[Cite as State v. Shaffer, 2014-Ohio-2461.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                         C.A. Nos.      12CA0071-M
                                                                     12CA0077-M
        Appellee

        v.
                                                      APPEAL FROM JUDGMENT
PENNY J. SHAFFER                                      ENTERED IN THE
                                                      COURT OF COMMON PLEAS
        Appellant                                     COUNTY OF MEDINA, OHIO
                                                      CASE No.   12 CR 0125

                                  DECISION AND JOURNAL ENTRY

Dated: June 9, 2014



        MOORE, Judge.

        {¶1}     Defendant-Appellant, Penny J. Shaffer, appeals from the May 8, 2012 judgment

entry of the Medina County Court of Common Pleas. We affirm.

                                                 I.

        {¶2}     In 2012, Ms. Shaffer was indicted on one count of illegal assembly or possession

of chemicals for the manufacture of drugs, in violation of R.C. 2925.041(A), a felony of the third

degree, and one count of possession of drugs, in violation of R.C. 2925.11(A)(C)(1)(a), a felony

of the fifth degree. Ms. Shaffer initially pleaded not guilty to both charges, but later changed her

plea to no contest. The trial court found her guilty and sentenced Ms. Shaffer to five years of

mandatory imprisonment for illegal assembly or possession of chemicals for the manufacture of

drugs, and one-year of imprisonment for possession of drugs, to be served concurrently. The

judgment entry indicates that Ms. Shaffer’s sentence was jointly recommended by both parties.
                                               2


       {¶3}   Ms. Shaffer appealed1, and raises one assignment of error for our consideration.

                                               II.

                                 ASSIGNMENT OF ERROR

       THE TRIAL COURT COMMITTED PLAIN ERROR AND IMPOSED A
       SENTENCE CONTRARY TO LAW IN VIOLATION OF R.C. 2953.08 BY
       SENTENCING [MS. SHAFFER] TO A MANDATORY PRISON TERM OF
       FIVE YEARS FOR THE THIRD-DEGREE FELONY OFFENSE OF ILLEGAL
       ASSEMBLY OR POSSESSION OF CHEMICALS FOR THE MANUFACTURE
       OF DRUGS IN VIOLATION OF R.C. 2925.041(A), WHERE THE MAXIMUM
       SENTENCE AUTHORIZED UNDER R.C. 2929.14(A)(3) FOR THAT NON-
       VIOLENT THIRD-DEGREE FELONY OFFENSE WAS ONLY THIRTY-SIX
       MONTHS OR THREE YEARS.

       {¶4}   In her sole assignment of error, Ms. Shaffer argues that her sentence of five years’

mandatory imprisonment for illegal assembly or possession of chemicals for the manufacture of

drugs, pursuant to R.C. 2925.041(C)(1), is excessive and contrary to law. Specifically, Ms.

Shaffer argues that she should have been sentenced under R.C. 2929.14(A)(3)(b), which provides

a thirty-six month maximum prison term for a third degree felony that is not otherwise listed in

R.C. 2929.14(A)(3)(a).

       {¶5}   The State responded that Ms. Shaffer’s argument lacks merit because the trial

court properly sentenced her under the “explicit terms of R.C. 2925.041(C)(1) which acts as a

specific exception to the otherwise general sentencing scheme under R.C. 2929.14(A)(3).”

       {¶6}   “When reviewing a trial court’s sentence, we apply a two-step approach.” State v.

Stoddard, 9th Dist. Summit No. 26663, 2013-Ohio-4896, ¶ 14, citing State v. Roper, 9th Dist.




       1
         Ms. Shaffer filed two notices of appeal from the May 8, 2012 judgment entry, along
with a motion for delayed appeal. This Court granted Ms. Shaffer’s motion for delayed appeal,
and consolidated the appeals for purposes of the record, briefing, and decision. The consolidated
appeal numbers are C.A. No. 12CA0071-M and 12CA0077-M.
                                                  3


Summit Nos. 26631, 26632, 2013-Ohio-2176, ¶ 5. “The first step is to determine whether the

sentence is contrary to law. The second step is to determine whether the court exercised proper

discretion in imposing a term of imprisonment.” (Internal citation omitted.) State v. Smith, 9th

Dist. Medina No. 11CA00115-M, 2012-Ohio-2558, ¶ 3, citing State v. Kalish, 120 Ohio St.3d

23, 2008-Ohio-4912, ¶ 26.

       {¶7}    Further, “[s]tatutory interpretation involves a question of law; therefore, we

review this matter de novo.” State v. McConville, 182 Ohio App.3d 99, 2009-Ohio-1713, ¶ 5 (9th

Dist.), citing State v. Myers, 9th Dist. Medina Nos. 3260-M, 3261-M, 2002-Ohio-3195, ¶ 14.

“The primary goal of statutory construction is to ascertain and give effect to the legislature’s

intent in enacting the statute.” Wetterman v. B.C., 9th Dist. Medina No. 12CA0021-M, 2013-

Ohio-57, ¶ 8, quoting State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, ¶ 9. “In order to

determine legislative intent, it is a cardinal rule of statutory construction that a [C]ourt must first

look to the language of the statute itself.” State v. Owen, 11th Dist. Lake No. 2012-L-102, 2013-

Ohio-2824, ¶ 17, citing Provident Bank v. Wood, 36 Ohio St.2d 101, 105 (1973). A court may

interpret a statute only where the words of the statute are ambiguous. State ex rel. Celebrezze v.

Allen Cty. Bd. of Commrs., 32 Ohio St.3d 24, 27 (1987). Ambiguity exists if the language is

susceptible of more than one reasonable interpretation. State ex rel. Toledo Edison Co. v. Clyde,

76 Ohio St.3d 508, 513 (1996).

       {¶8}    In determining whether Ms. Shaffer’s sentence falls within the permissible

statutory range, this Court must examine Ohio’s felony sentencing statute, R.C. 2929.14(A),

along with R.C. 2925.041(C)(1)’s mandatory sentencing requirement of five years’

imprisonment for repeat felony drug offenders. We note that, on September 30, 2011, both R.C.

2929.14 and R.C. 2925.041 were amended by H.B. 86.
                                                4


       {¶9}   R.C. 2929.14(A) provides prison terms for felony sentences, stating:

       (3)(a) For a felony of the third degree that is a violation of section 2903.06,
       2903.08, 2907.03, 2907.04, or 2907.05 of the Revised Code or that is a violation
       of section 2911.02 or 2911.12 of the Revised Code if the offender previously has
       been convicted of or pleaded guilty in two or more separate proceedings to two or
       more violations of section 2911.01, 2911.02, 2911.11, or 2911.12 of the Revised
       Code, the prison term shall be twelve, eighteen, twenty-four, thirty, thirty-six,
       forty-two, forty-eight, fifty-four, or sixty months.

       (b) For a felony of the third degree that is not an offense for which division
       (A)(3)(a) of this section applies, the prison term shall be nine, twelve, eighteen,
       twenty-four, thirty, or thirty-six months.

       {¶10} Pursuant to R.C. 2929.14(A)(3)(a) and (b), Ms. Shaffer’s maximum sentence for

violating R.C. 2925.041 would be thirty-six months of imprisonment, instead of five-years.

       {¶11} R.C. 2925.041, states, in relevant part, that:

       (A) No person shall knowingly assemble or possess one or more chemicals that
       may be used to manufacture a controlled substance in schedule I or II with the
       intent to manufacture a controlled substance in schedule I or II in violation of
       section 2925.04 of the Revised Code.

       ***

       (C) Whoever violates this section is guilty of illegal assembly or possession of
       chemicals for the manufacture of drugs. Except as otherwise provided in this
       division, illegal assembly or possession of chemicals for the manufacture of drugs
       is a felony of the third degree * * * [.]

       (1) Except as otherwise provided in this division, there is a presumption for a
       prison term for the offense. * * * If the offender two or more times previously has
       been convicted of or pleaded guilty to a felony drug abuse offense and if at least
       one of those previous convictions or guilty pleas was to a violation of division (A)
       of this section, a violation of division (B)(6) of section 2919.22 of the Revised
       Code, or a violation of division (A) of section 2925.04 of the Revised Code, the
       court shall impose as a mandatory prison term one of the prison terms prescribed
       for a felony of the third degree that is not less than five years.

Pursuant to R.C. 2925.041(C)(1), the trial court was required to sentence Ms. Shaffer to a

mandatory sentence of five years’ imprisonment because of her prior convictions for drug related

felonies.
                                                  5


       {¶12} “It is a well-settled principle of statutory construction that when an irreconcilable

conflict exists between two statutes that address the same subject matter, one general and the

other special, the special provision prevails as an exception to the general statute.” State v.

Conyers, 87 Ohio St.3d 246, 248 (1999), citing R.C. 1.51. Further, R.C. 1.51 states “[i]f a

general provision conflicts with a special or local provision, they shall be construed, if possible,

so that effect is given to both. If the conflict between the provisions is irreconcilable, the special

or local provision prevails as an exception to the general provision, unless the general provision

is the later adoption and the manifest intent is that the general provision prevail.”

       {¶13} For guidance with this matter, we turn to our sister Court’s decision in State v.

Sturgill, 12th Dist. Clermont Nos. CA2013-01-002, CA2013-01-003, 2013-Ohio-4648.                   In

Sturgill at ¶ 2, 12, the appellant was sentenced to thirteen years’ imprisonment, including

consecutive sentences of sixty-months each for operating a vehicle while under the influence of

alcohol with a prior felony OVI conviction, and a specification for five or more prior OVI

offenses in 20 years. See R.C. 4511.19; R.C. 2941.1413. Mr. Sturgill challenged the two five-

year prison terms for his OVI conviction and accompanying specification as excessive. Sturgill

at ¶ 35. The Twelfth District Court of Appeals affirmed Mr. Sturgill’s sentence, and, in doing

so, disagreed with the Eleventh District’s conclusion that Ohio’s OVI statute (R.C. 4511.19) and

general sentencing statute (R.C. 2929.14(A)(3)) are in “irreconcilable” conflict with one another.

Id. at ¶ 40; see also State v. Owen, 11th Dist. Lake No. 2012-L-102, 2013-Ohio-2824, ¶ 2. In

reaching a different conclusion from the Eleventh District, the Twelfth District reasoned that the

two statutes are not in irreconcilable conflict because Mr. Sturgill was convicted of an R.C.
                                                 6


2941.1413 repeat offender specification, which specifically permits a five-year maximum

sentence for a third degree felony OVI. Sturgill at ¶ 40.2

       {¶14} Here, similar to the facts in Sturgill, Ms. Shaffer’s sentence for a felony of the

third degree was increased from thirty-six months to five-years because R.C. 2925.041(C)(1)

specifically mandates imprisonment of “not less than five-years” if certain conditions precedent

are met. Additionally, as indicated above, both R.C. 2929.14 and R.C. 2925.041 were amended

by H.B. 86 on September 30, 2011. As a result, we conclude that if the General Assembly

wished to amend R.C. 2925.041(C)(1), in order to remove the penalty enhancement language, it

would have done so at that time. Instead, the General Assembly amended R.C. 2925.041(C)(1)

to state that the court shall impose as a mandatory prison term one of the prison terms prescribed

for a felony of the third degree that is not less than five years if “two or more times previously

[the offender] has been convicted of or pleaded guilty to a felony drug abuse offense and if at

least one of those previous convictions or guilty pleas was to a violation of division (A) of this

section, a violation of division (B)(6) of section 2919.22 of the Revised Code, or a violation of

division (A) of section 2925.04 of the Revised Code[.]”CA0077-M (Emphasis added.) (Italicized

words indicate changes made to R.C. 2925.041(C)(1) in H.B. 86.)

       {¶15} Therefore, based upon the foregoing, we conclude that the General Assembly

intended R.C. 2925.041(C)(1) to be a specific exception to the general felony sentencing scheme



       2
         We note that after Sturgill was decided in 2013, the Second District Court of Appeals
also addressed this issue in State v. May, 2d Dist. Montgomery No. 25359, 2014-Ohio-1542. In
May at ¶ 29, the Second District agreed with Owens, stating “under 4511.19(G)(1)(e)(i), the trial
court has discretion to impose an additional prison term for a third-degree felony OVI offense,
with a maximum aggregate sentence of five years. However, under R.C. 2929.13(A) and R.C.
2929.14(B)(4), the maximum aggregate sentence for a third-degree felony OVI offense is 36
months. * * * [T]hese provisions present an irreconcilable conflict and [] the recent changes and
more lenient provisions in R.C. 2929.14 must prevail.”
                                                 7


set forth in R.C. 2929.14, and Ms. Shaffer’s sentence of five-years’ mandatory imprisonment is

not contrary to law.

       {¶16} Accordingly, Ms. Shaffer’s assignment of error is overruled.

                                                III.

       {¶17} In overruling Ms. Shaffer’s sole assignment of error, the judgment of the Medina

County Court of Common Pleas is affirmed.


                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       CARLA MOORE
                                                       FOR THE COURT
                                          8



HENSAL, P. J.
CARR, J.
CONCUR.


APPEARANCES:

JOSEPH F. SALZGEBER, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting
Attorney, for Appellee.
