Opinion
Court of Appeals No. WD-12-026 Trial Court No. 11 CR 659
06-14-2013
State of Ohio Appellant v. Douglas Zalewski Appellee
Paul A. Dobson, Wood County Prosecuting Attorney, Aram M. Ohaniam and David E. Romaker, Jr., Assistant Prosecuting Attorneys, for appellant. J. Scott Hicks, Wood County Public Defender, for appellee.
DECISION AND JUDGMENT
Paul A. Dobson, Wood County Prosecuting Attorney, Aram M. Ohaniam and David E. Romaker, Jr., Assistant Prosecuting Attorneys, for appellant.
J. Scott Hicks, Wood County Public Defender, for appellee.
YARBROUGH, J.
I. Introduction
{¶1} Appellant, the state of Ohio, appeals the judgment of the Wood County Court of Common Pleas, sentencing appellee, Douglas Zalewski, to a 180-day term of incarceration in the Wood County Justice Center. For the following reasons, we affirm.
A. Facts and Procedural Background
{¶2} On August 22, 2011, Zalewski presented a check for $780 to the Cross Winds Golf Club in Perrysburg, Ohio, knowing it would be dishonored. As a result, he was indicted on January 5, 2012, on one count of passing bad checks in violation of R.C. 2913.11(B). Zalewski initially pleaded not guilty.
{¶3} At the time of his offense, Zalewski's violation of R.C. 2913.11(B) was punishable as a felony of the fifth degree, because the amount of the check was greater than $500. However, on September 30, 2011, House Bill 86 (H.B. 86) went into effect, amending the threshold at which a violation of R.C. 2913.11(B) becomes a felony. Under H.B. 86, passing a bad check in an amount less than $1,000 is a misdemeanor of the first degree.
{¶4} On June 7, 2012, following plea negotiations with the state, Zalewski entered a guilty plea to one count of passing bad checks. After accepting the plea, the trial court found him guilty, applied H.B. 86 to reduce the level of the offense from a felony of the fifth degree to a misdemeanor of the first degree, and immediately proceeded to sentencing. Zalewski was sentenced to 180 days in the Wood County Justice Center. The state's timely appeal followed.
B. Assignment of Error
{¶5} On appeal, the state assigns the following error for our review:
I. THE TRIAL COURT IMPROPERLY MODIFIED
ZALEWSKI'S CHARGES WHEN IT REDUCED HIS FIFTH-DEGREE
FELONY PASSING BAD CHECK TO A MISDEMEANOR, WHEN THE
OFFENSE OCCURRED BEFORE THE EFFECTIVE DATE OF H.B. 86.
II. Analysis
{¶6} In the state's sole assignment of error, it argues that the trial court erred in its application of H.B. 86, which led the court to classify the passing-bad-checks offense as a misdemeanor of the first degree instead of a felony of the fifth degree. The state does not dispute the fact that Zalewski is entitled to be sentenced as if the offense was a misdemeanor of the first degree. Rather, the state argues that, since the offense was committed prior to the effective date of H.B. 86, Zalewski should not receive the benefit of a reduction in classification for the theft offense.
{¶7} As to the retroactive application of the statutory amendments contained in H.B. 86, Section 4 provides that it "appl[ies] to a person who commits an offense * * * 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." R.C. 1.58(B) states: "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."
{¶8} The offense was unquestionably committed prior to the effective date of amended R.C. 2913.02. Thus, the issue is whether the amendment to R.C. 2913.02 reduces the "penalty, forfeiture, or punishment" for theft under R.C. 1.58(B).
{¶9} Numerous trial and appellate courts in Ohio have addressed the question before us in this case since H.B. 86 went into effect on September 30, 2011. The First, Second, Fifth, Tenth, and Eleventh Appellate Districts have found that criminal defendants charged before the effective date of H.B. 86 and sentenced after that date were not only entitled to a reduction in their sentences under H.B. 86, but also to a reduction in the classifications of their crimes. State v. Solomon, 1st Dist. No. C-120044, 2012-Ohio-5755, 983 N.E.2d 872, ¶ 54 (1st Dist.) (classification reduced from fifth degree felony to fourth degree felony due to H.B. 86 amendments); State v. Arnold, 2d Dist. No. 25044, 2012-Ohio-5786, ¶ 13 (charge reduced from felony of the fourth degree to felony of the third degree); State v. Gillespie, 5th Dist. No. 2012-CA-6, 2012-Ohio-3485, 975 N.E.2d 492, ¶ 15 (amendments made by H.B. 86 applied to entitle defendant to be sentenced to a misdemeanor rather than a felony); State v. Limoli, 10th Dist. No. 11AP-924, 2012-Ohio-4502, ¶ 66 (reversing trial court conviction in part due to operation of H.B. 86 reducing classification of crime); State v. Cefalo, 11th Dist. No. 2011-L-163, 2012-Ohio-5594, ¶ 15 (fifth degree felony conviction reversed due to amendments to threshold levels made in H.B. 86 changing the crime to a misdemeanor of the first degree). Notably, we recently addressed this issue in State v. Boltz, 6th Dist. No. WD-12-012, 2013-Ohio- 1830. In Boltz, we held that "[s]ince appellee's sentencing occurred after H.B. 86 went into effect, he is entitled to the lesser penalties of the amendments made by H.B. 86, regardless of when the crime was committed. Such lesser penalties include the reduced classification of the crime under which the appellee was charged." Id. at ¶ 20.
{¶10} On the other hand, the Eighth and Ninth Districts came to the opposite conclusion, holding that H.B. 86 did not require a reduction in the classification of a crime for defendants awaiting sentences for crimes committed before the effective date of H.B. 86. State v. Steinfurth, 8th Dist. No. 97549, 2012-Ohio-3257, ¶ 15-16; State v. Taylor, 9th Dist. No. 26279, 2012-Ohio-5403, ¶ 8. The Supreme Court of Ohio recently certified the conflict between the Fifth and Ninth District courts and accepted a discretionary appeal on this issue. State v. Taylor, 134 Ohio St.3d 1466, 2013-Ohio-553, 983 N.E.2d 366.
{¶11} Citing State v. Steinfurth, the state argues that the trial court improperly sentenced Zalewski for a misdemeanor offense. In Steinfurth, the Eight District Court of Appeals held, in part:
Because Steinfurth committed the offense prior to H.B. 86's effective date, but was sentenced after the effective date, he was entitled to and received the reduced penalty for a first-degree misdemeanor based on R.C. 1.58 and H.B. 86's amendments to R.C. 2913.02. R.C. 1.58 clearly states that a criminal defendant receives the benefit of a reduced penalty,
forfeiture, or punishment. Contrary to Steinfurth's argument, R.C. 1.58 makes no mention of a criminal defendant receiving the benefit of a lesser or reduced offense itself, here, the benefit of amending Steinfurth's fifth-degree felony conviction to that of a first-degree misdemeanor.
Steinfurth relies on State v. Burton, 11 Ohio App.3d 261, 464 N.E.2d 186 (10th Dist.1983) and State v. Collier, 22 Ohio App.3d 25, 488 N.E.2d 887 (3rd Dist.1984) in support of his argument he was entitled to the benefit of amending his conviction from a felony to a misdemeanor. These cases, however, clearly support the conclusion that R.C. 1.58, as applied here, only required the trial court to sentence Steinfurth for a first-degree misdemeanor pursuant to the amendments to R.C. 2913.02. The trial court correctly concluded the theft offense conviction remained a fifth-degree felony because Steinfurth committed the offense prior to the effective date of H.B. 86. (Emphasis sic.) Id. at ¶ 15-16.
{¶12} Following the Eighth District's reasoning in Steinfurth, the Ninth District reached the same conclusion in State v. Taylor. In Taylor, the defendant was convicted of theft for stealing $550 worth of cologne from a Sears store. H.B. 86 went into effect during the time period between Taylor's commission of the offense and his sentencing. Applying R.C. 1.58(B), the trial court determined that Taylor could only be convicted for a first-degree misdemeanor. Id. at ¶ 2. On appeal, the Ninth District Court of Appeals reversed the trial court, stating:
Under Section 1.58(B), a defendant in Mr. Taylor's position is entitled to benefit from the decreased penalty enacted by the General Assembly while the case was pending against him, but nothing in that section provides that he is entitled to benefit from any decrease in classification of the crime. Id. at ¶ 7, citing State v. Saplak, 8th Dist. No. 97825, 2012-Ohio-4281, ¶ 13 (applying Steinfurth and holding that "the defendant is not entitled to the amendment of the fifth degree felony conviction to a first degree misdemeanor").
{¶13} Less than two weeks after the Eighth District decided Steinfurth, the Fifth District released its decision in State v. Gillespie. In Gillespie, the defendant was sentenced for passing bad checks in violation of R.C. 2913.11(B), which at the time the offense was committed was a felony of the fifth degree. However, as is the case here, Gillespie was sentenced for the offense after the effective date of H.B. 86, which increased the felony threshold beyond the amount for which Gillespie was convicted. Gillespie 2012-CA-6, 2012-Ohio-3485, 975 N.E.2d 492 at ¶ 7. While the state acknowledged the fact that Gillespie was entitled to receive the benefit of a reduced sentence, it argued that he was not entitled to receive a reclassification of the offense as a misdemeanor. Id. at ¶ 8. The court disagreed, stating:
In its simplest form, to constitute a theft offense it need only be proven that some property of value has been taken. R.C. 2913.02 does not require the indictment to allege, or the evidence to establish, any particular value of the property taken. The offense of theft therein defined is complete and the offender becomes guilty of theft without respect to the value of the property or services involved. However, it becomes necessary to prove the value of the property taken, and likewise necessary that the jury find the value and state it in the verdict in order to measure the penalty. "Therefore, in such case, the verdict must find the value to enable the court to administer the appropriate penalty." State v. Whitten, 82 Ohio St. 174, 182, 92 N.E. 79 (1910). (Emphasis added).
The amendment to R.C. 2913.02 raising the line of demarcation from five hundred dollars to one thousand dollars relates only to the penalty. 2011 Am.Sub.H.B. No. 86 operates, when the value of the property stolen falls between these two limitations, to reduce the penalty from that prescribed for a felony of the fifth degree to that prescribed for a misdemeanor of the first degree. Accordingly, the amendment comes within the provisions of R.C. 1.58(B), requiring, in the instant case, that the amendment be applied, and that the penalty be imposed according to the
amendment. That penalty is a misdemeanor offense with a misdemeanor sentence not a felony offense with a misdemeanor sentence. Id. at ¶ 14-15.
{¶14} The Fifth District's decision in Gillespie was later embraced by the Second District in State v. Arnold. In Arnold, the court was tasked with deciding whether the trial court erred in reducing Arnold's theft offense from a third degree felony to a fourth degree felony pursuant to H.B. 86.
{¶15} In its analysis, the court noted that "it would be illogical to sentence a defendant for a felony of the fourth degree while at the same time identifying his offense as a felony of the third degree." Arnold 2d Dist. No. 25044, 2012-Ohio-5786 at ¶ 13. Further, the court disagreed with the state's argument that the classification of an offense is separate from the punishment for that offense, thus rendering R.C. 1.58(B) inapplicable. In doing so, the court quoted the following language from Judge Dennis Langer's decision in State v. Knight, Montgomery C.P. No. 2011-CR-1202 (Oct. 31, 2011):
The mere classification of an offense may have punitive implications, as can be illustrated by two examples:Ultimately, the Second District concluded that the trial court properly applied the amendments made by H.B. 86 in its reduction of the offense.
First example: R.C. 2929.13(F)(6) requires a mandatory prison term for an F1 and F2 if the defendant previously was convicted [of] an F1 or F2. Prior to H.B. 86, Possession of Cocaine (10 to 25 grams crack cocaine) was an F2. It now becomes an F3. Thus, the decision to classify this
offense as an F2 or F3 is critical, because it will impact in a significant manner the criminal punishment imposed on the defendant in the future in the event he is convicted of another F1 or F2.
Second example: R.C. 2929.13(B)(1)(a), enacted by H.B. 86, mandates community control sanctions ("CCS") for certain nonviolent F4s and F5s if the defendant previously has not been convicted of a felony offense. Prior to H.B. 86, Theft ($500 or more) was an F5. It now becomes a misdemeanor of the first degree (if the amount is less than $1,000). Thus, the decision to classify this offense as felony or a misdemeanor may determine whether the defendant is entitled to CCS in the future in the event he is convicted of a nonviolent F4 or F5. Arnold at ¶ 13.
{¶16} Upon due consideration of the foregoing decisions, we agree with the reasoning contained in Gillespie, Arnold, and our decision in Boltz. Indeed, the elements of passing bad checks and the classification of the offense as a misdemeanor or felony are separated into discrete subsections within R.C. 2913.02. As stated in Gillespie, the value is only relevant when determining the penalty for the offense. Gillespie 5th Dist. No. 2012-CA-6, 2012-Ohio-3485, 975 N.E.2d 492 at ¶ 14. Thus, an increase in the felony-threshold from $500 to $1,000 amounts to a reduction in penalty, triggering the application of R.C. 1.58(B).
{¶17} Additionally, our conclusion is buttressed by the fact that "sections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused." R.C. 2901.04(A). Construing R.C. 1.58(B) in favor of Zalewski, we conclude that the trial court properly found him guilty of a misdemeanor of the first degree.
{¶18} Accordingly, the state's sole assignment of error is not well-taken.
III. Conclusion
{¶19} Based on the foregoing, the judgment of the Wood County Court of Common Pleas is affirmed. Costs are hereby assessed to the state in accordance with App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4. Stephen A. Yarbrough , J. James D. Jensen, J.
CONCUR.
Arlene Singer, P.J.
CONCURS SEPARATELY.
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JUDGE
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JUDGE
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JUDGE
SINGER, P.J.
{¶20} I concur on the authority of State v. Boltz, 6th Dist. No. WD-12-012, 2013-Ohio-1830.