         [Cite as State v. Luqman, 2012-Ohio-5057.]

                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO




STATE OF OHIO,                                   :    APPEAL NO. C-110784
                                                      TRIAL NO. B-1102137
        Plaintiff-Appellee,                      :
                                                         O P I N I O N.
  vs.                                            :

ABDULLAH LUQMAN,                                 :

    Defendant-Appellant.                         :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: November 2, 2012




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Robert R. Hastings, Jr., and Susannah M. Meyer, for Defendant-Appellant.




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




SYLVIA S. HENDON, Judge.

       {¶1}    In this appeal, we must determine what version of R.C. 2923.16(E)

governs the prosecution and sentencing of defendant-appellant Abdullah Luqman

for improper handling of a firearm in a motor vehicle: the statute in effect at the

time of Luqman’s indictment, or the statute in effect at the time of Luqman’s trial

and sentencing. For the reasons that follow, we hold that the former version of R.C.

2923.16(E), in effect at the time of indictment, is applicable in this case.

                                   Factual Background


       {¶2}    On April 7, 2011, Luqman was indicted for improper handling of a

firearm in a motor vehicle pursuant to R.C. 2923.16(E)(1).1 The version of R.C.

2923.16(E)(1) then in effect provided that

       No person who has been issued a license or temporary emergency

       license to carry a concealed handgun under section 2923.125

       [2923.12.5] or 2923.1213 [2923.12.13] of the Revised Code shall do any

       of the following:

        (1) Knowingly transport or have a loaded handgun in a motor vehicle

       unless one of the following applies:

        (a) The loaded handgun is in a holster on the person's person.

       {¶3}    On September 30, 2011, R.C. 2923.16(E) was amended by 2011 S.B.

No. 17 (“Senate Bill 17”).       The amended version of the statute eliminated the




1 Luqman was also indicted for felonious assault in violation of R.C. 2903.11(A)(2). But he was
acquitted of that offense following a jury trial.


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requirement that a person licensed to carry a concealed weapon keep the weapon in a

holster on the licensee’s person. Amended R.C. 2923.16(E) provides that

       No person who has been issued a license or temporary emergency

       license to carry a concealed handgun under section 2923.125 or

       2923.1213 of the Revised Code * * * who is the driver or an occupant of

       a motor vehicle that is stopped as a result of a traffic stop or a stop for

       another law enforcement purpose * * * and who is transporting or has

       a loaded handgun in the motor vehicle or commercial motor vehicle in

       any manner, shall do any of the following:

       (1) Fail to promptly inform any law enforcement officer who

       approaches the vehicle while stopped that the person has been issued a

       license or temporary emergency license to carry a concealed handgun

       and that the person then possesses or has a loaded handgun in the

       motor vehicle[.]

       {¶4}   Luqman was tried by a jury for the charged violation of improper

handling of a firearm in a motor vehicle. His jury trial began on October 24, 2011,

after the effective date of Senate Bill 17 and the amendments to R.C. 2923.16(E).

Luqman made a Crim.R. 29 motion for an acquittal at the close of the state’s

presentation of evidence. He argued that the charge of improper handling of a

firearm in a motor vehicle should have been dismissed because the current version of

R.C. 2923.16(E)(1), which he asserted was retroactively applicable, no longer

criminalized the offense with which he had been charged, namely failing to keep the

loaded handgun in a holster on his person. The trial court ruled that the current




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version of R.C. 2923.16(E) was not retroactively applicable, and it overruled

Luqman’s motion for an acquittal.

       {¶5}    Luqman was found guilty of improper handling of a firearm in a motor

vehicle, a fifth-degree felony, and was sentenced to a three-year period of community

control. Luqman has appealed his conviction. He argues in his sole assignment of

error that the trial court erred in overruling his motion to dismiss and in convicting

him under the former version of R.C. 2923.16(E).

                                Retroactive Application


       {¶6}    A two-step analysis is used to determine whether a statute may be

applied retroactively without violating the Retroactivity Clause of the Ohio

Constitution. State v. White, 132 Ohio St.3d 344, 2012-Ohio-2583, 972 N.E.2d 534,

¶ 26-27. The first step involves a determination as to whether the General Assembly

intended for the statute to be applied retroactively. Absent such intent, the statute

may not be retroactively applied. Id. at ¶ 27. The second step of the analysis involves

a determination as to whether the statute is substantive or remedial. Retroactive

application is permissible if the statute is remedial, but forbidden if it is substantive.

Id. A court only engages in the second step of this analysis if it first finds that the

General Assembly intended that the statute be applied retroactively.

       {¶7}    Here, we find nothing in Senate Bill 17 or the specific amendments to

R.C. 2923.16(E) indicating that the General Assembly intended that the amendments

be applied retroactively. The statute itself contains no language indicating that it

applies to offenders who committed their crimes prior to the effective date of the

amendments. In support of his argument that the General Assembly intended that




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                     OHIO FIRST DISTRICT COURT OF APPEALS



the amendments be applied retroactively, Luqman cites amended R.C. 2923.16(H),

which states

       If a person is convicted of, was convicted of, pleads guilty to, or has

       pleaded guilty to a violation of division (E) of this section as it existed

       prior to the effective date of this amendment and if the conduct that

       was the basis of the violation no longer would be a violation of division

       (E) of this section on or after the effective date of this amendment, the

       person may file an application under section 2953.37 of the Revised

       Code requesting the expungement of the record of conviction.

R.C. 2923.16(H)(2)(a). This provision provides that eligible offenders may obtain an

expungement of a conviction that occurred under the former version of R.C.

2923.16(E) for behavior that is no longer criminalized under the amended statute.

Luqman’s argument is not persuasive.           In fact, we find that amended R.C.

2923.16(H) militates against Luqman’s argument concerning retroactivity of the

amended statute. The plain language of amended R.C. 2923.16(H)(2)(a) clearly

contemplates the application of former R.C. 2923.16(E) after the effective date of the

amended statute.

       {¶8}    Because the General Assembly did not intend for amended R.C.

2923.16(E) to be applied retroactively, the trial court properly overruled Luqman’s

motion to dismiss his indictment and applied former R.C. 2923.16(E), which was in

effect at the time of Luqman’s indictment, to Luqman’s prosecution and sentencing.




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                       OHIO FIRST DISTRICT COURT OF APPEALS


                              Felony or Misdemeanor?


       {¶9}   Luqman next argues that, even if this court determines that amended

R.C. 2923.16(E) is not retroactively applicable, he should have been sentenced for a

first-degree misdemeanor, rather than a fifth-degree felony.

       {¶10} Former R.C. 2923.16 provided that a violation of R.C. 2923.16(E)(1)

was a felony of the fifth degree. See R.C. 2923.16(I). But amended R.C. 2923.16(I)

provides that a violation of division (E)(1) or (E)(2) of the statute is a misdemeanor

of the first degree.    Luqman contends that he is entitled to the benefit and

application of R.C. 1.58, and may consequently only be sentenced for a first-degree

misdemeanor.

       {¶11} R.C. 1.58(B) provides that “[i]f 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.” If the amendments to R.C. 2923.16(E) had merely changed the

degree of punishment applicable to the offense, Luqman’s argument would be

correct. But the amendments to this statute did more than decrease the degree of the

offense; the amendments changed the substantive nature of the crime of which

Luqman was convicted.

       {¶12} The Ohio Supreme Court has analyzed the effect of R.C. 1.58(B) in this

situation, specifically when a statute is amended after a crime is committed but

before sentence is imposed. State v. Kaplowitz, 100 Ohio St.3d 205, 2003-Ohio-

5602, 797 N.E.2d 977, ¶ 8. In Kaplowitz, the 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,




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                       OHIO FIRST DISTRICT COURT OF APPEALS



the court alters the nature of the offense, including specifications to which the

defendant pled guilty or of which he was found guilty.” Id. at syllabus.

       {¶13} In this case, Luqman was found guilty of a violation of R.C.

2923.16(E)(1)(a) for failing to keep his firearm in a holster on his person. That

behavior is no longer criminalized under amended R.C. 2923.16(E). The first-degree

misdemeanors in amended R.C. 2923.16(E)(1) and (2) are substantively different

crimes than that of which Luqman was convicted. Consequently, Luqman was not

entitled to the benefit of a reduction in punishment pursuant to R.C. 1.58(B).

       {¶14} The trial court properly sentenced Luqman for a felony of the fifth

degree. Luqman’s sole assignment of error is overruled, and the judgment of the

trial court is affirmed.

                                                                      Judgment affirmed.



HILDEBRANDT, P.J., and DINKELACKER, J., concur.



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




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