[Cite as State v. Jones, 2012-Ohio-2900.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                         Hon. William B. Hoffman, J.
                                                   Hon. Sheila G. Farmer, J.
-vs-
                                                   Case No. 2011CA00284
CLARENCE JONES

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Stark County Court of
                                               Common Pleas, Case No. 2011-CR-1383


JUDGMENT:                                       Reversed and remanded

DATE OF JUDGMENT ENTRY:                         June 25, 2012

APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JOHN D. FERRERO                                STEVEN A. REISCH
Prosecuting Attorney                           Stark County Public Defender Office
Stark County, Ohio                             200 West Tuscarawas St., Suite 200
                                               Canton, Ohio 44702
By: RONALD MARK CALDWELL
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2011CA00284                                                       2

Hoffman, J.

      {¶1}    Defendant-appellant Clarence Jones appeals his sentence entered by the

Stark County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.

                                 STATEMENT OF THE CASE1

      {¶2}    On October 25, 2011, Appellant was indicted on one count of escape, in

violation of R.C. 2921.34(A)(1), a second degree felony and one count of possession of

cocaine, in violation of R.C. 2925.11(A).2 Appellant pleaded guilty to the charges and

the trial court sentenced Appellant to a total prison term of three years via Judgment

Entry filed November 21, 2011.

      {¶3}    On December 6, 2011, Appellant filed a motion to modify his sentence

based upon the amended penalties in H.B. 86. The State filed a written response to the

motion. Via Judgment Entry of December 14, 2011, the trial court denied Appellant's

motion to modify his sentence.

      {¶4}    Appellant now appeals, assigning as error:

      {¶5}    “I. IT WAS AN ERROR OF LAW NOT TO APPLY §R.C. 2921.34 AS

AMENDED EFFECTIVE SEPTEMBER 30, 2011, THEREBY SENTENCING THE

APPELLANT TO A FOURTH DEGREE FELONY.”

      {¶6}    R.C. 1.58(B) reads, in pertinent part:

      {¶7}    “(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




1
  A rendition of the facts is unnecessary for our disposition of this appeal.
2
  Appellant does not challenge his conviction or sentence for possession of cocaine in
the within appeal.
Stark County, Case No. 2011CA00284                                                      3


already imposed, shall be imposed according to the statute as amended (emphasis

added).

       {¶8}   H.B. 86 became effective September 30, 2011, sixteen days after

Appellant committed the alleged offense, but prior to sentencing.           The enacted

legislation reads at Section 4:

       {¶9}   "The amendments to sections 926.99, 1333.99, 1707.99, 1716.99,

2909.03, 2909.05, 2909.11, 2913.02, 2913.03, 2913.04, 2913.11, 2913.21, 2913. 31,

2913.32, 2913.34, 2913.40, 2913.401, 2913.42, 2913.421, 2913.43, 2913.45, 2913.46,

2913.47, 2913.48, 2913.49, 2913.51, 2913.61, 2915.05, 2917. 21, 2917.31, 2917.32,

2921.13, 2921.41, 2923.31, and 2981.07, division (B) of section 2929.13, and 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.

       {¶10} "The provisions of sections 926.99, 1333.99, 1707.99, 1716.99, 2909.03,

2909.05, 2909.11, 2913.02, 2913.03, 2913.04, 2913.11, 2913.21, 2913.31, 2913. 32,

2913.34, 2913.40, 2913.401, 2913.42, 2913.421, 2913.43, 2913.45, 2913.46, 2913.47,

2913.48, 2913.49, 2913.51, 2913.61, 2915.05, 2917.21, 2917. 31, 2917.32, 2921.13,

2921.41, 2923.31, and 2981.07 of the Revised Code in existence prior to the effective

date of this section shall apply to a person upon whom a court imposed sentence prior

to the effective date of this section for an offense specified or penalized under those

sections. The amendments to sections 926.99, 1333.99, 1707.99, 1716.99, 2909.03,

2909. 05, 2909.11, 2913.02, 2913.03, 2913.04, 2913.11, 2913.21, 2913.31, 2913.32,
Stark County, Case No. 2011CA00284                                                       4


2913.34, 2913.40, 2913.401, 2913.42, 2913.421, 2913.43, 2913.45, 2913.46, 2913.47,

2913.48, 2913.49, 2913.51, 2913.61, 2915.05, 2917.21, 2917.31, 2917. 32, 2921.13,

2921.41, 2923.31, and 2981.07 of the Revised Code that are made in this act do not

apply to a person who upon whom a court imposed sentence prior to the effective date

of this section for an offense specified or penalized under those sections."

       {¶11} R.C. 2921.34, the statute defining escape, for which Appellant was

convicted, is not listed within the parameters of H.B. 86. The state properly notes

legislation is presumed to be prospective in operation unless expressly made

retroactive. State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163. The state argues

because escape is not included within the list of statutory amendments in HB 86 Section

4, it is not entitled to the benefit of the reduced penalty provided therein as the amended

statute is presumed to be prospective in its application.

       {¶12} We disagree. Although section 4 specifically sets forth an extensive list of

statutes specifically applying either R.C. 1.58 or specifically making H.B. 86 retroactive

with regard to the named sections, we find the absence of the escape statute from the

Section 4 list does not otherwise limit the applicability of R.C. 1.58.

       {¶13} The State further asserts R.C. 1.58 does not apply to give Appellant the

benefit of the reduced sentence. The State relies upon the Ohio Supreme Court holding

in State v. Kaplowitz, 100 Ohio St.3d 205, 2003-Ohio-5602, as support. In Kaplowitz,

the Court held:

       {¶14} "Accordingly, we hold that R.C. 1.58(B) does not apply to give a criminal

defendant the benefit of a reduced sentence if, by applying it, the court alters the nature

of the offense, including specifications to which the defendant pled guilty or of which he
Stark County, Case No. 2011CA00284                                                             5

was found guilty. State v. Kinder (2000), 140 Ohio App.3d 235, 746 N.E.2d 1205,

disapproved."

        {¶15} Here, Appellant was charged with and convicted of violating R.C.

2921.34(A)(1). The statute, as amended, reads:

        {¶16} "(A)(1) No person, knowing the person is under detention, other than

supervised release detention, or being reckless in that regard, shall purposely break or

attempt to break the detention, or purposely fail to return to detention, either following

temporary leave granted for a specific purpose or limited period, or at the time required

when serving a sentence in intermittent confinement."

        {¶17} The Amendment Notes to the statute following the enactment of HB 86

read,

        {¶18} "2011 H 86 inserted ', other than supervised release detention,' in division

(A)(1); added divisions (A)(3), (C)(3), and (D); inserted “the offender violates division

(A)(1) or (2) of this section, if' in division (C)(1); in division (C)(2), inserted “the offender

violates division (A)(1) or (2) of this section and if either” and deleted 'if' before 'the

offender is a person whom'; and made other nonsubstantive changes."

        {¶19} Upon review of the case law and the amendments set forth above, we find

HB 86 does not substantively alter the nature of the offense to which Appellant was

convicted; therefore, Kaplowitz is distinguishable. We find R.C. 1.58 applies to the

sentence rendered.

        {¶20} Appellant's sole assignment of error is sustained.
Stark County, Case No. 2011CA00284                                                  6


      {¶21} The judgment of the Stark County Court of Common Pleas is reversed,

and the matter remanded to the trial court for resentencing in accordance with the law

and this Opinion.

By: Hoffman, J.

Delaney, P.J. and

Farmer, J. concur

                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ Patricia A. Delaney _________________
                                          HON. PATRICIA A. DELANEY


                                          s/ Sheila G. Farmer __________________
                                          HON. SHEILA G. FARMER
Stark County, Case No. 2011CA00284                                                         7


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :
                                             :
       Plaintiff-Appellee                    :
                                             :
-vs-                                         :         JUDGMENT ENTRY
                                             :
CLARENCE JONES                               :
                                             :
       Defendant-Appellant                   :         Case No. 2011CA00284


       For the reasons stated in our accompanying Opinion, The judgment of the Stark

County Court of Common Pleas is reversed, and the matter remanded to the trial court

for further proceedings in accordance with the law and this opinion. Costs to the state.




                                             s/ William B. Hoffman _________________
                                             HON. WILLIAM B. HOFFMAN


                                             s/ Patricia A. Delaney _________________
                                             HON. PATRICIA A. DELANEY


                                             s/ Sheila G. Farmer __________________
                                             HON. SHEILA G. FARMER
