[Cite as State v. Gatewood,

.]

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

STATE OF OHIO : : Appellate Case No. 2012-CA-12 Plaintiff-Appellee : : Trial Court Case No. 06-CR-1155 v. : : HERMAN GATEWOOD : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : : ...........

OPINION

Rendered on the 14th day of September, 2012.

...........

LISA M. FANNIN, Atty. Reg. #0082337, Clark County Prosecutor’s Office, 50 East Columbia Street, Post Office Box 1608, Springfield, Ohio 45501 Attorney for Plaintiff-Appellee

BRANDIN D. MARLOW, Atty. Reg. #0076381, 150 North Limestone Street, Suite 218, Springfield, Ohio 45501 Attorney for Defendant-Appellant

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

FAIN, J.

{¶ 1} Defendant-appellant Herman Gatewood appeals from his three-year sentence

for Possession of Crack Cocaine in an amount greater than five grams but less than ten grams, 2

in violation of R.C. 2925.11(A), following a jury trial. Gatewood contends that because the

degree of the offense was reduced, by 2011 H 86, before he was sentenced, from a third degree

felony to a fourth degree felony, the trial court erred by imposing a third-degree-felony

sentence for the offense. The State agrees with Gatewood, and so do we. The three-year

sentence for Possession of Crack is Reversed, and this cause is Remanded for re-sentencing

for that offense.

I. The Course of Proceedings

{¶ 2} In 2006, Gatewood was charged by indictment with one count of Possession

of Crack Cocaine in an amount greater than five grams but less than ten grams, in violation of

R.C. 2925.11(A), with a firearm specification; one count of Eluding or Fleeing, in violation of

R.C. 2921.331(B), with a firearm specification; one count of Conveying, or Attempting to

Convey, any Drug of Abuse onto the Grounds of a Detention Facility or a Mental Health or

Mental Retardation and Developmental Disability Facility, in violation of R.C. 2921.36(A)(2);

one count of Having a Weapon Under a Disability, in violation of R.C. 2923.13(A)(3); and

one count of Carrying a Concealed Weapon, in violation of R.C. 2923.12(A)(2), with a firearm

specification. The counts for Illegal Conveyance and for Having a Weapon Under a

Disability were dismissed shortly before trial.

{¶ 3} Following a jury trial, Gatewood was convicted of the three remaining counts,

and their firearm specifications. He was sentenced to five years for the Possession of Crack

Cocaine offense, five years for the Fleeing or Eluding offense, and twelve months for the

Carrying a Concealed Weapon offense. The firearm specifications were merged for 3

sentencing purposes into a single one-year sentence. The sentences were ordered to be served

consecutively for a total sentence of twelve years.

{¶ 4} Gatewood appealed. We reversed. State v. Gatewood, 2d Dist. Clark No.

2008 CA 64,

(Gatewood I).

{¶ 5} After our reversal and remand, the State re-indicted Gatewood for Illegal

Conveyance and Having Weapons Under Disability, the counts it had dismissed prior to the

first trial. Following another jury trial, Gatewood was convicted on all counts and

specifications. He was sentenced to five years for Possession of Crack Cocaine, five years for

Fleeing and Eluding, five years for Illegal Conveyance, five years for Having a Weapon While

Under a Disability, and eighteen months for Carrying a Concealed Weapon. He was

sentenced to one, merged one-year sentence for the firearm specifications, for a total sentence

of 22½ years.

{¶ 6} Gatewood again appealed. We reversed and vacated Gatewood’s convictions

for Illegal Conveyance and for Having a Weapon While Under a Disability, and remanded this

cause for re-sentencing. State v. Gatewood, 2d Dist. Clark No. 2010 CA 18,

(Gatewood II).

{¶ 7} On February 14, 2012, Gatewood was re-sentenced, pursuant to our remand.

He was sentenced to three years for Possession of Crack Cocaine, plus one year for the firearm

specification, three years for Fleeing and Eluding, plus one year for the firearm specification,

and one year for Carrying a Concealed Weapon. The sentences for Possession of Crack

Cocaine and for Fleeing and Eluding, plus their firearm specifications, were ordered to be

served consecutively; the sentence for Carrying a Concealed Weapon was ordered to be served 4

concurrently, for a total sentence of eight years. The two firearm specifications were not

merged for sentencing purposes.

{¶ 8} At the sentencing hearing, Gatewood contended that the amendments to felony

sentencing in 2011 H 86 applied, with the result that he could only be sentenced for the

Possession of Crack Cocaine offense as a fourth-degree felony. The State and the trial court

disagreed, reasoning that because his 2010 conviction for that offense had not been reversed,

he remained convicted of Possession of Crack Cocaine as a third-degree felony. The trial

court recognized, however, that he could only be sentenced for that third-degree felony under

the new felony sentencing scheme.

{¶ 9} From his three-year sentence for Possession of Crack Cocaine, Gatewood

appeals.

II. Because Gatewood was Re-Sentenced After the Effective Date

of 2011 H 86, and the Nature of the Offense Was Not Changed,

He Could Only Receive a Sentence Prescribed for a Fourth Degree Felony

{¶ 10} Gatewood’s sole assignment of error is as follows:

THE TRIAL COURT ERRED WHEN IT FAILED TO APPLY OHIO

REVISED CODE §1.58(B) TO REDUCE A THIRD-DEGREE FELONY

POSSESSION OF COCAINE TO A FOURTH-DEGREE FELONY POSSESSION

OF COCAINE.

{¶ 11} Gatewood relies upon R.C. 1.58(B), which provides as follows:

If the penalty, forfeiture, or punishment for any offense is reduced by a reenactment or 5

amendment of a statute, the penalty, forfeiture, or punishment, if not already imposed, shall be

imposed according to the statute as amended.

{¶ 12} The State, agreeing with Gatewood, and conceding error, cites 2011 H 86, Section 3,

eff. September 30, 2011, which provides as follows:

The amendments to sections 2925.01, 2925.03, 2925.05, and 2925. 11 of the Revised

Code, and to division (W) of section 2929.01 of the Revised Code, that are made in this act

apply to a person who commits an offense involving marihuana, cocaine, or hashish on or

after the effective date of this act and to a person to whom division (B) of section 1.58 of the

Revised Code makes the amendments applicable.

The provisions of sections 2925.01, 2925.03, 2925.05, and 2925.11 of the Revised

Code, and of division (W) of section 2929.01 of the Revised Code, in existence prior to the

effective date of this act shall apply to a person upon whom a court imposed sentence prior to

the effective date of this act for an offense involving marihuana, cocaine, or hashish. The

amendments to sections 2925.01, 2925.03, 2925.05, and 2925.11 of the Revised Code, and to

division (W) of section 2929.01 of the Revised Code, that are made in this act do not apply to

a person upon whom a court imposed sentence prior to the effective date of this act for an

offense involving marihuana, cocaine, or hashish.

{¶ 13} The provisions of R.C. 1.58(B) do not apply if the result would be to alter the nature

of the offense of which the defendant has been convicted. State v. Kaplowitz,

,

,

, ¶ 29.

{¶ 14} 2011 H 86 eliminated the distinction that previously existed, for sentencing

purposes, between the possession of crack cocaine and the possession of powder cocaine. 6

Before the enactment of 2011 H 86, possession of between five and ten grams of crack

cocaine was a felony of the third degree, but possession of the same amount of powder

cocaine was a felony of the fourth degree. After the enactment, there is just one provision,

R.C. 2925.11(C)(4)(b), pertaining to the possession of cocaine, in either form, in an amount

between five and ten grams, and that provision makes the offense a felony of the fourth

degree.

{¶ 15} An argument could be made that by consolidating the powder cocaine and

crack cocaine situations into a single offense for sentencing purposes, the nature of the offense

of which Gatewood was convicted would be changed if the new sentencing scheme enacted by

2011 H 86 were to be applied to him. But the provisions of Section 3 of 2011 H 86, quoted

above, evince an intent on the part of the Ohio General Assembly that the new version of R.C.

2925.11 applies to a person, like Gatewood, who is being sentenced after the effective date of

the statute.

{¶ 16} We agree with both parties that Gatewood should have been sentenced for

Possession of Cocaine as a fourth-degree felony. The maximum sentence for a fourth-degree

felony is eighteen months. R.C. 2929.14(A)(4). The trial court erred by sentencing

Gatewood for Possession of Cocaine as a third-degree felony.

{¶ 17} Gatewood’s sole assignment of error is sustained.

III. Conclusion

{¶ 18} Gatewood’s sole assignment of error having been sustained, his sentence for

Possession of Cocaine is Reversed, and this cause is Remanded for re-sentencing for that 7

offense. The judgment of the trial court is Affirmed in all other respects.

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

GRADY, P.J., and FROELICH, J., concur.

Copies mailed to:

Lisa M. Fannin Brandin D. Marlow Hon. Douglas M. Rastatter