State v. Arnold, s. 90-296

• Decision Date: 24 July 1991
• Docket Number: Nos. 90-296,90-306,s. 90-296
• Citation: 573 N.E.2d 1079,61 Ohio St.3d 175
• Parties: The STATE of Ohio, Appellee, v. ARNOLD, Appellant. The STATE of Ohio, Appellee, v. DICKEY, Appellant.
• Court: Ohio Supreme Court

Page 175

61 Ohio St.3d 175

573 N.E.2d 1079

The STATE of Ohio, Appellee, v. ARNOLD, Appellant.

The STATE of Ohio, Appellee, v. DICKEY, Appellant.

Nos. 90-296, 90-306.

Supreme Court of Ohio.

Submitted June 4, 1991.

Decided July 24, 1991.

SYLLABUS BY THE COURT

Where a defendant has been convicted of trafficking in drugs in violation of R. C. 2925.03(A), the indefinite term of imprisonment prescribed by R.C. 2929.11(B) is imposed in addition to a period of actual incarceration prescribed by R.C. 2925.03(C). (R.C. 2925.03 and 2929.11, construed; State v. Smith [1989], 42 Ohio St.3d 60, 537 N.E.2d 198, followed.)

In the instant cases, we are asked to review the propriety of the prison sentences imposed in two separate prosecutions. These cases involve identical legal issues, and have been consolidated for decision. State v. Arnold

No. 90-296

Appellant William Arnold was indicted by the Lucas County Grand Jury on three counts of aggravated trafficking in drugs in violation of R.C. 2925.03(A)(1) and (5). ¹ As part of an apparent plea agreement, Arnold pled guilty to one count of aggravated trafficking in violation of R.C. 2925.03(A)(5). He was sentenced to a three-to-fifteen year indefinite term of imprisonment pursuant to R.C. 2929.11(B) with a three-year period of actual incarceration pursuant to R.C. 2925.03(C)(5).

Arnold appealed, contending that he should serve only a three-year sentence because R.C. 2925.03(C)(5) supersedes R.C. 2929.11. The Court of Appeals for Lucas County affirmed. Finding its judgment to be in conflict with the judgment in State v. Russo (Feb. 25, 1988), Cuyahoga App. No. 53571, unreported, 1988 WL 22800, the court of appeals certified the record of the case to this court for review and final determination.

State v. Dickey

No. 90-306

The Summit County Grand Jury returned two indictments totalling twenty-four counts, charging appellant Randall K. Dickey with various offenses relating to the sale of drugs. As part of a plea agreement, Dickey pled guilty to seven counts of the indictment: four counts of aggravated trafficking in violation of R.C. 2925.03(A)(1), one count of aggravated trafficking in violation of R.C. 2925.03(A)(6), one count of aggravated trafficking in violation of R.C. 2925.03(A)(7), and one of engaging in a pattern of corrupt activity. Sixteen counts were dismissed, and Dickey was tried and acquitted on the remaining count.

Dickey was sentenced to six concurrent indefinite terms of imprisonment on the drug charges: four terms of five to fifteen years on the R.C. 2925.03(A)(1) counts, one term of five to fifteen years with a five-year term of actual imprisonment on the R.C. 2925.03(A)(6) count, and one term of seven to twenty-five years with a seven-year term of actual imprisonment on the R.C. 2925.03(A)(7) count. He appealed these sentences on similar grounds to those advanced by Arnold. The Court of Appeals for Summit County affirmed, and also certified its judgment as conflicting with State v. Russo, supra.

Anthony G. Pizza, Pros. Atty., and Lawrence J. Kiroff, for appellee state of Ohio in No. 90-296.

Lynn C. Slaby, Pros. Atty., Philip D. Bogdanoff and Maureen C. Hardy, for appellee state of Ohio in No. 90-306.

Gordon A. Senerius, for appellant Arnold in No. 90-296.

Cook, Davis & Briggs Co., L.P.A., Lawrence J. Cook and Marcus M. Lombardi, for appellant Dickey in No. 90-306.

HERBERT R. BROWN, Justice.

For the reasons which follow, we hold that the provisions of R.C. 2925.03(C), which require a sentence of actual incarceration for trafficking in drugs, do not supersede the felony sentencing provisions of R.C. 2929.11. We affirm the judgments of the courts below.

R.C. 2929.11(B), a part of the general felony sentencing statute, lists the penalties to be imposed for each class of felony, "[e]xcept as provided in * * * Chapter 2925. of the Revised Code * * *." R.C. 2925.03, the part of R.C. Chapter 2925 at issue here, stated, at the time relevant herein, in pertinent part:

"(C) If the drug involved is any compound * * * included in schedule I with the exception of marihuana or in schedule II, ² whoever violates this section is guilty of aggravated trafficking.

"(1) Where the offender has violated division (A)(1) of this section, aggravated trafficking is a felony of the third degree, and if the offender has previously been convicted of a felony drug abuse offense, aggravated trafficking is a felony of the second degree.

" * * *

"(5) Where the offender has violated division (A)(5) or (A)(6) of this section, aggravated trafficking is a felony of the second degree and the court shall impose a sentence of actual incarceration of three years and if the offender has previously been convicted of a felony drug abuse offense, aggravated trafficking is a felony of the first degree, and the court shall impose a sentence of actual incarceration of five years.

"(6) Where the offender has violated division (A)(7) of this section, aggravated trafficking is a felony of the first degree and the court shall impose a sentence of actual incarceration of five years and if the offender has previously been convicted of a felony drug abuse offense, the court shall impose a sentence of actual incarceration of seven years. * * * "

Citing State v. Russo (Feb. 25, 1988), Cuyahoga App. No. 53571, unreported, 1988 WL 22800, appellants argue that R.C. 2925.03 overrides R.C. 2929.11, by virtue of the express language of R.C. 2929.11(B). Further, appellants assert the principle of statutory construction found in R.C. 1.51, that special provisions prevail over conflicting general provisions. To the extent that R.C. 2925.03(C) provides for a specific term of actual incarceration for a violation of R.C. 2925.03(A), ³ appellants contend that this is the only penalty which may be imposed.

We disagree. While we are required to strictly construe statutes defining criminal penalties against the state, see R.C. 2901.04(A), this "rule of lenity" applies only where there is ambiguity in or conflict between the statutes. Here, the language of the two statutes indicates not that they conflict, but that the legislature intended both to apply.

R.C. 2925.03(C)(5) provides that a first offense of aggravated trafficking in violation of subdivisions (A)(5) and (6) is both a second-degree felony and punishable by three years of actual incarceration. The phrase "felony of the second degree" has only one purpose in R.C. Title 29: to indicate which provision of R.C. 2929.11(B) sets forth the punishment for that particular crime. If, as the appellants contend, R.C. 2929.11 were inapplicable to violations of R.C. 2925.03(A), there would be no need to include this language. It is a cardinal rule of statutory construction that " ' * * * [a statute] shall be * * * expounded, if practicable, as to give some effect to every part of it.' " (Emphasis deleted.) Turley v. Turley (1860), 11 Ohio St. 173, 179; see, also, R.C. 1.49(B). Appellants' interpretation would render much of R.C. 2925.03(C) meaningless.

The exception in R.C. 2929.11(B) for crimes...