State v. Morris

• Decision Date: 19 July 1978
• Docket Number: No. 77-624,77-624
• Citation: 55 Ohio St.2d 101,378 N.E.2d 708,9 O.O.3d 92
• Parties: , 9 O.O.3d 92 The STATE of Ohio, Appellee, v. MORRIS, Appellant.
• Court: Ohio Supreme Court

Page 101

55 Ohio St.2d 101

378 N.E.2d 708, 9 O.O.3d 92

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

No. 77-624.

Supreme Court of Ohio.

July 19, 1978.

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Syllabus by the Court

Under its plenary power to prescribe crimes and penalties, the General Assembly may require by statute that certain courts review past convictions and sentences rendered under repealed criminal laws, and that these courts either abrogate the convictions or sentences where the repealed offenses have no counter-parts in the new laws, or reduce the sentences where the repealed offenses are comparable to newly defined offenses with lesser penalties.

On August 19, 1972, Alan Murray Morris was convicted of possession for sale of a narcotic drug in violation of R.C. 3719.20(A) and of conspiracy in violation of R.C. 3719.20(H). On August 30, 1972, Morris was sentenced to a term of not less than 10 years nor more than 20 years on each count, the sentences to be served concurrently.

On July 31, 1975, Am.Sub.H.B. No. 300 was passed "to revise the drug abuse prevention and control laws of Ohio." Penalties for those engaging in illegal drug trafficking were stiffened, whereas penalties for certain drug offenses were reduced. The Act was approved by the Governor on August 22, 1975, and filed with the Secretary of State that same day. The effective dates of the various portions of the new Act are set forth in Sections 3 and 4.

Section 4 of Am.Sub.H.B. No. 300 provides: "Except as provided in Section 3 of this act, Section 1 and 2 of this act shall take effect on July 1, 1976."

Section 3 of the Act, provides:

"Notwithstanding Section 4 of this act, this section of this act shall become effective at the earliest time permitted by law. Any person charged, convicted, or serving a sentence of imprisonment for an offense under existing law that would not be an offense on the effective date specified in Section 4 of this act shall have the charge dismissed and the conviction abrogated, shall be finally released from imprisonment, and shall have his records expunged of all information concerning that offense. ¹ Any person charged with an offense committed prior to the effective date specified in Section 4 of this act that shall be an offense under this act shall be prosecuted under the law as it existed at the time the offense was committed and any person convicted or serving a sentence of imprisonment for an offense under existing law that would be an offense on the effective date specified in Section 4 of this act but would entail a lesser penalty than the penalty provided for the offense under existing law shall be sentenced according to the penalties provided in this act or have his existing sentence modified in conformity with the penalties provided in this act. ² Such modification shall grant him a final release from imprisonment if he has already completed the period of imprisonment provided under this act or shall render him eligible for parole release from imprisonment if he has completed a period of imprisonment that would render him eligible for parole under the provision of this act.

"Courts * * * shall provide reasonable notice, by publication or otherwise, of the provisions of this section and shall, upon written request from any person so affected by this section, or his attorney, take all action necessary to accomplish the release, modification of sentence, or modification of record required by this section. Such officers * * * may make further modifications of such records as in their opinion are made necessary by this section."

Section 3 of Am.Sub.H.B. No. 300 was to take effect "at the earliest time permitted by law"; I. e., on November 21, 1975, 90 days after the Act was filed by the Governor in the office of the Secretary of State. Section 1c of Article II of the Ohio Constitution.

On November 28, 1975, Morris filed a motion in the Court of Common Pleas to vacate and modify his sentence pursuant to Section 3 of Am.Sub.H.B. No. 300. However, on April 5, 1976, the court denied the motion on the basis that such Section was unconstitutional.

On appeal, the Court of Appeals affirmed the judgment.

The cause is now before this court upon an allowance of a motion for leave to appeal.

Anthony G. Pizza, Pros. Atty., and James D. Bates, Toledo, for appellee.

Hayward, Cooper, Straub, Cramer & Co., L. P. A., John L. Straub, Kaplan & Lehman and Robert Z. Kaplan, Toledo, for appellant.

SWEENEY, Justice.

The central issue in this cause is one of first impression in this state whether the General Assembly, in view of Section 1 of Article IV of the Ohio Constitution, may lawfully enact statutes which, while establishing new elements of crime and corresponding degrees of punishment, provide that those convicted or sentenced under the repealed criminal statutes may obtain the benefits of the newly enacted provisions. In particular, the question arises as to whether the General Assembly may require by statute that the trial court review, upon request of the prisoner, his conviction and sentence rendered under the old drug enforcement provision, and either abrogate the conviction or sentence where the offense for which the prisoner was originally charged has no counterpart in the new law, or reduce the sentence where the offense is comparable to a newly defined offense with a lesser penalty.

It is contended that Section 3 of Am.Sub.H.B. No. 300 infringes on the Governor's power under Section 11 of Article III of the Ohio Constitution to grant reprieves, commutations, and pardons for all crimes excluding treason and cases of impeachment, and the courts' judicial powers granted under Section 1 of Article IV of the Ohio Constitution.

With respect to the issue of whether Section 3 infringes on the Governor's power to pardon and commute sentences, the court must initially determine the scope and nature of the pardoning power and resolve whether such power as granted the Governor under Section 11 of Article III of the Ohio Constitution prevents the General Assembly from enacting legislation general in nature which attempts to reduce or remove prior convictions and sentences rendered under prior law.

In Ohio, the term pardon has been defined as " '* * * an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed.' " "A full and absolute pardon releases the offender from the entire punishment prescribed for his offense, and from all the disabilities consequent on his conviction." State ex rel. Attorney General v. Peters (1885), 43 Ohio St. 629, 650, 4 N.E. 81, 87. See, also, State ex rel. Gordon v. Zangerle (1940), 136 Ohio St. 371, 376-377, 26 N.E.2d 190. In other words, a full pardon not only results in a remission of the punishment and the guilt, but also a remission of the crime itself. Knapp v. Thomas (1883), 39 Ohio St. 377, 381; Peters, supra, 43 Ohio St. at 651, 4 N.E. 81.

Commutation has been defined as "a change of punishment from a higher to a lower degree, in the scale of crimes and penalties fixed by the law." In re Victor (1877), 31 Ohio St. 206, 207.

Included in the concept of pardon is amnesty, which is similar in all respects to a full pardon, insofar as when it is granted both the crime and punishment are abrogated. However, unlike pardons, an amnesty usually refers to a class of individuals irrespective of individual situations. See 1 Bishop on Criminal Law (9 Ed.), 643. Because the exercise of the power to pardon and the power to grant general amnesties render the same result the abrogation of a conviction or reduction of sentence for an individual and are of similar origin, no distinction is generally made between the two. See United States v. Klein (1871), 80 U.S. 128, 147, 20 L.Ed. 519; Weihofen, Legislative Pardons, 27 Cal.L.Rev. 376; Rubin, Law of Criminal Correction (2 Ed.), 667. However, the power to grant general amnesties has been recognized as posited traditionally with the legislative branch. See Brown v. Walker (1896), 161 U.S. 591, 601, 16 S.Ct. 644, 40 L.Ed. 819; State v. Bowman (1907), 145 N.C. 452, 59 S.E. 74; In re Victor, supra, At page 208.

In the instant cause, the General Assembly attempted to apply the new drug enforcement provisions of Am.Sub.H.B.No.300 to those already convicted and sentenced. To the extent that individuals could either have their sentences reduced or their convictions and sentences abrogated, the Act in effect grants pardons and commutations to those convicted and sentenced under the old laws. The question becomes whether the General Assembly may grant general pardons by requiring trial courts to resentence individuals under the new law by comparing the old and new offenses.

In State ex rel. Jackman v. Court of Common Pleas of Cuyahoga County (1967), 9 Ohio St.2d 159, 224 N.E.2d 906, this court set forth a summary of the principles to be employed by this court in determining whether an enactment of the General Assembly is constitutional. The court stated at page 161, 224 N.E.2d at page 908:

"* * * (W)hen an enactment of the General Assembly is challenged, the challenger must overcome a strong presumption of constitutionality."

Citing paragraph one of the syllabus in State ex rel. Dickman v. Defenbacher, Dir. (1955), 164 Ohio St. 142, 128 N.E.2d 59, the Jackman Court noted that unless the legislation and constitutional provisions are clearly incompatible beyond a reasonable doubt, the legislation should not be declared unconstitutional. The court emphasized that the "* * * state Constitution is primarily a Limitation on legislative power of the General Assembly" as opposed to a grant of power and thus, "the General Assembly may pass any law unless it is specifically prohibited by the state or federal Constitutions," or prohibited by a " 'necessary and obvious' implication." Jackman, supra, 9 Ohio St.2d at pages 162-163, 224...