Sentencing Issues Continue to Cause Confusion

When the General Assembly enacted H.B. 86, effective September 30, 2011, the goal was to reduce the prison population.  The legislature had realized that the war on drugs couldn’t be paid for anymore.  Ohio’s prison population had exploded and the costs of housing all these non-violent folks had become untenable.  Those in power finally realized that it might not be the best idea to throw everyone in prison for long periods of time for low-level felonies like drug possession and thefts.  So, H.B. 86 overhauled Ohio’s felony sentencing structure.  Among other things, the general assembly created mandatory probation for certain offenders, revised judicial release provisions, and raised threshold amounts of money for certain crimes like theft.

Under the old law, if a person stole $500 or more, that was a felony of the fifth degree.  Under the new law, one had to steal $1,000 for it to be a felony, otherwise its a misdemeanor of the 1st degree.  Although inflation had obviously been running its course over the many years, the statutory amounts had not kept pace.  $500 simply wasn’t what it used to be.   The maximum penalty for a 5th degree felony is up to 12 months in a state prison.  The maximum penalty for a 1st degree misdemeanor is 180 days in a local jail.

But there have been questions related to timing of the new provisions.  If someone stole $600 prior to September 30, 2011, but was not sentenced until after H.B. 86 took effect, is he subject to 12 months in prison or 6 months in a jail?  Could you convict him of a felony, but only sentence him for a misdemeanor?  The Ohio Supreme Court directly addressed these issues in State v. Taylor, decided February 13, 2013.

In July 2011, Taylor stole $550 worth of cologne from a department store.  Yes, that’s right.  Taylor is probably the last man you would want to share a cab or an elevator with.   At the time he committed the offense, he would be considered a felon and subject to 12 months in prison.  However, by the time his sentencing hearing took place, H.B. 86 had been enacted.  The trial court determined that not only was he subject to the lesser penalty of 180 days in jail, but that he had to be considered a misdemeanant as well, not a felon, and entered a conviction for a misdemeanor.

The State of Ohio appealed and the Ninth District Court of Appeals reversed, deciding that while he was entitled to benefit from the lower penalty, he had to be convicted of the felony.  This may seem academic in some respects given that he could only be sentenced for a misdemeanor, but potential employers tend to look harsher upon “convicted felons.”  This decision was in direct conflict with decisions out of the 5th District and the Ohio Supreme Court took the case as a certified conflict between different Appellant courts.

The Ohio Supreme Court reversed the Ninth District and agreed that Taylor was entitled to be convicted of a misdemeanor.  Although he had committed the offense prior to the enacted of H.B. 86, because he wasn’t sentenced until after that went into effect, R.C. 1.58(B) applied.

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.”

The State had argued that R.C. 1.58(B) applied only to punishments for an offense and not the category or degree of an offense.  Therefore, Taylor should have been convicted of a felony and sentenced for a misdemeanor.  The Supreme Court rejected this argument and determined that the legislature had intended for persons in Mr. Taylor’s situation to be convicted of the lesser offense.  The Court stated that implicit in the decrease in classification of an offense is a decease in the corresponding penalty.  Essentially, the two necessarily go together.

The court noted that the question is not whether they legislature had decreased the level of offense, as it clearly did, but rather whether persons in Taylor’s circumstances could benefit from the reduction.  And because the R.C. 1.58(B) states that defendant’s not yet sentenced benefit from the amendments, he had to be classified as a misdemeanant, not a felon.  The Court went on to note that the legislature had “conditioned application of the reduced penalty – which arises by virtue of the reduced classification – on whether or not the offenders had been previously sentenced.”  Here, Taylor had not been sentenced and therefore, the reduced penalties, which cannot be separated from the reduced classification of offense, applied to him.

This is probably the right call.  It doesn’t make any logical sense to claim that a defendant can be convicted of a felony but only sentenced for a misdemeanor. The to go hand-in-hand. The potential punishments are determined by the level of offense under Ohio’s sentencing laws.  And because R.C. 1.58(B) clearly stated that a defendant should get the lesser punishment if the enactment of the statute came prior to the sentencing, Taylor wins.  If the legislature wanted the amendments to only apply to those that committed the offense on or after the effective date of H.B. 86, it could have said so.

 

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