[Cite as State v. Sieminski, 2017-Ohio-5480.]


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

STATE OF OHIO                                         C.A. No.       16CA011048

        Appellant

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
ASHLEY SIEMINSKI                                      COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellee                                      CASE No.   16CR093986

                                 DECISION AND JOURNAL ENTRY

Dated: June 26, 2017



        SCHAFER, Judge.

        {¶1}     Plaintiff-Appellant, State of Ohio, appeals the judgment of the Lorain County

Court of Common Pleas, dismissing the indictment of Defendant-Appellee, Ashley Sieminski.

For the reasons that follow, we reverse and remand for further proceedings consistent with this

decision.

                                                 I.

        {¶2}     On March 13, 2016, Sieminski’s grandmother called 9-1-1 because she believed

Sieminski had overdosed. Medical personnel administered NARCAN and transported Sieminski

to the hospital for further treatment. While Sieminski was receiving treatment, deputies from the

Lorain County Sheriff’s Department discovered contraband during a search of the home.

        {¶3}     The Lorain County Grand Jury subsequently indicted Sieminski on the following

charges: (I) possession of drugs in violation of R.C. 2925.11(A), a felony of the fifth degree; (II)

possessing drug abuse instruments in violation of R.C. 2925.12(A), a misdemeanor of the second
                                                 2


degree; and (III) using or possessing with the intent to use drug paraphernalia in violation of R.C.

2925.14(C)(1), a misdemeanor of the fourth degree. Sieminski pleaded not guilty and the matter

proceeded through the pretrial process.

       {¶4}    On October 24, 2016, Sieminski filed a motion to dismiss the charges in the

indictment, alleging that she was entitled to immunity pursuant to R.C. 2925.11(B)(2)(b). The

State filed a brief in opposition to the motion to dismiss. Based upon the briefs filed by the

parties, the trial court concluded that the immunity provided pursuant to R.C. 2925.11(B)(2)(b)

applied in this case and granted Sieminski’s motion to dismiss.

       {¶5}    The State filed this timely appeal, raising four assignments of error for our

review. For ease of analysis, we elect to consider the assignments of error out of order.

                                                II.

                                     Assignment of Error II

       The trial court erred when it granted Ms. Sieminski’s motion to dismiss as it
       incorrectly found that the R.C. 2925.11(B)(2)(b) immunity is applicable to
       defendants who committed a minor possession of drugs offense prior to the
       amendment’s enactment.

       {¶6}    In its second assignment of error, the State argues that the trial court erred when it

determined that the immunity provided in R.C. 2925.11(B)(2)(b) applied to defendants who

committed a minor drug offense prior to the amendment’s enactment. We agree.

       {¶7}    “We review a ruling on a pretrial motion to dismiss criminal charges using the de

novo standard.” State v. Saxon, 9th Dist. Lorain No. 09CA009560, 2009-Ohio-6905, ¶ 5.

       {¶8}    R.C. 2925.11(B)(2)(b) became effective on September 13, 2016, approximately

six months after the alleged offenses occurred. That statute provides as follows:

       Subject to division (B)(2)(f) of this section, a qualified individual shall not be
       arrested, charged, prosecuted, convicted, or penalized pursuant to this chapter for
       a minor drug possession offense if all of the following apply:
                                                 3



       (i) The evidence of the obtaining, possession, or use of the controlled substance or
       controlled substance analog that would be the basis of the offense was obtained as
       a result of the qualified individual seeking the medical assistance or experiencing
       an overdose and needing medical assistance.

       (ii) Subject to division (B)(2)(g) of this section, within thirty days after seeking or
       obtaining the medical assistance, the qualified individual seeks and obtains a
       screening and receives a referral for treatment from a community addiction
       services provider or a properly credentialed addiction treatment professional.

       (iii) Subject to division (B)(2)(g) of this section, the qualified individual who
       obtains a screening and receives a referral for treatment under division
       (B)(2)(b)(ii) of this section, upon the request of any prosecuting attorney, submits
       documentation to the prosecuting attorney that verifies that the qualified
       individual satisfied the requirements of that division. The documentation shall be
       limited to the date and time of the screening obtained and referral received.

R.C. 2925.11(B)(2)(b).

       {¶9}    Article II, Section 28, of the Ohio Constitution proscribes the General Assembly

from enacting retroactive laws. A statute is presumed to be prospective in its operation unless it

is expressly made retroactive. R.C. 1.48. The determination of whether a statute’s retroactive

application violates the Constitution’s retroactivity clause requires a two-step analysis. State v.

White, 132 Ohio St.3d 344, 2012-Ohio-2583, ¶ 27. First, a court must determine whether the

legislature intended the statute to apply retroactively. Id. “Often, this determination can be

made based on the plain language of the legislation.” DeMoss v. Silver Lake, 9th Dist. Summit

No. 27820, 2016-Ohio-3241, ¶ 11, citing White at ¶ 28-30 (finding legislative intent to apply

death penalty statute retroactively where statute expressly stated it would apply to all offenders

sentenced to death on or after October 19, 1981, the effective date of the current death penalty

statute); Bielat v. Bielat, 87 Ohio St.3d 350, 353–354 (2000) (finding legislative intent to apply

Ohio’s Transfer–on–Death Security Registration Act retroactively where statute stated it applied

“prior to, on, or after” the effective date of the Act); State v. Cook, 83 Ohio St.3d 404, 410
                                                  4


(1998) (statute applies to sex offenders convicted, sentenced and still imprisoned prior to

effective date).   “A statute must clearly proclaim its own retroactivity to overcome the

presumption of prospective application. Retroactivity is not to be inferred.” State v. Consilio,

114 Ohio St.3d 295, 2007-Ohio-4163 ¶ 15.

       {¶10} If the General Assembly has expressly indicated its intention that a statute apply

retroactively, a court must then determine whether the statute is remedial or substantive. White

at ¶ 27. The Supreme Court of Ohio has stated:

       A purely remedial statute does not violate Section 28, Article II of the Ohio
       Constitution, even when it is applied retroactively. On the other hand, a
       retroactive statute is substantive – and therefore unconstitutionally retroactive – if
       it impairs vested rights, affects an accrued substantive right, or imposes new or
       additional burdens, duties, obligations, or liabilities as to a past transaction.

(Internal citations omitted.) (Emphasis sic.) Bielat at 354.

       {¶11} In this case, the trial court recognized that “[a] review of the statute reveals no

legislative indication that it is to apply retroactively.” However, the trial court then determined

that “the clear intent” of the statute was “to assist those with a drug addiction into a treatment

program as opposed to criminal prosecution if the evidence obtained resulted from a call for

medical assistance.” The trial court inferred that this intent, “coupled with the statute’s language

that no qualified individual shall be ‘arrested, charged, prosecuted, convicted, or penalized’”

shows that the legislature’s intention for the statute to apply in situations where the alleged

offense predates the effective date of the statute.

       {¶12} Nonetheless, “[t]he General Assembly’s failure to clearly enunciate retroactivity

ends the analysis, and the relevant statute may be applied only prospectively.” Consilio at ¶ 10.

As a review of the statute shows no express intention that it should apply retroactively, we

conclude that the trial court erred when it inferred such retroactivity.
                                                  5


       {¶13} Therefore, The State’s second assignment of error is sustained.

                                      Assignment of Error I

       The trial court erred in granting Ms. Sieminski’s motion to dismiss because it
       failed to apply the appropriate test to determine R.C. 2925.11(B)(2)(b)’s
       retroactivity.

                                     Assignment of Error III

       The trial court erred in granting Ms. Sieminski’s motion to dismiss because
       she is not a qualified individual pursuant to R.C. 2925.11(B)(2)(a)(viii), and
       therefore not eligible for immunity under R.C. 2925.11(B)(2)(b).

                                      Assignment of Error IV

       The trial court erred in dismissing all charges in the indictment as R.C.
       2925.11(B)(2)(b) solely provides immunity from minor drug possession
       charges.

       {¶14} In its first assignment of error, the State contends that the trial court erred in

granting Sieminski’s motion to dismiss because it failed to consider the second prong of the

retroactivity analysis. In its third assignment of error, the State contends that the trial court erred

when it determined Sieminski was a “qualified individual” pursuant to R.C. 2925.11(B)(2)(b).

Finally, in its fourth assignment of error, the State contends that the trial court erred in

dismissing all of Sieminski’s charges. However, our resolution of the State’s second assignment

of error render its first, third, and fourth assignments of error moot and we decline to address

them. See App.R. 12(A)(1)(c).

                                                 III.

       {¶15} The State’s second assignment of error is sustained. The State’s first, third, and

fourth assignments of error are moot. Therefore, the judgment of the Lorain County Court of

Common Pleas is reversed and this matter remanded for further proceedings consistent with this

decision.
                                                 6


                                                                             Judgement reversed
                                                                            and cause remanded.




       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 Lorain, 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 Appellee.




                                                     JULIE A. SCHAFER
                                                     FOR THE COURT


HENSAL, P. J.
CONCURS.

TEODOSIO, J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellant.

CHRISTOPHER REWAK, Attorney at Law, for Appellee.
