State v. SolomonState v. Solomon
{¶1} Defendant-appellant Deandrean Solomon appeals the judgment of the Hamilton County Court of Common Pleas convicting him on one count of aggravated possession of drugs, a third-degree felony offense, and one count of possession of cocaine, a fourth-degree felony offense. Solomon contends that the trial court convicted him of higher-degree offenses than authorized by law. For the reasons that follow, we agree.
I. Background Facts
{¶2} Solomon was a passenger in an automobile stopped by Springfield Township police officers in May 2011. During a search of the automobile, the police found a bottle of Oxycodone pills and a bag containing crack cocaine on the floor below where Solomon had been sitting.
{¶3} The grand jury indicted Solomon for three offenses: aggravated possession of Oxycodone, “in an amount less than bulk,” in violation of
{¶4} At a bench trial held in October 2011, the trial court found Solomon guilty on count one, the aggravated-possession-of-Oxycodone offense, as a third-degree felony, even though the indictment had only charged him with a fifth-degree felony offense based on the quantity of the drug. And the trial court found him guilty on count three, the possession-of-cocaine offense, as a fourth degree-felony offense, which was authorized by the version of
{¶5} The trial court sentenced Solomon to three years of community control with conditions, including that Solomon serve 180 days in the Hamilton County Justice Center. The court also imposed a mandatory three-year-driver‘s-license suspension. The court notified Solomon that if he violated the terms of his community control, he was subject to imprisonment for three years, the maximum term of imprisonment for a third-degree felony.
II. Count One: Aggravated Possession of Oxycodone
{¶6} In his first assignment of error, Solomon contends that the trial court committed plain error by entering a conviction for the aggravated possession of Oxycodone as a third-degree felony offense where the state had indicted him for the aggravated possession of Oxycodone as a fifth-degree felony offense. The state concedes the error, and we agree with both parties that the trial court erred.
{¶7} Count one of the indictment charged that Solomon had possessed Oxycodone in “an amount less than bulk,” an offense classified as felony of the fifth degree since 2008.
{¶8} Although Solomon did not bring the error to the attention of the trial court, the error clearly affected Solomon‘s substantial rights and produced an outcome that would have been otherwise but for the error. See Davis at ¶ 12. The court convicted Solomon on a charge materially different from that found by the
{¶9} Thus, we hold that Solomon has demonstrated plain error. Accordingly, we sustain the first assignment of error.
III. Count Three: Possession of Cocaine
{¶10} After Solomon‘s indictment, the General Assembly enacted H.B. 86, which implemented changes to Ohio‘s criminal and juvenile laws. Relevant to this case, H.B. 86 amended several statutes to eliminate the difference between crack and powder cocaine, which are both now included in the definition of “cocaine.”
{¶11} The amendments to
{¶12} In his second assignment of error, Solomon contends that the trial court erred by failing to impose a sentence consistent with the “reduced penalties” enacted by H.B. 86. He argues that because he was sentenced after the effective date of H.B. 86, the provisions of
{¶13} The state concedes that it would have been contrary to
{¶14} We note that the record does not demonstrate that trial counsel for Solomon raised this argument below. Accordingly, we review for plain error.
A. Legislative Intent
{¶15} The first issue before us is whether the General Assembly intended that any of the provisions of amended
1. R.C. 1.58—Ohio‘s Savings Clause
{¶16} In Ohio, when the General Assembly reenacts, amends, or repeals a criminal statute, the substantive provisions of the former law apply to all pending prosecutions, but the defendants receive the benefit of a reduced “penalty, forfeiture, or punishment” in the statute as amended, unless the General Assembly expresses another intent. See
(A) The reenactment, amendment, or repeal of a statute does not, except as provided in division (B) of this section:
(1) Affect the prior operation of the statute or any action taken thereunder;
(2) Affect any validation, cure, right, privilege, obligation, or liability previously acquired, accrued, accorded, or incurred thereunder;
(3) Affect any violation thereof or penalty, forfeiture, or punishment incurred in respect thereto, prior to the amendment or repeal;
(4) Affect any investigation, proceeding, or remedy in respect of any such privilege, obligation, liability, penalty, forfeiture, or punishment; and the investigation, proceeding, or remedy may be instituted, continued, or enforced, and the penalty, forfeiture, or punishment imposed, as if the statute had not been repealed or amended.
(B) 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.
{¶17}
a. Solomon‘s Argument: Broad Interpretation
{¶19} Solomon‘s interpretation of
{¶20} The Collier court held that the amendment related only to the penalty imposed and came within the provisions of
{¶21} Significantly, the court further held that “[t]he amending legislation * * * operated to reduce the[] [felony theft] counts to misdemeanor counts.” Id. at 28. Ultimately, the court reversed the “felony theft sentences” and remanded “for resentencing the defendant to a misdemeanor sentence for each of the two counts of misdemeanor theft for which he was found guilty.” Id. at 28-29.
{¶23} In a case involving the retroactive application of certain provisions of H.B. 86, the Fifth Appellate District recently adopted an interpretation of
{¶24} In David, the defendant was indicted on one count of theft, in violation of
{¶25} H.B. 86 amended
{¶26} On appeal, the state argued that the trial court had erred by reducing the charges to misdemeanor offenses, and that
{¶27} The David court, citing the decision in Gillespie, which also involved H.B. 86 and the passing-bad-checks statute, determined that the level of the offense is part of the “penalty” for the offense, and that the court must reduce the level of the offense when
b. The State‘s Argument
{¶28} The state argues that
{¶29} In Kaplowitz, the defendant pled guilty to aggravated vehicular assault and the specification that he was driving under the influence of alcohol at the time of the offense, in violation of
{¶30} The trial court sentenced Kaplowitz for a violation of
{¶31} In affirming the Eighth District on the certified issue, the Supreme Court held that ”
{¶32} The certified question in Kaplowitz involved the equivalency of offenses under former and amended statutes for purposes of
{¶33} But the state‘s narrow interpretation of the words “penalty, forfeiture, or punishment” in
{¶34} In Steinfurth, the defendant was indicted for felony theft under
{¶35} Before his sentencing hearing, H.B. 86 took effect. H.B. 86 amended
c. Definition of “Penalty,” Forfeiture,” and “Punishment” in R.C. 1.58(B)
{¶36} The parties disagree over the meaning of the terms “penalty,” “forfeiture,” and “punishment” in
{¶38} The term “penalty” has varying definitions, including (1) “[p]unishment imposed on a wrongdoer, usually in the form of imprisonment or fine“; (2) “[a]n extra charge against a party who violates a contractual provision;” and (3) “[e]xcessive stipulated damages that a contract purports to impose on a party that breaches.” Black‘s Law Dictionary 1168 (8th Ed.2004). The most relevant definition to this case is the first one—punishment or fine.
{¶39} The term “forfeiture” has varying definitions, including (1) “[t]he divestiture of property without compensation;” (2) “[t]he loss of a right, privilege, or property because of a crime * * * ;” (3) “[s]omething (especially money or property) lost or confiscated by this process; a penalty;” and (4) “[a] destruction or deprivation of some estate or right because of the failure to perform some obligation or condition contained in a contract.” Id. at 677.
{¶40} Finally, the term “punishment” is defined as (1) “[a] sanction—such as a fine, penalty, confinement, or loss of property, right, or privilege—assessed against a person who has violated the law,” and (2) “[a] negative disciplinary action administered to a minor by a parent.” Id. at 1269-1270.
{¶41} Conversely, “degree of crime” is defined as (1) “[a] division or classification of a single crime into several grades of guilt, according to the circumstances surrounding the crime‘s commission, such as aggravating factors present or the type of injury suffered” and (2) “[a] division of crimes generally, such as felonies or misdemeanors.” Id. at 457. “Degree of crime” does not fall within any of the definitions of “penalty,” “forfeiture,” or “punishment.”
If the drug involved in the violation is cocaine or a compound, mixture, preparation, or substance containing cocaine, whoever violates division (A) of this section is guilty of possession of cocaine. The penalty for the offense shall be determined as follows:
(a) Except as otherwise provided * * *, possession of cocaine is a felony of the fifth degree, and division (B) of
section 2929.13 of the Revised Code applies in determining whether to impose a prison term on the offender;(b) If the amount of the drug involved equals or exceeds five grams but is less than ten grams of cocaine, possession of cocaine is a felony of the fourth degree, and division (B) of
section 2929.13 of the Revised Code applies in determining whether to impose a prison term on the offender;(c) If the amount of the drug involved equals or exceeds ten grams but is less than twenty grams of cocaine, possession of cocaine is a felony of the third degree, and, except as otherwise provided in this division, there is a presumption for a prison term for the offense. If possession of cocaine is a felony of the third degree under this division and if the offender two or more times previously has been convicted of or pleaded guilty to a felony drug abuse offense, the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the third degree.
(Emphasis added.)
{¶44} As demonstrated by
{¶45} Although it is difficult conceptually to separate the classification of the offense—the level or degree of the offense—from the punishment imposed for the offense the defendant is found guilty of committing, we believe the General Assembly did just that when it chose to use the words “penalty, forfeiture, or sanction” in
{¶46} However,
B. Section 3 of H.B. 86
{¶47} In Section 3 of H.B. 86 the General Assembly announced when the courts should apply the amendments to
The amendments to section[] * * * 2925.11 of the Revised Code * * * that are made in this act apply to a person who commits an
offense involving * * * cocaine * * * on or after the effective date of this act and to a person to whom division (B) of section 1.58 of the Revised Code makes the amendments applicable. The provisions of * * * R.C. 2925.11 * * * in existence prior to the effective date of this act shall apply to a person upon whom a court imposed sentence prior to the effective date of this act for an offense involving * * * cocaine. The amendments to section[] 2925.11 of the Revised Code * * * that are made in this act do not apply to a person upon whom a court imposed sentence prior to the effective date of this act for an offense involving * * * cocaine * * *.
{¶48} In determining legislative intent, we look to the face of an act or statute. We must give “significance and effect * * * to every word, phrase, sentence and part thereof, if possible.” State v. Wilson, 77 Ohio St.3d 334, 336-337, 673 N.E.2d 1347 (1997). “It is a basic presumption in statutory construction that the General Assembly is not presumed to do a vain or useless thing, and that when language is inserted in a statute it is inserted to accomplish some definite purpose.” State ex rel. Cleveland Elec. Illum. Co. v. Euclid, 169 Ohio St. 476, 479, 159 N.E.2d 756 (1959).
{¶49} Here, the General Assembly stated in Section 3 of H.B. 86 that the ”provisions” of the former act and not the ”amendments” apply to those sentenced before the effective date of the act, but that the ”amendments” to
{¶51} We believe that without the reference to
{¶52} Our review of the language in Section 3 of H.B. 86, including the reference to
{¶53} Our decision is consistent with the decision of the Tenth Appellate District in State v. Limoli, 10th Dist. No. 11AP-924, 2012-Ohio-4502, although our analysis may differ. The Limoli court rejected the state‘s argument that none of the
{¶54} In conclusion, although we disagree with Solomon‘s argument that the “level of the offense” is a part of the “penalty” for the offense, we hold that the trial court erred by not applying the amended version of
{¶55} While the court imposed a community-control sanction that was authorized for the level of the offense, the trial court notified Solomon that if he violated the terms of his community control, he was subject to imprisonment for three years. That sanction is not authorized for the commission of a fifth-degree felony offense. Thus, at sentencing, the trial court did not apply the amended version of
IV. Ineffective-Assistance-of-Counsel Claim
{¶56} In his final assignment of error, Solomon argues he was denied the effective assistance of counsel because counsel failed to inform the trial court that count one of the indictment charged a fifth-degree felony, and not a third-degree felony. To prevail on an ineffective assistance of counsel claim, a defendant must show counsel‘s deficient performance and resulting prejudice. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).
{¶58} Because Solomon has shown trial counsel‘s deficient performance and resulting prejudice, we sustain the third assignment of error.
V. Conclusion
{¶59} The trial court erred by convicting Solomon of higher-degree offenses than authorized under the relevant statutes, and by imposing sentences that were contrary to law. We reverse the trial court‘s judgment, and we remand the case with instructions for the court to modify the judgments of conviction to reflect that Solomon was convicted of two fifth-degree felony offenses, and for the court to resentence Solomon accordingly.
VI. Certification of Conflict
{¶60} We acknowledge that our disposition of the second assignment of error directly conflicts with the decisions of the Fifth Appellate District in State v. David, 5th Dist. No. 11-CA-110, 2012-Ohio-3984, and State v. Gillespie, 2012-Ohio-3485, 975 N.E.2d 492 (C.A. 5th.). We, therefore, sua sponte certify to the Supreme Court of Ohio, pursuant to the
{¶61} And we acknowledge that our decision directly conflicts with the decision of the Eighth Appellate District in State v. Steinfurth, 8th Dist. No. 97549, 2012-Ohio-3257. We, therefore, sua sponte certify to the Supreme Court of Ohio, pursuant to the
Judgment reversed and cause remanded.
Sundermann, P.J., concurs.
Dinkelacker, J., concurs in part and dissents in part.
Dinkelacker, J., concurring in part and dissenting in part.
{¶62} While I agree with the majority‘s resolution of Solomon‘s first assignment of error, I do not agree with the majority‘s analysis of
{¶63} I agree with the majority‘s analysis that the terms “penalty,” “forfeiture,” and “punishment“—as those terms are used in
{¶64} Simply put, I believe—as does the majority—that the “level of the offense” is not a part of the “penalty for that offense.” Rather than strike out on this new course, I believe that this court would be well-served to follow the path set forth by the
{¶65} Because I believe that the majority has read much more into the language of H.B. 86 than the legislature intended, I must dissent from that portion of the majority‘s opinion. I would hold that, while Solomon is entitled to a reduction in penalty, he is not entitled to a reduction in the level of his offense. I concur with the majority opinion in all other respects.
Please note:
The court has recorded its own entry on the date of the release of this opinion.