[Cite as State v. Anderson, 2013-Ohio-295.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                 MONTGOMERY COUNTY

STATE OF OHIO                                     :
                                                  :     Appellate Case No. 25114
        Plaintiff-Appellant                       :
                                                  :     Trial Court Case No. 11-CR-1118
v.                                                :
                                                  :
DWIGHT ANDERSON                                   :     (Criminal Appeal from
                                                  :     (Common Pleas Court)
        Defendant-Appellee                        :
                                                  :
                                               ...........

                                              OPINION

                             Rendered on the 1st day of February, 2013.

                                               ...........

MATHIAS H. HECK, JR., by KIRSTEN A. BRANDT, Atty. Reg. #0070162, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellant

ADELINA E. HAMILTON, Atty. Reg. #0078595, 117 South Main Street, Suite 400, Dayton,
Ohio 45422
       Attorney for Defendant-Appellee

                                              .............

FAIN, P.J.

        {¶ 1} The State of Ohio, plaintiff-appellant, appeals from a judgment of the trial
                                                                                           2


court convicting defendant-appellant Dwight D. Anderson of Possession of Crack Cocaine in

an amount equal to or exceeding one gram, but less than five grams, in violation of R.C.

2925.11(A), and sentencing him to six months in prison and a six-month driver’s license

suspension for a felony of the fifth degree. Anderson committed the offense before the

effective date Am.Sub.H.B.86, 2011 Ohio Laws 29, but was sentenced after the effective date

of the statute. The State contends that although Anderson was entitled to the reduction in the

sentence that could be imposed resulting from the new statute, he was not entitled to a

reduction in the degree of the offense, under the new statute, from a fourth-degree felony to a

fifth-degree felony.

       {¶ 2}    We conclude that by reason of R.C. 1.58(B), Anderson was entitled to the new

statute’s reduction in the degree of the offense from a fourth-degree felony to a fifth-degree

felony, in addition to being entitled to the new statute’s reduction in the penalty for the

offense. Accordingly the trial court did not err in sentencing Anderson for a fifth-degree

felony, and the judgment of the trial court is Affirmed.



                                I. The Course of Proceedings

       {¶ 3}    Anderson was charged by indictment with having possessed between one and

five grams of crack cocaine on March 22, 2011. At the time he allegedly committed the

offense, and at the time he was indicted, possession of that amount of crack cocaine was a

felony of the fourth degree, punishable by a prison term of an integral number of months

ranging from six months to eighteen months.

       {¶ 4}    Anderson pled guilty, and was sentenced, on February 27, 2012, after the
                                                                                           3


effective date of H.B. 86. Under the new law, possession of from one to five grams of crack

cocaine was made a felony of the fifth degree, punishable by imprisonment for an integral

number of months ranging from six months to twelve months. R.C. 2925.11(C)(4)(a), R.C.

2929.14(A)(4).

       {¶ 5}     The trial court, noting that H.B. 86 applied, found Anderson guilty, pursuant

to his guilty plea, of Possession of Crack Cocaine in an amount less than five grams, but equal

to or exceeding one gram, a felony of the fifth degree, and sentenced him to six months

imprisonment.

       {¶ 6}     From the judgment, the State appeals.



               II. Following State v. Arnold and State v. Wilson, Two Recent

            Decisions of this Court, We Conclude that the Trial Court Did Not

                 Err in Sentencing Anderson for a Felony of the Fifth Degree

       {¶ 7}     The State’s sole assignment of error is as follows:

            H.B. 86 ENTITLED ANDERSON TO THE BENEFIT OF A SENTENCE

    ASSOCIATED WITH A FELONY OF THE FIFTH DEGREE, BUT IT DID NOT

    ENTITLE HIM TO RECLASSIFICATION OF HIS OFFENSE TO ONE OF A LESSER

    DEGREE.

    {¶ 8}        R.C. 1.58(B) provides as follows:

            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.
[Cite as State v. Anderson, 2013-Ohio-295.]
        {¶ 9}     The State recognizes that R.C. 1.58(B) has the effect in this case of requiring that

Anderson receive the benefit of the reduction in the severity of the sentence that could be

imposed for his offense – that is, the length of his incarceration for the offense. Before H.B. 86,

the maximum term for which Anderson could be incarcerated was eighteen months; after H.B.

86, that maximum term has been reduced to twelve months. Obviously, the term imposed – six

months – is less than either maximum.

        {¶ 10} The State contends that R.C. 1.58(B) does not reduce the degree of the offense to

which Anderson pled guilty and for which he was sentenced. Before H.B. 86, the degree of the

offense was a fourth-degree felony. After H.B. 86, it is a fifth-degree felony. But because

Anderson committed his offense before the effective date of H.B. 86, the State argues that he

should be sentenced as a fourth-degree felon, for a fourth-degree felony, even though he cannot

be sentenced to a term of incarceration longer than that permitted under the new law.

        {¶ 11} This same issue was raised and addressed in two recent decisions of this court:

State v. Arnold, 2d Dist. Montgomery No. 25044, 2012-Ohio-5786; and State v. Wilson, 2d Dist.

Montgomery No. 25057, 2012-Ohio-5912. In both of those cases, we held that by operation of

R.C. 1.58(B), a defendant who commits an offense before the effective date of H.B. 86, but is

sentenced after its effective date, is entitled not only to the benefit of the reduction in the

sentence that can be imposed as a result of the statute, but also to reduction in the degree of the

offense.    In other words, if, as here, H.B. 86 reduces the degree of the offense from a

fourth-degree felony to a fifth-degree felony, then the defendant, being sentenced after the

effective date of H.B. 86, is entitled to be sentenced for a fifth-degree felony.

        {¶ 12} We recognize that other appellate districts have decided this issue differently.

State v. Taylor, 9th Dist. Summit No. 26279, 2012-Ohio-5403; State v. Steinfurth, 8th Dist.
                                                                                            5


Cuyahoga No. 97549, 2012-Ohio-3257; and State v. Saplak, 8th Dist. No. 97825,

2012-Ohio-4281. We are not persuaded that we should decline to follow our decisions in State

v. Arnold and State v. Wilson. Accordingly, following our recent jurisprudence, we hold that

Anderson was entitled to be sentenced for a fifth-degree felony, and the trial court did not err in

doing so.

       {¶ 13} The State’s sole assignment of error is overruled.



                                        III. Conclusion

       {¶ 14} The State’s sole assignment of error having been overruled, the judgment of the

trial court is Affirmed.

                                         .............

DONOVAN and FROELICH, JJ., concur.


Copies mailed to:

Mathias H. Heck
Kirsten A. Brandt
Adelina E. Hamilton
Hon. Timothy N. O’Connell
