      [Cite as State v. Johnson, 2016-Ohio-781.]
                IN THE COURT OF APPEALS
            FIRST APPELLATE DISTRICT OF OHIO
                 HAMILTON COUNTY, OHIO



STATE OF OHIO,                                     :   APPEAL NO. C-120250
                                                       TRIAL NO. B-1105638-C
     Plaintiff-Appellee,                           :

      vs.                                          :        O P I N I O N.

BRANDON D. JOHNSON,                                :

     Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Sentences Vacated In Part, and
                           Cause Remanded

Date of Judgment Entry on Appeal: February 26, 2016



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Matthew S. Schuh, for Defendant-Appellant.


Please note: this case has been removed from the accelerated calendar.
                       OHIO FIRST DISTRICT COURT OF APPEALS



CUNNINGHAM, Presiding Judge.
         {¶1}      In this reopened appeal, defendant-appellant Brandon D. Johnson

presents two assignments of error, challenging the sentences imposed by the trial

court and the effective assistance of his prior appellate counsel. Because the trial

court had failed to sentence Johnson under the amended sentencing scheme of 2011

Am.Sub.H.B. No. 86 (“H.B. 86”), and had employed verdict forms that failed to

comply with R.C. 2945.75, Johnson’s sentences must be vacated in part.

         {¶2}      In early September 2011, Johnson had been indicted on multiple

counts of theft and passing bad checks and a single count of aggravated theft for his

role in a 2007 check-kiting scheme.

         {¶3}      In February and March 2012, the trial court conducted a four-week

jury trial. After the jury had returned a guilty verdict for each offense, the trial court

entered convictions upon the verdicts and ordered the sentences for each of the

third-, fourth-, and fifth-degree-felony offenses to be served consecutively, for an

aggregate prison term of 172 months. While the trial court had imposed sentences

more than six months after the effective date of H.B. 86, it employed the pre-H.B.

86 property values in determining the degrees of the theft-related offenses.

         {¶4}      In his initial appeal, Johnson did not challenge the length of the

sentences imposed, or whether they had been imposed under the pre-H.B. 86

scheme. Instead, he raised three assignments of error claiming presentence trial

error.    In June 2013, we overruled the assignments of error and affirmed the

judgment of the trial court. See State v. Johnson, 2013-Ohio-2719, 994 N.E.2d 896,

¶ 1 (1st Dist.).

         {¶5}      In September 2014, Johnson filed a motion, under App.R. 26(B), to

reopen his prior direct appeal on the basis that he had been denied the effective

assistance of appellate counsel. In January 2015, we granted the motion, finding

that there was a genuine issue as to whether prior appellate counsel had been



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ineffective for failing to argue the trial court’s failure to impose sentence in

conformity with the amendments enacted under H.B. 86.                 Accordingly, we

appointed new appellate counsel and ordered that counsel to brief the H.B. 86 issue

and any other nonfrivolous assignments of error not previously considered. He has

done so.

                   Verdict Forms Failed to Comply with R.C. 2945.75

       {¶6}    In his first assignment of error, Johnson argues that the trial court

erred in employing the pre-H.B. 86 sentencing scheme to elevate the degree of each

offense that he committed. He also contends that, under R.C. 2945.75, the verdict

forms employed at trial were deficient because they had failed to set out the degrees

of the offenses charged and to list the proper H.B. 86 additional-value findings that

elevated each offense to a higher degree.

       {¶7}    As noted in the entry reopening this appeal, Johnson was sentenced

more than six months after the effective date of H.B. No. 86. Thus, he was entitled

to have been sentenced under its provisions. See State v. Taylor, 138 Ohio St.3d

194, 2014-Ohio-460, 5 N.E.3d 612, ¶ 20.

       {¶8}    These provisions included an increase in the value thresholds

required to support more serious convictions for theft-related offenses. See Taylor

at ¶ 16. Generally, a default misdemeanor penalty applies to these offenses unless

the value of the lost property reaches or exceeds a specific threshold. If the specified

threshold value is reached or exceeded, the felony penalty is increased. See R.C.

2913.02(B)(2) and 2913.11(F). Thus, the value of property stolen under each offense

is a finding that enhances the penalty for the offense. It must be submitted to the

fact finder for a special finding to determine the degree of the offense. See In re

D.L., 1st Dist. Hamilton No. C-140711, 2015-Ohio-4747, ¶ 9; see also State v.

McDonald, 137 Ohio St.3d 517, 2013-Ohio-5042, 1 N.E.3d 374, ¶ 28-29 (Lanzinger,

J., concurring).



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       {¶9}     Here, in each count of the indictment, the bill of particulars, the trial

court’s jury charge, and the verdict forms signed by the jury, the value of the

properties stolen was erroneously categorized under the pre-H.B. 86 threshold

values, making the offenses of more serious degree. See Taylor at ¶ 20.

       {¶10}    R.C. 2945.75(A)(2) provides that:

                When the presence of one or more additional elements makes

         an offense one of more serious degree: * * * [a] guilty verdict shall

         state either the degree of the offense of which the offender is found

         guilty, or that such additional element or elements are present.

         Otherwise, a guilty verdict constitutes a finding of guilty of the least

         degree of the offense charged.

       {¶11}    The Ohio Supreme Court has held that “[p]ursuant to the clear

language of R.C. 2945.75, a verdict form signed by a jury must include either the

degree of the offense of which the defendant is convicted or a statement that an

aggravating element has been found to justify convicting a defendant of a greater

degree of a criminal offense.” State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256,

860 N.E.2d 735, syllabus; see McDonald, 137 Ohio St.3d 517, 2013-Ohio-5042, 1

N.E.3d 374, at ¶ 13; State v. Tsibouris, 1st Dist. Hamilton Nos. C-120414 and C-

120415, 2014-Ohio-2612, ¶ 30.

       {¶12}    Although Johnson failed to object to the verdict forms at trial, the

Ohio Supreme Court has held that there must be strict compliance with the

mandates of R.C. 2945.75. McDonald at ¶ 14. Nonetheless, the state maintains that

where a jury verdict fails to include the degree of the offense or the aggravating

findings, this court may scrutinize the text of the indictment itself and whether it

had been incorporated into the verdict form, the bill of particulars, and the evidence

adduced at trial to determine if the jury had rendered a verdict in conformity with

R.C. 2945.75.    See State v. Eafford, 132 Ohio St.3d 159, 2012-Ohio-2224, 970


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N.E.2d 891, ¶ 19 (jury verdict form that referred to the charge in the indictment did

not violate R.C. 2945.75(A)); see also State v. Darazim, 10th Dist. Franklin No.

14AP-203, 2014 Ohio App. LEXIS 5139, *21-22 (Nov. 28, 2014) (bench trial); but

see State v. Sims, 1st Dist. Hamilton Nos. C-150252 and C-150253, 2015-Ohio-4996,

¶ 24 (holding that since no jury verdict is rendered in a bench trial, R.C. 2945.75 has

no applicability).

       {¶13}    But in its most recent pronouncement, the Ohio Supreme Court

reiterated its holding in Pelfrey that “in cases involving offenses for which the

addition of an element or elements can elevate the offense to a more serious degree,

the verdict form itself is the only relevant thing to consider in determining whether

the dictates of R.C. 2945.75 have been followed.” (Emphasis added.) McDonald, 137

Ohio St.3d 517, 2013-Ohio-5042, 1 N.E.3d 374, at ¶ 17 (without citation to Eafford,

132 Ohio St.3d 159, 2012-Ohio-2224, 970 N.E.2d 891); see Tsibouris at ¶ 30.

       {¶14}    Thus to comply with R.C. 2945.75, the signed verdict forms returned

by the jury must have included either the degree of the offenses of which Johnson

was convicted or a statement that an aggravating element had been found to justify

convicting him of greater degrees of the theft-related offenses. See McDonald at ¶

17, quoting Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735, at ¶ 14.

The remedy for failure to include this language in the verdict form is

“straightforward.” McDonald at ¶ 14. Under R.C. 2945.75(A)(2), the defendant

may only be convicted of the least degree of the offense charged. See McDonald at ¶

17.



                                Johnson’s Sentences

       {¶15}    Johnson concedes that he was properly sentenced for passing a bad

check in the amount of $14,995, as alleged in count one of the indictment. While

the verdict form submitted to the jury did not specify the degree of the offense, the



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jury found beyond a reasonable doubt that the value of the check was $14,995, in

the special-verdict form accompanying count one.

       {¶16}   Since the special-verdict form reflects that the jury made the

additional value finding necessary to elevate the degree of the offense, the verdict

form complied with the dictates of R.C. 2947.75(A)(2).         Under the H.B. 86

sentencing scheme, the jury’s finding of the value of the check would support the

fourth-degree-felony conviction and the nine-month prison term imposed by the

trial court. See R.C. 2913.11(F) (passing-bad-check offense punishable as a fourth-

degree felony if the check was for the payment of $7,500 or more and less than

$150,000); see also R.C. 2929.14(A)(4).

       {¶17}   But for each of the remaining 18 counts for which the trial court

imposed sentence, the verdict forms did not comply with the statutory mandates of

R.C. 2945.75, and the sentences imposed must be vacated.



                        The Fifth-Degree-Felony Offenses

       {¶18}   Johnson was convicted of 14 counts of theft or passing bad checks

punishable as fifth-degree felonies. For each count, the trial court imposed an

eight-month prison term.

       {¶19}   The jury had returned signed verdict and special-verdict forms for

each count. For example, count five of the indictment had alleged that Johnson had

deprived the owners of the Stephenson Oil Co. of property or services worth $500 or

more. The verdict form employed did not specify the degree of the offense. It

provided only that, “We, the Jury, in the issue joined, find the defendant,

BRANDON JOHNSON, GUILTY of Theft, as charged in Count Five of the

Indictment.”

       {¶20}   An accompanying special-verdict form provided that if the jury

returned a guilty verdict for count five, it was also to determine the value of the



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                    OHIO FIRST DISTRICT COURT OF APPEALS



stolen property. The jury was instructed to write the value of the stolen property in

the blank provided on the special-verdict form. An asterisk on the form indicated

that the jury was to insert “less than $500” or “$500 or more,” the pre-H.B. 86

threshold amounts. The special verdict, as completed by the jury, stated that, “We

the Jury, having found the defendant guilty of Theft as charged in Count 5 of the

Indictment, further find beyond a reasonable doubt that the value of the property

stolen was: $500 or more.” The verdict form and the accompanying special-verdict

form were signed by all 12 members of the jury.

       {¶21}   In no instance did the verdict forms employed for the fifth-degree

offenses state the degree of the offense. Thus, for these offenses to be considered

fifth-degree felonies, the verdict forms had to demonstrate the jury’s finding of an

additional or aggravating element. See R.C. 2945.75(A)(2); see also Pelfrey, 112

Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735, at ¶ 14. Here, that finding, under

H.B 86, would require that the value of the property stolen was at least $1,000 and

less than $7,500. See R.C. 2913.02(B)(2) and 2913.11(F).

       {¶22}   But the special-verdict forms signed by the jury only found that

Johnson had stolen property of at least $500 in value, or had issued checks for

payment of $500 or more and less than $5,000. Under this finding, employing the

H.B. 86 sentencing scheme, the offenses were punishable only as first-degree

misdemeanors. R.C. 2913.02(B)(2). The maximum prison term that could have

been imposed was 180 days in duration, two months less than the actual term

imposed. R.C. 2929.24(A)(1).

       {¶23}   Since the verdict forms for these offenses did not include either the

degree of the offense or the value finding to support the felony convictions, the

verdict forms were insufficient to convict Johnson of fifth-degree felonies. Pelfrey

at ¶ 14; McDonald, 137 Ohio St.3d 517, 2013-Ohio-5042, 1 N.E.3d 374, at ¶ 16. The

failure to comply with R.C. 2945.75(A)(2) resulted in prejudicial error to Johnson.



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                      OHIO FIRST DISTRICT COURT OF APPEALS



Therefore, we vacate the prison terms imposed by the trial court for counts 2, 3, 4, 5,

8, 10, 11, 12, 13, 23, and 34.

       {¶24}    We can conclude from the special-verdict forms only that the jury

made a value finding of at least $500 for each of these offenses.         Under R.C.

2945.75(A)(2), the least degree of the offense charged in these counts constituted a

first-degree misdemeanor based upon the jury’s special-verdict finding of the value

of the stolen property. On remand, the trial court is limited to imposing sentences

consistent with that finding.



                                 The Third-Degree Offense

       {¶25}    In count 16, Johnson was charged with aggravated theft, punishable

as a third-degree felony. The trial court imposed a two-year prison term for this

offense. The verdict forms did not state the degree of the offense. Thus, for this

offense to constitute a third-degree felony, the verdict forms must demonstrate the

jury’s finding describing the value of the property stolen. Under H.B. 86, for a theft

offense to constitute a third-degree felony, the jury must make an additional finding

that the value of the property stolen was at least $150,000 and less than $750,000.

R.C. 2913.02(B)(2).

       {¶26}    Here, the special-verdict form stated, and the jury found, only that

Johnson had stolen property of $100,000 or more in value. Under this finding,

employing the H.B. 86 sentencing scheme, the aggravated-theft offense constituted

only a fourth-degree felony. R.C. 2913.02(B)(2). The maximum prison term that

could have been imposed was 18 months, six months less than the actual term

imposed. R.C. 2929.14(A)(4).

       {¶27}    Since the verdict forms in count 16 did not include either the degree

of the offense or the value element to support a third-degree felony, as required by

R.C. 2945.75(A)(2), the verdict forms were insufficient to convict Johnson of a



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                     OHIO FIRST DISTRICT COURT OF APPEALS



third-degree felony. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735,

at ¶ 14; McDonald, 137 Ohio St.3d 517, 2013-Ohio-5042, 1 N.E.3d 374, at ¶ 16. The

failure to comply with the statute resulted in prejudicial error to Johnson.

Therefore, we vacate the prison term imposed by the trial court for count 16.

       {¶28}   We can conclude from the special-verdict form only that the jury

made a value finding of at least $100,000. Under R.C. 2945.75(A)(2), the least

degree of the offense charged in count 16 constituted a fourth-degree felony based

upon the jury’s special-verdict finding of the value of the stolen property. On

remand, the trial court is limited to imposing punishment consistent with this

finding.



                        The Fourth-Degree-Felony Offenses

       {¶29}   For each of the three remaining offenses, charged in counts 6, 21,

and 24, Johnson was convicted of theft punishable as a fourth-degree felony. For

each count, the trial court imposed a nine-month prison term. As before, the verdict

forms failed to state the degrees of the offenses, and the jury’s special verdicts found

property values below those required to sustain convictions as fourth-degree

felonies. See R.C. 2913.02(B)(2) and 2945.75(A)(2).

       {¶30}   Here, the special-verdict form stated, and the jury found, only that

Johnson had stolen property of $5,000 or more in value. Under this finding,

employing the H.B. 86 sentencing scheme, the offenses constituted only fifth-degree

felonies. R.C. 2913.02(B)(2).

       {¶31}   Since the verdict forms did not include either the degree of the

offense or the value element to support fourth-degree felonies, as required by R.C.

2945.75(A)(2), the verdict forms were insufficient to convict Johnson of fourth-

degree felonies. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735, at ¶

14; McDonald, 137 Ohio St.3d 517, 2013-Ohio-5042, 1 N.E.3d 374, at ¶ 16.



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                    OHIO FIRST DISTRICT COURT OF APPEALS



Therefore, we vacate the prison terms imposed by the trial court for counts 6, 21,

and 24. See Taylor, 138 Ohio St.3d 194, 2014-Ohio-460, 5 N.E.3d 612, at ¶ 16.

       {¶32}   We can conclude from the special-verdict form only that the jury

made a value finding of at least $5,000. Under R.C. 2945.75(A)(2), the least degree

of the offenses charged constituted a fifth-degree felony based upon the jury’s

special-verdict finding of the value of the stolen property. On remand, the trial

court is limited to imposing punishment consistent with this finding.

       {¶33}   The first assignment of error is sustained.



                 Ineffective Assistance of Prior Appellate Counsel

       {¶34}   In his second assignment of error, Johnson argues that the

“representation by [his] prior appellate counsel was deficient and that [Johnson]

was prejudiced by that deficiency.” App.R. 26(B)(7); see State v. Spivey, 84 Ohio

St.3d 24, 25, 701 N.E.2d 696 (1998); see also Strickland v. Washington, 466 U.S.

668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d

136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus.

       {¶35}   Prior appellate counsel’s failure to challenge the sentences imposed

prejudiced Johnson. Therefore, the second assignment of error is sustained.

                                    Conclusion

       {¶36}   Having found that the performance of Johnson’s prior appellate

counsel was deficient and that he was prejudiced by that deficiency, in accordance

with App.R. 26(B)(9), we vacate this court’s June 28, 2013 judgment affirming the

trial court. We leave intact those portions of our opinion, journalized the same day,

resolving the three assignments of error raised by Johnson’s prior counsel.

       {¶37}   We also vacate the sentences imposed by the trial court in its April 4,

2012 judgment entry, except the sentence imposed for the offense described in

count one of the indictment, and remand this cause to the trial court solely for



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                     OHIO FIRST DISTRICT COURT OF APPEALS



resentencing in accordance with R.C. 2945.75(A)(2) and this opinion. We affirm the

trial court’s judgment in all other respects.

                                                                 Judgment accordingly.



DEWINE and STAUTBERG, JJ., concur.


Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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