[Cite as State v. Thomas, 2015-Ohio-415.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 101202




                                             STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                            JERMAIN THOMAS

                                                        DEFENDANT-APPELLANT




                                        JUDGMENT:
                            AFFIRMED IN PART, REVERSED IN PART,
                                      AND REMANDED




                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-13-575711-A

        BEFORE: E.T. Gallagher, J., S. Gallagher, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: February 5, 2015
ATTORNEY FOR APPELLANT

Russell S. Bensing
1350 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY:    Kristin Karkutt
       Brad S. Meyer
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

         {¶1} Defendant-appellant, Jermain Thomas (“Thomas”),1 appeals his rape and kidnapping

convictions. We find some merit to the appeal and affirm Thomas’s conviction, but reverse his

sentence and remand this case to the trial court for resentencing.

         {¶2} On June 27, 2013, Thomas was charged with three counts of rape and one count of

kidnapping as a result of conduct he allegedly committed on June 28, 1993. All counts included

one- and three-year firearm specifications. Prior to trial, Thomas filed a motion to dismiss the

charges, arguing he was prejudiced by the 20-year delay between the alleged incident and the

indictment. The trial court denied the motion and the case proceeded to a jury trial.

         {¶3} The victim, A.W., testified that on the evening of June 28, 1993, she left her house on

Dickens Avenue in Cleveland to walk to her cousin’s house on Manor Avenue, one street over.

In the darkness, a man approached her and forced her to walk south on East 97th Street toward

Hilgert Drive. The man stayed close behind her holding something into her back that she

believed was a gun. They walked up a driveway of a house next to an empty field where the man

forced A.W. onto her knees and vaginally raped her. Although it was dark, there was sufficient

light for A.W. to see that the man was holding a gun. There were no known witnesses of the

crime.

         {¶4} After the rape, A.W. ran home to use the bathroom before running to a neighbor’s

house where a friend called the police. Later that evening she went by ambulance to St. Luke’s

Hospital where Dr. Cynthia Boes (“Dr. Boes”) collected evidence of the rape in a rape kit. A.W.


         1
            The trial record reflects defendant-appellant’s name has also been spelled “Jermaine,” as indicated in the
trial transcript and the parties’ briefs. However, in the record on appeal, his name was spelled “Jermain.”
Accordingly, we refer to defendant-appellant as “Jermain Thomas.”
described the rape in detail to Dr. Boes, who wrote a narrative account of the incident in A.W.’s

chart. A few days after the rape, Officer Debra Simmons (“Simmons”) of the Cleveland Police

Department met with A.W. in her home to investigate the rape. A.W. was unable to provide a

detailed description of the suspect because it was dark, and she did not look at his face at any time

during the incident. Without any leads, the case went cold.

       {¶5} In 2006, scientists at the Ohio Bureau of Criminal Investigation (“BCI”) tested the

evidence in A.W.’s rape kit and found DNA that matched Thomas’s DNA. A detective contacted

A.W. and informed her that BCI had identified a suspect with DNA evidence from the rape kit.

A.W. informed the detective that she did not want to prosecute him. She explained she “didn’t

want to relive that moment again.” Accordingly, A.W. signed a “Waiver of Prosecution,” and the

detective once again closed the investigation.

       {¶6} In 2013, an investigator from the Cuyahoga County Prosecutor’ Office notified A.W.

that the prosecutor’s office was proceeding with the prosecution of the suspect in her rape case.

The investigator discussed the incident with A.W. and presented a photograph lineup of suspects.

A.W. was unable to identify the perpetrator from the lineup but agreed to assist in the prosecution.

       {¶7} At the conclusion of the trial, the jury found Thomas guilty of one count of rape and

one count of kidnapping, with the attendant one- and three-year firearm specifications. The court

sentenced Thomas to concurrent indefinite prison terms of 8-25 years on the rape and kidnapping

convictions, plus three years on the firearm specifications to be served consecutive to the

underlying offenses. The trial court also classified Thomas a sexual predator pursuant to H.B.

180. Thomas now appeals and raises five assignments of error.

                                       Preindictment Delay
          {¶8} In the first assignment of error, Thomas argues the trial court erred in denying his

motion to dismiss the indictment due to preindictment delay. He contends the delay prejudiced

his ability to present a defense.

          {¶9} The Due Process Clause of the Fifth Amendment to the United States Constitution, as

applicable to the states through the Fourteenth Amendment, provides: “No person shall * * * be

deprived of life, liberty, or property, without due process of law.” The Ohio Supreme Court has

held that “[a]n unjustifiable delay between the commission of an offense and a defendant’s

indictment therefore, which results in actual prejudice to the defendant, is a violation of the right

to due process of law.” State v. Luck, 15 Ohio St.3d 150, 472 N.E.2d 1097 (1984), paragraph

two of the syllabus. See also United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30

L.Ed.2d 468 (1971); United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752

(1977).

          {¶10} Courts apply a two-part test to determine whether preindictment delay constitutes a

due process violation. The defendant has the initial burden of showing that he was substantially

and actually prejudiced as a result of the delay. State v. Whiting, 84 Ohio St.3d 215, 217, 702

N.E.2d 1199 (1998). If the defendant establishes actual prejudice, the burden shifts to the state to

produce evidence of a justifiable reason for the delay.       State v. Walls, 96 Ohio St.3d 437,

2002-Ohio-5059, 775 N.E.2d 829. Thereafter, the due process inquiry involves a balancing test

by the court, weighing the reasons for the delay against the prejudice to the defendant, in light of

the length of the delay. Id. at ¶ 51.

          {¶11} In determining whether a defendant was actually prejudiced by preindictment delay,

the court must consider “the evidence as it exists when the indictment is filed and the prejudice

the defendant will suffer at trial due to the delay.” Id. at ¶ 51. Prejudice is not presumed solely
because there was a lengthy delay, and the defendant may not rely on speculation or vague

assertions of prejudice. State v. Copeland, 8th Dist. Cuyahoga No. 89455, 2008-Ohio-234, ¶ 13.

Proof of actual prejudice must be specific, particularized, and non-speculative.             State v.

McFeeture, 8th Dist. Cuyahoga No. 100434, 2014-Ohio-5271, ¶ 120, quoting State v. Stricker,

10th Dist. Franklin No. 03AP-746, 2004-Ohio-3557, ¶ 36.       Therefore, in order to establish actual

prejudice, the defendant must demonstrate the exculpatory value of the evidence of which he was

deprived due to the delay. Id.

       {¶12} In this case, there was a 20-year delay. Although the delay does not, by itself,

establish actual prejudice, Thomas argues there were at least five witnesses who could have

provided specific exculpatory information if the case had been prosecuted sooner. First, Thomas

contends that Officer Simmons, who investigated the rape and interviewed A.W. in 1993, could

have provided exculpatory evidence but she passed away four years before trial. Thomas asserts

that Simmons’s testimony could have been exculpatory because A.W.’s trial testimony was

inconsistent with the statement she gave to Simmons at the time of the rape. A.W. reported to

Simmons that the suspect raped her orally, vaginally, and anally, but testified at trial that she only

remembered being raped vaginally.

       {¶13} However, the discrepancy between A.W.’s statement to Simmons and her trial

testimony has no exculpatory value. It is not as if A.W. described a suspect who in no way

resembled Thomas, or that A.W. reported something that might suggest she consented to having

sex with Thomas. Both of A.W.’s statements were generally consistent, and both statements

unequivocally described a rape beside a house adjacent to a vacant lot.

       {¶14} Thomas also complains the ambulance driver was never identified, and two

neighbors, who observed A.W. immediately after the rape, have since passed away. Thomas also
maintains that because Dr. Boes had no independent recollection of her examination of A.W. and

relied entirely on A.W.’s medical record for her testimony, Thomas suggests Dr. Boes might have

remembered something exculpatory if she had been interviewed closer in time to the rape.

However, Thomas fails to explain how his defense would have been helped if Dr. Boes had a

more vivid recollection, or if the ambulance driver and neighbors had been available to testify.

That these witnesses would have offered exculpatory evidence is purely speculative since Thomas

cannot identify any specific evidence they would have provided that might have helped his

defense.

       {¶15} In this case, Thomas fails to demonstrate how any witness would have helped his

defense if the case had been investigated and prosecuted more promptly.             Indeed, Thomas

practically concedes in his brief that his argument is entirely speculative when he states that he has

been “put in the position of having to recreate for the court what might have happened if the trial

had occurred promptly,” and “we simply don’t know what the missing witnesses might have

said.” (Appellant’s brief at 7.) Therefore, because Thomas fails to demonstrate the exculpatory

value of the evidence of which he was deprived as a result of the delay, he fails to establish actual

prejudice, and the trial court properly denied his motion to dismiss.

       {¶16} The first assignment of error is overruled.



                                   Victim’s Hearsay Statement

       {¶17} In the second assignment of error, Thomas argues the trial court violated his Sixth

Amendment right of confrontation when it allowed Dr. Boes to read the victim’s description of

the rape as documented in A.W.’s medical records.           He contends the statement constituted

testimonial hearsay because it described the criminal offense for which he was charged and did
not fall under the medical diagnosis and treatment exception to the hearsay rule provided in

Evid.R. 803(4).2

       {¶18} The Sixth Amendment to the United States Constitution states: “In all criminal

prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against

him.” Hearsay is an out of court statement offered to prove the truth of the matter asserted.

Evid.R. 801(C). Thus, whenever the state seeks to introduce hearsay into evidence in a criminal

proceeding, the court must determine not only whether the evidence fits within an exception to the

hearsay rule, but also whether the introduction of such evidence offends an accused’s right to

confront witnesses against him.               State v. Kilbane, 8th Dist. Cuyahoga No. 99485,

2014-Ohio-1228, ¶ 29.

       {¶19} In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004),

the United States Supreme Court held that the Confrontation Clause bars the admission of

“testimonial statements of witnesses absent from trial.” Id. at 59. In Crawford, the court

explained that “[w]here testimonial statements are at issue, the only indicium of reliability

sufficient to satisfy constitutional demands is the one the Constitution actually prescribes:

confrontation.” This means that the state may not introduce “testimonial” hearsay against a

criminal defendant, regardless of whether such statements are deemed reliable, unless the

defendant has an opportunity to cross-examine the declarant. Id. at 53-54, 68.


       2
           Evid.R. 803(4) states:

       The following are not excluded by the hearsay rule, even though the declarant is available as a
       witness:

       *    *     *
       (4) Statements made for purposes of medical diagnosis or treatment and describing medical history,
       or past or present symptoms, pain, or sensations, or the inception or general character of the cause
       or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
       {¶20} In Crawford, the court also held that the Confrontation Clause only requires

exclusion of “testimonial” as opposed to “non-testimonial” evidence.         “It is the testimonial

character of the statement that separates it from other hearsay that, while subject to traditional

limitations upon hearsay evidence, is not subject to the Confrontation Clause.”            Davis v.

Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). If a statement is not

testimonial, the principles embodied in the Confrontation Clause do not apply. Whorton v.

Bockting, 549 U.S. 406, 420, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007).

       {¶21} Although the Crawford court did not specifically define the term “testimonial,” it

explained that hearsay statements are implicated by the Confrontation Clause where they are

“made under circumstances which would lead an objective witness reasonably to believe that the

statement would be available for use at a later trial.” Crawford at 52. Since Crawford, there

have been questions about whether a victim’s statements to medical personnel as opposed to law

enforcement are testimonial. In State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d

834, the Ohio Supreme Court addressed this question and held that an adult rape victim’s hearsay

statements to a nurse practitioner during a medical examination were admissible even though the

victim was unavailable for cross-examination at trial.

       {¶22} In reaching this conclusion, the Stahl court adopted the “objective witness test”

articulated in Crawford and held that

       [i]n determining whether a statement is testimonial for Confrontation Clause
       purposes, courts should focus on the expectation of the declarant at the time of
       making the statement; the intent of a questioner is relevant only if it could affect a
       reasonable declarant’s expectations.

Stahl at paragraph two of the syllabus. Applying this test, the Stahl court determined that the

victim’s statements to the nurse were nontestimonial because she “could have reasonably believed
that although the examination conducted at the [sexual assault] unit would result in scientific

evidence being extracted for prosecution purposes, the statement would be used primarily for

health-care purposes.” Id. at ¶ 47. Indeed, the victim had separately provided a statement about

the rape to police. Under these circumstances, the court found that the victim’s statements to the

medical professional were made for the primary purpose of receiving medical treatment as

opposed to investigating past events related to a criminal prosecution. Id. at ¶ 25.

       {¶23} In State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d 944, the Ohio

Supreme Court revisited this question in the context of a child sexual assault. In Muttart, the

court held that a child victim’s statements to physicians and counselors about how her father

sexually abused her were nontestimonial and admissible as evidence because they were made to

medical personnel in the course of diagnosis and treatment. The Muttart court explained that

“[s]tatements made to medical personnel for purposes of diagnosis and treatment are not

inadmissible under Crawford because they are not even remotely related to the evidence that the

Confrontation Clause was designed to avoid.” Id. at ¶ 62. See also State v. Arnold, 126 Ohio

St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775; State v. Bowleg, 8th Dist. Cuyahoga Nos. 100263

and 100264, 2014-Ohio-1422.

       {¶24} In this case, A.W. provided the same narrative account of the rape to the police and

her medical provider. Dr. Boes testified that medical professionals routinely record the patient’s

description of how an injury occurred in addition to the physical findings of a medical

examination because they are relevant to medical diagnosis and treatment. (Tr. 501.) Although

Dr. Boes collected DNA evidence during A.W.’s examination for potential prosecution, A.W.’s

primary reason for describing the circumstances of the rape to the doctor was for medical

treatment rather than investigation.    Moreover, because A.W. testified at trial, Thomas was
afforded the right to cross-examine her. Therefore, there was no violation of the Confrontation

Clause, and the evidence was admissible under the medical diagnosis and treatment exception to

the hearsay rule provided in Evid.R. 803(4).

       {¶25} The second assignment of error is overruled.

                             Victim’s Prior Inconsistent Statements

       {¶26} In the third assignment of error, Thomas argues the trial court erred in refusing to

admit the original police report into evidence. He contends it was admissible for impeachment

purposes because it contained a statement from A.W. made to Officer Simmons at the time of the

rape that was inconsistent with her trial testimony.

       {¶27} A trial court is vested with broad discretion to determine the admissibility of

evidence, so long as that discretion is exercised in accordance with the rules of procedure and

evidence. Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d 1056 (1991). We therefore

will not disturb the trial court’s decision to admit or exclude evidence absent an abuse of

discretion.   An abuse of discretion connotes an attitude on the part of the court that is

unreasonable, unconscionable, or arbitrary. Franklin Cty. Sheriff’s Dept. v. State Emp. Relations

Bd., 63 Ohio St.3d 498, 506, 589 N.E.2d 24 (1992).

       {¶28} Pursuant to Evid.R. 613(B), a party may introduce extrinsic evidence of a witness’s

prior inconsistent statement to impeach his or her credibility. However, when extrinsic evidence

of a prior inconsistent statement is offered into evidence pursuant to Evid.R. 613(B), the

proponent of the evidence must lay a foundation through direct or cross-examination in which (1)

the witness is presented with the former statement, (2) the witness is asked whether she made the

statement, (3) the witness is given an opportunity to admit, deny, or explain the statement, and (4)
the opposing party is given an opportunity to interrogate the witness on the inconsistent statement.

 State v. Mack, 73 Ohio St.3d 502, 515, 653 N.E.2d 329 (1995).

       {¶29} When presenting the prior inconsistent statement, counsel is not required to show

the prior statement or disclose its contents to the witness at the time he or she is interrogating the

witness. Evid.R. 613(A); State v. McQueen, 8th Dist. Cuyahoga No. 44990, 1983 Ohio App.

LEXIS 13740, fn. 6 (Feb. 3, 1983). If a witness denies making the statement, extrinsic evidence

of the statement is generally admissible if it relates to “a fact of consequence to the determination

of the action.”    Evid.R. 613(B)(2)(a); State v. McKinney, 8th Dist. Cuyahoga No. 99270,

2013-Ohio-5730, ¶ 14. A statement that the witness “does not remember” is equivalent to a

denial for purposes of establishing the requisite foundation for impeachment of a witness with a

prior statement. State v. Wilbon, 8th Dist. Cuyahoga No. 82934, 2004-Ohio-1784, ¶ 26.

       {¶30} In this case, A.W. testified at trial that the suspect raped her vaginally, but denied

that he raped her anally or orally. Thomas sought to impeach A.W.’s testimony with evidence of

a prior inconsistent statement contained in the police report in which she told Officer Simmons

that she had been raped vaginally, orally, and anally. In an attempt to lay the required foundation,

Thomas’s trial counsel questioned A.W. as follows:

       Q. Do you recall telling an officer that you unwillingly gave oral sex to the
       suspect and the suspect ejaculated in your mouth? Do you recall that?

       A: No.

       Q: Do you recall telling an officer that the suspect forced the victim on her back
       and had vaginal sex with the victim and ejaculated in the victim’s vagina?

       A: No.

       Q: And do you recall telling the same officer the suspect turned the victim over and
       had rectal intercourse with the victim and the suspect ejaculated in the victim’s
       rectum?
       A: No.

(Tr. 708.) Thus, Thomas’s trial counsel presented A.W. with the prior statements by asking her if

she made such prior statements to police. Counsel also gave her an opportunity to admit or deny

the statements. And since the state had the opportunity to question A.W. about the statement on

redirect examination, all the necessary elements of the foundation were laid, and the police report

should have been admitted into evidence for purposes of impeachment.

       {¶31} Nevertheless, the trial court’s error in refusing to admit the police report into

evidence was harmless. A criminal defendant has a constitutional right to a trial free from

prejudicial error but not necessarily a trial free of all error. State v. Brown, 65 Ohio St.3d 483,

485, 605 N.E.2d 46 (1992). Crim.R. 52(A) provides that “[a]ny error, defect, irregularity, or

variance which does not affect substantial rights shall be disregarded.” An error does not affect

substantial rights if there is no reasonable probability that the error contributed to the defendant’s

conviction. Brown at 485. In the harmless error analysis, the state has the burden of proving

that the error did not affect the substantial rights of the defendant. State v. Perry, 101 Ohio St.3d

118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 15.

       {¶32} Thomas sought to introduce the police report to impeach A.W. Although lack of

memory constitutes a denial for purposes of laying the foundation, A.W.’s testimony did not

contradict the statement she gave police 20 years earlier. She testified that she did not remember

making the prior statement, not that she never made the statement. Therefore, even if the police

report had been admitted into evidence it would not have made A.W. any less credible.

       {¶33} A.W.’s testimony that she was vaginally raped was consistent with her statement to

Officer Simmons. Thomas was only convicted of vaginal rape; the jury acquitted him on the
counts of oral and anal rape. Moreover, evidence of other prior statements corroborated A.W.’s

trial testimony that she had never seen Thomas before the rape and did not see him after the rape

until the time of trial. Yet, BCI discovered Thomas’s DNA in A.W.’s rape kit. The only

reasonable explanation for the presence of Thomas’s DNA in the rape kit is that he raped A.W.

Accordingly, we find the court’s refusal to admit the police report into evidence was harmless

beyond a reasonable doubt.

       {¶34} The third assignment of error is overruled.

                                             Mistrial

       {¶35} In the fourth assignment of error, Thomas argues the trial court erred in denying his

motion for a mistrial. Thomas claims he was unfairly prejudiced by the prosecutor’s improper

interrogation of a BCI supervisor regarding his practice of testing DNA on behalf of defendants in

some cases but not in this case. Thomas contends the prosecutor improperly placed the burden of

proof on the defense.

       {¶36} The decision to grant or deny a mistrial lies within the sound discretion of the trial

court. State v. Garner, 74 Ohio St.3d 49, 656 N.E.2d 623 (1995). An appellate court will not

disturb the exercise of that discretion absent a showing that the accused has suffered material

prejudice. State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987). A mistrial should be

declared only when the ends of justice so require and “a fair trial is no longer possible.” State v.

Franklin, 62 Ohio St.3d 118, 127, 580 N.E.2d 1 (1991). Further, to warrant a mistrial as a result

of prosecutorial misconduct, the defendant must show there is a reasonable probability that but for

the prosecutor’s misconduct, the outcome of the proceeding would have been different. State v.

Loza, 71 Ohio St.3d 61, 78, 641 N.E.2d 1082 (1994).
       {¶37} Thomas argues the following line of questioning by the prosecutor improperly

shifted the burden of proof to the defense:

       Q: Other than getting calls from the submitting agency, in your tenure at BCI have
       you ever been called upon by a defense attorney for testing in a case?

       A: Yes, I have. We’ve been called from submitting agencies, law enforcement,
       prosecutor’s office, and I have been called from the defense. I take down a
       request. I do a consult obviously with law enforcement and the prosecution [sic]
       office and then when an agreement has been made between them and the courts we
       will do testing if necessary.

       Q: And have you ever had the occasion to send items out from BCI to another
       laboratory for testing at the request of a defense attorney?

       A: Yes. In our DNA reports we have a remarks section that says we save samples
       for independent testing. If they wish, they can send it out, or they can decide just
       to send it out to a third party and not have BCI do it at all. And that has been the
       case in the past before.

       Q: Was that the case with this particular matter?

       [DEFENSE COUNSEL]: Objection.
       THE COURT: Overruled.

       Q: Was that the case with this matter?

       A: This case was just sent on to DNA and DNA was performed. No calls were
       made as to who would do the DNA analysis.

       {¶38} Despite Thomas’s argument to the contrary, these questions did not shift the burden

of proof to the defense. The witness’s responses to these questions demonstrated that BCI is an

independent agency that consults with both prosecutors and defendants. The questions were

likely intended to dispel any perceptions of bias the jury may have had if they thought BCI worked

exclusively for the government.

       {¶39} In its charge, the court explained to the jury that Thomas is presumed innocent until

the state proves him guilty beyond a reasonable doubt. The court further explained that the state
bears this burden of proof. A jury is presumed to follow the instructions given to it by a trial

judge. State v. Loza, 71 Ohio St.3d at 78-79, 641 N.E.2d 1082. We find nothing in the record

that placed the burden of proof on Thomas.

       {¶40} According, the fourth assignment of error is overruled.

                                             Sentencing

       {¶41} In the fifth assignment of error, Thomas argues the trial court erred in sentencing

him to an indefinite prison terms of 8-25 years under the sentencing provisions in effect at the

time the rape and kidnaping were committed. Thomas contends that although the rape and

kidnaping offenses were committed in 1993, he should have been sentenced under Am.Sub.H.B.

86 (“H.B. 86”), which became effective on September 30, 2011. The state, on the other hand,

contends that H.B. 86 is an extension of Am.Sub. S.B. 2 (“S.B. 2”) and only applies to offenses

committed on or after July 1, 1996. Therefore, the state argues, Thomas’s rape and kidnaping

offenses, which were committed in 1993, are not subject to the sentencing amendments in H.B.

86.

       {¶42} Section 5 of S.B. 2 states:

       The provisions of the Revised Code in existence prior to July 1, 1996, shall apply
       to a person upon whom a court imposed a term of imprisonment prior to that date
       and, NOTWITHSTANDING DIVISION (B) OF SECTION 1.58 OF THE
       REVISED CODE, to a person upon whom a court on or after that date and in
       accordance with the law in existence prior to that date, IMPOSES a term of
       imprisonment for an offense that was committed prior to that date.
       (Emphasis sic.)

Thus, in S.B. 2 the General Assembly specifically declared that all defendants who committed

crimes on or before July 1, 1996 had to be sentenced under the law in existence at the time of the

offense, “notwithstanding division (B) of section 1.58 of the Revised Code.” Section 3,
Am.Sub.S.B. No. 269, 146 Ohio Laws, Part IV, 11099, amending Section 5 of S.B. 2. See State

v. Rush, 83 Ohio St.3d 53, 697 N.E.2d 634 (1998).

        {¶43} However, H.B. 86 does not incorporate this exclusionary language.              On the

contrary, Sections 3 and 4 of the act expressly provide that certain specified offenses and certain

sentencing provisions are subject to H.B. 86 sentencing amendments even though the subject

offenses were committed prior to its effective date. As relevant here, Section 4 states, in relevant

part:

        SECTION 4. The amendments to * * * division (A) of section 2929.14 of the

        Revised Code that are made in this act apply to a person penalized * * * under

        th[at] section[] 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.

        {¶44} Division (A) of R.C. 2929.14, which governs basic prison terms, states in relevant

part:

        [I]f the court imposing a sentence upon an offender for a felony elects or is
        required to impose a prison term on the offender pursuant to this chapter, the court
        shall impose a definite prison term that shall be one of the following:

        (1) For a felony of the first degree, the prison term shall be three, four, five, six,
        seven, eight, nine, ten, or eleven years.

Thomas was convicted of rape in violation of R.C. 2907.02(A)(2) and kidnaping in violation of

R.C. 2905.01(A)(4). Both offenses are first-degree felonies. Pursuant to R.C. 2929.14(A), as

amended by H.B. 86, the trial court was required to impose a definite prison term of “three, four,

five, six, seven, eight, nine, ten, or eleven years,” for first-degree felonies. Section 4 of H.B. 86
specifically states that the basic prison terms outlined in R.C. 2929.14(A), as amended by the act,

apply to a person who is penalized under that section.

       {¶45} In contrast to Section 5 of S.B. 2, which excluded application of R.C. 1.58(B) from

its provisions, Section 4 of H.B. 86 expressly states that H.B. 86 amendments apply “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.

       {¶46} These provisions are consistent with the legislative intent behind H.B. 86. In State

v. Limoli, 140 Ohio St.3d 188, 2014-Ohio-3072, 16 N.E.3d 641, the Ohio Supreme Court

examined the effect of H.B. 86 on a defendant who was convicted of an offense specified in

Section 3 of H.B. 86 prior to its effective date but was not sentenced until after its effective date.

The specified offense was possession of crack cocaine in violation of R.C. 2925.11. The court

noted that Section 3 of H.B. 86, which is very similar to Section 4, specifically identified R.C.

2925.11 and stated that R.C. 1.58(B) makes the amendments to that code section applicable.

Therefore, the Limoli court concluded that individuals who possessed crack cocaine in violation of

R.C. 2925.11 prior to H.B. 86’s effective date, but are penalized after its effective date, must be

sentenced under the H.B. 86 amendments. Regarding the legislature’s intent, the Supreme Court

explained:

       The goal of the General Assembly in enacting H.B. 86 was “to reduce the state’s
       prison population and to save the associated costs of incarceration by diverting
       certain offenders from prison and by shortening the terms of other offenders
       sentenced to prison.” [State v.] Taylor, 138 Ohio St.3d 194, 2014-Ohio-460, 5
       N.E.3d 612 at ¶ 17, citing Ohio Legislative Service Commission, Fiscal Note &
       Local Impact Statement to Am.Sub.H.B. 86, at 3 (Sept. 30, 2011).
Limoli at ¶ 10.
       {¶47} Although neither Section 3 nor Section 4 specify that rape and kidnapping are

offenses covered by H.B. 86, Section 4 states that H.B. 86 amendments apply to defendants

penalized under R.C. 2929.14(A). Moreover, H.B. 86 expressly states that where its sentencing

provisions provide a more lenient sentence than previous sentencing statutes, then R.C. 1.58(B)

makes the H.B. 86 amendments applicable. See Sections 3 and 4 of H.B. 86.

       {¶48} As previously stated, R.C. 2929.14(A)(1), as amended by H.B. 86, states that the

basic prison term for a first-degree felony “shall be three, four, five, six, seven, eight, nine, ten, or

eleven years.” Yet, the trial court sentenced Thomas to an indefinite term of 8 to 25 years

pursuant to the sentencing provisions in effect in 1993, when the offense was committed. The

maximum prison term Thomas could receive for rape under R.C. 2929.14(A)(1) as amended by

H.B. 86 is only 11 years, whereas the maximum the trial court imposed under pre-S.B. 2

sentencing laws was 25 years. Section 4 provides that Thomas is entitled to the more lenient

sentencing provisions of H.B. 86 by virtue of R.C. 1.58(B). Therefore, the indefinite prison

sentence was not authorized by law and violated Section 4 of H.B. 86.

       {¶49} In State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, the Ohio

Supreme Court held that “sentences that do not comport with mandatory provisions are subject to

total resentencing.” Id. at ¶ 20, citing State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868

N.E.2d 961, ¶ 11. Unauthorized sentences are illegal and void ab initio. State v. Beasley, 14 Ohio

St.3d 74, 75, 471 N.E.2d 774 (1984). Therefore, Thomas’s indefinite sentences are void and

must be vacated.

       {¶50} The fifth assignment of error is sustained.
       {¶51} Judgment affirmed in part, reversed in part, and remanded to the trial court for

resentencing under H.B. 86.

       It is ordered that appellant and appellee share the costs taxed herein.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas court

to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules

of Appellate Procedure.



EILEEN T. GALLAGHER, JUDGE

SEAN C. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
