State v. Bollar , 2022 Ohio 4370 ( 2022 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Bollar, Slip Opinion No. 2022-Ohio-4370.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2022-OHIO-4370THE STATE OF OHIO, APPELLEE, v. BOLLAR, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Bollar, Slip Opinion No. 2022-Ohio-4370.]
Criminal law—R.C. 2929.14(B)(1)(g)—R.C. 2941.25(A)—R.C. 2929.14(B)(1)(g)
permits imposing prison sentences for multiple firearm specifications
attached to felonies committed as part of the same act or transaction when
the underlying offenses to which those specifications are attached have been
merged—Judgment affirmed.
(Nos. 2021-0756 and 2021-0769—Submitted April 13, 2022—Decided
December 9, 2022.)
APPEAL from and CERTIFIED by the Court of Appeals for Stark County,
No. 2020 CA 00077, 2021-Ohio-1578.
__________________
SUPREME COURT OF OHIO
FISCHER, J.
{¶ 1} In this case, we are asked to determine whether an offender must
receive separate prison terms for multiple firearm specifications when the criminal
offenses to which those firearm specifications are attached have been merged as
allied offenses. Because the plain language of R.C. 2929.14(B)(1)(g) requires that
certain offenders receive prison terms for multiple specifications, we hold that
imposing separate prison terms for multiple firearm specifications is required in
situations like the one in this case.
FACTUAL AND PROCEDURAL BACKGROUND
{¶ 2} Appellant, Marquis Bollar, pleaded guilty to three felonies:
involuntary manslaughter, felonious assault, and having weapons while under a
disability. The count for each offense was accompanied by a firearm specification.
{¶ 3} During the sentencing hearing, Bollar argued that the involuntary-
manslaughter and felonious-assault counts should be merged for purposes of
sentencing. Appellee, the state, argued that R.C. 2929.14(B)(1)(g) required that
sentences for two of the three firearm specifications run consecutively to each other
and consecutively to the sentence for the underlying offense. Bollar countered that
because the three firearm specifications arose from one act by one person, a
sentence on only one specification could be imposed.
{¶ 4} The trial court merged the involuntary-manslaughter and felonious-
assault counts; however, it imposed a three-year prison term for each of the firearm
specifications linked to those counts.
{¶ 5} The Fifth District Court of Appeals affirmed in a two-to-one decision.
2021-Ohio-1578, 172 N.E.3d 499, ¶ 32. In doing so, the appellate court rejected
Bollar’s argument that because the involuntary-manslaughter and felonious-assault
counts merged, he could be sentenced for only one firearm specification. Id. at
¶ 13. The court reasoned that R.C. 2929.14(B)(1)(g) prescribes that if an offender
pleads guilty to felonious assault and one or more additional felonies and if that
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offender pleads guilty to a firearm specification in connection with those felonies,
then the sentencing court must impose a mandatory prison term for each of the two
most serious specifications to which the offender has pleaded guilty. Id. at ¶ 20.
The court emphasized that even though the involuntary-manslaughter and
felonious-assault counts merged for the purpose of sentencing, Bollar’s pleas of
guilty to those offenses did not cease to exist. Id. at ¶ 21. The court further noted
that no double-jeopardy concerns exist when imposing separate prison terms for
multiple firearm specifications under R.C. 2929.14(B)(1)(g), because the
legislature has specifically authorized this cumulative punishment. Id. at ¶ 25.
Because Bollar met the requirements of R.C. 2929.14(B)(1)(g), the Fifth District
concluded that the trial court properly imposed separate prison terms for the firearm
specifications attached to his pleas of guilty to involuntary manslaughter and
felonious assault. Id. at ¶ 29.
{¶ 6} A dissenting judge reasoned that without the imposition of a sentence
for the felonious-assault count, the trial court lacked the “ability to impose a related
sentence-enhancing specification.” Id. at ¶ 36 (Wise, J., dissenting). In so
concluding, the dissenting judge noted that he agreed with the analyses set forth in
the Ninth District’s decision in State v. Roper, 9th Dist. Summit Nos. 26631 and
26632, 2013-Ohio-2176, and in the Eighth District’s decision in State v. Doyle,
2019-Ohio-979, 133 N.E.3d 890 (8th Dist.). 2021-Ohio-1578 at ¶ 38-40 (Wise, J.,
dissenting).
{¶ 7} On Bollar’s motion, the Fifth District certified that its decision was in
conflict with the decisions in Roper and Doyle. We subsequently determined that
a conflict exists and ordered briefing on the following issue:
Whether Ohio’s legislature has specifically authorized cumulative
punishments for multiple firearm specifications that were
committed as part of the same act or transaction under the narrowly
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tailored, specifically designated circumstances set forth in R.C.
2929.14(B)(1)(g), when the underlying felonies attendant to the
firearm specifications are merged at sentencing as allied offenses of
similar import pursuant to R.C. 2929.14(C)(4).
164 Ohio St.3d 1409, 2021-Ohio-2795, 172 N.E.3d 178. We also accepted
jurisdiction over the sole proposition of law in Bollar’s discretionary appeal: “Trial
courts cannot impose a prison sentence for a specification attached to an offense
that merged under R.C. 2941.25 and did not result in a conviction.” See 164 Ohio
St.3d 1410, 2021-Ohio-2795, 172 N.E.3d 179. We sua sponte consolidated the two
cases for briefing. Id.ANALYSIS
{¶ 8} Bollar argues that a person cannot be sentenced for a firearm
specification unless the person was convicted of the underlying offense. Bollar
asserts that because he was not convicted of the merged count of felonious assault,
he cannot be sentenced for the specification attached to that count. He further
argues that to uphold the Fifth District’s decision, this court would have to overrule
State v. Ford, 128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d 498, and conclude
that R.C. 2929.14(B)(1)(g) provides an exception to merger.
{¶ 9} The state responds that the plain language of R.C. 2929.14(B)(1)(g)
requires the result reached by the Fifth District below.
{¶ 10} As we have explained before, when analyzing an issue of statutory
interpretation, “ ‘[t]he question is not what did the general assembly intend to enact,
but what is the meaning of that which it did enact.’ ” State v. Hudson, ___ Ohio
St.3d ___, 2022-Ohio-1435, ___ N.E.3d ___, ¶ 21, quoting Slingluff v. Weaver, 66
Ohio St. 621, 64 N.E. 574 (1902), paragraph two of the syllabus. If the statute’s
language is plain and unambiguous, we apply it as written. Portage Cty. Bd. of
Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d 478, ¶ 52,
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citing State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio
St.3d 543, 545, 660 N.E.2d 463 (1996).
{¶ 11} R.C. 2929.14(B)(1)(b) provides, in relevant part, that “[e]xcept as
provided in division (B)(1)(g) of this section, a court shall not impose more than
one prison term on an offender under division (B)(1)(a) of this section for felonies
committed as part of the same act or transaction.”
{¶ 12} As explicitly noted in R.C. 2929.14(B)(1)(b), the general rule in that
statute is subject to the exception set forth in R.C. 2929.14(B)(1)(g), which
provides:
If an offender is convicted of or pleads guilty to two or more
felonies, if one or more of those felonies are aggravated murder,
murder, attempted aggravated murder, attempted murder,
aggravated robbery, felonious assault, or rape, and if the offender is
convicted of or pleads guilty to a specification of the type described
under division (B)(1)(a) of this section in connection with two or
more of the felonies, the sentencing court shall impose on the
offender the prison term specified under division (B)(1)(a) of this
section for each of the two most serious specifications of which the
offender is convicted or to which the offender pleads guilty and, in
its discretion, also may impose on the offender the prison term
specified under that division for any or all of the remaining
specifications.
{¶ 13} In resolving the conflict that exists among the courts of appeals
regarding whether R.C. 2929.14(B)(1)(g) permits imposing sentences for multiple
firearm specifications for felonies that were committed as part of the same act or
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transaction when the underlying offenses have been merged, we begin by reviewing
the principles set forth in this court’s previous decisions in this area of the law.
{¶ 14} In State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d
182, ¶ 23, this court emphasized that R.C. 2941.25(A) prohibits “ ‘convictions’ ”
for allied offenses. In interpreting that statute, the court stated that “a ‘conviction’
consists of a guilty verdict and the imposition of a sentence or a penalty.”
(Emphasis sic.) Id. at ¶ 24. The significance of the Whitfield decision rests in the
fact that when allied offenses are merged, if the judgment of conviction on the
offense for which the defendant was sentenced is reversed on appeal, the state may
seek to have the defendant sentenced on remand for the merged offense. See id. at
¶ 25.
{¶ 15} In Whitfield, this court defined “conviction” as encompassing both a
guilty verdict and the imposition of a sentence. Id. at ¶ 24. This definition may be
seen as creating tension with R.C. 2929.14(B)(1)(g), which applies when “an
offender is convicted of or pleads guilty to” multiple felonies and firearm
specifications. In that statute, “convicted” can mean only “found guilty”; it cannot
be read to include that the offender’s sentence has also been imposed, because that
statute provides that a sentence will be imposed only if the offender is convicted
(i.e., found or pleaded guilty).
{¶ 16} We now clarify that this court’s definition of “conviction” in
Whitfield does not apply to R.C. 2929.14(B)(1)(g). In applying that statutory
provision, we simply use the plain meaning of “convicted”: found guilty. See
Black’s Law Dictionary 421-422 (11th Ed.2019) (defining the verb “convict” as “to
find (a person) guilty of a criminal offense upon a criminal trial * * * [or] a plea of
guilty”). As the Eighth District acknowledged in Doyle, the plain language of R.C.
2929.14(B)(1)(g) indicates that a firearm specification survives merger when the
offender pleads guilty to an underlying offense that is ultimately merged. 2019-
Ohio-979, 133 N.E.3d 890, at ¶ 24.
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{¶ 17} The Eighth District avoided this reading of the statute by looking to
this court’s decision in Ford. Specifically, the Eighth District relied on language
in Ford providing that a “ ‘ “firearm specification is contingent upon an underlying
felony conviction” ’ ” (emphasis added in Doyle), Doyle at ¶ 19, quoting Roper,
2013-Ohio-2176, at ¶ 10, quoting Ford, 128 Ohio St.3d 398, 2011-Ohio-765, 945
N.E.2d 498, at ¶ 16. We note that the court in Ford also provided that a firearm
specification is “a sentence enhancement that attaches to a predicate offense.” Id.
at ¶ 16.
{¶ 18} We emphasize, however, that the analysis in Ford centered on the
question whether the underlying criminal offense and a firearm specification are
allied offenses subject to merger under R.C. 2941.25, with this court holding that
they do not merge. Ford at paragraphs one and two of the syllabus. Thus, Ford
does not speak directly to the issue before us today: whether an offender can be
sentenced on a firearm specification that accompanied a merged count. Because
Ford does not address that issue, our analysis in that case is irrelevant to our
application of the plain language of R.C. 2929.14(B)(1)(g) in this case.
{¶ 19} We conclude that the approach taken by the Eighth District in Doyle
and by the Ninth District in Roper is in tension with the plain language of R.C.
2929.14(B)(1)(g). As noted above, that statute requires that the offender receive
prison terms for each of the two most serious firearm specifications when the
offender pleads guilty to multiple felony offenses (and at least one of those is a
felony listed in the statute) and also pleads guilty to multiple accompanying
specifications. The statute makes no exception to the application of its provisions
if one of the underlying felony offenses has been merged. Instead, it simply applies
whenever the offender has pleaded guilty to (or been found guilty of) multiple
felony offenses and multiple specifications. Here, Bollar pleaded guilty to multiple
felonies and multiple specifications. Thus, according to the plain language of the
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statute, he must receive prison terms for the two most serious specifications to
which he pleaded guilty.
{¶ 20} This application of the plain language of the statute furthers the
apparent legislative goal in enacting R.C. 2929.14(B)(1)(g). In requiring that
offenders like Bollar be subject to separate prison terms for multiple firearm
specifications, the General Assembly appears to have acknowledged that the use of
firearms in certain violent crimes should carry a hefty penalty. As the Fifth District
acknowledged below, double-jeopardy protections are not violated when the
legislature specifically authorizes cumulative punishment. 2021-Ohio-1578, 172
N.E.3d 499, at ¶ 25. Thus, while one could argue that common sense dictates that
an offender should not be sentenced on a specification when the offender has not
been sentenced on the underlying criminal offense, the General Assembly exercised
its discretion in requiring that the sentence include separate prison terms for
multiple specifications. This court defers to that legislative choice. If the General
Assembly determines that this should no longer be the law in Ohio, the legislature
may use its discretion to amend R.C. 2929.14(B)(1)(g) to require a different
approach.
{¶ 21} We note that R.C. 2941.25’s merger provision does not override
R.C. 2929.14(B)(1)(g), as the latter is the more specific and more recently enacted
statute. See RadLAX Gateway Hotel, L.L.C., v. Amalgamated Bank, 566 U.S. 639,
645, 132 S.Ct. 2065, 182 L.Ed.2d 967 (2012) (a specific provision is construed as
an exception to a more general one); Natl. Assn. of Home Builders v. Defenders of
Wildlife, 551 U.S. 644, 662, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) (a later-
enacted statute can operate to amend or repeal an earlier provision). Because R.C.
2929.14(B)(1)(g) was enacted after R.C. 2941.25, see 2008 Sub.S.B. No. 184 and
Am.Sub.H.B. No. 511, Section 1, 134 Ohio Laws, Part II, 1866, 1994, and because
R.C. 2929.14(B)(1)(g) directly addresses the specific sentencing scenario at issue
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in this case, we are compelled to apply the plain language of that statute in resolving
the conflict before us.
{¶ 22} A different conclusion is reached in the dissenting opinion, which
relies on R.C. 2929.14(B)(1)(b)’s provision that “a court shall not impose more than
one prison term * * * for felonies committed as part of the same act or transaction.”
The analysis of the dissenting opinion centers on the “transaction” portion of R.C.
2929.14(B)(1)(b); it reasons that the question whether offenses were committed as
part of the same transaction is distinct from the question whether offenses are allied
offenses of similar import.
{¶ 23} Ultimately, this is a distinction without a difference, because R.C.
2929.14(B)(1)(b) does not apply in this case. As noted above, R.C.
2929.14(B)(1)(b) sets forth a general rule that is explicitly limited by R.C.
2929.14(B)(1)(g). And R.C. 2929.14(B)(1)(g) requires that courts impose prison
terms for the two most serious firearm specifications “of which the offender is
convicted or to which the offender pleads guilty.” In reaching its conclusion, the
dissenting opinion discounts our conclusion that as used in R.C. 2929.14(B)(1)(g),
“convicted” can mean only “found guilty.” In doing so, the dissenting opinion
effectively rewrites R.C. 2929.14(B)(1)(g) to strike the phrase “convicted of or
pleads guilty to” and replace it with “sentenced on.”
{¶ 24} In other words, whereas the plain language of R.C. 2929.14(B)(1)(g)
requires courts to impose prison terms for the two most serious firearm
specifications when an offender “is convicted of or pleads guilty to two or more
felonies,” the dissenting opinion would require courts to impose prison terms for
such specifications only when an offender “is sentenced on two or more felonies.”
Such an alteration of the statutory language is beyond the province of the judiciary,
and if such a change to R.C. 2929.14(B)(1)(g) is to be made, it must be made by
the General Assembly.
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CONCLUSION
{¶ 25} Because the plain language of R.C. 2929.14(B)(1)(g) requires that
offenders like Bollar receive separate prison terms for convictions on multiple
firearm specifications, we answer the certified-conflict question in the affirmative
and affirm the judgment of the Fifth District Court of Appeals.
Judgment affirmed.
O’CONNOR, C.J., and KENNEDY and DEWINE, JJ., concur.
DONNELLY, J., dissents, with an opinion joined by STEWART and
BRUNNER, JJ.
_________________
DONNELLY, J., dissenting.
{¶ 26} Respectfully, I dissent. There is no tension between the two statutes
at issue in this appeal. One statute, R.C. 2941.25(A), dictates whether a trial court
must merge allied offenses of similar import prior to imposing sentences. The other
statute, R.C. 2929.14(B)(1), governs one aspect of a trial court’s decision during
sentencing. It dictates whether the trial court must enhance the penalty for certain
groups of felony offenses by imposing a prison term for only one firearm
specification or by imposing prison terms for two or more firearm specifications.
See id. Whatever the number of sentence enhancements imposed, any prison term
that is imposed for a firearm specification must run prior to and consecutively to
“any prison term imposed for the underlying felony.” (Emphasis added.) R.C.
2929.14(C)(1)(a). Because a trial court may not impose a sentence for an offense
that has been merged, there is no sentence to enhance for the merged offense and
there is no “underlying felony” to which a prison term for a firearm specification
can attach. And because all sentences under Ohio law are defined as penalties
“imposed by the sentencing court on an offender who is convicted of or pleads
guilty to an offense,” R.C. 2929.01(EE), the fact that R.C. 2929.14(B)(1)(g) refers
to imposing prison terms for firearm specifications “of which the offender is
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convicted or to which the offender pleads guilty,” is not the least bit special, let
alone a signal to override R.C. 2941.25.
{¶ 27} Appellant, Marquis Bollar, pleaded guilty to three felony offenses:
involuntary manslaughter, felonious assault, and having a weapon while under a
disability. Bollar also pleaded guilty to the firearm specifications that were attached
to each of the three offenses. At the plea and sentencing hearing, the trial court
merged the offenses of involuntary manslaughter and felonious assault, leaving two
offenses for which the trial court could impose sentences: involuntary manslaughter
and having a weapon while under a disability. I would conclude that the trial court
erred when it imposed a prison term for the firearm specification attached to the
felonious-assault count, because that count no longer existed for purposes of
sentencing. Instead, the trial court should have imposed a prison term for the
firearm specification attached to the having-a-weapon-while-under-a-disability
count. I would therefore remand the cause to the trial court with instructions to
vacate the prison sentence that was imposed for the firearm specification attached
to the felonious-assault offense and to impose a prison sentence for the firearm
specification attached to the having-a-weapon-while-under-a-disability offense.
Standard of Review
{¶ 28} Our standard of review in cases that turn on the meaning of statutes
is de novo. New York Frozen Foods, Inc. v. Bedford Hts. Income Tax Bd. of Rev.,
150 Ohio St.3d 386, 2016-Ohio-7582, 82 N.E.3d 1105, ¶ 8. When a statute is
unambiguous, courts must apply it rather than interpret it. Specialty Restaurants
Corp. v. Cuyahoga Cty. Bd. of Revision, 96 Ohio St.3d 170, 2002-Ohio-4032, 772
N.E.2d 1165, ¶ 11. Only ambiguous language requires deciphering. See Wingate
v. Hordge, 60 Ohio St.2d 55, 58, 396 N.E.2d 770 (1979); Carney v. Shockley, 2014-
Ohio-5829, 26 N.E.3d 1228, ¶ 33 (7th Dist.) (DeGenaro, P.J., concurring in
judgment only) (“Courts are guided by canons of statutory construction when asked
to construe ambiguous statutory language in order to decipher legislative intent”).
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We may not create ambiguity or “modify an unambiguous statute under the guise
of judicial interpretation.” State ex rel. Sears, Roebuck & Co. v. Indus. Comm., 52
Ohio St.3d 144, 148, 556 N.E.2d 467 (1990). Nor may we create a conflict between
statutes that are capable of being harmonized. Humphrys v. Winous Co., 165 Ohio
St. 45, 133 N.E.2d 780 (1956), paragraph one of the syllabus (“Where there are
contradictory provisions in statutes and both are susceptible of a reasonable
construction which will not nullify either, it is the duty of the court to give such
construction thereto”).
Law and Analysis
{¶ 29} The Fifth District Court of Appeals certified that its decision here
was in conflict with State v. Doyle, 2019-Ohio-979, 133 N.E.3d 890 (8th Dist.) and
State v. Roper, 9th Dist. Summit Nos. 26631 and 26632, 2013-Ohio-2176, in which
the Eighth and Ninth District Courts of Appeals held that no prison term could be
imposed for a firearm specification that was attached to an offense that had been
merged for purposes of sentencing. Doyle at ¶ 27; Roper at ¶ 11. The majority’s
assertion that the approach taken by the courts of appeals in Doyle and Roper is “in
tension with the plain language of R.C. 2929.14(B)(1)(g),” majority opinion, ¶ 19,
is simply untrue. R.C. 2929.14(B)(1)(g) allows the trial court to impose multiple
prison sentences for firearm specifications that are attached to offenses that are
committed as part of the same transaction but are not subject to merger. It does not
allow the imposition of separate prison sentences for firearm specifications that are
attached to allied offenses of similar import that have been merged.
{¶ 30} Three statutory provisions inform this analysis. The first is the
statute governing the merger of certain offenses: “Where the same conduct by
defendant can be construed to constitute two or more allied offenses of similar
import, the indictment or information may contain counts for all such offenses, but
the defendant may be convicted of only one.” (Emphasis added.) R.C. 2941.25(A).
This court has held that R.C. 2941.25 does not prohibit the state from proceeding
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to trial on all the offenses in an indictment, including allied offenses of similar
import. See State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182,
¶ 21, citing State v. Weind, 50 Ohio St.2d 224, 236, 364 N.E.2d 224 (1977). The
statute also does not require the vacatur or dismissal of the “guilt determination”
for allied offenses that have been merged. Id. at ¶ 27. But at some point before
sentencing, allied offenses must merge and the state must elect which of the allied
offenses it wants to seek sentencing for. Id. at ¶ 23-24. After the state makes its
selection, the trial court imposes a sentence for the selected offense. Id.
{¶ 31} The second statutory provision that is critical to the analysis is R.C.
2929.14(B)(1)(b), which governs the merger of specifications in R.C.
2929.14(B)(1)(a) that may apply when a defendant commits a felony offense and
either has a firearm “while committing the offense,” R.C. 2929.14(B)(1)(a)(i)
through (vi), or uses the firearm in any way “to facilitate the offense,” R.C.
2929.14(B)(1)(a)(ii) and (v). The general rule in R.C. 2929.14(B)(1)(b) is, “Except
as provided in division (B)(1)(g) of this section, a court shall not impose more than
one prison term on an offender under division (B)(1)(a) of this section for felonies
committed as part of the same act or transaction.” R.C. 2929.14 is included among
statutes that apply at the stage of a criminal proceeding in which the trial court
imposes a “sentence,” which is defined as “the sanction or combination of sanctions
imposed by the sentencing court on an offender who is convicted of or pleads guilty
to an offense.” R.C. 2929.01(EE). When a trial court makes its sentencing
determinations under R.C. 2929.14 and other applicable statutes, any allied
offenses of similar import have already merged and the state has already elected
which offenses to pursue for purposes of sentencing. Compare State v. Williams,
148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 3 (holding that a trial court
cannot impose sentences on allied offenses of similar import and purport to merge
the offenses thereafter), abrogated on other grounds by State v. Henderson, 161
Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776.
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{¶ 32} Allied offenses of similar import are offenses committed in the same
time frame and with the same animus that are so similar that commission of one
will result in the commission of the other. State v. Cabrales, 118 Ohio St.3d 54,
2008-Ohio-1625, 886 N.E.2d 181, ¶ 14, abrogated in part by State v. Johnson, 128
Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, abrogated in part by State v.
Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892. The “same act or
transaction” referred to in R.C. 2929.14(B)(1)(b) is a broader category than allied
offenses. Multiple felony offenses can be committed as part of the same transaction
without being allied offenses of similar import. Transactions are “ ‘ “a series of
continuous acts bound together by time, space and purpose, and directed toward a
single objective.” ’ ” State v. Wills, 69 Ohio St.3d 690, 691, 635 N.E.2d 370 (1994),
quoting State v. Caldwell, 9th Dist. Summit No. 14720, 1991 WL 259529, *12
(Dec. 4, 1991), quoting State v. Hague, 9th Dist. Summit No. 13859, 1989
WL50683, *1 (May 10, 1989). “The words ‘same offense’ mean same offense, not
the same transaction, not the same acts * * *.” State v. Rose, 89 Ohio St. 383, 386,
106 N.E. 50 (1914). Thus, even if felony offenses are not allied offenses of similar
import and therefore have not been merged prior to sentencing, any firearm
specifications accompanying those offenses must be merged into one specification
under R.C. 2929.14(B)(1)(b) if the offenses subject to sentencing were “committed
as part of the same act or transaction.”
{¶ 33} The third statutory provision that is relevant to this analysis is R.C.
2929.14(B)(1)(g):
If an offender is convicted of or pleads guilty to two or more
felonies, if one or more of those felonies are aggravated murder,
murder, attempted aggravated murder, attempted murder,
aggravated robbery, felonious assault, or rape, and if the offender is
convicted of or pleads guilty to a specification of the type described
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under division (B)(1)(a) of this section in connection with two or
more of the felonies, the sentencing court shall impose on the
offender the prison term specified under division (B)(1)(a) of this
section for each of the two most serious specifications of which the
offender is convicted or to which the offender pleads guilty * * *.
(Emphasis added.) R.C. 2929.14(B)(1)(g) provides an exception to R.C.
2929.14(B)(1)(b), and that exception is triggered when a defendant is convicted of
or pleads guilty to one or more of the listed offenses. Of note, the severity of the
prison sentences that may be imposed varies among the different firearm
specifications listed in R.C. 2929.14(B)(1)(a)—ranging from a one-year prison
term, R.C. 2929.14(B)(1)(a)(iii), to a nine-year prison term, R.C.
2929.14(B)(1)(a)(iv). Although R.C. 2929.14(B)(1)(g) states that each
specification exists “in connection with” an underlying felony, it commands a
sentencing court to impose prison terms for the two most serious specifications,
irrespective of the seriousness of the connected felony. This means that the two
specifications for which the trial court imposes prison terms might ultimately not
even be connected to the felony that triggered the application of R.C.
2929.14(B)(1)(g).
{¶ 34} If a trial court were to apply the foregoing statutory schemes as
written, it could impose all applicable sentencing enhancements to the offenses that
remain after merger, but it could not impose a sentence for any specifications
attached to the counts that were merged. The majority reaches the opposite
conclusion based on what it purports to be an application of the plain language of
the applicable statutes, but the majority’s analysis belies this claim. Instead, the
majority opinion creates ambiguity by focusing on the discussion of R.C. 2941.25
in Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.3d 182, see majority
opinion at ¶ 14-15; then, it rather summarily declares what it purports to be the plain
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meaning of R.C. 2929.14(B)(1)(g), see id. at ¶ 16, and finally, it justifies its
declaration by employing analyses that are proper only when deciphering
ambiguous statutory language, see id. at ¶ 20-21.
{¶ 35} The majority finds it important that both R.C. 2929.14(B)(1)(g) and
Whitfield use the term “convicted” and yet the term has different meanings in each
context. It is not important, at least not in the way the majority claims.
{¶ 36} This court recognized in Whitfield that R.C. 2941.25 is meant to
incorporate the double-jeopardy prohibition against “multiple punishments” for the
same offense, id. at ¶ 7, and we concluded that although the statute says there can
be only one conviction for allied offenses, the statute actually forbids more than
one sentence for such offenses, id. at ¶ 26. This court primarily justified its
conclusion by citing a variety of previous decisions in which this court concluded
that “for purposes of R.C. 2941.25, a ‘conviction’ consists of a guilty verdict and
the imposition of a sentence or penalty.” (Emphasis sic.) Id. at ¶ 12 (listing cases).
The court further justified its reasoning by quoting the Legislative Service
Commission Summary that accompanied the enactment of R.C. 2941.25: “ ‘[T]he
prosecution sooner or later must elect as to which offense it wishes to pursue.’ ”
(Emphasis added in Whitfield.) Whitfield at ¶ 20, quoting Legislative Service
Commission Summary of Am.Sub.H.B. 511, The New Ohio Criminal Code 69
(June 1973). This court concluded that the Summary implies that under R.C.
2941.25, “the state has latitude in determining when to decide which offense to
pursue at sentencing.” Id. at ¶ 20.
{¶ 37} The dissenting opinion in Whitfield pointed out that the majority’s
definition of “convicted” for purposes of R.C. 2941.25 is inconsistent with all other
references to the term “convicted” in R.C. Title 29:
[T]he use of the term “convicted” throughout the Revised
Code, while not defined, clearly implies only the finding of guilt.
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See, e.g., R.C. 2929.01(EE) (“ ‘Sentence’ means the sanction or
combination of sanctions imposed by the sentencing court on an
offender who is convicted of or pleads guilty to an offense”)
(emphasis added); R.C. 2929.19(A) (“The court shall hold a
sentencing hearing before imposing a sentence under this chapter
upon an offender who was convicted of or pleaded guilty to a felony
* * *”) (emphasis added); R.C. 2929.16(E) (“If a person who has
been convicted of or pleaded guilty to a felony is sentenced to
community residential sanction”) (emphasis added); R.C.
2930.19(C) (“The failure of any person or entity to provide a right,
privilege, or notice to a victim under this chapter does not constitute
grounds for declaring a mistrial or new trial, for setting aside a
conviction, sentence, adjudication, or disposition, or for granting
postconviction release to a defendant or alleged juvenile offender”)
(emphasis added).
Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.3d 182, at ¶ 33 (Lanzinger,
J., dissenting). Thus, we already know that this court’s definition of the term
“convicted” as set forth in Whitfield applies only to the narrow context of R.C.
2941.25 and does not apply to any statute that refers to an offender who “is
convicted of or pleads guilty to an offense,” which would include R.C.
2929.14(B)(1)(g).
{¶ 38} The difference between the meaning of “convicted” in R.C.
2941.25(A) and R.C. 2929.14(B)(1)(g) can also be explained by the statutes’
respective placement within the Revised Code. R.C. 2941.25 is included among
statutes that apply at the indictment stage of a criminal proceeding. See State v.
Ford, 128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d 498, ¶ 18. At the indictment
stage, there has been no trial, no finding or admission of guilt, and no sentencing
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decision. Thus, the use of the term “convicted” at the starting point of the criminal-
litigation process could be seen as a general reference to the completion of the
process. As described above, this court has previously acknowledged the history
of uncertainty about the exact endpoint contemplated in R.C. 2941.25, see Whitfield
at ¶ 21, 24, 27, but this court resolved the confusion by clarifying that the unique
meaning of “convicted” in R.C. 2941.25 includes both the determination of guilt
and the sentence, see id. at ¶ 26. In contrast, R.C. 2929.14 applies at the sentencing
stage of proceedings—after a guilty plea or verdict has been entered and before the
trial court has entered its final judgment of conviction and sentence under Crim.R.
32(C). A reference to a “conviction” at this point cannot possibly connote both the
determination of guilt and the sentence, because the trial court is in the midst of
fashioning its sentencing decision.
{¶ 39} Whatever insight Whitfield’s definition of “convicted” provides for
the process of merging allied offenses of similar import prior to sentencing, it
provides no insight into the process of merging firearm specifications that are
attached to the remaining offenses.
{¶ 40} Applying R.C. 2941.25(A) and 2929.14(B)(1)(b) as written would
eliminate the “need” to overrule, limit, or clarify Whitfield, 124 Ohio St.3d 319,
2010-Ohio-2, 922 N.E.3d 182, and Ford. Instead, we should acknowledge that the
holdings in those cases are consistent with the statutory scheme for sentencing and
that the majority’s belabored interpretation of them in this case is incorrect. For
example, the majority here correctly states that Ford does not speak to whether an
offender can be sentenced for a firearm specification on a merged count, but Ford
surely provides our answer: no.
{¶ 41} The principle of law that forms the basis of the decision in Ford is
that a “firearm specification is contingent upon an underlying felony conviction.”
Id., 128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d 498, at ¶ 16. This court
specifically tied its reasoning to the wording of the firearm-specification-
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January Term, 2022
sentencing provisions contained in R.C. 2929.14(D), see id., which is now codified
in R.C. 2929.14(B), see 2011 Am.Sub.H.B. No. 86. And the placement of the
relevant statutes within the Revised Code “confirms that the firearm specification
is merely a sentence enhancement.” Ford at ¶ 17. Although this court in Ford used
the foregoing reasoning to explain the impossibility of merging a firearm
specification with a criminal offense, this context does not prevent us from using
the same reasoning to explain the impossibility of imposing a sentence for a firearm
specification to enhance a conviction that no longer exists for purposes of
sentencing. By focusing on the specific factual context in Ford rather than the
principles of law controlling the conclusion in Ford, the majority’s distinction of
Ford is inadequate.
{¶ 42} In the only portion of its decision that resembles a plain-language
analysis, the majority now holds that a trial court must impose prison terms for
firearm specifications even though the felony underlying the specification has been
merged, because R.C. 2929.14(B)(1)(g) states that it applies “whenever the
offender has pleaded guilty to (or been found guilty of) multiple felony offenses
and multiple specifications,” majority opinion at ¶ 19, and because the statute does
not articulate any exception for merged offenses, see id. But given that all
sentences under Ohio law are imposed when an offender “is convicted of or pleads
guilty to an offense,” R.C. 2929.01(EE), and given that Whitfield’s alternative
definition of “conviction” is irrelevant to postmerger sentencing considerations, the
language in R.C. 2929.14(B)(1)(g) regarding pleading guilty or being found guilty
does not create any exception to the prohibition against imposing punishment for
allied offenses of similar import that have been merged. And given that allied
offenses have already merged and the state has already elected which of the
offenses should proceed to sentencing at the point that the trial court is applying
R.C. 2929.14, there is no reason for the statute to articulate an exception to the
merger that has already occurred. Additionally, R.C. 2929.14(C)(1), which governs
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the order in which the prison terms for felony offenses and firearm specifications
should be served, indicates that prison terms for specifications are imposed in
connection with whatever sentence is imposed “for the underlying felony.”
Although the statute governing the merger of firearm specifications, R.C.
2929.14(B)(1)(b), provides an exception to merger for firearm specifications
attached to the felony offenses listed in R.C. 2929.14(B)(1)(g), the statute that
governs the order in which the prison terms for a firearm specification and its
“underlying felony” are to be served, R.C. 2929.14(C)(1), provides no exception.
{¶ 43} Finally, the majority proceeds in its analysis to apply canons of
statutory construction as if the language in R.C. 2929.14(B)(1)(g) and 2941.25(A)
were ambiguous. The majority relies on, but does not cite, R.C. 1.51 (“the special
or local provision prevails as an exception to the general provision”) and 1.52 (“the
statute latest in date of enactment prevails”) to discern the meanings of R.C.
2929.14(B)(1)(g) and 2941.25(A). Both of these codified canons of construction
state frankly that they must be used only if there is an “irreconcilable” conflict
between the provisions being construed. R.C. 1.51 and 1.52(B). There is a palpable
difference between the resolution of irreconcilable statutory language and a plain-
language approach to statutory construction. For the final portion of the majority’s
analysis to be relevant, it would first need to explain why the language in R.C.
2929.14(B)(1)(g) is ambiguous. See Jacobson v. Kaforey, 149 Ohio St.3d 398,
2016-Ohio-8434, 75 N.E.3d 203, ¶ 8, quoting Dunbar v. State, 136 Ohio St.3d 181,
2013-Ohio-2163, 992 N.E.2d 1111, ¶ 16 (“Without ‘an initial finding’ of
ambiguity, ‘inquiry into legislative intent, legislative history, public policy, the
consequences of an interpretation, or any other factors identified in R.C. 1.49 is
inappropriate’ ”). The majority would also need to explain why the rule of lenity
would not prohibit construction of the applicable statutory language in a way that
allows for increased sentences to be imposed on a defendant for merged offenses.
See State v. Pendergrass, 162 Ohio St.3d 25, 2020-Ohio-3335, 164 N.E.3d 306,
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January Term, 2022
¶ 25, quoting State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, 912 N.E.2d
582, ¶ 38 (holding that when the scope of a criminal statute is ambiguous, the rule
of lenity prevents courts from interpreting the statute in a way that would “ ‘increase
the penalty it imposes on a defendant’ ”).
{¶ 44} Bollar pleaded guilty to involuntary manslaughter, felonious assault,
and having a weapon while under a disability. Bollar also pleaded guilty to three
firearm specifications of the type described in R.C. 2941.145. The trial court
merged the offenses of involuntary manslaughter and felonious assault, and once
the state elected to proceed with sentencing for the involuntary-manslaughter
offense, R.C. 2941.25(A) prohibited the trial court from imposing any punishment
for the felonious-assault offense. The sentence that was imposed for the firearm
specification attached to the felonious-assault offense violated R.C. 2941.25(A).
{¶ 45} The two convictions for which Bollar was sentenced—involuntary
manslaughter and having a weapon while under a disability—were not allied
offenses subject to merger, but they were part of the same act or transaction. The
trial court would normally be prohibited from imposing more than one prison term
for the specifications under R.C. 2929.14(B)(1)(b). The two counts that remained
after the trial court’s merger decision—involuntary manslaughter and having
weapons while under a disability—are not listed in R.C. 2929.14(B)(1)(g) and
therefore do not make Bollar eligible for cumulative firearm-specification
sentences. However, Bollar’s plea of guilty to felonious assault triggered the
exception to R.C. 2929.14(B)(1)(b), requiring the trial court to impose prison terms
“for each of the two most serious specifications” in connection with the remaining
felonies under R.C. 2929.14(B)(1)(g). The firearm specifications attached to
Bollar’s involuntary-manslaughter and having-a-weapon-while-under-a-disability
counts were the only two remaining specifications and therefore the two most
serious specifications. Accordingly, the trial court should have imposed prison
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terms for each of the two remaining specifications, and its failure to do so violated
R.C. 2929.14(B)(1)(g).
{¶ 46} Because the statutes are reconcilable as described above, we must
apply their plain language and give effect to each. The imposition of prison terms
for two firearm specifications is required under the facts of this case, but not for the
two offenses identified by the majority and the Fifth District and not for the reasons
articulated by the majority opinion. The trial court must impose prison terms for
the firearm specifications connected to the offenses of involuntary manslaughter
and having a weapon while under a disability, based on the plain language of R.C.
2929.14(B)(1)(g) alone, without any need to garble the meaning of R.C. 2941.25
or this court’s analyses in Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d
182, and Ford, 128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d 498.
{¶ 47} I would therefore reverse the judgment of the Fifth District Court of
Appeals, which affirmed the trial court’s sentencing decision, and I would remand
the cause to the trial court with instructions to vacate the three-year sentence
imposed for the firearm specification that was attached to the merged felonious-
assault offense and to impose a three-year sentence for the firearm specification
that was attached to the having-a-weapon-while-under-a-disability offense.
{¶ 48} Accordingly, I respectfully dissent.
STEWART and BRUNNER, JJ., concur in the foregoing opinion.
_________________
Kyle L. Stone, Stark County Prosecuting Attorney, and Timothy E. Yahner,
Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Max Hersch, Assistant Public
Defender, for appellant.
Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, and
Byers Emmerling, Assistant Attorney General, urging affirmance for amicus
curiae, Ohio Attorney General Dave Yost.
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January Term, 2022
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