         [Cite as State v. Solomon, 2012-Ohio-5755.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO                                     :    APPEAL NO. C-120044
                                                       TRIAL NO. B-1103104
        Plaintiff-Appellee,                       :

  vs.                                             :
                                                          O P I N I O N.
DEANDREAN SOLOMON,                                :

    Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: December 7, 2012


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Michael Trapp, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS



C UNNINGHAM , Judge.


       {¶1}       Defendant-appellant Deandrean Solomon appeals the judgment of

the Hamilton County Court of Common Pleas convicting him on one count of

aggravated possession of drugs, a third-degree felony offense, and one count of

possession of cocaine, a fourth-degree felony offense. Solomon contends that the

trial court convicted him of higher-degree offenses than authorized by law. For the

reasons that follow, we agree.

                                 I. Background Facts

       {¶2}       Solomon was a passenger in an automobile stopped by Springfield

Township police officers in May 2011. During a search of the automobile, the police

found a bottle of Oxycodone pills and a bag containing crack cocaine on the floor

below where Solomon had been sitting.

       {¶3}       The grand jury indicted Solomon for three offenses: aggravated

possession of Oxycodone, “in an amount less than bulk,” in violation of R.C.

2925.11(A) (count one); aggravated trafficking in Oxycodone, “in an amount that

equaled or exceeded the bulk amount but was less than five times the bulk amount,”

in violation of R.C. 2925.03(A)(2) (count two); and possession of cocaine, in crack

cocaine form, “in an amount that equaled or exceeded one gram but was less than

five grams,” in violation of R.C. 2925.11(A) (count three).

       {¶4}       At a bench trial held in October 2011, the trial court found Solomon

guilty on count one, the aggravated-possession-of-Oxycodone offense, as a third-

degree felony, even though the indictment had only charged him with a fifth-degree

felony offense based on the quantity of the drug. And the trial court found him guilty

on count three, the possession-of-cocaine offense, as a fourth degree-felony offense,

which was authorized by the version of R.C. 2925.11 in effect at the time Solomon

committed the offense, but not authorized by the amended version of the statute

enacted in Am.Sub.H.B. No.86 (“H.B. 86”) that was in effect at the time of Solomon’s


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trial and sentencing. The court acquitted Solomon on count two, the aggravated-

trafficking offense. 1

        {¶5}        The trial court sentenced Solomon to three years of community

control with conditions, including that Solomon serve 180 days in the Hamilton

County Justice Center. The court also imposed a mandatory three-year-driver’s-

license suspension. The court notified Solomon that if he violated the terms of his

community control, he was subject to imprisonment for three years, the maximum

term of imprisonment for a third-degree felony.

           II. Count One: Aggravated Possession of Oxycodone

        {¶6}        In his first assignment of error, Solomon contends that the trial

court committed plain error by entering a conviction for the aggravated possession of

Oxycodone as a third-degree felony offense where the state had indicted him for the

aggravated possession of Oxycodone as a fifth-degree felony offense.                    The state

concedes the error, and we agree with both parties that the trial court erred.

        {¶7}        Count one of the indictment charged that Solomon had possessed

Oxycodone in “an amount less than bulk,” an offense classified as felony of the fifth

degree since 2008. R.C. 2925.11(C)(1)(a). By convicting Solomon of a third-degree

felony, the trial court in effect amended the indictment to increase the degree of the

charged offense, in violation of Crim.R. 7(D). See State v. Davis, 121 Ohio St.3d 239,

2008-Ohio-4537, 903 N.E.2d 609.

        {¶8}         Although Solomon did not bring the error to the attention of the

trial court, the error clearly affected Solomon’s substantial rights and produced an

outcome that would have been otherwise but for the error. See Davis at ¶ 12. The

court convicted Solomon on a charge materially different from that found by the




1 The court’s first sentencing entry was corrected in a nunc pro tunc entry to include the acquittal
on count two.


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                     OHIO FIRST DISTRICT COURT OF APPEALS



grand jury and subjected Solomon to greater penalties. See id. And we must correct

the error to prevent a manifest miscarriage of justice. See Davis at ¶ 11 and 12.

       {¶9}       Thus, we hold that Solomon has demonstrated plain error.

Accordingly, we sustain the first assignment of error.

                  III. Count Three: Possession of Cocaine

       {¶10}      After Solomon’s indictment, the General Assembly enacted H.B.

86, which implemented changes to Ohio’s criminal and juvenile laws. Relevant to

this case, H.B. 86 amended several statutes to eliminate the difference between crack

and powder cocaine, which are both now included in the definition of “cocaine.” R.C.

2925.01(X). The statutes proscribing three drug offenses involving crack and powder

cocaine were amended to equalize the amount needed for each level of an offense,

and to ultimately equalize the penalties for offenses involving both forms of the drug.

See R.C. 2925.03(C)(4)(c)-(g); R.C. 2925.05(A)(3); R.C. 2925.11(C)(4)(b)-(e).

       {¶11}      The amendments to R.C. 2925.11, the statute that criminalizes the

possession of drugs, had the effect of lowering the level of the offense charged in

count three of Solomon’s indictment from a fourth-degree felony to a fifth-degree

felony, subjecting Solomon to reduced sanctions. See former R.C. 2925.11(C)(4)(b)

and amended R.C. 2925.11(C)(4)(a). Instead of facing a prison term of six to 18

months, Solomon was subject to a prison term of only six to 12 months under the

amended version of R.C. 2925.11.     H.B. 86 became effective on September 30, 2011,

before the trial court sentenced Solomon.

       {¶12}      In his second assignment of error, Solomon contends that the trial

court erred by failing to impose a sentence consistent with the “reduced penalties”

enacted by H.B. 86. He argues that because he was sentenced after the effective date

of H.B. 86, the provisions of R.C. 1.58(B) required the trial court to find him guilty of

a “felony of the fifth degree” and to impose a punishment authorized for the lower-




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                      OHIO FIRST DISTRICT COURT OF APPEALS



level offense.   According to Solomon, the “level of the offense” is a part of the

“penalty” for the offense.

       {¶13}        The state concedes that it would have been contrary to R.C. 1.58(B)

for the trial court to sentence Solomon to a “penalty” that exceeded one authorized

for a fifth-degree felony because Solomon was sentenced after the effective date of

H.B. 86. But it argues that the trial court correctly found Solomon guilty of a fourth-

degree felony offense in accordance with the law in effect when he committed the

offense, and that the court committed no error in sentencing Solomon, because the

court imposed three years of community control, an authorized penalty for the

offense under the amended version of the statute.

       {¶14}        We note that the record does not demonstrate that trial counsel for

Solomon raised this argument below. Accordingly, we review for plain error.

                                   A. Legislative Intent

       {¶15}        The first issue before us is whether the General Assembly intended

that any of the provisions of amended R.C. 2925.11 apply to offenders like Solomon

who committed their offenses before the effective date of H.B. 86, but who were

sentenced after H.B. 86’s amendments took effect. If so, then we must decide which

provisions apply.

                      1. R.C. 1.58—Ohio’s Savings Clause

       {¶16}        In Ohio, when the General Assembly reenacts, amends, or repeals a

criminal statute, the substantive provisions of the former law apply to all pending

prosecutions, but the defendants receive the benefit of a reduced “penalty, forfeiture,

or punishment” in the statute as amended, unless the General Assembly expresses

another intent. See R.C. 1.58; State v. Rush, 83 Ohio St.3d 53, 697 N.E.2d 634

(1998) (noting and giving effect to the General Assembly’s stated intent that the

amended sentencing provisions of Am.Sub.S.B. No. 2 apply only to crimes

committed on or after July 1, 1996). See also State v. Lawrence, 74 Ohio St. 38, 44-



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                     OHIO FIRST DISTRICT COURT OF APPEALS



45, 77 N.E. 266 (1906) (interpreting Section 79, the predecessor to R.C. 1.20-1.21,

and now R.C. 1.58). This “rule of construction” arises by virtue of Ohio’s savings

clause, R.C. 1.58, which provides:

       (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 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,

               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.

       {¶17}      R.C. 1.58 abrogates the common law, which provided that a crime

abated when the criminal statute was repealed by amending legislation.              See

Lawrence, 74 Ohio St. at 44, 77 N.E. 266; see also Calkins v. State, 14 Ohio St. 222,

230-231 (1863).



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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶18}        Both Solomon and the state contend that this dispute should be

resolved by merely applying R.C. 1.58(B), which the General Assembly referenced in

Section 3 of H.B. 86. Solomon’s argument relies on a broad interpretation of R.C.

1.58(B). He considers the degree or level of the offense to be a part of the “penalty,

forfeiture, or punishment” for the offense. The state, arguing for a strict construction

of R.C. 1.58(B), contends that the degree or level of the offense is not a part of the

“penalty, forfeiture, or punishment” for the crime, and that Solomon has confused

the classification of the offense with the penalty or punishment for the offense.

               a. Solomon’s Argument: Broad Interpretation

       {¶19}        Solomon’s interpretation of R.C. 1.58(B) is supported by the

decision in State v. Collier, 22 Ohio App.3d 25, 488 N.E.2d 887 (3d Dist.1984). See

also State v. Coffman, 16 Ohio App.3d 200, 475 N.E.2d 139 (10th Dist.1984). In

Collier, the defendant committed two theft offenses in violation of R.C. 2913.02.

Collier at 25-26.    Before the defendant’s trial, but after the commission of the

offense, R.C. 2913.02 was amended to raise the monetary threshold for a felony theft

offense from $150 to $300. Id. at 26. The defendant argued that the application of

the amendment precluded the court from imposing felony sentences because the

state alleged only that he had stolen property valued above $150. Id.

       {¶20}        The Collier court held that the amendment related only to the

penalty imposed and came within the provisions of R.C. 1.58(B).           Id. at 26-27.

Therefore, the appellate court required that the “amendment be applied” to the

defendant and that “the penalty be imposed according to the amendment.” Id. at 27.

       {¶21}        Significantly, the court further held that “[t]he amending

legislation * * * operated to reduce the[] [felony theft] counts to misdemeanor

counts.” Id. at 28. Ultimately, the court reversed the “felony theft sentences” and

remanded “for resentencing the defendant to a misdemeanor sentence for each of the

two counts of misdemeanor theft for which he was found guilty.” Id. at 28-29.



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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶22}       The Collier court, like Solomon, equated the degree or

classification of an offense with the “penalty, forfeiture, or punishment” for an

offense because the amendment modifying the classification of the offense affected

the corresponding sanctions.

       {¶23}       In a case involving the retroactive application of certain provisions

of H.B. 86, the Fifth Appellate District recently adopted an interpretation of R.C.

1.58(B) similar to the Collier court’s interpretation. State v. David, 5th Dist. No. 11-

CA-110, 2012-Ohio-3984; see also State v. Gillespie, 2012-Ohio-3485, 975 N.E.2d

492 (5th Dist.).

       {¶24}       In David, the defendant was indicted on one count of theft, in

violation of R.C. 2913.02(A)(2), and one count of passing bad checks, in violation of

R.C. 2913.11(B), based on her deposit of three checks drawn on a closed bank account

into her Park National Bank account and her immediate withdrawal of the deposited

“funds.” David at ¶ 2-3. The value of the deposited checks totaled $947.50. Id. at

¶ 2. Both counts alleged that the amount at issue involved more than $500 but less

than $5,000, and the statutes in effect at the time of David’s indictment classified

both offenses as fifth-degree felonies. Id. at ¶ 3.

       {¶25}       H.B. 86 amended R.C. 2913.02 and R.C. 2913.11 such that a

violation of R.C. 2913.02 or R.C. 2913.11 involving an amount below $1000 is a first-

degree misdemeanor offense. Id. at ¶ 4. After the effective date of H.B. 86, David

entered a guilty plea to both counts. Id. at ¶ 5. The trial court determined that R.C.

1.58(B) applied, and reduced the degree of the offenses. The court convicted David

of first-degree misdemeanor offenses, and sentenced her to community control. Id.

       {¶26}       On appeal, the state argued that the trial court had erred by

reducing the charges to misdemeanor offenses, and that R.C. 1.58(B) did not apply.

Id. at ¶ 14. The appellate court disagreed, and held that R.C. 1.58(B) was applicable

because (1) H.B. 86 specifically referred to R.C. 1.58(B) and (2) the amendments to



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                     OHIO FIRST DISTRICT COURT OF APPEALS



R.C. 2913.02 and R.C. 2913.11 functioned “to reduce the penalty imposed from a

fifth-degree felony to a first-degree misdemeanor based on the valuation threshold.”

Id. at ¶ 14.

        {¶27}     The David court, citing the decision in Gillespie, which also

involved H.B. 86 and the passing-bad-checks statute, determined that the level of the

offense is part of the “penalty” for the offense, and that the court must reduce the

level of the offense when R.C. 1.58(B) provides the defendant with the benefit of a

reduction in the sanction for an offense. David at ¶ 15.

                            b. The State’s Argument

        {¶28}     The state argues that R.C. 1.58(B) only applies to give Solomon the

benefit of a reduced penalty, not a reduced level of the offense, and that the issue is

controlled by State v. Kaplowitz, 100 Ohio St.3d 205, 2003-Ohio-5602, 797 N.E.2d

977.

        {¶29}     In Kaplowitz, the defendant pled guilty to aggravated vehicular

assault and the specification that he was driving under the influence of alcohol at the

time of the offense, in violation of R.C. 2903.08. Id. at ¶ 3. After the offense, but

before Kaplowitz’s sentencing, the General Assembly amended R.C. 2903.08 to

provide for two different offenses.      The first, R.C. 2903.08(A)(1), categorizes

aggravated vehicular assault while driving under the influence as a third-degree

felony. The second, R.C. 2903.08(A)(2), categorizes vehicular assault by recklessly

causing serious physical harm to another as a fourth-degree felony. Id. at ¶ 25.

        {¶30}     The trial court sentenced Kaplowitz for a violation of R.C.

2903.08(A)(2) under the new law, which was in effect a lesser offense than

aggravated vehicular assault with an alcohol specification and provided lesser

penalties. Id. at ¶ 4. The Eighth Appellate District reversed, holding that R.C.

1.58(B) does not apply to provide a defendant the benefit of reduced penalties for a

reduced-and-not-equivalent offense, and certified its decision as in conflict with the



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                    OHIO FIRST DISTRICT COURT OF APPEALS



Fifth Appellate District’s holding in State v. Kinder, 140 Ohio App.3d 235, 746

N.E.2d 1205 (5th Dist.2000). State v. Kaplowitz, 8th Dist. No. 2001-L-025, 2002-

Ohio-4217.

       {¶31}      In affirming the Eighth District on the certified issue, the Supreme

Court held 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 was found

guilty.”   Kaplowitz, 97 Ohio St.3d 1480, 2003-Ohio-5602, 797 N.E.2d 977, at

syllabus, disapproving State v. Kinder, 140 Ohio App.3d 235, 746 N.E.2d 1205 (5th

Dist.2000).

       {¶32}     The certified question in Kaplowitz involved the equivalency of

offenses under former and amended statutes for purposes of R.C. 1.58(B), not the

meaning of “penalty, sanction, or punishment.” In this case, it is undisputed that the

possession of cocaine offense that Solomon was charged with under former R.C.

2925.11 is equivalent to the possession of cocaine offense set forth in the amended

version of R.C. 2925.11 that Solomon seeks to be sentenced under. See State v.

Limoli, 10th Dist. No. 11AP-924, 2012-Ohio-4502; State v. Gatewood, 2d Dist. No.

2012-CA-12, 2012-Ohio-4181. And the state has taken the position that R.C. 1.58(B)

applies but that Solomon should receive only the benefit of a reduced “penalty,

forfeiture, or punishment.” Thus, Kaplowitz does not resolve the issue in this case.

       {¶33}     But the state’s narrow interpretation of the words “penalty,

forfeiture, or punishment” in R.C. 1.58(B) is supported by the Eighth Appellate

District’s decision in State v. Steinfurth, 8th Dist. No. 97549, 2012-Ohio-3257. That

decision, like David, addressed the application of the amendments to the theft

statute enacted in H.B. 86.

       {¶34}     In Steinfurth, the defendant was indicted for felony theft under R.C

2913.02 in June 2011. He later pleaded guilty to and was sentenced on one count of



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                     OHIO FIRST DISTRICT COURT OF APPEALS



aggravated theft, a fifth-degree felony under the version of R.C. 2913.02 in effect at

the time he had committed the offense.

       {¶35}      Before his sentencing hearing, H.B. 86 took effect.           H.B. 86

amended R.C. 2913.02 such that the offense Steinfurth had committed was classified

as a first-degree misdemeanor instead of a fifth-degree felony.          At sentencing,

Steinfurth argued that based on the incorporation of R.C. 1.58(B) into the amended

statute, the trial court could convict him of only a first-degree misdemeanor offense.

The trial court disagreed and convicted him of a fifth-degree felony offense, but the

court imposed the penalty for a first-degree misdemeanor offense. The appellate

court affirmed, rejecting Steinfurth’s broad interpretation of R.C. 1.58.     The court

explained that “1.58 clearly states that a criminal defendant receives the benefit of

a reduced penalty, forfeiture, or punishment.                 Contrary to Steinfurth’s

argument, R.C. 1.58 makes no mention of a criminal defendant receiving the benefit

of a lesser or reduced offense itself.” (Emphasis in the original.) Id. at ¶ 15; see also

State v. Taylor, 9th Dist. No. 26279, 2012-Ohio-5403, ¶ 7, citing State v. Saplak, 8th

Dist. No. 97825, 2012-Ohio-4281, ¶ 13.


   c. Definition of “Penalty,” Forfeiture,” and “Punishment” in R.C.
                                1.58(B)
       {¶36}      The parties disagree over the meaning of the terms “penalty,”

“forfeiture,” and “punishment” in R.C. 1.58(B). Our primary objective in construing

a statute is to determine and to implement the intent of the legislature, a goal best

achieved by reviewing the language that the General Assembly used, without

resorting to other means of interpretation. State v. Chappell, 127 Ohio St.3d 376,

2010-Ohio-5991, 939 N.E.2d 1234, ¶ 16. “Where the meaning of the statute is clear

and definite, it must be applied as written.” Id.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶37}      The terms “penalty,” “forfeiture,” and “punishment” are not

specifically defined in the Revised Code. Therefore, they must be given their “plain

and ordinary meaning[s].” Id. at ¶ 17.

       {¶38}      The term “penalty” has varying definitions, including (1)

“[p]unishment imposed on a wrongdoer, usually in the form of imprisonment or

fine”; (2) “[a]n extra charge against a party who violates a contractual provision;”

and (3) “[e]xcessive stipulated damages that a contract purports to impose on a party

that breaches.” Black’s Law Dictionary 1168 (8th Ed.2004). The most relevant

definition to this case is the first one—punishment or fine.

       {¶39}      The term “forfeiture” has varying definitions, including (1) “[t]he

divestiture of property without compensation;” (2) “[t]he loss of a right, privilege, or

property because of a crime * * * ;” (3) “[s]omething (especially money or property)

lost or confiscated by this process; a penalty;” and (4) “[a] destruction or deprivation

of some estate or right because of the failure to perform some obligation or condition

contained in a contract.” Id. at 677.

       {¶40}      Finally, the term “punishment” is defined as (1) “[a] sanction—such

as a fine, penalty, confinement, or loss of property, right, or privilege—assessed

against a person who has violated the law,” and (2) “[a] negative disciplinary action

administered to a minor by a parent.” Id. at 1269-1270.

       {¶41}      Conversely, “degree of crime” is defined as (1) “[a] division or

classification of a single crime into several grades of guilt, according to the

circumstances surrounding the crime’s commission, such as aggravating factors

present or the type of injury suffered” and (2) “[a] division of crimes generally, such

as felonies or misdemeanors.” Id. at 457. “Degree of crime” does not fall within any

of the definitions of “penalty,” “forfeiture,” or “punishment.”




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                      OHIO FIRST DISTRICT COURT OF APPEALS



        {¶42}       The degree or level of the offense does direct the penalty for the

offense. This is demonstrated by amended R.C. 2925.11(C)(4), which provides in

part:

        If the drug involved in the violation is cocaine or a compound, mixture,

        preparation, or substance containing cocaine, whoever violates

        division (A) of this section is guilty of possession of cocaine. The

        penalty for the offense shall be determined as follows:

        (a) Except as otherwise provided * * *, possession of cocaine is a felony

        of the fifth degree, and division (B) of section 2929.13 of the Revised

        Code applies in determining whether to impose a prison term on the

        offender;

        (b) If the amount of the drug involved equals or exceeds five grams but

        is less than ten grams of cocaine, possession of cocaine is a felony of

        the fourth degree, and division (B) of section 2929.13 of the Revised

        Code applies in determining whether to impose a prison term on the

        offender;

        (c) If the amount of the drug involved equals or exceeds ten grams but

        is less than twenty grams of cocaine, possession of cocaine is a felony

        of the third degree, and, except as otherwise provided in this division,

        there is a presumption for a prison term for the offense. If possession

        of cocaine is a felony of the third degree under this division and if the

        offender two or more times previously has been convicted of or

        pleaded guilty to a felony drug abuse offense, the court shall impose as

        a mandatory prison term one of the prison terms prescribed for a

        felony of the third degree.

        (Emphasis added.)




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                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶43}        The former version of R.C. 2925.11(C)(4) used the word “penalty”

in the same manner.

       {¶44}        As demonstrated by R.C. 2925.11(C)(4), the degree or level of the

offense generally directs the authorized penalty and it is included in the judgment

that a court formally pronounces after finding the defendant guilty. But it is not the

“penalty.”

       {¶45}        Although it is difficult conceptually to separate the classification of

the offense—the level or degree of the offense—from the punishment imposed for the

offense the defendant is found guilty of committing, we believe the General Assembly

did just that when it chose to use the words “penalty, forfeiture, or sanction” in R.C.

1.58(B). Thus, we reject Solomon’s argument that when R.C. 1.58(B) applies, a

defendant sentenced under an amended statute receives the benefit of a lesser or

“reduced penalty” that includes the reduced offense provided by the amendment.

       {¶46}        However, R.C. 1.58(B) is only a rule of statutory construction. R.C.

1.58 does not limit the General Assembly’s power to “to define, classify and prescribe

punishment for crimes” committed within Ohio and to determine the effective dates

of legislative enactments. State v. Rush, 83 Ohio St.3d 53, 57, 697 N.E.2d 634 (1998)

quoting State v. Young, 62 Ohio St.2d 370, 392, 406 N.E.2d 499 (1980) (Locher, J.,

dissenting). Because the General Assembly in H.B. 86 expressed its intent regarding

the applicability of the amendments to R.C. 2925.11, R.C. 1.58(B) has limited

application.

                               B. Section 3 of H.B. 86

       {¶47}        In Section 3 of H.B. 86 the General Assembly announced when the

courts should apply the amendments to R.C. 2925.11. That section provides, in

relevant part,

                 The amendments to section[] * * * 2925.11 of the Revised Code

       * * * that are made in this act apply to a person who commits an



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                      OHIO FIRST DISTRICT COURT OF APPEALS



       offense involving * * * cocaine * * * on or after the effective date of this

       act and to a person to whom division (B) of section 1.58 of the Revised

       Code makes the amendments applicable.

               The provisions of * * * R.C. 2925.11 * * * in existence prior to

       the effective date of this act shall apply to a person upon whom a court

       imposed sentence prior to the effective date of this act for an offense

       involving * * * cocaine. The amendments to section[] 2925.11 of the

       Revised Code * * * that are made in this act do not apply to a person

       upon whom a court imposed sentence prior to the effective date of this

       act for an offense involving * * * cocaine * * *.

       {¶48}      In determining legislative intent, we look to the face of an act or

statute. We must give “significance and effect * * * to every word, phrase, sentence

and part thereof, if possible.” State v. Wilson, 77 Ohio St.3d 334, 336-337, 673

N.E.2d 1347 (1997).      “It is a basic presumption in statutory construction that the

General Assembly is not presumed to do a vain or useless thing, and that when

language is inserted in a statute it is inserted to accomplish some definite purpose.”

State ex rel. Cleveland Elec. Illum. Co. v. Euclid, 169 Ohio St. 476, 479, 159 N.E.2d

756 (1959).

       {¶49}      Here, the General Assembly stated in Section 3 of H.B. 86 that the

“provisions” of the former act and not the “amendments” apply to those

sentenced before the effective date of the act, but that the “amendments” to R.C.

2925.11 apply to a person “to whom division (B) of section 1.58 of the Revised Code

makes the amendments applicable.” (Emphasis added.) The General Assembly

used the words “provisions” and “amendments” as opposed to “penalty,” “sanction,”

or “punishment.” The amended version of R.C. 2925.11 includes the reduction in the

degree of the offense.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶50}       Our analysis conflicts with the analysis of the Steinfurth court,

which reviewed the retroactivity of H.B. 86 amendments to the theft statute. In

Section 4 of H.B. 86, the General Assembly used the same language as used in

Section 3 to express its intent with respect to the retroactivity of the theft statute

amendments.      After reviewing this language, the Steinfurth court concluded that

“Steinfurth would not receive the benefit of a reduced sentence except for the

inclusion of R.C. 1.58 in H.B. 86” because he committed his offense in May 2011, and

not on or after September 30, 2011, the effective date of H.B. 86.” Steinfurth at ¶ 20

(Emphasis added.) Our analysis conflicts because we disagree with this conclusion.

       {¶51}       We believe that without the reference to R.C. 1.58(B) in Section 3 of

H.B. 86, offenders such as Solomon who had committed the offense of possession of

cocaine in crack cocaine form before September 30, 2011, but were not sentenced

until after September 30, 2011, would have received the benefit of the reduced

punishment because the General Assembly did not express a contrary intent in the

Act and, therefore, the provisions of R.C. 1.58(B) would be read into the statute.

       {¶52}       Our review of the language in Section 3 of H.B. 86, including the

reference to R.C. 1.58(B), leads us to conclude that the General Assembly intended

that the amended version of the statutes specified in that section, including R.C.

2925.11, shall apply to those who had not been sentenced and who would receive the

benefit of a reduced sentence under R.C. 1.58(B). Our reading serves an evident

purpose of the H.B. 86 revision: to bring a measure of uniformity to prosecutions

involving crack and powder cocaine by eliminating disparities based on divergent

classifications of the offenses. Because we disagree with the analysis in Steinfurth,

we decline to follow it.

       {¶53}       Our decision is consistent with the decision of the Tenth Appellate

District in State v. Limoli, 10th Dist. No. 11AP-924, 2012-Ohio-4502, although our

analysis may differ. The Limoli court rejected the state’s argument that none of the



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ameliatory amendments enacted in H.B. 86, including those to R.C. 2925.11, applied

to a defendant who committed the offense of possession of cocaine in crack cocaine

form before the effective date of H.B. 86. The Limoli court held that R.C. 1.58(B)

applied, and the trial court was required to impose the penalty for that offense

“ ‘according to the statute as amended’ ” by H.B. 86. Id. at ¶ 62.

          {¶54}    In conclusion, although we disagree with Solomon’s argument that

the “level of the offense” is a part of the “penalty” for the offense, we hold that the

trial court erred by not applying the amended version of R.C. 2925.11 when entering

the judgment of conviction.      The trial court should have convicted Solomon of

possession of drugs under R.C. 2925.11 as amended, reduced the offense to a fifth-

degree felony, and imposed an appropriate sanction for a fifth-degree felony.

          {¶55}    While the court imposed a community-control sanction that was

authorized for the level of the offense, the trial court notified Solomon that if he

violated the terms of his community control, he was subject to imprisonment for

three years. That sanction is not authorized for the commission of a fifth-degree

felony offense.     Thus, at sentencing, the trial court did not apply the amended

version of R.C. 2925.11 as intended by the legislature. This was plain error. See

Crim.R. 52(B). Accordingly, we sustain the second assignment of error.

                  IV. Ineffective-Assistance-of-Counsel Claim

          {¶56}    In his final assignment of error, Solomon argues he was denied the

effective assistance of counsel because counsel failed to inform the trial court that

count one of the indictment charged a fifth-degree felony, and not a third-degree

felony.     To prevail on an ineffective assistance of counsel claim, a defendant must

show counsel’s deficient performance and resulting prejudice.        See Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42

Ohio St.3d 136, 538 N.E.2d 373 (1989).




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       {¶57}      As discussed under the first assignment of error, the grand jury

indicted Solomon in count one for the aggravated possession of drugs as a fifth-

degree felony offense. Counsel should have objected to the trial court’s entry of

conviction on a third-degree felony offense because the court in effect impermissibly

amended the indictment in contravention of Crim.R. 7(D). As a result, Solomon was

convicted of a higher-degree offense and subject to greater penalties.

       {¶58}      Because Solomon has shown trial counsel’s deficient performance

and resulting prejudice, we sustain the third assignment of error.

                                  V. Conclusion

       {¶59}      The trial court erred by convicting Solomon of higher-degree

offenses than authorized under the relevant statutes, and by imposing sentences that

were contrary to law. We reverse the trial court’s judgment, and we remand the case

with instructions for the court to modify the judgments of conviction to reflect that

Solomon was convicted of two fifth-degree felony offenses, and for the court to

resentence Solomon accordingly.

                           VI. Certification of Conflict

       {¶60}      We acknowledge that our disposition of the second assignment of

error directly conflicts with the decisions of the Fifth Appellate District in State v.

David, 5th Dist. No. 11-CA-110, 2012-Ohio-3984, and State v. Gillespie, 2012-Ohio-

3485, 975 N.E.2d 492 (C.A. 5th.). We, therefore, sua sponte certify to the Supreme

Court of Ohio, pursuant to the Ohio Constitution, Article IV, Section 3(B)(4), the

following issue for review and final determination: Is the level or the degree of an

offense a part of the “penalty” for the offense that must be reduced when R.C. 1.58(B)

applies, pursuant to H.B. 86, to provide the defendant with the benefit of a reduction

in the penalty for the offense?

       {¶61}      And we acknowledge that our decision directly conflicts with the

decision of the Eighth Appellate District in State v. Steinfurth, 8th Dist. No. 97549,



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2012-Ohio-3257. We, therefore, sua sponte certify to the Supreme Court of Ohio,

pursuant to the Ohio Constitution, Article IV, Section 3(B)(4), the following issue for

final review and determination: Do Sections 3 and 4 of Am.Sub.H.B. No. 86 provide

that the amended versions of the statutes specifically enumerated in those sections—

including the amendments that reduce the degree of the offense itself–apply to those

who committed the enumerated offenses before the September 30, 2011 effective

date of H.B. 86, but were sentenced after H.B. 86’s effective date?

                                                 Judgment reversed and cause remanded.


SUNDERMANN, P.J., concurs.
DINKELACKER, J., concurs in part and dissents in part.

DINKELACKER, J., concurring in part and dissenting in part.

       {¶62}    While I agree with the majority's resolution of Solomon's first

assignment of error, I do not agree with the majority's analysis of R.C. 1.58(B) as it

applies to his second assignment. It is from that portion of the opinion that I

respectfully dissent.

       {¶63}    I agree with the majority's analysis that the terms “penalty,”

“forfeiture,” and “punishment”—as those terms are used in R.C. 1.58(B)—do not

apply to H.B. 86. Had the opinion stopped at that point, I would have found no fault

with the analysis. But the opinion goes on to state that because R.C. 1.58(B) is

referenced in H.B. 86, it applies and acts to reduce the level of offense in cases such

as this one. This holding is a dramatic expansion of the retrospective application of

Ohio’s new sentencing law. I believe that the legislature would not have made such

an important legislative determination in such a nebulous or cryptic manner.

       {¶64}    Simply put, I believe—as does the majority—that the “level of the

offense” is not a part of the “penalty for that offense.” Rather than strike out on this new

course, I believe that this court would be well-served to follow the path set forth by the



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Eighth Appellate District in State v. Steinfurth, 8th Dist. No. 97549, 2012-Ohio-3257.

That court concluded—utilizing a plain reading of R.C. 1.58—that R.C. 1.58 only requires

the trial court to sentence a defendant to the lesser term, but does not require the trial

court to reduce the level of the offense. "R.C. 1.58 clearly states that a criminal defendant

receives the benefit of a reduced penalty, forfeiture, or punishment. * * * [It] makes no

mention of a criminal defendant receiving the benefit of a lesser or reduced offense itself

* * *." (Emphasis in original) Id. at ¶ 15.

       {¶65}    Because I believe that the majority has read much more into the

language of H.B. 86 than the legislature intended, I must dissent from that portion of the

majority's opinion. I would hold that, while Solomon is entitled to a reduction in

penalty, he is not entitled to a reduction in the level of his offense. I concur with the

majority opinion in all other respects.



Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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