[Cite as State v. Wilson,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Appellate Case No. 25057 Plaintiff-Appellant : : Trial Court Case No. 11-CR-2817 v. : : JENNIFER WILSON : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellee : : ...........

OPINION

Rendered on the 14th day of December, 2012.

...........

MATHIAS H. HECK, JR., by KIRSTEN A. BRANDT, Atty. Reg. #0070162, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellant

ADELINA E. HAMILTON, Atty. Reg. #0078595, Law Office of the Public Defender, 117 South Main Street, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellee

.............

FAIN, J.

{¶ 1} Plaintiff-appellant the State of Ohio appeals, pursuant to R.C. 2945.67, from a

judgment convicting and sentencing defendant-appellee Jennifer Wilson. The State contends 2

that the trial court erred by convicting Wilson of a first-degree misdemeanor rather than a

fifth-degree felony. According to the State, Wilson was entitled, by virtue of 2011

Am.Sub.H.B. No. 86, to the benefit of a lesser sentence associated with a misdemeanor of the

first degree, but she was not entitled to a reclassification of her offense from a felony to a

misdemeanor.

{¶ 2} Based on our recent decision in State v. Arnold, 2d Dist. Montgomery No.

25044,

, we conclude that the trial court correctly sentenced Wilson for a

misdemeanor of the first degree. Accordingly, the judgment of the trial court is Affirmed.

I. Course of the Proceedings

{¶ 3} Jennifer Wilson committed a theft offense during the Summer of 2011. On

November 8, 2011, a Montgomery County Grand Jury indicted Wilson on one count of Theft

of property having a value of $500 or more in violation of R.C. 2913.02(A)(1), a felony of the

fifth degree. Wilson pled guilty.

{¶ 4} In January 2012, the trial court sentenced Wilson to community control

sanctions for a period not to exceed five years. In the amended judgment of conviction and

sentence, the trial court identified Wilson’s violation of R.C. 2913.02(A)(1) as a first-degree

misdemeanor. From this judgment, the State appeals.

II. 2011 Am.Sub.H.B. No. 86 Reduced Wilson’s Penalty To A Misdemeanor

{¶ 5} The State’s assignment of error is as follows:

H.B. 86 ENTITLED WILSON TO THE BENEFIT OF A SENTENCE 3

ASSOCIATED WITH A MISDEMEANOR OF THE FIRST DEGREE, BUT

IT DID NOT ENTITLE HER TO RECLASSIFICATION OF HER OFFENSE

FROM A FELONY TO A MISDEMEANOR.

{¶ 6} On June 29, 2011, the governor signed into law 2011 Am.Sub.H.B. No. 86

(“H.B.86”). Prior to the effective date of H.B. 86, a defendant (like Wilson) convicted of

Theft of property having a value of five hundred dollars or more was guilty of violating R.C.

2913.02(A)(1), a felony of the fifth degree. See former R.C. 2913.02(B)(2). H.B. 86

amended R.C. 2913.02 to provide that a person (like Wilson) convicted of Theft of property

having a value of less than one thousand dollars is guilty of committing a misdemeanor of the

first degree. R.C. 2913.02(B)(2).

{¶ 7} H.B. 86 became effective on September 30, 2011. The General Assembly

expressly provided in H.B. 86 when the amendments were to be applicable: “The amendments

* * * 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(B) of the Revised Code makes the amendments applicable.”

{¶ 8} R.C. 1.58(B) identifies which law to apply when a statute is amended after the

commission of a crime, but before sentence is imposed: “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.”

{¶ 9} The State concedes that Wilson is entitled to the lesser sentence made

applicable through the application of H.B. 86 and R.C. 1.58(B). In other words, the State 4

concedes that the amendments in H.B. 86 apply to Wilson and that she is entitled to receive

the lesser sentence for a first-degree misdemeanor rather than the sentence for a fifth-degree

felony. However, the State contends that Wilson is not entitled to have her “offense” reduced

from a fifth-degree felony (pre-H.B. 86) to a first-degree misdemeanor (post-H.B. 86). We

do not agree.

{¶ 10} We recently rejected an identical argument by the State in State v. Arnold, 2d

Dist. Montgomery No. 25044,

. Based on our holding in Arnold, we reject

the State’s argument in the present case. Accord State v. David, 5th Dist. Licking No.

11-CA-110,

(affirming the trial court’s reduction of the defendant’s

charges for theft and passing bad checks from fifth-degree felonies to first-degree

misdemeanors based on H.B. 86 and R.C. 1.58).

{¶ 11} The State’s assignment of error is overruled.

III. Conclusion

{¶ 12} The State’s sole assignment of error having been overruled, the judgment of

the trial court is Affirmed.

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DONOVAN and FROELICH, JJ., concur.

Copies mailed to:

Mathias H. Heck Kirsten A. Brandt Adelina E. Hamilton Hon. Frances E. McGee