State v. Polus
| Decision Date | 25 February 2016 |
| Docket Number | No. 2014–1062.,2014–1062. |
| Citation | 2016 Ohio 655,145 Ohio St.3d 266,48 N.E.3d 553 |
| Parties | The STATE of Ohio, Appellant, v. POLUS, Appellee. |
| Court | Ohio Supreme Court |
Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellant.
Groth & Associates and Tim A. Dugan, Toledo, for appellee.
Timothy Young, Ohio Public Defender, and Valerie Kunze, Assistant Public Defender, urging affirmance for amicus curiae, Office of the Ohio Public Defender.
{¶ 1} Appellee, Walter Polus, pled guilty to two counts of receiving stolen property, one a fifth-degree felony and the other a first-degree misdemeanor. The Lucas County Court of Common Pleas ordered Polus to serve the sentences imposed for the two offenses consecutively. Polus appealed, and the Sixth District Court of Appeals reversed the part of the trial court's order that imposed the two sentences consecutively. At the request of the state of Ohio, we recognized a conflict, 140 Ohio St.3d 1413, 2014-Ohio-3785, 15 N.E.3d 882, and now consider the following issue: "Whether a trial court may impose consecutive sentences for felony and misdemeanor convictions under R.C. 2929.41(B)(1)."
{¶ 2} We answer the certified question in the negative, affirm the judgment of the court of appeals, and remand the matter to the trial court for further proceedings consistent with this opinion.
{¶ 3} On two occasions, Polus purchased tools that he suspected were stolen and later offered them for sale. The state sought and acquired a grand-jury indictment that charged Polus in February 2013 with two fifth-degree felony counts of receiving stolen property. The state asked the trial court to amend the second count to a first-degree misdemeanor, and in return Polus agreed to plead guilty to those two charges.
{¶ 4} The trial court accepted the guilty pleas to the charges as amended, sentencing Polus to serve an 11–month term in prison for the felony and a six-month term for the misdemeanor. The court ordered Polus to serve the felony and misdemeanor sentences consecutively.
{¶ 5} Thereafter, in a separate case involving other charges, Polus pled guilty to—and was convicted of—two fifth-degree felony counts of receiving stolen property. The court imposed two 11–month prison terms for these convictions and ordered Polus to serve them consecutively to one another and to the terms imposed in the case stemming from the February 2013 indictment. Neither party has raised any issue with the consecutive-sentencing order in the case involving the subsequently filed charges, and we do not address that order.
{¶ 6} Polus appealed to the Sixth District Court of Appeals. He argued that a sentencing order requiring a jail term for a misdemeanor to be served consecutively to a prison sentence for a felony is contrary to R.C. 2929.41(A).1 Consistent with prior decisions from the Sixth District, the court of appeals held that the language of R.C. 2929.41(A) and 2929.41(B)(1) creates an ambiguity that must be construed against the state under R.C. 2901.04(A). 2014-Ohio-2321, 12 N.E.3d 1237, ¶ 15. The court therefore reversed the trial court's sentencing order insofar as the misdemeanor jail term was consecutive to the felony prison sentence and modified the sentence to run the terms of confinement concurrently. Id. at ¶ 23–24. Sua sponte, the court of appeals certified that its holding conflicted with holdings issued by the Fifth and Eighth District Courts of Appeals in State v. Vanmeter, 5th Dist. Fairfield No. 2011–CA–0032, 2011-Ohio-6110, 2011 WL 5904662 ; State v. Varney, 5th Dist. Perry No. 13 CA 00002, 2014-Ohio-193, 2014 WL 260531 ; and State v. Barker, 8th Dist. Cuyahoga No. 99320, 2013-Ohio-4038, 2013 WL 5310168. 2014-Ohio-2321, 12 N.E.3d 1237, at ¶ 18.
{¶ 7} The threshold issue in this matter is whether the statute is ambiguous. In the normal course, statutes mean what they say by their plain language. In re T.R., 120 Ohio St.3d 136, 2008-Ohio-5219, 896 N.E.2d 1003, ¶ 8. "If the language is clear and unambiguous, we must apply the statute as written." Id. When a statute presents an ambiguity, however, the legislature has directed us in R.C. 1.49 to consider several factors to determine legislative intent. In criminal cases, we construe "sections of the Revised Code defining offenses or penalties * * * against the state, and liberally * * * in favor of the accused." R.C. 2901.04(A).
{¶ 8} R.C. 2929.41 states:
(Emphasis added.)
{¶ 9} The court of appeals determined that R.C. 2929.41 is ambiguous because "provision (B)(1) vests the trial court with authority to impose consecutive sentences" while the above-italicized language in R.C. 2929.41(A) "would appear to prohibit consecutive sentences for a felony and misdemeanor unless provision (B)(3) applies." 2014-Ohio-2321, 12 N.E.3d 1237, at ¶ 7. As the court noted and neither party disputes, R.C. 2929.41(B)(3) is inapplicable to this matter.
{¶ 10} We find no ambiguity in R.C. 2929.41 regarding the issue that we resolve today. The first sentence of R.C. 2929.41(A) enacts the general rule requiring concurrent sentencing with only clearly delineated exceptions, including the provisions in R.C. 2929.41(B) and other statutes not applicable to this matter. The second sentence of R.C. 2929.41(A) creates a more specific rule that speaks directly to the certified question in this matter: subject only to the exceptions stated in R.C. 2929.41(B)(3), a trial court must impose concurrent sentences for felony and misdemeanor convictions.
{¶ 11} Our prior authorities regarding R.C. 2929.41 do not control the outcome of this matter, but they do support our determination. The last time we considered this question, we held that " R.C. 2929.41(A) requires that a sentence imposed for a misdemeanor conviction must be served concurrently with any felony sentence." State v. Butts, 58 Ohio St.3d 250, 569 N.E.2d 885 (1991), syllabus. When we decided Butts, the second sentence of R.C. 2929.41(A) stated, " . In 2000, the General Assembly replaced the phrase "[i]n any case" with the phrase "[e]xcept as provided in division (B)(2) of this section." Am.Sub.S.B. No. 22, 148 Ohio Laws, Part IV, 8353, 8389. R.C. 2929.41(B)(2) was renumbered as R.C. 2929.41(B)(3) effective in 2004, Am.Sub.S.B. No. 123, 149 Ohio Laws, Part II, 2467, 2661, and it is substantially the same today. This new language has no effect on our analysis, as it is undisputed that subsection (B)(3) does not apply in this matter as an exception to the general rule in favor of concurrent sentencing.
{¶ 12} Although some lower courts have read R.C. 2929.41(B)(1) to contradict our conclusion, we do not. We must presume that the General Assembly intended every part of the statute to be...
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