THE STATE OF OHIO, APPELLANT, v. THOMAS, APPELLEE.
No. 2015-0473
Supreme Court of Ohio
August 30, 2016
2016-Ohio-5567
FRENCH, J.
Submitted April 5, 2016
Markesbery & Richardson Co., L.P.A., Katherine A. Clemons, and Glenn A. Markesbery, for appellee Larry Reese Jr.
FRENCH, J.
{1 1} Appellee, Jermaine Thomas, was convicted of first-degree-felony rape and kidnapping in 2014 for offenses he committed in 1993. After he committed the offenses but before he was convicted and sentenced, the General Assembly twice enacted substantial changes to Ohio‘s criminal-sentencing scheme. As relevant to Thomas, the law in effect in 2014 reduced the potential prison sentences for first-degree-felony rape and kidnapping as compared with the potential prison sentences for those offenses under the law in effect in 1993. In this discretionary appeal, we consider whether Thomas is entitled to the benefit of the shorter potential sentences under the law in effect at the time of sentencing. We hold that he is.
FACTS AND PROCEDURAL HISTORY
{1 2} In 2013, the Cuyahoga County Grand Jury indicted Thomas for multiple offenses stemming from an incident in 1993. The parties tried the case to a jury, which returned guilty verdicts on one rape charge and one kidnapping charge. At the time these offenses were committed, they were both aggravated felonies of
{1 3} Sentencing took place in 2014. Consistent with the sentencing law in effect at the time of the 1993 offenses, the trial court imposed an 8-to-25-year prison sentence on the rape count and an 8-to-25-year prison sentence on the kidnapping count. The trial court ordered Thomas to serve those sentences concurrently. It also merged the three-year firearm specifications, ordering that Thomas serve them prior to and consecutive to his rape and kidnapping sentences for a total prison sentence of 11 to 25 years.
{1 4} Thomas appealed the sentence and argued that he should have been sentenced under 2011 Am.Sub.H.B. No. 86 (“H.B. 86“), the law in effect at the time of his 2014 sentencing. The Eighth District Court of Appeals agreed, vacated Thomas‘s sentence, and remanded for resentencing.
{1 5} We accepted the discretionary appeal of appellant, the state of Ohio. 143 Ohio St.3d 1463, 2015-Ohio-3733, 37 N.E.3d 1249. The state presents a single proposition of law:
A defendant who commits an offense prior to July 1, 1996 is subject to law in effect at the time of the offense and not subject to sentencing provisions of S.B. 2 effective July 1, 1996 and H.B. 86 effective September 30, 2011.
{1 6} For the reasons below, we conclude that Thomas must be sentenced under H.B. 86. We therefore affirm the Eighth District‘s judgment.
ANALYSIS
{1 7} Our primary concern when construing statutes is legislative intent. State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545, 660 N.E.2d 463 (1996). In determining that intent, we first look to the plain language of the statute. Summerville v. Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280, 943 N.E.2d 522, ¶ 18, citing Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 11. But when legislative intent is unclear, we invoke statutory-construction principles. Cline v. Ohio Bur. of Motor Vehicles, 61 Ohio St.3d 93, 97, 573 N.E.2d 77 (1991); State v. Taylor, 100 Ohio St.3d 172, 2003-Ohio-5452, 797 N.E.2d 504, ¶ 17.
{1 8} Before turning to the various sentencing statutes implicated here, we briefly set out two statutory rules of construction that apply to all Ohio statutes,
{1 9} Under the sentencing scheme in place in 1993 when Thomas committed the offenses, he was subject to prison sentences ranging from 5 to 25 years to 10 to 25 years for each offense. Former
{1 10} On July 1, 1996, Am.Sub.S.B. No. 2 (“S.B. 2“), 146 Ohio Laws, Part IV, 7136, took effect. The hallmark of this enactment was truth in sentencing, which it accomplished by eliminating indefinite sentences and replacing parole with postrelease control, which is a postprison period during which the Adult Parole Authority would supervise offenders and impose conditions designed to protect the community and aid the offenders’ successful reintegration into society. Woods v. Telb, 89 Ohio St.3d 504, 508, 733 N.E.2d 1103 (2000). As a result, offenders served the definite sentence imposed, unless the sentence was altered by the judge. Id. Under S.B. 2, the authorized prison sentence for a first-degree felony—like those Thomas was convicted of—was three, four, five, six, seven, eight, nine, or ten years. Former
{1 11} S.B. 2 also contained uncodified law—that is, provisions that are not laws of a general and permanent nature and thus do not receive permanent Ohio Revised Code section numbers. Maynard v. Eaton Corp., 119 Ohio St.3d 443, 2008-Ohio-4542, 895 N.E.2d 145, ¶ 7, citing Ohio Legislative Service Commission, A Guidebook for Ohio Legislators 145 (10th Ed. 2007-2008). The uncodified law found in Section 5 of S.B. 2, as amended by 1996 Section 3 of Am.Sub.S.B. No. 269 (“S.B. 269“),1 146 Ohio Laws, Part VI, 10752, 11099, provided:
The provisions of the Revised Code in existence prior to July 1, 1996, shall apply to a person upon whom a court imposed a term of imprison-
ment prior to that date and notwithstanding division (B) of section 1.58 of the Revised Code, to a person upon whom a court, on or after that date and in accordance with the law in existence prior to that date, imposes a term of imprisonment for an offense that was committed prior to that date. The provisions of the Revised Code in existence on and after July 1, 1996, apply to a person who commits an offense on or after that date.
{1 12} In State v. Rush, 83 Ohio St.3d 53, 697 N.E.2d 634 (1998), paragraph two of the syllabus, we confirmed that this language limited the sentencing provisions of S.B. 2 to offenders who committed their offenses on or after July 1, 1996. Applying this language, we conclude that because Thomas committed his offenses in 1993, prior to the effective date of S.B. 2, he was not eligible for sentencing under S.B. 2, notwithstanding the admonition of
{1 13} The General Assembly again enacted substantial changes to Ohio‘s felony-sentencing scheme with H.B. 86, which took effect on September 30, 2011. The General Assembly‘s intent in enacting H.B. 86 was “to reduce the state‘s prison population and to save the associated costs of incarceration by diverting certain offenders from prison and by shortening the terms of other offenders sentenced to prison.” State v. Taylor, 138 Ohio St.3d 194, 2014-Ohio-460, 5 N.E.3d 612, ¶ 17, citing Ohio Legislative Service Commission, Fiscal Note & Local Impact Statement to Am.Sub.H.B. 86, at 3 (Sept. 30, 2011). Among its many changes, H.B. 86 reduced the minimum and maximum sentences for many nonviolent third-degree felonies, added categories of offenses to those already eligible for intervention in lieu of conviction, and created mandatory community-control sanctions for many fourth- and fifth-degree-felony offenses. David J. Diroll, Ohio Criminal Sentencing Commission, H.B. 86 Summary: The 2011 Changes to Criminal and Juvenile Law, 7-9 (Sept. 26, 2011), available at http://www.supremecourt.ohio.gov/Boards/Sentencing/resources/summaries/HB86Summary.pdf (accessed June 10, 2016). For first-degree-felony offenses—like those Thomas committed—H.B. 86 prescribed a prison term of three, four, five, six, seven, eight, nine, ten, or eleven years.
{1 14} Like S.B. 2, H.B. 86 included uncodified law addressing the offenders to whom its changes applied. See H.B. 86, Sections 3 and 4. Unlike S.B. 2, however, the uncodified law in H.B. 86 did not in all instances limit application of its provisions to those offenders who committed offenses on or after its effective date. Nor did the uncodified language in H.B. 86 provide an exception to the applicability of
{1 15} Under the sentencing scheme in place in 1993 when Thomas committed the offenses, he was subject to prison sentences ranging from 5 to 25 years to 10 to 25 years. Former
{1 16} The state contends that Thomas remains subject to the sentencing provisions in place at the time of his offenses in 1993 because the uncodified language of S.B. 2, as amended by S.B. 269, precludes application of
{1 17} As applied to Thomas—who committed his offenses prior to the effective date of S.B. 2 and S.B. 269, both effective July 1, 1996, but was not sentenced until after the effective date of H.B. 86 in 2011—the uncodified law of these enactments irreconcilably conflicts. The uncodified language of S.B. 2 would preclude application of
CONCLUSION
{1 18} The amendments to
Judgment affirmed.
O‘CONNOR, C.J., and PFEIFER, LANZINGER, and O‘NEILL, JJ., concur.
O‘DONNELL, J., dissents, with an opinion joined by KENNEDY, J.
O‘DONNELL, J., dissenting.
{1 19} Respectfully, I dissent.
{2 0} In my view, a person who committed an offense prior to July 1, 1996, but is sentenced on or after September 30, 2011, is subject to the sentencing provisions in existence prior to July 1, 1996, not the provisions of 2011 Am.Sub.H.B. No. 86 (“H.B. 86“), because the uncodified law in Section 5 of Am.Sub.S.B. No. 2 (“S.B. 2“), as amended by the uncodified law in Section 3 of Am.Sub.S.B. No. 269 (“S.B. 269“), 146 Ohio Laws, Part VI, 10752, 11099, does not conflict with the uncodified law in Section 4 of H.B. 86.
Statutory Analysis
{2 1}
The provisions of the Revised Code in existence prior to July 1, 1996, shall apply to a person upon whom a court imposed a term of imprisonment prior to that date and notwithstanding division (B) of section 1.58 of the Revised Code, to a person upon whom a court, on or after that date and in accordance with the law in existence prior to that date, imposes a term of imprisonment for an offense that was committed prior to that date.
The provisions of the Revised Code in existence on and after July 1, 1996, apply to a person who commits an offense on or after that date.
(Emphasis added.) 146 Ohio Laws, Part VI, 11099. The foregoing language is an expressed intent of the General Assembly that a person who committed an offense prior to July 1, 1996, but who is sentenced on or after that date be sentenced in accordance with the law in effect prior to July 1, 1996, despite the language of
{2 3} On September 30, 2011, H.B. 86 took effect, and Section 4 of that act states:
The amendments to * * * division (A) of section 2929.14 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.
(Emphasis added.)
{2 4} In the enactment of H.B. 86 however, the General Assembly did not expressly repeal Section 5 of S.B. 2. This is significant because “the judicial policy of Ohio has been that repeals by implication are not favored and will not be found unless the provisions of the purported repealing Act are so totally inconsistent and irreconcilable with the existing enactment as to nullify it.” State ex rel. Specht v. Painesville Twp. Local School Dist. Bd. of Edn., 63 Ohio St.2d 146, 148, 407 N.E.2d 20 (1980).
{2 6} Thus, a person such as Jermaine Thomas who committed offenses before July 1, 1996, is subject to the sentencing laws in existence prior to that date, and a person who commits an offense on or after that date is subject to the amended sentencing provisions in H.B. 86 if the individual otherwise meets the requirements of that act.
{2 7} Accordingly, I would reverse the judgment of the Eighth District Court of Appeals.
KENNEDY, J., concurs in the foregoing opinion.
Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Daniel T. Van and Brett S. Hammond, Assistant Prosecuting Attorneys, for appellant.
Russell S. Bensing, for appellee.
John Murphy, Joseph T. Deters, and Rachel Lipman Curran, urging reversal for amicus curiae Ohio Prosecuting Attorneys Association.
Ron O‘Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor, Chief Counsel, urging reversal for amicus curiae Franklin County Prosecuting Attorney Ron O‘Brien.