[Cite as State v. Lay, 2012-Ohio-5102.]




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

STATE OF OHIO                                 :
                                              :     Appellate Case No. 2011-CA-29
        Plaintiff-Appellee                    :
                                              :     Trial Court Case Nos. 05-CR-215
v.                                            :     Trial Court Case Nos. 05-CR-251
                                              :     Trial Court Case Nos. 05-CR-51
JERRY R. LAY                                  :
                                              :     (Criminal Appeal from
        Defendant-Appellant                   :     (Common Pleas Court)
                                              :
                                           ...........

                                          OPINION

                            Rendered on the 2nd day of November, 2012.

                                           ...........

NICK SELVAGGIO, Atty. Reg. #0055607, Champaign County Prosecutor’s Office, 200
North Main Street, Urbana, Ohio 43078
      Attorney for Plaintiff-Appellee

JERRY R. LAY, #456-077, Chillicothe Correctional Institution, Post Office Box 5500,
Chillicothe, Ohio 45601
        Defendant-Appellant, pro se

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

FAIN, J.

        {¶ 1}     Defendant-appellant Jerry R. Lay appeals from a November 14, 2011 order

denying his motion to modify his sentence imposed in 2006 for eight counts of Gross Sexual
                                                                                             2


Imposition, to which he had pled guilty. Lay contends that the trial court erred by failing to

apply the provisions of 2011 H.B. 86, which amended various provisions pertaining to

criminal sentencing.

       {¶ 2}    2011 H.B. 86 does not apply to a sentence, like this one, that was imposed

before the effective date of the statute. Therefore, the trial court did not err by declining to

apply H.B. 86. The order of the trial court from which this appeal is taken is Affirmed.



                                 I. The Proceedings in 2006

       {¶ 3}    In January 2006, Lay pled guilty to eight counts of Gross Sexual Imposition,

all felonies of the third degree. Six other counts, the nature of which we cannot determine

from this record, were dismissed. Also, the State agreed to delete from each of the counts to

which Lay pled guilty the fact that he had a prior conviction. The offenses to which Lay pled

guilty occurred during the period from 1993 through 1996.

       {¶ 4}    Both Lay and the State agreed, on the record, “that sentencing will occur

under the old section 2929.11(D)(1) [presumably the version of the statute in effect when the

offenses were committed] which would allow for a possible one, one and a half or two year

sentence on each of the eight counts.”

       {¶ 5}    Three days later, Lay appeared for sentencing. The parties and the trial court

had reviewed a pre-sentence investigation report. The trial court classified Lay as a sexual

predator, and sentenced him to two years on each of seven of the counts, and one year on the

remaining count, all to be served consecutively, for a total sentence of fifteen years. The trial

court also ordered this sentence to be served consecutively to a sentence Lay was then serving
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in another case. The trial court observed “that Defendant’s prison stay and return to society

will be through the Adult Parole Authority based on parole provisions,” and both parties

agreed with that statement.



                                 II. The Proceedings in 2011

       {¶ 6}     In November 2011, Lay filed a “Petition to Modify and/or Reduce Sentence

Pursuant to R.C. §1.58 & §1.52, HB 86.” In the order from which this appeal is taken, the

trial court noted that Lay was requesting that the trial court order his sentences to be served

concurrently, rather than consecutively, relying upon 2011 H.B. 86.

       {¶ 7}     The trial court denied the petition, finding “that H.B. 86 does not affect the

imposition of consecutive sentences in Defendant’s case.” From the denial of his petition,

Lay appeals.



               III. Because Lay’s Sentence Was Imposed Before 2011 H.B. 86

                      Became Effective, It Has No Application to Him

       {¶ 8}     Lay’s sole assignment of error is as follows:

                WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN RULING

       HOUSE BILL 86 IS NO [sic] RETROACTIVE.

       {¶ 9}     Lay appears to be arguing that as a result of 2011 H.B. 86, the trial court could

not impose consecutive sentences without making the findings required by R.C.

2929.14(C)(4). We disagree.

       {¶ 10} When Lay was sentenced, on January 20, 2006, the trial court asserted that it
                                                                                           4


was not required to make any particular findings, but nevertheless made the following

findings:

               The Court finds that the offenses here are the result of circumstances likely to

       recur. The Court finds victim of the offense did not induce or facilitate the offense.

       The Court finds that there are no substantial grounds tending to excuse or justify the

       offenses.   The Court finds that there was no strong provocation that caused the

       Defendant to offend.     The Court finds that Defendant has a history of criminal

       activity.

               ***

               The Court finds that each of the sentences shall be conserved [sic]

       consecutively to each other and consecutive to the current Clark County case.

               The Court makes the finding of consecutive sentence based on all the

       circumstances that have previously been announced.

               The Court finds that such a sentence as set forth by the Court is necessary to

       protect the public, punish the Defendant, is not disproportionate to the sentences of

       defendants of other similar crimes.

               The Court finds that the harm is so great or unusual that a single term does not

       adequately reflect the seriousness of the conduct.

               The Court further finds that the Defendant’s criminal history shows that

       consecutive terms are needed to protect the public.

               Those findings by the Court are also reasons by the Court for imposing

       sentence.
                                                                                                  5


               Findings and reasons are not necessary under Ohio law but they are given as an

       explanation of the basis for the sentencing.

               The Court finds specifically that Defendant caused serious emotional harm to

       the victim in this case. The Court finds that these are in fact sex offenses. The Court

       finds Defendant’s pattern of conduct has become progressively more serious.

               The sentence for the crimes that Defendant has pleaded guilty to here is a

       similar sentence to the type of sentence that would have taken place if the Defendant’s

       original plea deal were able to proceed.

               The Court does not adopt the Prosecutor’s remarks about allegations of

       Defendant’s conduct that are not the subject of formal charges – formal criminal

       charges or convictions.

               The Court does not find that there was any cruelty in Defendant’s conduct – as

       cruelty that is set forth in the statute.

       {¶ 11} At the conclusion of the sentencing hearing, the trial court asked each party if

it “[sought] anything else then from this hearing?” Lay did raise an issue concerning his

sexual predator classification, but raised no other issues in response to this question.

       {¶ 12} At the time of Lay’s sentencing, R.C. 2929.14(E)(4) required, as a predicate

for the imposition of consecutive sentences, a finding that “the consecutive service is

necessary to protect the public from future crime or to punish the offender and that

consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and

to the danger the offender poses to the public.” That statute also required, as a predicate for

the imposition of consecutive sentences, at least one of three additional findings: that the
                                                                                              6


offender was already under control of the court due to an earlier conviction, that at least two of

the offenses were committed as part of a course of conduct and the harm was so great or

unusual that no single prison term adequately reflects the seriousness of the conduct, or that

the offender’s history of criminal conduct demonstrates that consecutive sentences are

necessary to protect the public. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845

N.E.2d 470, ¶ 65. Although the trial court in the case before us may have been under the

misimpression that it did not need to make the required findings, it can be seen from the trial

court’s statement at sentencing quoted above that it did, in fact, make the findings that were

required at that time.

       {¶ 13} As Lay notes in his brief, shortly after his sentencing, State v. Foster was

decided on February 27, 2006. Foster held that the statutory requirement that a trial court

must make certain findings before imposing consecutive sentences violated the United States

Constitution; it therefore severed that requirement (and certain other fact-finding

requirements, as well) from the statute. Id., ¶ 99-102. Thus, if the trial court in this case was

under the impression that it was not required to make any findings of fact, the trial court was

prescient, in view of the forthcoming decision in Foster.

       {¶ 14} In 2009, after State v. Foster, the Supreme Court of the United States decided

Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009). In that case, an Oregon

statute that required judicial fact-finding as a prerequisite for the imposition of consecutive

sentences was upheld as constitutional. Ohio defendants argued, after Oregon v. Ice, that the

result of the holding in that case was to resurrect the statutory requirement of judicial

fact-finding as a prerequisite for the imposition of consecutive sentences, which the Ohio
                                                                                            7


General Assembly had not repealed.

       {¶ 15} But in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, ¶

39, the Supreme Court of Ohio held that Oregon v. Ice did not revive the Ohio statutory

requirement of judicial fact-finding as a prerequisite for the imposition of consecutive

sentences. The Supreme Court did note, however, that as a result of Oregon v. Ice, the Ohio

General Assembly was free to enact new legislation requiring that findings be made. Id.

       {¶ 16} In 2011 H.B. 86, the Ohio General Assembly did, in fact, enact a new, but

slightly different, requirement of judicial fact-finding as a prerequisite for the imposition of

consecutive sentences.      H.B. 86 contains many amendments to criminal sentencing

provisions; the judicial fact-finding requirement is codified in R.C. 2929.14(C)(4):

               If multiple prison terms are imposed on an offender for convictions of multiple

       offenses, the court may require the offender to serve the prison terms consecutively if

       the court finds that the consecutive service is necessary to protect the public from

       future crime or to punish the offender and that consecutive sentences are not

       disproportionate to the seriousness of the offender's conduct and to the danger the

       offender poses to the public, and if the court also finds any of the following:

               (a) The offender committed one or more of the multiple offenses while the

       offender was awaiting trial or sentencing, was under a sanction imposed pursuant to

       section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release

       control for a prior offense.

               (b) At least two of the multiple offenses were committed as part of one or more

       courses of conduct, and the harm caused by two or more of the multiple offenses so
                                                                                               8


       committed was so great or unusual that no single prison term for any of the offenses

       committed as part of any of the courses of conduct adequately reflects the seriousness

       of the offender's conduct.

              (c) The offender's history of criminal conduct demonstrates that consecutive

       sentences are necessary to protect the public from future crime by the offender.

       {¶ 17} Lay argued to the trial court in support of his petition, and here on appeal, that

the provisions of 2011 H.B. 86 must be applied to him.

       {¶ 18} Section 4 of 2011 H.B. 86 contains provisions specifying the retroactive or

prospective effects of the amendments to specified sections of the Revised Code, but R.C.

2929.14(C) is not mentioned. Division (A) of R.C. 2929.14 is mentioned, but not the other

divisions of R.C. 2929.14.

       {¶ 19} Lay cites R.C. 1.58, which provides as follows:

              (A) The reenactment, amendment, or repeal of a statute does not, except as

       provided in division (B) of this section:

              (1) Affect the prior operation of the statute or any prior action taken thereunder;

              (2) Affect any validation, cure, right, privilege, obligation, or liability

       previously acquired, accrued, accorded, or incurred thereunder;

              (3) Affect any violation thereof or penalty, forfeiture, or punishment incurred in

       respect thereto, prior to the amendment or repeal;

              (4) Affect any investigation, proceeding, or remedy in respect of any such

       privilege, obligation, liability, penalty, forfeiture, or punishment; and the investigation,

       proceeding, or remedy may be instituted, continued, or enforced, and the penalty,
                                                                                                 9


       forfeiture, or punishment imposed, as if the statute had not been repealed or amended.

               (B) 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.

       {¶ 20} Division (A) of R.C. 1.58 clearly provides that an amendment or reenactment

of a statute shall not affect prior actions unless Division (B) applies. Division(B) provides

that when a statutory penalty or punishment is reduced by a statutory reenactment or

amendment, the reduced penalty or punishment shall apply if the penalty or punishment is not

“already imposed.”

       {¶ 21} Lay’s sentence was imposed in 2006, more than five years before the effective

date of 2011 H.B. 86. Therefore, by operation of R.C. 1.58, the amendments to criminal

sentencing set forth in 2011 H.B. 86 do not apply to him.

       {¶ 22} Lay also cites R.C. 1.52. But that statute deals with situations in which the

General Assembly enacts irreconcilable statutes or irreconcilable amendments, providing that

unless the statutes or amendments can be harmonized, the latest statute or amendment in date

of enactment shall prevail. R.C. 1.52 has no application to this case. This case does not

involve two statutes, or two amendments, that are irreconcilable. This case involves the issue

of whether a criminal sentencing amendment enacted in 2011 has application to a sentence

imposed in 2006. By the plain operation of R.C. 1.58(B), it does not.

       {¶ 23} The trial court correctly ruled that 2011 H.B. 86 has no application to the

sentence imposed upon Lay in 2006. Lay’s sole assignment of error is overruled.
                                                                                                   10


                                       IV. Conclusion

       {¶ 24} Lay’s sole assignment of error having been overruled, the order of the trial

court denying his petition to modify his sentence, from which this appeal is taken, is Affirmed.

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

FROELICH and HENDON, JJ., concur.

(Hon. Sylvia Sieve Hendon, First District Court of Appeals, sitting by assignment of the Chief
Justice of the Supreme Court of Ohio).



Copies mailed to:

Nick Selvaggio
Jerry Lay
Hon. Roger B. Wilson
