THE STATE OF OHIO, CROSS-APPELLANT, v. WILLAN, CROSS-APPELLEE.
No. 2012-0216
Supreme Court of Ohio
Submitted March 13, 2013—Decided June 11, 2013
136 Ohio St.3d 222, 2013-Ohio-2405
{¶ 1} In this appeal, we consider the scope of the language in
BACKGROUND
{¶ 2} In December 2008, a jury found cross-appellee, David Willan, guilty of 68 counts, including one first-degree-felony count of engaging in a pattern of corrupt activity in violation of
{¶ 3} The court of appeals affirmed the guilty verdicts for the corrupt-activity count and three of the predicate violations of
{¶ 4} We declined to accept jurisdiction over Willan‘s appeal. We accepted jurisdiction over the state‘s cross-appeal to consider the following proposition of law: ”
ANALYSIS
{¶ 5} To decide the scope of
{¶ 6}
{¶ 7}
{¶ 9} We also reject the premise underlying the court of appeals’ determination that the statute is ambiguous. According to the court of appeals, ambiguity existed “in light of the [statute‘s] explicit application of the mandatory sentence to sixteen different offenses identified by their Revised Code section number, and the failure to include any statutory reference to
{¶ 10} Equally unconvincing is Willan‘s reliance on the doctrine of ejusdem generis. Under that interpretive canon, “whenever words of general meaning follow the enumeration of a particular class, then the general words are to be construed as limited to those things which pertain to the particularly enumerated class.” Akron Home Med. Servs., Inc. v. Lindley, 25 Ohio St.3d 107, 109, 495 N.E.2d 417 (1986). “Corrupt activity” is not a word of general meaning; we must construe it according to its specific legislative definition set forth in
CONCLUSION
{¶ 11} We acknowledge that
Judgment reversed.
HALL, O‘DONNELL, and KENNEDY, JJ., concur.
PFEIFER, Acting C.J., and LANZINGER and O‘NEILL, JJ., dissent.
MICHAEL T. HALL, J., of the Second Appellate District, sitting for O‘CONNOR, C.J.
PFEIFER, Acting C.J., dissenting.
{¶ 12} I join Justice Lanzinger‘s well-reasoned dissent, but write separately to highlight the General Assembly‘s failure in legislative drafting exemplified by former
LANZINGER, J., dissenting.
{¶ 13} The majority reads former
{¶ 14} In rejecting the court of appeals’ interpretation of the statute, the majority views the statute as unambiguously containing four alternative clauses, each independently calling for a mandatory ten-year prison term. But grammatically, that is not so. Former
if the offender commits a felony violation of
section 2925.02 ,2925.04 ,2925.05 ,2925.36 ,3719.07 ,3719.08 ,3719.16 ,3719.161 ,4729.37 , or4729.61 , division (C) or (D) ofsection 3719.172 , division (C) ofsection 4729.51 , or division (J) ofsection 4729.54 of the Revised Code that includes the sale, offer to sell, or possession of a schedule I or II controlled substance, with the exception of marihuana
—but then adds an additional clause relating to a sentencing statute: “and the court imposing sentence upon the offender finds that the offender is guilty of a specification of the type described in
if the court imposing sentence upon an offender for a felony finds that the offender is guilty of corrupt activity with the most serious offense in the pattern of corrupt activity being a felony of the first degree, or if the offender is guilty of an attempted violation of
section 2907.02 of the Revised Code and, had the offender completed the violation ofsection 2907.02 of the Revised Code that was attempted, the offender would have been subject to a sentence of life imprisonment or life imprisonment without parole for the violation ofsection 2907.02 of the Revised Code .
Finally, the sentence concludes, stating that a prison term of ten years may not be reduced by judicial release, the Adult Parole Authority, or the Department of Rehabilitation and Correction: “the court shall impose upon the offender for the felony violation a ten-year prison term that cannot be reduced pursuant to
[i]t is reasonable to conclude that if the legislature intended the mandatory ten-year term imposed by
R.C. 2929.14(D)(3)(a) to apply to the general offense of engaging in a pattern of corrupt activity, it would have cross-referenced the mandatory penalty ofR.C. 2929.14(D)(3)(a) in its explanation of the penalties associated with the general offense of engaging in a pattern of corrupt activity set forth inR.C. 2923.32(B)(1) , as it did in great detail for each of the specified drug offenses.
2011-Ohio-6603, 2011 WL 6749842, ¶ 111.
{¶ 17} This interpretation of the General Assembly‘s intent is bolstered by amendments to
The rule of lenity applies to
{¶ 18} The majority opinion discusses canons of construction but omits one important principle to be used in construing criminal statutes: the rule of lenity. We have emphasized that “where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant.” State v. Young, 62 Ohio St.2d 370, 374, 406 N.E.2d 499 (1980), quoting United States v. Bass, 404 U.S. 336, 348, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971).
{¶ 20} As we have explained,
The rule of lenity is a principle of statutory construction that provides that a court will not interpret a criminal statute so as to increase the penalty it imposes on a defendant if the intended scope of the statute is ambiguous. See Moskal v. United States (1990), 498 U.S. 103, 107-108, 111 S.Ct. 461, 112 L.Ed.2d 449, quoting Bifulco v. United States (1980), 447 U.S. 381, 387, 100 S.Ct. 2247, 65 L.Ed.2d 205, quoting Lewis v. United States (1980), 445 U.S. 55, 65, 100 S.Ct. 915, 63 L.Ed.2d 198 (“‘the “touchstone” of the rule of lenity “is statutory ambiguity“‘“); State v. Arnold (1991), 61 Ohio St.3d 175, 178, 573 N.E.2d 1079. Under the rule, ambiguity in a criminal statute is construed strictly so as to apply the statute only to conduct that is clearly proscribed. United States v. Lanier (1997), 520 U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d 432.
State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, 912 N.E.2d 582, ¶ 38. Thus, Willan was on notice that for a conviction of corrupt activity within the meaning of
Conclusion
{¶ 21} Perhaps if the statute simply said that a mandatory ten-year prison term was required for an offender “guilty of corrupt activity under
PFEIFER, Acting C.J., and O‘NEILL, J., concur in the foregoing opinion.
Brad L. Tammaro, Assistant Attorney General, as Special Prosecuting Attorney, and Colleen Sims, Assistant Summit County Prosecuting Attorney, for cross-appellant.
William T. Whitaker Co., L.P.A., Andrea L. Whitaker, and William T. Whitaker, for cross-appellee.
John Murphy, Executive Director, Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, urging reversal for amicus curiae, Ohio Prosecuting Attorneys Association.
Notes
In its entirety, former
Except when an offender commits a violation of
2004 Am.Sub.H.B. No. 473, 150 Ohio Laws, Part IV, 5735.