State v. Jones , 2012 Ohio 2900 ( 2012 )

[Cite as State v. Jones, 2012-Ohio-2900.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Sheila G. Farmer, J.
-vs-
Case No. 2011CA00284
CLARENCE JONES
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2011-CR-1383
JUDGMENT: Reversed and remanded
DATE OF JUDGMENT ENTRY: June 25, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO STEVEN A. REISCH
Prosecuting Attorney Stark County Public Defender Office
Stark County, Ohio 200 West Tuscarawas St., Suite 200
Canton, Ohio 44702
By: RONALD MARK CALDWELL
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2011CA00284 2
Hoffman, J.
{¶1} Defendant-appellant Clarence Jones appeals his sentence entered by the
Stark County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE1
{¶2} On October 25, 2011, Appellant was indicted on one count of escape, in
violation of R.C. 2921.34(A)(1), a second degree felony and one count of possession of
cocaine, in violation of R.C. 2925.11(A).2 Appellant pleaded guilty to the charges and
the trial court sentenced Appellant to a total prison term of three years via Judgment
Entry filed November 21, 2011.
{¶3} On December 6, 2011, Appellant filed a motion to modify his sentence
based upon the amended penalties in H.B. 86. The State filed a written response to the
motion. Via Judgment Entry of December 14, 2011, the trial court denied Appellant's
motion to modify his sentence.
{¶4} Appellant now appeals, assigning as error:
{¶5} “I. IT WAS AN ERROR OF LAW NOT TO APPLY §R.C. 2921.34 AS
AMENDED EFFECTIVE SEPTEMBER 30, 2011, THEREBY SENTENCING THE
APPELLANT TO A FOURTH DEGREE FELONY.”
{¶6} R.C. 1.58(B) reads, in pertinent part:
{¶7} “(B) 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
1
A rendition of the facts is unnecessary for our disposition of this appeal.
2
Appellant does not challenge his conviction or sentence for possession of cocaine in
the within appeal.
Stark County, Case No. 2011CA00284 3
already imposed, shall be imposed according to the statute as amended (emphasis
added).
{¶8} H.B. 86 became effective September 30, 2011, sixteen days after
Appellant committed the alleged offense, but prior to sentencing. The enacted
legislation reads at Section 4:
{¶9} "The amendments to sections 926.99, 1333.99, 1707.99, 1716.99,
2909.03, 2909.05, 2909.11, 2913.02, 2913.03, 2913.04, 2913.11, 2913.21, 2913. 31,
2913.32, 2913.34, 2913.40, 2913.401, 2913.42, 2913.421, 2913.43, 2913.45, 2913.46,
2913.47, 2913.48, 2913.49, 2913.51, 2913.61, 2915.05, 2917. 21, 2917.31, 2917.32,
2921.13, 2921.41, 2923.31, and 2981.07, division (B) of section 2929.13, and 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.
{¶10} "The provisions of sections 926.99, 1333.99, 1707.99, 1716.99, 2909.03,
2909.05, 2909.11, 2913.02, 2913.03, 2913.04, 2913.11, 2913.21, 2913.31, 2913. 32,
2913.34, 2913.40, 2913.401, 2913.42, 2913.421, 2913.43, 2913.45, 2913.46, 2913.47,
2913.48, 2913.49, 2913.51, 2913.61, 2915.05, 2917.21, 2917. 31, 2917.32, 2921.13,
2921.41, 2923.31, and 2981.07 of the Revised Code in existence prior to the effective
date of this section shall apply to a person upon whom a court imposed sentence prior
to the effective date of this section for an offense specified or penalized under those
sections. The amendments to sections 926.99, 1333.99, 1707.99, 1716.99, 2909.03,
2909. 05, 2909.11, 2913.02, 2913.03, 2913.04, 2913.11, 2913.21, 2913.31, 2913.32,
Stark County, Case No. 2011CA00284 4
2913.34, 2913.40, 2913.401, 2913.42, 2913.421, 2913.43, 2913.45, 2913.46, 2913.47,
2913.48, 2913.49, 2913.51, 2913.61, 2915.05, 2917.21, 2917.31, 2917. 32, 2921.13,
2921.41, 2923.31, and 2981.07 of the Revised Code that are made in this act do not
apply to a person who upon whom a court imposed sentence prior to the effective date
of this section for an offense specified or penalized under those sections."
{¶11} R.C. 2921.34, the statute defining escape, for which Appellant was
convicted, is not listed within the parameters of H.B. 86. The state properly notes
legislation is presumed to be prospective in operation unless expressly made
retroactive. State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163. The state argues
because escape is not included within the list of statutory amendments in HB 86 Section
4, it is not entitled to the benefit of the reduced penalty provided therein as the amended
statute is presumed to be prospective in its application.
{¶12} We disagree. Although section 4 specifically sets forth an extensive list of
statutes specifically applying either R.C. 1.58 or specifically making H.B. 86 retroactive
with regard to the named sections, we find the absence of the escape statute from the
Section 4 list does not otherwise limit the applicability of R.C. 1.58.
{¶13} The State further asserts R.C. 1.58 does not apply to give Appellant the
benefit of the reduced sentence. The State relies upon the Ohio Supreme Court holding
in State v. Kaplowitz, 100 Ohio St.3d 205, 2003-Ohio-5602, as support. In Kaplowitz,
the Court held:
{¶14} "Accordingly, we hold that R.C. 1.58(B) does not apply to give a criminal
defendant the benefit of a reduced sentence if, by applying it, the court alters the nature
of the offense, including specifications to which the defendant pled guilty or of which he
Stark County, Case No. 2011CA00284 5
was found guilty. State v. Kinder (2000), 140 Ohio App.3d 235, 746 N.E.2d 1205,
disapproved."
{¶15} Here, Appellant was charged with and convicted of violating R.C.
2921.34(A)(1). The statute, as amended, reads:
{¶16} "(A)(1) No person, knowing the person is under detention, other than
supervised release detention, or being reckless in that regard, shall purposely break or
attempt to break the detention, or purposely fail to return to detention, either following
temporary leave granted for a specific purpose or limited period, or at the time required
when serving a sentence in intermittent confinement."
{¶17} The Amendment Notes to the statute following the enactment of HB 86
read,
{¶18} "2011 H 86 inserted ', other than supervised release detention,' in division
(A)(1); added divisions (A)(3), (C)(3), and (D); inserted “the offender violates division
(A)(1) or (2) of this section, if' in division (C)(1); in division (C)(2), inserted “the offender
violates division (A)(1) or (2) of this section and if either” and deleted 'if' before 'the
offender is a person whom'; and made other nonsubstantive changes."
{¶19} Upon review of the case law and the amendments set forth above, we find
HB 86 does not substantively alter the nature of the offense to which Appellant was
convicted; therefore, Kaplowitz is distinguishable. We find R.C. 1.58 applies to the
sentence rendered.
{¶20} Appellant's sole assignment of error is sustained.
Stark County, Case No. 2011CA00284 6
{¶21} The judgment of the Stark County Court of Common Pleas is reversed,
and the matter remanded to the trial court for resentencing in accordance with the law
and this Opinion.
By: Hoffman, J.
Delaney, P.J. and
Farmer, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
Stark County, Case No. 2011CA00284 7
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
CLARENCE JONES :
:
Defendant-Appellant : Case No. 2011CA00284
For the reasons stated in our accompanying Opinion, The judgment of the Stark
County Court of Common Pleas is reversed, and the matter remanded to the trial court
for further proceedings in accordance with the law and this opinion. Costs to the state.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER