ZUKERMAN WINS LANDMARK REVERSAL IN THE 8TH DISTRICT COURT OF APPEALS ON HB 86 SENTENCING ISSUE
Paul Johnson’s journey through the criminal justice system is over, and he walks the earth a free man. The Eighth District Court of Appeals reversed his convictions and vacated his sentences last week, a landmark decision interpreting H.B. 86, Ohio’s recent sentencing reform law.
In May 2011, Johnson was indicted on nine counts: two counts of felonious assault, one count of discharging a firearm on or near prohibited premises, two counts of improper handling of a firearm while in a motor vehicle, one count of having weapons under a disability, one count of criminal damaging or endangering, one count of drug possession, and one count of possessing criminal tools.
After a trial, the jury acquitted our client of all charges except for drug possession and possession of criminal tools, both fifth-degree felonies. The court sentenced Johnson to a 11 months in prison on each of his two convictions, and ordered the sentences to run consecutively, for a total of 22 months. We appealed Johnson’s convictions and sentences, raising five assignments of error.
In State of Ohio v. Paul Johnson, case number 12 CA 98245, the Court of Appeals ruled that the trial court erred in imposing prison sentences of eleven (11) months upon Johnson and running said sentences consecutive for a total of twenty-two (22) months based on his convictions for drug possession and possession of criminal tools, which were both felonies of the fifth degree. The Eighth District Court of Appeals agreed with ZDL’s argument that the trial court lacked the authority/discretion to send Johnson to prison under the new sentencing requirements of House Bill 86 that were designed to reduce Ohio’s prison population. As the Court of Appeals noted in its opinion, H.B. 86 amended R.C. 2929.13(B)(1) so as to prohibit prison sentences for certain fourth and fifth degree felony offenses.
R.C. 2929.13(B)(1)(a) states “[e]xcept as provied in division (B)(1)(b) of this section, if an offender is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence, the court shall sentence the offender to a community control sanction [probation] of at least one year’s duration if all of the following apply:
i) The offender previously has not been convicted of or pleaded guilty to a felony offense or to an offense of violence that is a misdemeanor and that the offender committed within two years prior to the offense for which sentence is being imposed.
ii) The most serious charge against the offender at the time of sentencing is a felony of the fourth or fifth degree.
iii) If the court made a request of the department of rehabilitation and correction pursuant to division (B)(1)(c) of this section, the department, within the forty-five-day period specified in that division, provided the court with the names of, contact information for, and program details of one or more community sanctions of at least one year’s durations that are available for persons sentenced by the court.
The Eighth District Court of Appeals in Johnson noted that if all of three of the above susbsections of R.C. 2929.13(B)(1)(a) are satisfied, then the trial court was required to sentence Johnson to community control sanctions and lacked the discretion to sentence Johnson to a term of prison. The Court of Appeals also noted that the State of Ohio agreed that Johnson satisfied subsections (ii) and (iii) of R.C. 2929.13(B)(1)(a). The State’s argument was that if Johnson had ever been convicted of or pleaded guilty to a felony offense at any time, then subsection (i) of R.C. 2929.13(B)(1)(a) is not satisfied and the trial court has the discretion to send Johnson to prison. The Court of Appeals disageed with the State’s argument and held that susbsection (i) requires that the offender committed a felony offense within two years of the instant sentence in order to be found ineligible for mandatory community control sanctions (probation). Accordingly, the Court of Appeals held that R.C. 2929.13(B)(1)(a)(i) is satisfied where a defendant has previously been convicted of or pleaded guilty to a felony offense, but that conviction or guilty plea occurred more than two years before the current sentence is imposed. At the time of his setencing, Johnson’s most recent felony conviction was a 2001 conviction for carrying a concealed weapon, a felony of the fourth degree.
The Court of Appeals concluded its majority opinion by stating that the trial court was required to sentence Johnson to a community control sanction on his felony covictions for drug possession and possession of criminal tools that were felonies of the fifth degree. The Court of Appeals ruled that the trial court committed clear error when it failed to comply with the applicable statute and sentenced Johnson to two eleven month sentences and ordered them to run consecutively.
One of the appellate judge’s wrote a concurring opinion regarding the majority’s determination that the mandatory community control sanction provisions of R.C. 2929.13(B)(1)(a) applied to Johnson. The concurring opinion noted that a main purpose behind H.B. 86 was to reduce Ohio’s prison population. The concuring opinion noted that their is some ambiguity in the language of R.C. 2929.13(B)(1)(a)(1) as to whether the portion of the statute that states “and that the offender committed within two years prior to the offense for which sentence is being imposed” only applies to prior convictions for violent misdemeanor offenses or to felony offenses as well. The concurring opinion, however, reasoned that any ambiguity must be resolved in favor of the Johnson as pursuant to R.C. 2901.04(A), courts are required to strictly construe the criminal code against the state and to liberally construe the code in favor of the accused. Accordingly, the concurring opinion held that any identified ambiguity in R.C. 2929.13(B)(1)(a)(i) must be resolved in Johnson’s favor as “the two-year look-back period must be applied to not only the offender’s prior convictions for violent misdemeanor offenses but also to his or her prior felony convictions.”