THE STATE OF OHIO, APPELLEE, v. TAYLOR, APPELLANT.
Nos. 2012-2136
Supreme Court of Ohio
February 13, 2014
138 Ohio St.3d 194, 2014-Ohio-460
Submitted November 6, 2013
{¶ 7} The lower court correctly held that not only did Harsh have an adequate remedy at law, but that Judge Oney did not lack the jurisdiction to try Harsh and to sentence him for a fourth-degree-felony DUI offense. Judge Oney had the basic jurisdiction to sentence Harsh, and Harsh should have appealed the sentencing order to raise any concerns he had with his convictions or his sentence. The Twelfth District was correct in dismissing this case, and we affirm.
{¶ 8} Harsh‘s various motions are denied as moot.
Judgment affirmed.
O‘CONNOR, C.J., and PFEIFER, O‘DONNELL, LANZINGER, KENNEDY, FRENCH, and O‘NEILL, JJ., concur.
Robert Harsh, pro se.
{¶ 1} The Ninth District Court of Appeals certified a conflict between its decision in this case and decisions of the Fifth District Court of Appeals in State v. Gillespie, 2012-Ohio-3485, 975 N.E.2d 492 (5th Dist.) and State v. David, 5th Dist. Licking No. 11-CA-110, 2012-Ohio-3984, 2012 WL 3776917, on the following issue: whether the defendant may benefit from the decrease in a classification and penalty of an offense enacted by the General Assembly that becomes effective after the commission of the offense but before sentencing on that offense.
{¶ 2} On July 23, 2011, Lucious Taylor stole $550 worth of cologne from a Sears store. At that time,
{¶ 3} The outcome of this case is directly affected by
{¶ 4} We answer the certified question in the affirmative and conclude that the legislature intended to afford the benefit of a decreased theft offense classification to offenders like Taylor, and therefore the trial court properly convicted and sentenced him for a misdemeanor violation.
Facts and Procedural History
{¶ 5} On July 23, 2011, Lucious Taylor shoplifted $550 worth of cologne from a Sears department store in Akron, Ohio. A Summit County grand jury subse-
{¶ 6} Effective September 30, 2011, the General Assembly enacted H.B. 86, and among other changes to Ohio‘s sentencing laws, it decreased the classification of theft of property valued at less than $1,000, making the offense a first-degree misdemeanor, which correspondingly reduced the punishment for that offense.
{¶ 7} On December 19, 2011, Taylor pled no contest to theft, and the trial court convicted and sentenced him for a first-degree misdemeanor.
{¶ 8} The state obtained leave to appeal the court‘s decision to convict Taylor of a misdemeanor rather than a felony. In a divided opinion, the Ninth District Court of Appeals concluded that the trial court had properly sentenced Taylor as a first-degree misdemeanant, but it determined that the court should have convicted Taylor of a felony, because the General Assembly had not made the amendments to
{¶ 9} The dissent in the appellate court referenced the uncodified law enacted by H.B. 86, noting that it afforded the benefit of the amendments to all offenders included pursuant to
{¶ 10} The appellate court certified a conflict with State v. Gillespie, 2012-Ohio-3485, 975 N.E.2d 492 (5th Dist.), and State v. David, 5th Dist. Licking No. 11-CA-110, 2012-Ohio-3984, 2012 WL 3776917. In the conflict cases, the Fifth District Court of Appeals concluded that by incorporating
{¶ 11} We accepted the certified conflict for resolution.
Law and Analysis
{¶ 12} The General Assembly is vested with the power to define, classify, and prescribe punishment for offenses committed in Ohio. State v. Bates, 118 Ohio St.3d 174, 2008-Ohio-1983, 887 N.E.2d 328, ¶ 12; State v. Thompkins, 75 Ohio St.3d 558, 560, 664 N.E.2d 926 (1996); State v. Rush, 83 Ohio St.3d 53, 57, 697 N.E.2d 634 (1998) (opinion of Moyer, C.J., and Cook and Lundberg Stratton, JJ.).
{¶ 13} We have recognized that concomitant with its plenary power to prescribe crimes and penalties, the legislature may extend the benefit of lesser penalties and reduced punishment to those who committed offenses prior to the effective date of legislation. State v. Morris, 55 Ohio St.2d 101, 378 N.E.2d 708 (1978), syllabus. However, an offender may not benefit from a reduction in the penalty or punishment when the legislature expressly provides that the amended sentencing provisions apply only to those offenses committed on or after the effective date of the enactment. See Rush at paragraph two of the syllabus.
{¶ 14} Our role, in the exercise of the judicial power granted to us by the Constitution, is to interpret the law that the General Assembly enacts, and the primary goal in construing a statute is to ascertain and give effect to the intent of the legislature. State v. Robinson, 124 Ohio St.3d 76, 2009-Ohio-5937, 919 N.E.2d 190, ¶ 18. We are guided in this task in this case by the uncodified language provided in Section 4 of H.B. 86:
The amendments to section[ ] * * * 2913.02 * * * of 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 after 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.
{¶ 15}
{¶ 16} The central position advanced by the state is that
{¶ 17} The real question presented here is not that the amendments to
{¶ 18} In resolving this case, the appellate court concluded that Taylor should have been convicted of a felony offense but sentenced as a misdemeanant. Notably, the legislature has provided no statutory authority for those convicted of a felony offense to be sentenced pursuant to the sentencing statute for misdemeanants. And as we observed in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332:
Judges have no inherent power to create sentences. * * * Rather, judges are duty-bound to apply sentencing laws as they are written. * * * “[T]he only sentence which a trial court may impose is that provided for by statute. A court has no power to substitute a different sentence for that provided for by statute or one that is either greater or lesser than that provided for by law.” Colegrove [v. Burns], 175 Ohio St. [437,] 438, 25 O.O.2d 447, 195 N.E.2d 811 [(1964)].
Id. at ¶ 22.
Conclusion
{¶ 19}
{¶ 20} In this case, Taylor had not been sentenced as of the date the amendments became effective and therefore pursuant to
Judgment reversed.
PFEIFER, Acting C.J., and HARSHA, LANZINGER, KENNEDY, and O‘NEILL, JJ., concur.
FRENCH, J., dissents.
WILLIAM H. HARSHA, J., of the Fourth Appellate District, sitting for O‘CONNOR, C.J.
HARSHA, J., concurring.
{¶ 22} The question presented by this certified-conflict case is whether the legislature intended to provide the benefit of both a decreased penalty and a lower offense classification to offenders who committed their offense prior to the enactment of 2011 Am.Sub.H.B. No. 86 (“H.B. 86“) but who were not sentenced until after the act‘s effective date. I concur in the majority opinion and emphasize one factor that bolsters my conclusion: the express reference in section 4 of H.B. 86 to
{¶ 23} Why would the legislature have included the reference to
{¶ 24} The legislature instructed us that “[t]he amendments to section[ ] * * * 2913.02 * * * of the Revised Code * * * apply * * * to a person to whom division (B) of section 1.58 * * * makes the amendments applicable.” (Emphasis added.) Section 4 of H.B. 86.
FRENCH, J., dissenting.
{¶ 26} The central question before us is whether the classification level of an offense qualifies as a “penalty” or “punishment” to the offender, apart from any actual sentence the offender receives. Because the answer to this question is no, and because the majority largely avoids the issue, I must respectfully dissent.
{¶ 27} 2011 Am.Sub.H.B. No. 86 (“H.B. 86“) amended
{¶ 28}
{¶ 29} H.B. 86 changed the classification level for Taylor‘s theft offense from a fifth-degree felony to a first-degree misdemeanor. An offense-level classification, by itself—and aside from any actual sentence—is not a penalty or punishment. Taylor argues that because a felony conviction carries numerous collateral disadvantages, such as losing the right to vote, to hold certain public offices, or to apply for certain licensures, the offense-level classification is itself a penalty. This argument is not persuasive.
{¶ 30} Moreover, not every higher offense-level classification carries additional consequences. Not all offenders will be faced with the difference between a felony conviction and a misdemeanor conviction. Some offenses may have changed only from a level-three felony to a level-four felony, or from a level-two misdemeanor to a level-three misdemeanor.
{¶ 31} Taylor focuses solely on the collateral disabilities associated with felonies, but even a felony conviction does not necessarily entail any additional consequences for a particular defendant. For instance, if an offender already had ten felony convictions on his record, one additional felony conviction may not result in any new disabilities; the offender would already have been subject to the normal consequences of being a convicted felon. Simply put, not every offense-level classification comes with collateral consequences. And even if it did, the classification level still would not qualify as a penalty or punishment under
{¶ 32} Nevertheless, the majority concludes that Taylor could not be convicted as a felon and sentenced as a misdemeanant. I disagree with the rationales supporting this conclusion.
{¶ 33} First, the majority states that an offense classification cannot be separated from the offense penalty because “implicit in a decrease in the classification of an offense * * * is a corresponding reduction in the penalty or punishment for that conduct.” Majority opinion at ¶ 16. That is incorrect. A decrease in offense classification does not necessarily have any corresponding reduction in the penalty or punishment. For example, in Taylor‘s case, the decrease in his offense classification had no effect on the penalty he received. At the sentencing hearing, the trial judge sentenced Taylor to two years of community-control sanctions for his theft. After some discussion of H.B. 86, the judge decreased Taylor‘s offense level from a fifth-degree felony to a first-degree misdemeanor. The judge explained, however, that Taylor‘s sentence would have been the same regardless of how the offense was classified, stating: “Now, none of this [the change in classification] is going to affect you in any practical order. You will still be on probation.” Thus, it is incorrect to say that a decrease in classification necessarily corresponds to a decrease in the actual penalty or punishment for a crime. The two are not inextricably intertwined.
{¶ 34} Second, the majority predicates its decision on the idea that “the legislature has provided no statutory authority for those convicted of a felony offense to be sentenced pursuant to the sentencing statute for misdemeanants.”
{¶ 35} Finally, I disagree with the majority‘s reading of Section 4. The majority states that “because
{¶ 36} Not so. Section 4 clearly states that an amendment applies to an offender only if
{¶ 37} Ultimately, both the majority and the concurrence narrowly focus on who should receive the benefit of retroactive amendments, without asking which amendments even apply retroactively. The opinions assume, incorrectly, that any statutory amendment will apply retroactively through
Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Richard S. Kasay, Assistant Prosecuting Attorney, for appellee.
Neil P. Agarwal, for appellant.
Timothy Young, Ohio Public Defender, and Stephen Goldmeier, Assistant Public Defender, urging reversal for amicus curiae, Office of the Ohio Public Defender.