[Cite as State v. Saplak, 2012-Ohio-4281.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97825



                                       STATE OF OHIO
                                             PLAINTIFF-APPELLEE

                                              vs.


                                      JOHN J. SAPLAK
                                             DEFENDANT-APPELLANT




                         JUDGMENT:
           CONVICTION AFFIRMED; SENTENCE VACATED
              AND REMANDED FOR RESENTENCING


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-554377

        BEFORE: Kilbane, J., Rocco, P.J., and Keough, J.

        RELEASED AND JOURNALIZED:                   September 20, 2012
ATTORNEY FOR APPELLANT

Mark R. Marshall
P.O. Box 451146
Westlake, Ohio 44145

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
Erin Stone
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

       {¶1} Defendant-appellant, John Saplak, appeals from his conviction for a felony

violation of R.C. 2913.02(A)(1).       For the reasons set forth below, we affirm the

conviction, vacate his sentence, and remand for resentencing.

       {¶2} On September 27, 2011, defendant was indicted by information in

connection with events occurring from August 9, 2011 to September 9, 2011. He was

charged with one count of theft of property valued between $500 and $5000, in violation

of R.C. 2913.02, which was a fifth degree felony at the time the theft occurred, and one

count of possessing criminal tools, all with a forfeiture specification.

       {¶3} On October 18, 2011, shortly after the effective date of H.B. 86, defendant

pled guilty to the theft charge and the remaining charges were dismissed. At this time,

the stolen property was identified as $665.20 “worth of beer at Marc’s.” The matter was

set for sentencing on November 17, 2011. Defendant did not appear on this date and a

capias was issued. On January 5, 2012, the trial court sentenced defendant to six months

of imprisonment and up to three years of postrelease control sanctions. He was also

ordered to make restitution.

       {¶4} Defendant now appeals, assigning two errors for our review:




                               ASSIGNMENT OF ERROR ONE
       The trial court erred in accepting appellant’s guilty plea for theft, a felony
       of the fifth degree, [because] after the effective date of H.B. 86 the
       underlying offense [became] misdemeanor.

                             ASSIGNMENT OF ERROR TWO

       The trial court erred in sentencing appellant to a term of incarceration

       pursuant to a finding of guilt for F-5 theft that includes a potential for

       postrelease control pursuant to R.C. 2967.28.

       {¶5} In these assignments of error, defendant notes that H.B. 86 amended R.C.

2913.02, and under the current version of the statute, if the value of the stolen

merchandise is less than $1,000, then the offense is no longer a fifth degree felony, but

instead is a first degree misdemeanor. Since this amendment went into effect before the

date of defendant’s guilty plea and sentence, defendant argues that he should have been

convicted of the first degree misdemeanor offense and not a fifth degree felony, and that

the trial court erred in imposing sentence on the fifth degree felony.

       {¶6} At the time of the offense to which defendant pled guilty, R.C. 2913.02

provided:

       (A)(1) No person, with purpose to deprive the owner of property * * *, shall
       knowingly obtain or exert control over * * * the property * * * [w]ithout the
       consent of the owner or person authorized to give consent.

       ***

       (B)(2) Except as otherwise provided in this division or division (B)(3), (4),

       (5), (6), (7), or (8) of this section, a violation of this section is petty theft, a

       misdemeanor of the first degree. If the value of the property or services
       stolen is five hundred dollars or more and is less than five thousand dollars

       * * *, a violation of this section is theft, a felony of the fifth degree. * * *.

       {¶7} Effective September 30, 2011, H.B. 86 amended R.C. 2913.02 as follows:

       (A) No person, with purpose to deprive the owner of property or services,
       shall knowingly obtain or exert control over either the property or services
       in any of the following ways:

       (1) Without the consent of the owner or person authorized to give consent;

       ***

       (2) Except as otherwise provided in this division or division (B)(3), (4), (5),

       (6), (7), or (8) of this section, a violation of this section is petty theft, a

       misdemeanor of the first degree. * * * .

       {¶8} Section 4 of the enacted legislation provides in pertinent part as follows:

       The amendments to sections * * * 2913.02 * * * of the Revised Code that
       are made in this act apply to a person who commits an offense specified or
       penalized under those sections on or after the effective date of this section
       and to a person to whom division (B) of section 1.58 of the Revised Code
       makes the amendments applicable.

       {¶9} Therefore, H.B. 86 contains the statement of specific legislative intent that

the amendments to R.C. 2913.02 apply to a person who commits an offense specified or

penalized under this section on or after the effective date of H.B. 86. State v. Steinfurth,

8th Dist. No. 97549, 2012-Ohio-3257, ¶ 14. The amendments also apply to a person to

whom division (B) of R.C. 1.58 makes the amendments applicable. Id.

       {¶10} 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.” (Emphasis added.)

      {¶11} Therefore “[w]hen sentencing an offender, Ohio courts must apply the

statute in effect at the time the offender committed the offense, unless a statute, enacted

after the commission of the offense, but before sentencing, provides for a lesser

punishment.” Steinfurth, ¶ 13.

      {¶12} In this matter, defendant committed the offense during the time period of

August 9, 2011 to September 9, 2011, or before the effective date of the changes to R.C.

2913.02. He entered a guilty plea on October 18, 2011 and was sentenced on January 5,

2012, or after the effective date of H.B. 86. The new statutory provisions amended R.C.

2913.02 to reduce the offense itself such that it amended the “fifth-degree felony

conviction to that of a first-degree misdemeanor.” Steinfurth, ¶ 15. The Steinfurth court

explained:

      Steinfurth committed a felony offense on May 4, 2011. He entered a plea
      of guilty to the felony offense on September 13, 2011. H.B. 86 went into
      effect on September 30, 2011. The trial court sentenced Steinfurth on
      October 13, 2011. Because Steinfurth committed the offense prior to H.B.
      86’s effective date, but was sentenced after the effective date, he was
      entitled to and received the reduced penalty for a first-degree misdemeanor
      based on R.C. 1.58 and H.B. 86’s amendments to R.C. 2913.02. R.C. 1.58
      clearly states that a criminal defendant receives the benefit of a reduced
      penalty, forfeiture, or punishment. Contrary to Steinfurth’s argument, R.C.
      1.58 makes no mention of a criminal defendant receiving the benefit of a
      lesser or reduced offense itself, here, the benefit of amending Steinfurth’s
      fifth-degree felony conviction to that of a first-degree misdemeanor.

      Steinfurth relies on State v. Burton, 11 Ohio App.3d 261, 11 Ohio B. 388,
      464 N.E.2d 186 (10th Dist.1983) and State v. Collier, 22 Ohio App.3d 25,
      22 Ohio B. 100, 488 N.E.2d 887 (3rd Dist.1984) in support of his argument
      he was entitled to the benefit of amending his conviction from a felony to a
       misdemeanor. These cases, however, clearly support the conclusion that
       R.C. 1.58, as applied here, only required the trial court to sentence
       Steinfurth for a first-degree misdemeanor pursuant to the amendments to
       R.C. 2913.02. The trial court correctly concluded the theft offense
       conviction remained a fifth-degree felony because Steinfurth committed the
       offense prior to the effective date of H.B. 86.

       {¶13} That reasoning is fully applicable herein.         In this matter, defendant

committed the offense prior to H.B. 86’s effective date, but he entered his guilty plea and

was sentenced after the effective date. Therefore, under H.B. 86’s amendments to R.C.

2913.02, the legislature stated its intent that the amendments to R.C. 2913.02 apply to a

person who commits an offense specified or penalized under this section on or after the

effective date of H.B. 86.   Further, R.C. 1.58 does not provide for a defendant to receive

the benefit of a lesser or reduced offense, so the defendant is not entitled to the

amendment of the fifth degree felony conviction to a first degree misdemeanor. The first

assignment of error is therefore without merit.

       {¶14} Nonetheless, in accordance with the principles outlined above, the penalty,

forfeiture, or punishment for the offense has changed because theft in this matter is now a

first degree misdemeanor and not a fifth degree felony. Under R.C. 1.58, defendant is

entitled to receive the reduced penalty for a first degree misdemeanor based on R.C. 1.58

and H.B. 86’s amendments to R.C. 2913.02. Steinfurth. Defendant, therefore, is not

subject to postrelease control, which applies to felony convictions. See R.C. 2967.28.

Accordingly, the trial court erred by imposing a term of postrelease control in this matter.

 The second assignment of error is well taken.
       {¶15} Defendant’s conviction is affirmed, but we vacate his sentence and remand

for resentencing.

       It is ordered that appellee recover from appellant costs herein taxed.

       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.




MARY EILEEN KILBANE, JUDGE

KENNETH A. ROCCO, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
