixty months.
(b) For a felony of the third degree that is not an offense for which division (A)(3)(a) of this section applies, the prison term shall be nine, twelve, eighteen, twenty-four, thirty, or thirty-six months.
{¶ 7} H.B. 86 also amended
II. FACTUAL AND PROCEDURAL BACKGROUND
{¶ 8} In May 2016, defendant-appellee, Darian J. Tribble, was indicted in the Adams County Court of Common Pleas on one count of illegal assembly or possession of chemicals for the manufacture of a controlled substance—specifically, methamphetamine—in violation of
{¶ 9} There is no dispute that given Pribble‘s prior convictions of a felony drug-manufacturing offense in 2009 and a felony drug-possession offense in 2015, he met the prior-convictions requirement that triggers sentencing pursuant to the third-strike provision in
{¶ 10} Citing its decision in State v. Clark, 4th Dist. Highland No. 14CA20, 2015-Ohio-5003, the Fourth District Court of Appeals reversed Pribble‘s sentence. The court held that
When a defendant is convicted of a third-degree felony charge of illegal assembly of chemicals for the manufacture of drugs pursuant to
R.C. 2925.041(A) , the chemicals could have been used to manufacture methamphetamine, and the defendant has two or more prior felony drug abuse convictions, at least one of which is listed inR.C. 2925.041(C)(1) , the trial court is required to sentence the defendant underR.C. 2925.041(C)(1) to a mandatory prison term of “not less than five years.”
III. LAW AND ANALYSIS
{¶ 11} Both
{¶ 12} “It is a well-settled rule of statutory interpretation that statutory provisions be construed together and the Revised Code be read as an interrelated body of law.” State v. Moaning, 76 Ohio St.3d 126, 128, 666 N.E.2d 1115 (1996). “‘This court in the interpretation of related and co-existing statutes must harmonize and give full application to all * * * statutes [concerning the same subject matter] unless they are irreconcilable and in hopeless conflict.‘” United Tel. Co. of Ohio v. Limbach, 71 Ohio St.3d 369, 372, 643 N.E.2d 1129 (1994), quoting Johnson‘s Mkts., Inc. v. New Carlisle Dept. of Health, 58 Ohio St.3d 28, 35, 567 N.E.2d 1018 (1991); State v. Cook, 128 Ohio St.3d 120, 2010-Ohio-6305, 942 N.E.2d 357, ¶ 45. But when statutes conflict, as
A. Application of R.C. 1.51
{¶ 13} “It is a well-settled principle of statutory construction that when an irreconcilable conflict exists between two statutes that address the same subject matter, one general and the other special, the special provision prevails as an exception to the general statute.” State v. Conyers, 87 Ohio St.3d 246, 248, 719 N.E.2d 535 (1999).
1. R.C. 2925.041(C)(1) is the more specific statute
{¶ 14} Here,
{¶ 15}
{¶ 16}
{¶ 17} Because it includes wide, discretionary sentencing ranges,
The General Assembly reflected that specific intent by separately prescribing the penalty in a more specific statute.
2. The applicable portion of R.C. 2929.14(A)(3) was not enacted later in time
{¶ 18} Still, under
{¶ 19} As discussed above, special penalties for methamphetamine production were first instituted in 2006. However, in 2011,
a long-standing rule that courts will not hold prior legislation to be implicitly repealed by the enactment of subsequent legislation unless the subsequent legislation clearly requires that holding,” State v. Frost, 57 Ohio St.2d 121, 124, 387 N.E.2d 235 (1979).
{¶ 20} Upon applying
R.C. 1.47(C) provides an additional relevant consideration
{¶ 21} “In enacting a statute, it is presumed that * * * [a] just and reasonable result is intended.”
C. The rule of lenity does not apply
{¶ 22} In holding that
{¶ 23} Are we again at odds, this time between statutes that instruct us how to construe statutes? No, because the rule of lenity is not the first place to turn when interpreting conflicting criminal statutes. The rule of lenity is properly applied when, “after all the legitimate tools of interpretation have been applied, ‘a reasonable doubt persists.’ ” Scalia & Garner, Reading Law: The Interpretation of Legal Texts, at 299, quoting Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990). The United States Supreme Court has also noted the limited applicability of the rule of lenity: “That rule, as we have repeatedly emphasized, applies only if, ‘after considering text, structure, history and purpose, there remains a grievous ambiguity or uncertainty in the statute such that the Court must simply guess as to what Congress intended.’ ” Abramski v. United States, 573 U.S. 169, 188, 134 S.Ct. 2259, 189 L.Ed.2d 262 (2014), fn. 14, quoting Maracich v. Spears, 570 U.S. 48, 76, 133 S.Ct. 2191, 186 L.Ed.2d 275 (2013). We agree that if other principles of construction resolve a conflict between two criminal statutes, there is no need to apply the rule of lenity. “‘The rule comes into operation at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers.’ ” Elmore at ¶ 40, quoting Gozlon-Peretz v. United States, 498 U.S. 395, 410, 111 S.Ct. 840, 112 L.Ed.2d 919 (1991), quoting Callanan v. United States, 364 U.S. 587, 596, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961). There is no need to perpetuate the idea that there is an intractable conflict requiring application of the rule of lenity when another rule of statutory construction resolves the conflict, as
IV. CONCLUSION
{¶ 24} The trial court followed the applicable statute,
Judgment reversed and sentence reinstated.
FRENCH and STEWART, JJ., concur.
O‘CONNOR, C.J., and FISCHER, J., concur in judgment only.
DEWINE, J., dissents, with an opinion.
DONNELLY, J., dissents, with an opinion.
DEWINE, J., dissenting.
{¶ 25} We are confronted with conflicting statutory directives as to the permissible punishment for a crime. One statute says a judge must impose a prison sentence of 9 to 36 months; another statute ordains a flat five-year sentence. The lead opinion applies a tool of statutory construction to conclude that the longer sentence must be imposed. But in my view, that tool fails to provide a satisfactory answer in this case. I would turn to the rule of lenity and hold that the shorter sentencing range applies.
{¶ 26} The crime here is the assembly or possession of chemicals for use in making methamphetamine, codified in
{¶ 27} The above language was added to the illegal-assembly statute in 2006. See
{¶ 28} Some years later, the General Assembly changed tack and rewrote the felony-sentencing statute. It reduced the sentencing range for most third-degree felonies to 9 to 36 months and enumerated certain offenses eligible for a heightened sentence of 12 to 60 months. See
{¶ 29} The lead opinion looks to
{¶ 30} I am not convinced. As I see it, the general/special rule does not persuasively resolve the conflict between the statutes. First, as Justice Donnelly illustrates in his dissenting opinion, it is by no means clear that the lead opinion has correctly labeled these statutes as “specific” and “general.” A strong argument can be made that both are specific. The illegal-assembly provision can be said to be specific in that it explicitly names the illegal-assembly offense and sets forth a minimum penalty for the offense. But the sentence-shortening provision can also be said to be specific in that it explicitly lists every third-degree felony for which a judge may impose a sentence longer than three years.
{¶ 31} If both provisions are specific, then
{¶ 32} But even if we accept the lead opinion‘s characterizations of the illegal-assembly provision as specific and the sentence-shortening provision as general, we must still grapple with the manifest-intent portion of
{¶ 33} There is an additional problem with the lead opinion‘s logic. Even if we
{¶ 34} All of this is a long way of saying that the rule of statutory construction relied on by the lead opinion doesn‘t convincingly answer the question in front of us. Nor do any of our other ordinary tools of statutory construction. In such a situation, the legislature has instructed that “sections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused.”
This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed. It also places the weight of inertia upon the party that can best induce Congress to speak more clearly and keeps courts from making criminal law in Congress‘s stead.
{¶ 35} It is true that we employ traditional methods of textual interpretation to determine at the outset whether the provision at issue is truly ambiguous; the rule of lenity “operates only at the end of the process of construction.” (Cleaned up.) United States v. R.L.C., 503 U.S. 291, 311, 112 S.Ct. 1329, 117 L.Ed.2d 559 (1992) (Thomas, J., concurring in part and concurring in judgment). But when those methods fail to yield a satisfactory construction, the rule of lenity instructs that we must choose the construction that favors the criminal defendant.
{¶ 36} That is precisely the situation here. Our well-established methods of statutory construction do not convincingly resolve the conflict between the statutes, nor do they clarify the ambiguous language regarding punishment within the illegal-assembly provision. The rule of lenity compels us to opt for the shorter sentencing range. Because the lead opinion concludes otherwise, I respectfully dissent.
DONNELLY, J., dissenting.
{¶ 37} I dissent. The Fourth District Court of Appeals got it exactly right when
I. Introduction
{¶ 38} Before I enter into the jumble of numbers and letters that inevitably piles up when picking apart statutory provisions, I want to frame this conflict in plain English. This matter does not actually involve a clean conflict; it does not involve two statutes that independently prescribe conflicting sentences. The two statutory provisions at issue in this case are interrelated. One statute used to prescribe a range of prison sentences. The other statute incorporated that sentencing range but added an extra requirement. Subsequently, the sentencing-range statute changed in a way that made it impossible to satisfy the extra requirement.
{¶ 39} One solution to this problem would be to pretend that the extra-requirement statute is actually a stand-alone sentencing provision that no longer incorporates the sentencing-range statute (despite the fact that the extra-requirement statute still says that it incorporates the sentencing-range statute) and that the specific nature of the extra requirement indicates that the General Assembly meant for it to be a stand-alone exception to the sentencing-range statute. Another solution would be to modify the extra requirement so that it can remain at least partially effective in light of the sentencing-range statute that the extra-requirement statute expressly incorporates.
{¶ 40} The lead opinion concludes that the former solution is the only possible choice when considering the canon of statutory construction that favors a specific over a general provision. I would hold that the latter solution is the better choice, even when using the lead opinion‘s chosen analytical tools. I would also hold that the appropriate analytical tool for this conflict in penal statutory language is the rule of strict construction, also called the rule of lenity. And under the rule of lenity, the latter solution is all but required.
II. A proper understanding of the statutes involved
{¶ 41} The allegedly general statute in this conflict is
{¶ 42} The allegedly specific statute in this conflict is a provision within
{¶ 43} The plain language of the foregoing statutes, as well as their interrelationship, reveal that the F3 statute is not necessarily a general statute, the third-strike provision is not an independent specific statute, the third-strike provision conflicts with both the general and specific F3 provisions, and the true conflict lies within the third-strike provision itself.
A. R.C. 2929.14(A)(3) is no longer just a general statute
{¶ 44} When the third-strike provision was added to
{¶ 45} But in 2011, the General Assembly revamped the F3 statute to prescribe a range of definite sentences from 9 to 36 months for most third-degree felony offenses in the general F3 provision,
{¶ 46} The specific F3 provision,
vehicular homicide (
{47} To remove any suspicion that the specific F3 provision could somehow be generally applied to other unenumerated offenses by judicial inference alone, the F3 statute further specifies that the general F3 provision—and not the specific F3 provision—must apply to any “felony of the third degree that is not an offense for which division (A)(3)(a) of this section applies.” (Emphasis added.)
{48} The F3 statute is no longer the general statute that it was in 2006. It is now bifurcated into two separate provisions. Even assuming that
B. R.C. 2925.041(C)(1) is not an independent variable
{49} The third-strike provision in
{50} What makes the third-strike provision an allegedly specific statute is that it
{51} Without using a sentencing range prescribed by the F3 statute, the third-strike provision in
C. The five-year minimum in R.C. 2925.041(C)(1) conflicts with both the specific and the general sentencing provisions in R.C. 2929.14(A)(3)
{52} There was no conflict between the third-strike provision of
{53} Why the General Assembly decided to add the aura of judicial discretion to the third-strike provision when none existed is unclear. What matters, though, is that the General Assembly did not choose to simply state in the third-strike provision of
{54} In 2011, the five-year floor in the third-strike provision ceased to make any sense at all. The five-year minimum is not allowed by the general F3 provision,
{55} This court has already held that if an offense is not listed in the specific F3 provision,
{56} There was no statutory conflict for this court to resolve in South, because the language of
{57} Unlike the language of
III. The applicable tools of interpretation
{58} Given the context provided above regarding the nature of the statutes and the conflict, I disagree with the lead opinion‘s conclusion that “the mandatory five-year sentence prescribed by
A. The general/specific canon and R.C. 1.51
{59} The lead opinion primarily relies on the general/specific canon of interpretation articulated in
1. R.C. 2925.041(C)(1) is not the more specific statute
{60} As explained above, the third-strike provision in
{61}
{62} The specific F3 provision,
2. The sentencing ranges of both the specific and the general provisions of R.C. 2929.14(A)(3) were enacted later in time
{63} The offense of illegal assembly or possession of chemicals for the manufacture of drugs,
{64} In 2006, the General Assembly added sanction-level enhancements for violations involving methamphetamines by requiring certain sentencing minimums: under
{65} In 2011, the General Assembly changed the aggravating circumstances that qualified for the enhancement steps in
{67} The statutory conflict here is not related to the nature of an offender‘s violation of
3. The result of employing the general/specific canon
{68} Because
{69} Irrespective of the result, though, application of the general/specific canon of interpretation (and its later-in-time exception) do not truly address the conflict in this case. This is not the kind of case in which we must resolve a conflictbetween two completely separate statutes that make no reference to each other and that prescribe conflicting penalties of independent force. The conflict that needs to be resolved is actually within the third-strike provision itself. The language of the third-strike provision at issue here is: “the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the third degree that is not less than five years,”
B. The rule of lenity and R.C. 2901.04(A)
{70} Contrary to the lead opinion‘s representation, when it comes to criminal statutes, the rule of lenity is not always the last kid picked in gym class. As the lead opinion notes, see lead opinion at ¶ 23, some leading authorities have advised that the rule of lenity can apply only “after all the legitimate tools of interpretation have been applied, ‘a reasonable doubt persists.‘” Scalia & Garner at 299, quoting Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990). But those same authorities have also argued that many tools of interpretation are not appropriate in the context of criminal statutes. See, e.g., Moskal at 132 (Scalia, J., dissenting) (inferences regarding legislative purpose should not be used to construe an ambiguous penal statute
On the whole, it might fairly be said that the rule of lenity is underused in modern judicial decision-making—perhaps the consequence of zeal to smite the wicked. The defendant has almost always done a bad thing, and the instinct to punish the wrongdoer is a strong one. But a fair system of laws requires precision in the definition of offenses and punishments. The less the courts insist on precision, the less the legislatures will take the trouble to provide it.
(Footnote omitted.) Id. at 301.
{71} I think the rule of lenity ought to apply to the interpretation of criminal statutes far more than it has been applied in recent years. Although criminal laws should not be “construed so strictly as to defeat the obvious intention of the legislature,” we should first and foremost value the fact that the age-old rule of lenity “is founded on the tenderness of the law for the rights of individuals [as well as] the plain principle that the power of punishment is vested in the legislative, not in the judicial department.” United States v. Wiltberger, 18 U.S. 76, 77, 95, 5 L.Ed. 37 (1820). And if we are to say with a straight face that ignorance of the law is no excuse, then we must insist that lack of clarity in the law is no excuse either. See McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 75 L.Ed. 816 (1931) (“it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed“).
{72} Further, even if the rule of lenity is considered a last resort by some conservative modern authorities on statutory interpretation, it cannot be considered a last resort in Ohio criminal law, because our General Assembly has specificallyinstructed otherwise in
{73} The lead opinion dismisses the General Assembly‘s own instruction on its intent by invoking judicially created canons of statutory interpretation and by citing cases suggesting that the rule of lenity should be applied only as a last resort after considering all other canons of interpretation. As a general notion, I disagree that there is a hierarchy of canons of interpretation that is as immutable as the lead opinion and its cited cases let on. Regardless, the alleged hierarchy of canons of interpretation does not trump the legislature‘s clear expression of its intent to us in
{74} Accordingly, the rule of lenity is the appropriate canon of interpretation to use in attempting to resolve the conflicting language in the third-strike provision,
IV. Resolution of the conflict through the rule of lenity
{75} The nature of the conflict here is clear: the General Assembly made a mistake. Either it meant (but failed) to reduce the minimum prison term in the third-strike provision of
{76} In order to strictly construe
{77} Because the rule of lenity allows for a reasonable resolution of the internal conflict within the language of the third-strike provision of
{78} Finally, it bears noting that the lead opinion‘s solution requires deletion of most of the relevant language in the third-strike provision of
V. Conclusion
{79} Although the lead opinion implies otherwise, its objective cannot be to allow the third-strike provision of
{80} It is possible that the General Assembly‘s intent was exactly as the justices joining the lead opinion infer, and it is just as possible that its intent was otherwise. Regardless, we should not speculate to resolve this kind of conflict, especially in the context of penal statutes. Until the General Assembly makes its intent clear in the general and specific sentencing provisions of the F3 statute and the third-strike provision of
David C. Kelley, Adams County Prosecuting Attorney, and Mark R. Weaver, Assistant Prosecuting Attorney, for appellant.
Timothy Young, Ohio Public Defender, and Allen Vender, Assistant Public Defender, for appellee.