Opinion
Appellate Case No. 25414 Trial Court Case No. 2010-CR-483
07-12-2013
STATE OF OHIO Plaintiff-Appellant v. NICHOLAS S. JENKINS Defendant-Appellee
MATHIAS H. HECK, JR., by KIRSTEN A. BRANDT, Atty. Reg. #0070162, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellant ADELINA E. HAMILTON, Atty. Reg. #0078595, Law Office of the Public Defender, 117 South Main Street, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellee
(Criminal Appeal from
Common Pleas Court)
OPINION
MATHIAS H. HECK, JR., by KIRSTEN A. BRANDT, Atty. Reg. #0070162, Montgomery
County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellant
ADELINA E. HAMILTON, Atty. Reg. #0078595, Law Office of the Public Defender,
117 South Main Street, Suite 400, Dayton, Ohio 45422
Attorney for Defendant-Appellee
HALL, J.,
{¶ 1} The State of Ohio appeals from the trial court's judgment entry convicting and sentencing appellee Nicholas S. Jenkins on one count of receiving stolen property as a first-degree misdemeanor pursuant to the H.B. 86 version of R.C. 2913.51(A).
{¶ 2} In its sole assignment of error, the State contends H.B. 86 entitled Jenkins to the benefit of a sentence associated with a first-degree misdemeanor, not to reclassification of his offense from a fifth-degree felony to a first-degree misdemeanor.
{¶ 3} Based on the dollar value of the stolen property Jenkins received, H.B. 86 made his offense a first-degree misdemeanor rather than a fifth-degree felony. This legislation took effect September 30, 2011. The General Assembly expressly provided in H.B. 86 when its amendments were to be applicable: "The amendments * * * 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(B) of the Revised Code makes the amendments applicable." In turn, R.C. 1.58(B) identifies the law to apply when a statute is amended after the commission of a crime but before sentencing: "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."
{¶ 4} Here Jenkins committed his offense before the effective date of H.B. 86, but he was sentenced after the effective date. Under these circumstances, the State concedes he is entitled to a sentence associated with a first-degree misdemeanor. The State argues, however, that he is not entitled to have his actual offense reduced from a fifth-degree felony to a first-degree misdemeanor. This court rejected an identical argument in State v. Anderson, 2d Dist. Montgomery No. 25114, 2013-Ohio-295, State v. Wilson, 2d Dist. Montgomery No. 25057, 2012-Ohio-5912, and State v. Arnold, 2d Dist. Montgomery No. 25044, 2012-Ohio-5786. Although other Ohio appellate courts have reached different conclusions, several have also agreed with our resolution of the issue. See, e.g., State v. Boltz, 6th Dist. Wood No. WD-12-012, 2013-Ohio-1830, ¶12 (citing cases). The Ohio Supreme Court has certified a conflict to resolve the issue. See State v. Taylor, 134 Ohio St.3d 1466, 2013-Ohio-553, 983 N.E.2d 366.
If deciding the issue in the first instance, the author would agree with the reasoning in Judge Dickinson's lead opinion of State v. Taylor, 9th Dist. Summit No. 26279, 2012—Ohio—5403. But stare decisis requires the result we reach here.
{¶ 5} The State urges us to reconsider Anderson, Wilson, and Arnold, but as we did earlier this year in Anderson, we reject the State's request to reconsider our existing jurisprudence. On the authority of Anderson, Wilson, and Arnold, the State's assignment of error is overruled.
{¶ 6} The judgment of the Montgomery County Common Pleas Court is affirmed. FAIN, P.J., and DONOVAN, J., concur. Copies mailed to: Kirsten A. Brandt
Mathias H. Heck
Adelina E. Hamilton
Hon. Dennis J. Langer