State v. Flahive

¶1 dissenting.

¶2 Although I agree that Flahive deserves the prison term imposed by the trial court, I cannot accept the majority’s analysis with respect to the applicability of *36 R.C, 2929.13(B)(1)(d). Because I cannot, unfortunately, find any other statutory sentencing factors applicable to Flahive’s offenses, I must dissent.

¶3 For Flahive to be eligible for a prison term, it is beyond dispute that he must satisfy the criteria in R.C. 2929.13(B)(1)(d) or one or more of the other sentencing factors in R.C. 2929.13(B)(1)(a) through (h). The factor chosen by the trial court, and, indeed, the only one to arguably apply, is that contained in subsection (b)(1)(d), which requires either (1) that the offender held “a public office or position of trust,” (2) that the offender held a position that obliged him to prevent the offense, or (3) that the offender’s “professional reputation or position” facilitated the offense.

¶4 The majority implicitly concludes that, as a cashier or clerk, Flahive did not hold a public “position of trust” under the. first of the three clauses of R.C. 2929.13(B)(1)(d). I fully agree. The reason I agree is that I believe the word “public” modifies both “office” and “position of trust.” Because a hotel or supermarket clerk holds neither a public office nor a “[public] position of trust,” this factor clearly does not apply to him.

¶5 I do not agree, however, with the majority’s conclusion that Flahive’s offense satisfies the language of the third clause of R.C. 2929.13(B)(1)(d), which requires that the “offender’s professional reputation or position” facilitated his crimes. Just as “public” modifies both “official” and “position” in the first clause, I believe that “professional” modifies both “reputation” and “position” in the third clause. Thus, in order for Flahive to satisfy this criterion, one would have to conclude that the job of supermarket or hotel clerk fits the definition of a “professional position” as that term is commonly defined. According to Black’s Law Dictionary, a profession is “[a] vocation or occupation requiring special, usually advanced, education and skill; e.g., law or medical professions.” (Emphasis supplied.) Black’s Law Dictionary (5 Ed.1979) 1089. Without impugning the merits of either job, I simply cannot find that a hotel or supermarket clerk meets this definition.

¶6 Significantly, comparable language in R.C. 2929.12(B)(5) requires that “[t]he offender’s professional reputation or occupation, elected office, or profession was used to facilitate the offense” in order to find the offense more serious. While inartfully worded, I believe this language only underscores the legislative intent to make more serious an offense in which a member of a respected profession— such as a doctor or lawyer, accountant or broker — abuses the special nature of the professional relationship to facilitate a crime. Such an abuse of one’s professional status would certainly make the crime more egregious. Under the majority’s analysis, on the other hand, every crime made possible by one’s occupation, no matter how lowly, becomes an imprisonable offense. Such a result *37 runs directly counter to the intent of the General Assembly in R.C. 2929.13(B)(1)(d), which was to limit, not expand, prison terms for fourth- and fifth-degree felonies. 6

¶7 In State v. Wilson (1997), 77 Ohio St.3d 334, 336, 673 N.E.2d 1347, 1349, the Ohio Supreme Court set forth the following principle of statutory construction: “In looking to the face of a statute or Act to determine legislative intent, significance and effect should be accorded every word, phrase, sentence and part thereof, if possible.” At the very least, the sentencing factor in R.C. 2929.13(B)(1)(d) is ambiguous, as it applies generally to offenders holding a position of trust or using their occupation to facilitate a crime. In such a circumstance, R.C. 2901.04(A) provides that “penalties shall be strictly construed against the state, and liberally construed in favor of the accused.”

¶8 I find that the evidence is clearly and convincingly insufficient to support a finding under R.C. 2929.13(B)(1)(d). Accordingly, because no other sentencing factors apply, Flahive was not legally eligible for imposition of a prison sentence and was eligible only for one of the non-prison terms in R.C. 2929.15 through 2929.18 that is consistent with R.C. 2929.13(B)(2)(b). See Anderson’s Ohio Criminal Practice & Procedure (3 Ed.1997), Senate Bill 2 and Senate Bill 269 Outline, Sections V(A)(3), (B), and (C).