[Cite as State v. Gillespie, 2012-Ohio-3485.]


                                         COURT OF APPEALS
                                    TUSCARAWAS COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

                                                        JUDGES:
STATE OF OHIO                                   :       Hon. W. Scott Gwin, P.J.
                                                :       Hon. John W. Wise, J.
                          Plaintiff-Appellee    :       Hon. Julie A. Edwards, J.
                                                :
-vs-                                            :
                                                :       Case No. 2012-CA-6
JOSEPH GILLESPIE                                :
                                                :
                     Defendant-Appellant        :       OPINION




CHARACTER OF PROCEEDING:                            Criminal appeal from the Tuscarawas
                                                    County Court of Common Pleas, Case No.
                                                    2011CR050139

JUDGMENT:                                           Reversed and Remanded



DATE OF JUDGMENT ENTRY:                             July 30, 2012




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

RYAN STYER                                          GERALD LATANICH
550 North College Street                            153 North Broadway
Newcomerstown, OH 43832                             New Philadelphia, OH 44663
[Cite as State v. Gillespie, 2012-Ohio-3485.]


Gwin, P.J.

        {¶1}     On February 23, 2011, appellant Joseph Gillespie [“Gillespie”] was

indicted by the Tuscarawas County Grand Jury on one count of Passing Bad Checks, in

violation of R.C. 2913.11(B), a felony of the fifth degree.

        {¶2}     On October 5, 2011, Gillespie pleaded guilty to the charge.

        {¶3}     On January 9, 2012, Gillespie was sentenced to 2 years of Community

Control. The trial court reserved a six-month term of local incarceration in the event

Gillespie was convicted of violating the terms of his Community Control sanctions.

        {¶4}     Gillespie timely appeals his conviction and sentence raising the following

assignment of error:

        {¶5}     “I. THE TRIAL COURT ERRED WHEN IT CONVICTED MR. GILLESPIE

OF A FIFTH-DEGREE FELONY, WHEN THE GENERAL ASSEMBLY INTENDED THE

OFFENSE COMMITTED BY MR. GILLESPIE TO BE CATEGORIZED AS A FIRST-

DEGREE MISDEMEANOR.”

                                                  I.

        {¶6}     On September 30, 2012, after the date of Gillespie’s plea but before the

date of his sentencing, R.C. 2913.02 was amended as part of 2011 Am.Sub.H.B. No.

86. R.C. 2913.02(B) was amended to provide that,

                 (2) Except as otherwise provided in this division or division (B)(3),

        (4), (5), (6), (7), or (8) of this section, a violation of this section is petty

        theft, a misdemeanor of the first degree. If the value of the property or

        services stolen is one thousand dollars or more and is less than seven

        thousand five hundred dollars or if the property stolen is any of the
Tuscarawas County, Case No. 2012-CA-6                                                       3


       property listed in section 2913.71 of the Revised Code, a violation of this

       section is theft, a felony of the fifth degree.

       {¶7}   The effect of this amendment was to raise the minimum value of property

stolen to constitute a felony theft from $500.00 to $1,000.00. Gillespie argues that since

he was sentenced following the effective date of the amended statute, R.C. 1.58

requires that he receive the benefit of the lesser sentence provided for in the amended

statute, which reduced the penalty from that prescribed for a felony of the fifth degree to

that prescribed for a misdemeanor of the first degree.

       {¶8}   The state argues that Gillespie is correct that the new value provisions for

theft became effective on September 30, 2011 and that R.C. 1.58 would appear to

indicate that Gillespie is entitled to the "misdemeanor sanctions”; however, the state

argues he is not entitled to have the theft offense reclassified as a misdemeanor.

                                             ANALYSIS

       {¶9}   R.C. 1.48 provides, “A statute is presumed to be prospective in its

operation unless expressly made retrospective.” Thus, a statute may not be applied

retroactively unless the court finds a “clearly expressed legislative intent” that the statute

so apply. State v. Cook, 83 Ohio St.3d 404, 410, 700 N.E.2d 570(1988).

       The issue of whether a statute may                constitutionally   be applied

       retrospectively does not arise unless there has been a prior determination

       that the General Assembly has specified that the statute so apply. Upon

       its face, R.C. 1.48 establishes an analytical threshold which must be

       crossed prior to inquiry under Section 28, Article II. As we pronounced

       in Kiser v. Coleman (1986), 28 Ohio St.3d 259, 262, 28 OBR 337, 339,
Tuscarawas County, Case No. 2012-CA-6                                                 4


      503 N.E.2d 753, 756, where “there is no clear indication of retroactive

      application, then the statute may only apply to cases which arise

      subsequent to its enactment.”

Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489(1988),

superseded on other grounds by statute as stated in Hannah v. Dayton Power & Light

Co., 82 Ohio St.3d 482, 484, 696 N.E.2d 1044(1998).

      {¶10} In the case at bar, 2011 Am.Sub.H.B. No. 86 provided in relevant part,

             The amendments to sections...2913.02... 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.

             The provisions of sections...2913.02...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...2913.02... 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.

(Emphasis added).

      {¶11} R.C. 1.58 effect of reenactment, amendment, or repeal of statute on

existing conditions provides,
Tuscarawas County, Case No. 2012-CA-6                                                      5


             (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 prior 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.

      {¶12} When reading 2011 Am.Sub.H.B. No. 86 and its specific reference to

division (B) of R.C.1.58 we conclude that the legislature expressed its intention that the

amended version of R.C. 2913.02 apply to a person who is sentenced on and after

September 30, 2011 unless ex post facto concerns are present. Although the

Constitution’s Ex Post Facto Clause prohibits applying a new Act’s higher penalties to
Tuscarawas County, Case No. 2012-CA-6                                                    6

pre-Act conduct, it does not prohibit applying lower penalties. See Dorsey v. United

States, 567 U.S.__, 132 S.Ct. 2321, 2332 (June 21, 2012).

      {¶13} Having determined that the statute at issue meets the threshold test for

retroactive application contained in R.C. 1.48, we must now inquire whether it

contravenes the ban upon retroactive legislation set forth in Section 28, Article II of the

Ohio Constitution. Van Fossen, 36 Ohio St.3d at 106.

      {¶14} In its simplest form, to constitute a theft offense it need only be proven that

some property of value has been taken. R.C. 2913.02 does not require the indictment to

allege, or the evidence to establish, any particular value of the property taken. The

offense of theft therein defined is complete and the offender becomes guilty of theft

without respect to the value of the property or services involved. However, it becomes

necessary to prove the value of the property taken, and likewise necessary that the jury

find the value and state it in the verdict in order to measure the penalty. “Therefore, in

such case, the verdict must find the value to enable the court to administer the

appropriate penalty.” State v. Whitten, 82 Ohio St. 174, 182, 92 N.E.2d 79(1910).

(Emphasis added).

       {¶15} The amendment to R.C. 2913.02 raising the line of demarcation from five

hundred dollars to one thousand dollars relates only to the penalty. 2011 Am.Sub.H.B.

No. 86 operates, when the value of the property stolen falls between these two

limitations, to reduce the penalty from that prescribed for a felony of the fifth degree to

that prescribed for a misdemeanor of the first degree. Accordingly, the amendment

comes within the provisions of R.C. 1.58(B), requiring, in the instant case, that the

amendment be applied, and that the penalty be imposed according to the amendment.
Tuscarawas County, Case No. 2012-CA-6                                                 7


That penalty is a misdemeanor offense with a misdemeanor sentence not a felony

offense with a misdemeanor sentence. Several cases have applied R.C. 1.58(B) to

situations in which the defendants committed theft offenses prior to, but were sentenced

after, the effective date of legislation which reduced their offenses from felonies to

misdemeanors. State v. Collier, 22 Ohio App.3d 25, 27, 488 N.E.2d 887(1984); State v.

Coffman, 16 Ohio App.3d 200, 475 N.E.2d 139(1984); State v. Burton, 11 Ohio App.3d

261, 464 N.E.2d 186(1983).

      {¶16} Recently, the United States Supreme Court held that the more lenient

penalties of the Fair Sentencing Act, which reduced the crack-to-powder cocaine

disparity, applied to those offenders whose crimes preceded the effective date of the

Act, but who were sentenced after that date. Dorsey v. United States, 567 U.S.__, 132

S.Ct. 2321, 2332 (June 21, 2012). Although the Court interpreted the federal statutory

scheme, which is somewhat different from the one presently under consideration in the

case at bar, we share the Court’s concern that,

             [A]pplying the 1986 Drug Act's old mandatory minimums to the

      post-August 3 sentencing of pre-August 3 offenders would create

      disparities of a kind that Congress enacted the Sentencing Reform Act

      and the Fair Sentencing Act to prevent. Two individuals with the same

      number of prior offenses who each engaged in the same criminal conduct

      involving the same amount of crack and were sentenced at the same time

      would receive radically different sentences.

             ***
Tuscarawas County, Case No. 2012-CA-6                                                8


             Moreover, unlike many prechange/postchange discrepancies, the

      imposition     of   these     disparate    sentences     involves   roughly

      contemporaneous sentencing, i.e., the same time, the same place, and

      even the same judge, thereby highlighting a kind of unfairness that

      modern sentencing statutes typically seek to combat...

567 U.S.__, 132 S.Ct. at 2333. The same is true in this case. Two individuals accused

of the same conduct could be treated differently and receive different sentences, one a

felony and one a misdemeanor, after the amendments had become effective even

though both were sentenced on the same date. We find no strong countervailing

considerations between pre-amendment offenders such as Gillespie sentenced after

September 30, 2011 and post-amendment offenders that make a critical difference to

require them to be treated differently. Dorsey at 2335.
Tuscarawas County, Case No. 2012-CA-6                                           9


      {¶17} Accordingly, Gillespie’s sole assignment of error is sustained, the

judgment of the Tuscarawas County Court of Common Pleas is reversed, and this case

is remanded for proceedings in accordance with our opinion and the law.

By Gwin, P.J.,

Wise, J., and

Edwards, J., concur




                                           _________________________________
                                           HON. W. SCOTT GWIN


                                           _________________________________
                                           HON. JOHN W. WISE


                                           _________________________________
                                           HON. JULIE A. EDWARDS


WSG:clw 0712
[Cite as State v. Gillespie, 2012-Ohio-3485.]


           IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO

                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                      :
                                                   :
                              Plaintiff-Appellee   :
                                                   :
                                                   :
-vs-                                               :       JUDGMENT ENTRY
                                                   :
JOSEPH GILLESPIE                                   :
                                                   :
                                                   :
                         Defendant-Appellant       :       CASE NO. 2012-CA-6



       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Tuscarawas County Court of Common Pleas is reversed, and this case is remanded

for proceedings in accordance with our opinion and the law. Costs to appellee.




                                                       _________________________________
                                                       HON. W. SCOTT GWIN


                                                       _________________________________
                                                       HON. JOHN W. WISE


                                                       _________________________________
                                                       HON. JULIE A. EDWARDS
