[Cite as State v. Raynovich,

.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 12 MA 65 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) CLIFFORD RAYNOVICH ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 11 CR 788

JUDGMENT: Reversed. Sentence Vacated. Remanded.

APPEARANCES:

For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503

For Defendant-Appellant: Atty. Lynn A. Maro 7081 West Blvd., Suite 4 Youngstown, Ohio 44512

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: May 23, 2014 [Cite as State v. Raynovich,

.] WAITE, J.

{¶1} Appellant stole $549 from a Rite Aid Pharmacy in 2011 and was

charged with felony theft. At the time of the offense, the theft of property worth $500

to $5,000 was a fifth degree felony, and theft of property worth less than $500 was

misdemeanor petty theft. See former R.C. 2913.02(B)(2). While the case was

pending, the criminal theft statute was amended in 2011 Am.Sub.H.B. 86 (“H.B. 86”).

The limit for petty theft was raised to $1,000. Appellant eventually entered a no

contest plea to one count of theft. The state argued that Appellant could be

sentenced under misdemeanor sentencing provisions, but the degree of the crime

should remain a felony since the crime was a felony at the time it was committed.

The trial judge agreed and determined that Appellant would be convicted of a felony

but sentenced for a misdemeanor, based on the operation of R.C. 1.58(B). Appellant

argues on appeal that he should not have been convicted of felony theft because the

degree of the theft is determined at sentencing, and at the time of sentencing he was

guilty of only petty theft.

{¶2} During the pendency of this appeal, the Ohio Supreme Court ruled, in

State v. Taylor, that “the legislature intended to afford the benefit of a decreased theft

offense classification to offenders like Taylor, and therefore the trial court properly

convicted and sentenced him for a misdemeanor violation.” State v. Taylor,

,

,

. Appellant's theft offense classification

and the operation of H.B. 86 and R.C. 1.58(B) are similar to the circumstances of the

Taylor case. Therefore, he should have been convicted of and sentenced on a -2-

misdemeanor. Appellant’s sentence is hereby vacated, and the case is remanded for

resentencing.

Background

{¶3} On July 5, 2011, Appellant robbed the Rite Aid Pharmacy on

McCartney Road in Youngstown. He took $549 from the cash register and stole a

candy bar. He was indicted for robbery on August 4, 2011. It was later determined

that the proper charge should have been theft, pursuant to R.C. 2913.02, and not

robbery. At the time the theft was committed, R.C. 2913.02(B) stated that the theft of

property worth $500 to $5,000 was a fifth degree felony. If the amount in issue was

less than $500, the crime was a petty theft, a first degree misdemeanor.

{¶4} On September 30, 2011, while the criminal case was still pending, R.C.

2913.02 was amended as part of H.B. 86. The amended law raised the monetary

limit for petty theft to $1,000: “(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 property listed in section 2913.71 of the

Revised Code, a violation of this section is theft, a felony of the fifth degree.”

{¶5} On January 23, 2012, Appellant entered a no contest plea to one count

of theft. The indictment was amended to reflect that the charge was for theft rather

than robbery. At the plea hearing, the parties discussed the impact of R.C. 1.58(B)

on the case, which gives a criminal defendant the benefit of a reduced “penalty,

forfeiture, or punishment” in an amended criminal statute. The parties agreed that -3-

R.C. 1.58(B) required the court to give Appellant the benefit of the reduced penalty

for theft pursuant to H.B. 86. The state argued, though, that Appellant should still be

convicted of a felony, since the crime was classified as a felony at the time it was

committed. The trial judge ultimately agreed, and determined that the conviction

would remain a felony, but that Appellant would be sentenced for misdemeanor theft

based on the operation of R.C. 1.58(B). The sentencing hearing took place on March

9, 2012, and the judgment entry of conviction and sentence was filed on March 13,

2012. The court convicted Appellant of fifth degree felony theft and sentenced him to

two years of community control supervised by the Ohio Adult Parole Authority, with

the first six months spent in the Mahoning County Justice Center, and a $1,000 fine,

which was suspended. The court also imposed three years of post-release control.

This timely appeal followed.

ASSIGNMENT OF ERROR

The Trial Court Erred When it Convicted Appellant of a Fifth-degree

Felony, When the General Assembly Intended the Offense Committed

to Be Categorized as a First Degree Misdemeanor.

{¶6} The issue in this appeal is whether a defendant who committed a theft

offense prior to enactment of H.B. 86, but who is sentenced after the effective date of

H.B. 86, retroactively receives the benefit of the amendment to R.C. 2913.02(B)(2)

reducing the level of the crime from a felony to a misdemeanor. This issue has

recently been reviewed by the Ohio Supreme Court in the Taylor case. Pursuant to -4-

Taylor, we hold that Appellant should have been convicted of and sentenced to a

misdemeanor due to the amendments to R.C. 2913.02 and the effect of R.C. 1.58(B).

{¶7} The matter under review involves a matter of law and is reviewed by us

de novo. State v. Morris,

,

,

, ¶16.

{¶8} There is no question that Appellant committed the crime prior to the

enactment of H.B. 86 and was sentenced after its effective date. There is no

question that, prior to H.B. 86, the theft of $549 constituted a fifth degree felony and

that after its effective date the crime became a first degree misdemeanor, and is now

designated as a petty theft. Both parties contend that R.C. 1.58(B) determines the

outcome of this case. R.C. 1.58(B) states: “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.” In Ohio, when the General Assembly reenacts, amends, or

repeals a criminal statute, the substantive provisions of the former law apply to all

pending prosecutions, but the defendants receive the benefit of a reduced “penalty,

forfeiture, or punishment” in the statute as amended, unless the General Assembly

expresses another intent. State v. Rush,

,

(1998).

R.C. 1.58(B) abrogates the common law, which provided that a crime abated when

the criminal statute was repealed by amending legislation. State v. Lawrence,

, 44,

(1906). Under R.C. 1.58(B), the crime does not abate,

but any reduced penalties are applied retroactively.

{¶9} Appellee argues that R.C. 1.58(B) only gives the defendant the benefit

of a reduced penalty or punishment, rather than a reduction in the degree of the -5-

offense itself. Appellee does not believe that the designation of a theft as a

misdemeanor or felony is part of the penalty, but rather, is part of the substantive

aspect of the crime. In support, Appellee cites State v. Steinfurth, 8th Dist. No.

97549,

, not accepted for review

, 2012-Ohio-

5459,

. Like Appellant, Steinfurth committed his crime prior to the

enactment of H.B. 86, entered into a plea agreement, and was sentenced after the

effective date of the new law. The trial judge entered a conviction for fifth degree

felony theft, but agreed to sentence Steinfurth using the penalties for a first degree

misdemeanor. Steinfurth appealed, arguing that the crime should have been

designated as a misdemeanor due to the change in the law. In its brief analysis of

the issue, the Eighth District primarily relied on R.C. 1.58, and concluded that under

R.C. 1.58(B), Steinfurth was entitled to only a reduced penalty, and that the crime

remained a fifth degree felony because it occurred prior to the effective date of H.B.

86.

{¶10} The reasoning used in Steinfurth was rejected by the Ohio Supreme

Court in Taylor. Taylor shoplifted $550 worth of merchandise from a Sears

department store in Akron, Ohio, and was indicted on fifth-degree felony theft. While

his case was pending, H.B. 86 became effective, decreasing the classification of theft

of property valued under $1,000 to a first-degree misdemeanor. He pleaded no

contest to the charge, and the trial court convicted and sentenced Taylor to a

misdemeanor. The prosecutor filed an appeal, and the Ninth District Court of

Appeals agreed with the prosecutor “that the trial court had properly sentenced

Taylor as a first-degree misdemeanant, but it determined that the court should have -6-

convicted Taylor of a felony, because the General Assembly had not made the

amendments to R.C. 2913.02 retroactive and because it concluded that R.C. 1.58(B)

applies only to the penalty, forfeiture, or punishment for an offense, not to decreases

in classification or degree of offenses.”

. The case was further appealed

to the Ohio Supreme Court.

{¶11} In rejecting the analysis of the Ninth District, the Ohio Supreme Court

reasoned that “the legislature may extend the benefit of lesser penalties and reduced

punishment to those who committed offenses prior to the effective date of legislation.

However, an offender may not benefit from a reduction in the penalty or punishment

when the legislature expressly provides that the amended sentencing provisions

apply only to those offenses committed on or after the effective date of the

enactment.” (Citations omitted.) Id. at ¶13. The court examined the uncodified

notes of H.B. 86 that stated that the amendments to the theft statute applied to

persons “to whom division (B) of section 1.58 of the Revised Code makes the

amendments applicable.” Id. at ¶14. R.C. 1.58(B) provides: “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.” The court held that the statutory

revisions applied to all offenders who had not yet been sentenced, which meant that

both the revised degree of the crime and the revised punishment applied to these

offenders. Id. at ¶17. The court also noted that there was no statutory provision for

convicting someone of a felony but sentencing as though the conviction was a

misdemeanor. Id. at ¶18. -7-

{¶12} Based on the reasoning and holding of Taylor, Appellant's assignment

of error has merit and is sustained.

Conclusion

{¶13} In conclusion, pursuant to Taylor, Appellant is entitled to have the

degree of his offense changed from a fifth degree felony to a first degree

misdemeanor. H.B. 86 specifically states that amendments in H.B. 86 apply to those

who have not yet been sentenced on the effective date of the act. Appellant's crime

became a misdemeanor on the effective date of H.B. 86, well before the date

Appellant was sentenced. Additionally, there is no statutory provision allowing a

court to order a felony conviction but impose a misdemeanor sentence. Since the

judgment entry in this case states that Appellant was convicted of a felony, and

because it imposed a sentence that has aspects of both felony and misdemeanor

sentences, the sentence is vacated and this case is remanded for resentencing. The

trial court should be clear that Appellant is being convicted of, and sentenced on a

misdemeanor theft.

Donofrio, J., concurs.

DeGenaro, P.J., concurs.