STATE OF OHIO, PLAINTIFF-APPELLEE vs. JOHN J. SAPLAK, DEFENDANT-APPELLANT
No. 97825
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
September 20, 2012
2012-Ohio-4281
BEFORE: Kilbane, J., Rocco, P.J., and Keough, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-554377
JUDGMENT: CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENCING
Mark R. Marshall
P.O. Box 451146
Westlake, Ohio 44145
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Erin Stone
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, John Saplak, appeals frоm his conviction for a felony violation of
{¶2} On September 27, 2011, defendant was indicted by information in connection with events occurring from August 9, 2011 to September 9, 2011. He was charged with one count of theft of property vаlued between $500 and $5000, in violation of
{¶3} On October 18, 2011, shortly after the effective date of H.B. 86, defendant pled guilty to the theft charge and the remaining charges were dismissed. At this time, the stolen property was identified as $665.20 “worth of beer at Marc‘s.” The matter was set for sentencing on November 17, 2011. Defendant did not appear on this date and a capiаs was issued. On January 5, 2012, the trial court sentenced defendant to six months of imprisonment and up to three years of postrelease control sanctions. He was also ordered to make restitution.
{¶4} Defendant now appeals, assigning two errors for our review:
ASSIGNMENT OF ERROR ONE
ASSIGNMENT OF ERROR TWO
The trial court erred in sentencing appellant to a term of incarceration pursuant to a finding of guilt for F-5 theft that includes a potential for postrelease control pursuant to
{¶5} In these assignments of error, defendant notes that H.B. 86 amended
{¶6} At the time of the offense to which defendant pled guilty,
(A)(1) No person, with purpose to deprive the owner of property * * *, shall knowingly obtain or exert control over * * * the property * * * [w]ithout the consent of the owner or person authorized to give consent.
* * *
(B)(2) Except as othеrwise 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 serviсes
stolen is five hundred dollars or more and is less than five thousand dollars * * *, a violation of this section is theft, a felony of the fifth degree. * * *.
{¶7} Effective September 30, 2011, H.B. 86 amended
(A) No person, with purpose to dеprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways:
(1) Without the consent of the owner or person authorized to give consent;
* * *
(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. * * * .
{¶8} Section 4 of the enacted legislation provides in pertinent part as follows:
The amendments to sections * * * 2913.02 * * * оf 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 аfter the effective date of this section and to a person to whom division (B) of section 1.58 of the Revised Code makes the amendments applicable.
{¶9} Therefore, H.B. 86 contains the statement of specific legislative intent that the amendments to
{¶10}
“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.” (Emphasis added.)
{¶11} Therefore “[w]hen sentencing an offender, Ohio courts must apply the statute in effect at the time the offender committed the offense, unless a statute, enacted after the commission of the offense, but before sentencing, provides for a lesser punishment.” Steinfurth, ¶ 13.
{¶12} In this mаtter, defendant committed the offense during the time period of August 9, 2011 to September 9, 2011, or before the effective date of the changes to
Steinfurth committed a felony offense on May 4, 2011. He entered a plеa of guilty to the felony offense on September 13, 2011. H.B. 86 went into effect on September 30, 2011. The trial court sentenced Steinfurth on October 13, 2011. Because Steinfurth committed the offense prior to H.B. 86‘s effective date, but was sentenced after the effective date, he was entitled to and received the reduced penalty fоr a first-degree misdemeanor based on
R.C. 1.58 and H.B. 86‘s amendments toR.C. 2913.02 .R.C. 1.58 clearly states that a criminal defendant receives the benefit of a reduced penalty, forfeiture, or punishment. Contrary to Steinfurth‘s argument,R.C. 1.58 makes no mention of a criminal defendant receiving the benefit of a lesser or reduced offense itself, here, the benefit of amending Steinfurth‘s fifth-degree felony conviction to that of a first-degree misdemeanor.Steinfurth relies on State v. Burton, 11 Ohio App.3d 261, 11 Ohio B. 388, 464 N.E.2d 186 (10th Dist.1983) and State v. Collier, 22 Ohio App.3d 25, 22 Ohio B. 100, 488 N.E.2d 887 (3rd Dist.1984) in support of his argument he was entitled to the benefit of amending his сonviction from a felony to a
misdemeanor. These cases, however, clearly support the conclusion that R.C. 1.58 , as applied here, only required the triаl court to sentence Steinfurth for a first-degree misdemeanor pursuant to the amendments toR.C. 2913.02 . The trial court correctly concluded the theft offense conviсtion remained a fifth-degree felony because Steinfurth committed the offense prior to the effective date of H.B. 86.
{¶13} That reasoning is fully applicable herein. In this matter, defendant committed the offense prior to H.B. 86‘s effective date, but he entered his guilty plea and was sentenced after the effective date. Therеfore, under H.B. 86‘s amendments to
{¶14} Nonetheless, in accordance with thе principles outlined above, the penalty, forfeiture, or punishment for the offense has changed because theft in this matter is now a first degree misdemeanor and not a fifth degree felony. Under
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
KENNETH A. ROCCO, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR