[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State v. Thomas, Slip Opinion No. 2016-Ohio-5567.]




                                        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. 2016-OHIO-5567
            THE STATE OF OHIO, APPELLANT, v. THOMAS, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as State v. Thomas, Slip Opinion No. 2016-Ohio-5567.]
Criminal law—2011 Am.Sub.H.B. No. 86—R.C. 1.58(B)—R.C. 1.52(A)—
        Defendant, who was convicted and sentenced in 2014 for offenses
        committed in 1993, is entitled to the benefit of the shorter potential
        sentences under the law in effect at the time of sentencing.
     (No. 2015-0473—Submitted April 5, 2016—Decided August 30, 2016.)
      APPEAL from the Court of Appeals for Cuyahoga County, No. 101202,
                                    2015-Ohio-415.
                               _____________________
        FRENCH, J.
        {¶ 1} Appellee, Jermaine Thomas, was convicted of first-degree-felony
rape and kidnapping in 2014 for offenses he committed in 1993.                   After he
committed the offenses but before he was convicted and sentenced, the General
Assembly twice enacted substantial changes to Ohio’s criminal-sentencing
                             SUPREME COURT OF OHIO




scheme. As relevant to Thomas, the law in effect in 2014 reduced the potential
prison sentences for first-degree-felony rape and kidnapping as compared with the
potential prison sentences for those offenses under the law in effect in 1993. In
this discretionary appeal, we consider whether Thomas is entitled to the benefit of
the shorter potential sentences under the law in effect at the time of sentencing.
We hold that he is.
                      FACTS AND PROCEDURAL HISTORY
       {¶ 2} In 2013, the Cuyahoga County Grand Jury indicted Thomas for
multiple offenses stemming from an incident in 1993. The parties tried the case
to a jury, which returned guilty verdicts on one rape charge and one kidnapping
charge. At the time these offenses were committed, they were both aggravated
felonies of the first degree. See former R.C. 2907.02(B) (145 Ohio Laws, Part I,
344-345) and former R.C. 2905.01(C) (139 Ohio Laws, Part I, 537). The jury
also found Thomas guilty of the three-year firearm specifications attached to each
of those counts.
       {¶ 3} Sentencing took place in 2014. Consistent with the sentencing law
in effect at the time of the 1993 offenses, the trial court imposed an 8-to-25-year
prison sentence on the rape count and an 8-to-25-year prison sentence on the
kidnapping count.      The trial court ordered Thomas to serve those sentences
concurrently. It also merged the three-year firearm specifications, ordering that
Thomas serve them prior to and consecutive to his rape and kidnapping sentences
for a total prison sentence of 11 to 25 years.
       {¶ 4} Thomas appealed the sentence and argued that he should have been
sentenced under 2011 Am.Sub.H.B. No. 86 (“H.B. 86”), the law in effect at the
time of his 2014 sentencing.       The Eighth District Court of Appeals agreed,
vacated Thomas’s sentence, and remanded for resentencing.




                                          2
                                January Term, 2016




       {¶ 5} We accepted the discretionary appeal of appellant, the state of Ohio.
State v. Thomas, 143 Ohio St.3d 1463, 2015-Ohio-3733, 37 N.E.3d 1249. The
state presents a single proposition of law:


               A defendant who commits an offense prior to July 1, 1996
       is subject to law in effect at the time of the offense and not subject
       to sentencing provisions of S.B. 2 effective July 1, 1996 and H.B.
       86 effective September 30, 2011.


       {¶ 6} For the reasons below, we conclude that Thomas must be sentenced
under H.B. 86. We therefore affirm the Eighth District’s judgment.
                                    ANALYSIS
       {¶ 7} Our primary concern when construing statutes is legislative intent.
State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d
543, 545, 660 N.E.2d 463 (1996). In determining that intent, we first look to the
plain language of the statute. Summerville v. Forest Park, 128 Ohio St.3d 221,
2010-Ohio-6280, 943 N.E.2d 522, ¶ 18, citing Hubbell v. Xenia, 115 Ohio St.3d
77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 11.          But when legislative intent is
unclear, we invoke statutory-construction principles. Cline v. Ohio Bur. of Motor
Vehicles, 61 Ohio St.3d 93, 97, 573 N.E.2d 77 (1991); State v. Taylor, 100 Ohio
St.3d 172, 2003-Ohio-5452, 797 N.E.2d 504, ¶ 17.
       {¶ 8} Before turning to the various sentencing statutes implicated here, we
briefly set out two statutory rules of construction that apply to all Ohio statutes,
subject to conditions not applicable here, and that guide our review. First, R.C.
1.58(B) provides that if a statutory amendment reduces the punishment for an
offense, the “punishment, if not already imposed, shall be imposed according to
the statute as amended.” And R.C. 1.52(A) provides that when statutes are




                                          3
                              SUPREME COURT OF OHIO




irreconcilable, the later enactment prevails. We turn, then, to the sentencing
statutes at issue.
        {¶ 9} Under the sentencing scheme in place in 1993 when Thomas
committed the offenses, he was subject to prison sentences ranging from 5 to 25
years to 10 to 25 years for each offense. Former R.C. 2929.11(B)(1)(a), 143 Ohio
Laws, Part I, 1433. Pursuant to that scheme, the trial court sentenced him to
concurrent prison terms of 8 to 25 years, exclusive of the sentence for the gun
specifications.      Ohio’s felony-sentencing scheme has undergone significant
changes since that time, however.
        {¶ 10} On July 1, 1996, Am.Sub.S.B. No. 2 (“S.B. 2”), 146 Ohio Laws,
Part IV, 7136, took effect.       The hallmark of this enactment was truth in
sentencing, which it accomplished by eliminating indefinite sentences and
replacing parole with postrelease control, which is a postprison period during
which the Adult Parole Authority would supervise offenders and impose
conditions designed to protect the community and aid the offenders’ successful
reintegration into society. Woods v. Telb, 89 Ohio St.3d 504, 508, 733 N.E.2d
1103 (2000). As a result, offenders served the definite sentence imposed, unless
the sentence was altered by the judge. Id. Under S.B. 2, the authorized prison
sentence for a first-degree felony—like those Thomas was convicted of—was
three, four, five, six, seven, eight, nine, or ten years. Former R.C. 2929.14(A)(1)
(146 Ohio Laws, Part IV, 7464).
        {¶ 11} S.B. 2 also contained uncodified law—that is, provisions that are
not laws of a general and permanent nature and thus do not receive permanent
Ohio Revised Code section numbers. Maynard v. Eaton Corp., 119 Ohio St.3d
443, 2008-Ohio-4542, 895 N.E.2d 145, ¶ 7, citing Ohio Legislative Service
Commission, A Guidebook for Ohio Legislators 145 (10th Ed.2007–2008). The




                                         4
                                    January Term, 2016




uncodified law found in Section 5 of S.B. 2, as amended by 1996 S.B. No. 269
(“S.B. 269”),1 provided:


                 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.
                 The provisions of the Revised Code in existence on and
        after July 1, 1996, apply to a person who commits an offense on or
        after that date.


146 Ohio Laws, Part IV, 11099.
        {¶ 12} In State v. Rush, 83 Ohio St.3d 53, 697 N.E.2d 634 (1998),
paragraph two of the syllabus, we confirmed that this language limited the
sentencing provisions of S.B. 2 to offenders who committed their offenses on or
after July 1, 1996. Applying this language, we conclude that because Thomas
committed his offenses in 1993, prior to the effective date of S.B. 2, he was not
eligible for sentencing under S.B. 2, notwithstanding the admonition of R.C.
1.58(B) to give a defendant the benefit of any amendment.
        {¶ 13} The General Assembly again enacted substantial changes to Ohio’s
felony-sentencing scheme with H.B. 86, which took effect on September 30,
2011. The General Assembly’s intent in enacting H.B. 86 was “to reduce the

1
 Section 3 of the uncodified law in 1996 S.B. No. 269 amended Section 5 of the uncodified law in
S.B. 2 to add one phrase: “notwithstanding division (B) of section 1.58 of the Revised Code.” 146
Ohio Laws, Part VI, 11099. S.B. 269 did not change the sentencing ranges that S.B. 2 provided
for Thomas’s offenses.




                                               5
                             SUPREME COURT OF OHIO




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, ¶ 17, citing Ohio Legislative Service Commission, Fiscal Note
& Local Impact Statement to Am.Sub.H.B. 86, at 3 (Sept. 30, 2011). Among its
many changes, H.B. 86 reduced the minimum and maximum sentences for many
nonviolent third-degree felonies, added categories of offenses to those already
eligible for intervention in lieu of conviction, and created mandatory community-
control sanctions for many fourth- and fifth-degree-felony offenses. David J.
Diroll, Ohio Criminal Sentencing Commission, H.B. 86 Summary: The 2011
Changes to Criminal and Juvenile Law, 7–9 (Sept. 26, 2011), available at
http://www.supremecourt.ohio.gov/Boards/Sentencing/resources/summaries/HB8
6Summary.pdf (accessed June 10, 2016). For first-degree-felony offenses—like
those Thomas committed—H.B. 86 prescribed a prison term of three, four, five,
six, seven, eight, nine, ten, or eleven years. R.C. 2929.14(A)(1). Id. at 9.
       {¶ 14} Like S.B. 2, H.B. 86 included uncodified law addressing the
offenders to whom its changes applied. See H.B. 86, Sections 3 and 4. Unlike
S.B. 2, however, the uncodified law in H.B. 86 did not in all instances limit
application of its provisions to those offenders who committed offenses on or
after its effective date. Nor did the uncodified language in H.B. 86 provide an
exception to the applicability of R.C. 1.58(B), which generally affords an offender
who has not been sentenced the benefit of a statutory amendment that would
reduce the offender’s potential sentence.      Rather, consistent with its overall
purpose of reducing costs by decreasing the prison population and shortening
prison sentences, the uncodified language of H.B. 86 states that its penalty-
reduction provisions apply to those offenders to whom R.C. 1.58 applies. 2011
Am.Sub.H.B. 86, Sections 3–4. Specific to Thomas, Section 4 provided that
“[t]he amendments to * * * division (A) of section 2929.14 of the Revised Code




                                          6
                                     January Term, 2016




that are made in this act apply * * * to a person to whom division (B) of section
1.58 of the Revised Code makes the amendments applicable.” In other words, if
the provisions of H.B. 86 reduced the potential sentence for an offense, then R.C.
1.58(B) gives offenders not yet sentenced the benefit of the reduced sentence.
         {¶ 15} Under the sentencing scheme in place in 1993 when Thomas
committed the offenses, he was subject to prison sentences ranging from 5 to 25
years to 10 to 25 years. Former R.C. 2929.11(B)(1)(a), 143 Ohio Laws, Part I,
1433. And because he committed his offenses prior to July 1, 1996, Thomas
remained subject to those same sentencing ranges after the passage of S.B. 2. But
H.B. 86 reduced the potential sentences for Thomas’s rape and kidnapping
offenses below the ranges applicable in 1993 to potential sentences of three, four,
five, six, seven, eight, nine, ten, or eleven years. R.C. 2929.14(A)(1).2 As
Thomas plainly concluded, “3 to 11 years is less than 5 to 25 years.” We agree.
Therefore, he gets the benefit of a reduced sentence.
         {¶ 16} The state contends that Thomas remains subject to the sentencing
provisions in place at the time of his offenses in 1993 because the uncodified
language of S.B. 2, as amended by S.B. 269, precludes application of R.C.
1.58(B) to offenses that occurred prior to July 1, 1996. The state maintains that
that uncodified language continues to control despite the General Assembly’s
express statement in the later uncodified language of H.B. 86 that the penalty
provisions in that bill apply in the circumstances described in R.C. 1.58(B). The
uncodified law of S.B. 2, as amended by S.B. 269, specifies that its sentencing
provisions apply only to those offenders who committed their offenses after its
effective date in 1996. But the uncodified law of H.B. 86 specifies that its



2
  The gun-specification sentences are functionally identical under the law prior to S.B. 2 and after
the effective date of H.B. 86, so we need not consider them. R.C. 2929.71(A)(2), 143 Ohio Laws,
Part I, 1443 (pre-S.B. 2); R.C. 2929.41(B)(4), 143 Ohio Laws, Part I, 1438–1439 (pre-S.B. 2);
R.C. 2929.14(B)(1)(a)(ii) (H.B. 86).




                                                 7
                            SUPREME COURT OF OHIO




sentencing provisions apply to any unsentenced offender whose potential sentence
would be reduced under H.B. 86, regardless of when the offense was committed.
       {¶ 17} As applied to Thomas—who committed his offenses prior to the
effective date of S.B. 2 and S.B. 269, both effective July 1, 1996, but was not
sentenced until after the effective date of H.B. 86 in 2011—the uncodified law of
these enactments irreconcilably conflicts. The uncodified language of S.B. 2
would preclude application of R.C. 1.58, but the uncodified language of S.B. 86
expressly provides for application of R.C. 1.58. We therefore apply R.C. 1.52(A)
in resolving this conflict, and we conclude that H.B. 86—as the later-enacted
statute—controls Thomas’s sentencing.       R.C. 1.52(A) therefore compels our
holding that Thomas must be sentenced under the reduced-sentence provisions of
H.B. 86.
                                CONCLUSION
       {¶ 18} The amendments to R.C. 2929.14(A) in H.B. 86 reduced the
potential sentences for Thomas’s offenses, rendering H.B. 86 generally applicable
to him under its uncodified law and R.C. 1.58. This irreconcilably conflicts with
the uncodified law of S.B. 2, amended by S.B. 269, which states that subsequent
sentencing law is inapplicable to offenders who committed their crimes prior to
July 1, 1996. Applying the appropriate statutory construction provision, we hold
that H.B. 86 controls as the later-enacted provision.      Consistent with that
conclusion, we decline to adopt the state’s proposition of law. We affirm the
Eighth District’s judgment and remand the matter to the trial court for further
proceedings consistent with this opinion.
                                                             Judgment affirmed.
       O’CONNOR, C.J., and PFEIFER, LANZINGER, and O’NEILL, JJ., concur.
       O’DONNELL, J., dissents, with an opinion joined by KENNEDY, J.
                              _________________




                                        8
                               January Term, 2016




       O’DONNELL, J., dissenting.
       {¶ 19} Respectfully, I dissent.
       {¶ 20} In my view, a person who committed an offense prior to July 1,
1996, but is sentenced on or after September 30, 2011, is subject to the sentencing
provisions in existence prior to July 1, 1996, not the provisions of 2011
Am.Sub.H.B. No. 86, because the uncodified law in Section 5 of 1996
Am.Sub.S.B. No. 2, as amended by 1996 S.B. No. 269, does not conflict with the
uncodified law in Section 4 of H.B. 86.
                               Statutory Analysis
       {¶ 21} R.C. 1.58(B) states: “If the penalty, forfeiture, or punishment for
any offense is reduced by * * * amendment of a statute, the penalty, forfeiture, or
punishment, if not already imposed, shall be imposed according to the statute as
amended.”
       {¶ 22} However, on July 1, 1996, S.B. 2 took effect, and Section 5 of that
act, as amended by S.B. 269, provides:


               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.
               The provisions of the Revised Code in existence on and
       after July 1, 1996, apply to a person who commits an offense on or
       after that date.




                                          9
                             SUPREME COURT OF OHIO




(Emphasis added.) 146 Ohio Laws, Part VI, 11099. The foregoing language is an
expressed intent of the General Assembly that a person who committed an offense
prior to July 1, 1996, but who is sentenced on or after that date be sentenced in
accordance with the law in effect prior to July 1, 1996, despite the language of
R.C. 1.58(B) otherwise permitting that person to benefit from a subsequent
change in sentencing laws, because the later enacted provisions of S.B. 2, as
amended by S.B. 269, specifically refer to 1.58(B) by using the phrase
“notwithstanding division (B) of section 1.58 of the Revised Code,” thereby
negating those statutory provisions in this specific instance.
        {¶ 23} On September 30, 2011, H.B. 86 took effect, and Section 4 of that
act states:


               The amendments to * * * division (A) of section 2929.14 of
        the Revised Code that are made in this act apply to a person who
        commits an offense specified or penalized under those sections on
        or after the effective date of this section and to a person to whom
        division (B) of section 1.58 of the Revised Code makes the
        amendments applicable.


(Emphasis added.)
        {¶ 24} In the enactment of H.B. 86 however, the General Assembly did
not expressly repeal Section 5 of S.B. 2. This is significant because “the judicial
policy of Ohio has been that repeals by implication are not favored and will not be
found unless the provisions of the purported repealing Act are so totally
inconsistent and irreconcilable with the existing enactment as to nullify it.” State
ex rel. Specht v. Painesville Twp. Local School Dist. Bd. of Edn., 63 Ohio St.2d
146, 148, 407 N.E.2d 20 (1980).




                                         10
                                January Term, 2016




       {¶ 25} The provisions of the uncodified law in S.B. 2 and H.B. 86 are
reconcilable. Section 4 of H.B. 86 makes amendments to certain provisions of the
Revised Code applicable to (1) a person who commits an offense on or after
September 30, 2011, and (2) a person to whom R.C. 1.58(B) “makes the
amendments applicable.” Although the amendment may reduce the punishment
for an offense if punishment has not already been imposed, R.C. 1.58 does not
make the amendment applicable to persons who committed offenses prior to July
1, 1996, because Section 5 of S.B. 2 expressly states that notwithstanding division
(B) of section 1.58 of the Revised Code, the Revised Code provisions in existence
prior to that date apply to such persons.
       {¶ 26} Thus, a person such as Jermaine Thomas who committed offenses
before July 1, 1996, is subject to the sentencing laws in existence prior to that
date, and a person who commits an offense on or after that date is subject to the
amended sentencing provisions in H.B. 86 if the individual otherwise meets the
requirements of that act.
       {¶ 27} Accordingly, I would reverse the judgment of the Eighth District
Court of Appeals.
       KENNEDY, J., concurs in the foregoing opinion.
                               _________________
       Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Daniel
T. Van and Brett S. Hammond, Assistant Prosecuting Attorneys, for appellant.
       Russell S. Bensing, for appellee.
       John Murphy, Joseph T. Deters, and Rachel Lipman Curran, urging
reversal for amicus curiae Ohio Prosecuting Attorneys Association.
       Ron O’Brien, Franklin County Prosecuting Attorney, and Steven L.
Taylor, Chief Counsel, urging reversal for amicus curiae Franklin County
Prosecuting Attorney Ron O’Brien.
                               _________________




                                            11
