[This opinion has been published in Ohio Official Reports at
83 Ohio St.3d 53.]
THE STATE OF OHIO, APPELLANT, v. RUSH, APPELLEE.
THE STATE OF OHIO, APPELLEE, v. MITCHELL, APPELLANT.
THE STATE OF OHIO, APPELLANT, v. TOLER, APPELLANT.
[Cite as State v. Rush, 1998-Ohio-423.]
Statutory construction—Phrase “notwithstanding division (B) of Section 1.58 of
the Revised Code” contained in Section 5 of Am.Sub.S.B. No. 2, as amended
by Section 3 of Am.Sub.S.B. No. 269, cannot be construed as an attempt to
amend R.C. 1.58(B)—Criminal law—Amended sentencing provisions of
Am.Sub.S.B. No. 2 apply only to these crimes committed on or after July 1,
1996—Section 5 of Am.Sub.S.B. No. 2, as amended by Section 3 of
Am.Sub.S.B. No. 269, does not violate constitutional prohibitions against
ex post facto and retroactive legislation.
1. The phrase “notwithstanding division (B) of section 1.58 of the Revised
Code,” contained in Section 5 of Am.Sub.S.B. No. 2 (146 Ohio Laws, Part
IV, 7136) as amended by Section 3 of Am.Sub.S.B. No. 269 (146 Ohio
Laws, Part VI, 11099) cannot be construed as an attempt to amend R.C.
1.58(B).
2. Because the General Assembly has expressly stated that the amended
sentencing provisions of Am.Sub.S.B. No. 2 are applicable only to those
crimes committed on or after its effective date, R.C. 1.58(B) is inapplicable.
The amended sentencing provisions of Am.Sub.S.B. No. 2 apply only to
those crimes committed on or after July 1, 1996.
3. Section 5 of Am.Sub.S.B. No. 2, as amended by Section 3 of Am.Sub.S.B.
No. 269, does not violate the constitutional prohibitions against ex post
facto and retroactive legislation.
(Nos. 97-1778, 97-2121, 97-2123 and 97-2266—Submitted May 27, 1998—
SUPREME COURT OF OHIO
Decided August 19, 1998.)
APPEAL from the Court of Appeals for Stark County, No. 96CA419.
APPEAL from and CERTIFIED by the Court of Appeals for Franklin County, No.
97APA03-351.
CERTIFIED by the Court of Appeals for Hamilton County, No. C-960835.
__________________
{¶ 1} The consolidated cases under consideration, though factually diverse,
involve a single legal issue. Johnnie D. Rush, Brian K. Mitchell, and Nathaniel
Toler (“defendants”) committed offenses prior to the July 1, 1996 effective date of
Am.Sub.S.B. No. 2 (“S.B. 2”), 146 Ohio Laws, Part IV, 7136, for which they were
sentenced after the effective date. Each claims entitlement to be sentenced pursuant
to the amended provisions contained in S.B. 2, rather than the sentencing guidelines
in effect at the time he committed his offense.
{¶ 2} Courts throughout the state have rendered conflicting decisions
regarding the applicability of S.B. 2’s amended sentencing provisions.1 Of the
cases currently before this court, both the First and Fifth Appellate Districts have
determined that the terms of S.B. 2 apply to those defendants awaiting sentencing
as of July 1, 1996. The Tenth District Court of Appeals reached the opposite
conclusion, holding the terms of S.B. 2 inapplicable to all defendants who
committed crimes prior to July 1, 1996, regardless of their sentencing status as of
that date.
1. See State v. Lawrence (Oct. 29, 1997), Summit App. No. 18298, unreported, 1997 WL 775766;
State v. Toler (Sept. 19, 1997), Hamilton App. No. C-960835, unreported,
1997 WL 603218; State
v. Mitchell (Sept. 4, 1997), Franklin App. No. 97APA03-351, unreported,
1997 WL 559463; State
v. Mills (Aug. 29, 1997), Wood App. No. WD-97-012, unreported,
1997 WL 543067; State v. Rush
(July 7, 1997), Stark App. No. 96CA419, unreported,
1997 WL 930151; State v. Vance (June 27,
1997), Clark App. No. 96-CA-84, unreported,
1997 WL 351281; State v. Cox (Apr. 28, 1997),
Warren App. Nos. CA96-07-069 and CA96-08-075, unreported,
1997 WL 208116; State v. Jenkins
(Feb. 11, 1997), Lawrence App. No. 96CA40, unreported,
1997 WL 66764.
2
January Term, 1998
{¶ 3} Case Nos. 97-1778 and 97-2121 are before this court upon the
allowance of a discretionary appeal. Case Nos. 97-2123 and 97-2266 are before
this court upon our determination that a conflict exists.
__________________
Robert D. Horowitz, Stark County Prosecuting Attorney, Frederic R. Scott
and Ronald Mark Caldwell, Assistant Prosecuting Attorneys, for appellant state of
Ohio in case No. 97-1778.
David H. Bodiker, Ohio Public Defender, and Jill E. Stone, Assistant Public
Defender, for appellee Johnnie D. Rush in case No. 97-1778.
Ronald J. O’Brien, Franklin County Prosecuting Attorney, and Steven L.
Taylor, Assistant Prosecuting Attorney, for appellee state of Ohio in case Nos. 97-
2121 and 97-2123.
Judith M. Stevenson, Franklin County Public Defender, and Allen V. Adair,
Assistant Public Defender, for appellant Brian K. Mitchell in case Nos. 97-2121
and 97-2123.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sherry
Green, Assistant Prosecuting Attorney, for appellant state of Ohio in case No. 97-
2266.
W. Michael Kaiser, for appellee Nathaniel Toler in case No. 97-2266.
Kura & Wilford Co., L.P.A., and Barry W. Wilford, urging affirmance in
case No. 97-1778 for amicus curiae Ohio Association of Criminal Defense
Lawyers.
Maureen O’Connor, Summit County Prosecuting Attorney, and Paul
Michael Maric, Assistant Prosecuting Attorney, urging reversal in case No. 97-
1778 for amicus curiae Ohio Prosecuting Attorneys Association.
__________________
3
SUPREME COURT OF OHIO
COOK, J.
{¶ 4} Today we decide the following issue: whether the amended
sentencing provisions of S.B. 2 are applicable to those defendants who committed
crimes prior to, but were convicted after, its July 1, 1996 effective date. We
conclude that the S.B. 2 sentencing provisions are inapplicable to those defendants.
STATUTORY ANALYSIS
{¶ 5} With the passage of S.B. 2, the General Assembly effected significant
changes in Ohio’s criminal code, modifying the classifications of criminal offenses
and corresponding sentences. See 146 Ohio Laws, Part IV, 7136; Legislative
Service Commission Analysis of Sub.S.B. No. 2, Parts II and V (1995). Ostensibly,
S.B. 2 reduces the terms of imprisonment for many offenses from those possible
under the former statutory scheme.2 As a result, persons convicted of crimes for
which the term of imprisonment is seemingly reduced have attempted to obtain
sentencing under what they consider the more favorable S.B. 2 terms.
{¶ 6} The defendants claim that R.C. 1.58(B) mandates that criminal
offenders awaiting sentencing when S.B. 2 became effective on July 1, 1996, and
whose potential sentences are reduced by S.B. 2, are entitled to the shorter sentence
although their offenses were committed before S.B. 2’s effective date. The instant
dispute arises because the General Assembly specifically stated that all defendants
who committed crimes before July 1, 1996, shall be sentenced under the law in
2. The state contends that the provisions of S.B. 2 do not necessarily result in reduced sentences.
While under the old sentencing scheme, a defendant might receive a longer term of incarceration,
that longer term was often indefinite and could be reduced by “good time” credit. See, e.g., former
R.C. 2929.11 (143 Ohio Laws, Part I, 1433). See, also, former R.C. 2929.01(C) (145 Ohio Laws,
Part II, 2088-2089) and 2967.19(A) (145 Ohio Laws, Part IV, 6437) (reduction for good behavior).
Under the new provisions, although a defendant’s sentence may be shorter than the maximum
indefinite sentence under the former scheme, it is a period of actual incarceration not subject to
reduction for “good time” and subject to extension for bad behavior. See, e.g., R.C. 2929.14
(extension for bad behavior). See, also, R.C. 2929.01(B) and 2967.11(B), as enacted by S.B. 2;
R.C. 2967.19, repealed by S.B. 2 (reduction for good behavior). Thus, the state persuasively asserts
that these variables will in many instances make it difficult, if not impossible, to calculate whether
a defendant’s sentence would truly be reduced under the terms of S.B. 2.
4
January Term, 1998
existence at the time of the offense, “notwithstanding division (B) of section 1.58
of the Revised Code.” Section 3, Am.Sub.S.B. No. 269, 146 Ohio Laws, Part IV,
11099, amending Section 5 of S.B. 2.
{¶ 7} The defendants in the cases at bar maintain that R.C. 1.58(B) confers
a vested right to elect sentencing under the new, more lenient statute, and that the
“notwithstanding” language is an attempt to circumvent that right.3 That is, the
defendants contend that the “notwithstanding” language is an attempted
amendment of R.C. 1.58(B) that fails by virtue of its procedural shortcomings.
Claiming that the General Assembly failed to comply with Ohio’s constitutional
requirements in an unsuccessful attempt to limit R.C. 1.58(B) by amendment, the
defendants argue that R.C. 1.58(B) governs this sentencing controversy.
{¶ 8} Contrary to the defendants’ assertion, R.C. 1.58(B) does not create a
vested right to be sentenced according to amended laws: it is a general rule of
statutory construction. 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.”
{¶ 9} Prior to its effective date, the General Assembly amended Section 5
of S.B. 2 to emphasize that its provisions apply only to crimes committed on or
after July 1, 1996, “notwithstanding division (B) of section 1.58 of the Revised
Code[.]” Section 3, Am.Sub.S.B. No. 269, 146 Ohio Laws Part VI, 11099 (“S.B.
269”). The defendants contend that this “notwithstanding” language is an
unconstitutional attempt to amend R.C. 1.58(B) by frustrating its purpose. Because
3. Rush states that he and others like him should be able to elect which law they wish to be sentenced
under. Were we to hold R.C. 1.58(B) applicable in this case, the defendants would not be entitled
to an “election.” R.C. 1.58(B) does not provide for a choice by the defendant. Rather, it states that
the sentence “shall be imposed according to the statute as amended.” (Emphasis added.) As a result,
the trial court would be required to impose sentences in accordance with S.B. 2 should the S.B. 2
terms constitute a reduction.
5
SUPREME COURT OF OHIO
the defective language must be removed from the statute, the defendants argue that
R.C. 1.58(B) applies to S.B. 2 despite the General Assembly’s articulation
otherwise. See, e.g., State ex rel. Hinkle v. Franklin Cty. Bd. of Elections (1991),
62 Ohio St.3d 145, 149,
580 N.E.2d 767, 770 (the “offending portion” of the bill is
severed to cure the defect). See, also, Section 15(D), Article II, Ohio Constitution.
{¶ 10} The crux of this case, then, is whether the General Assembly’s
addition of the “notwithstanding” language effects an amendment of R.C. 1.58(B).
It does not. Instead, it is a clarification of the General Assembly’s intent that the
terms of S.B. 2 be applied only to those persons committing crimes on or after July
1, 1996. Furthermore, it was in fact an unnecessary clarification.
{¶ 11} “It is axiomatic that the General Assembly is lodged with the power
to define, classify and prescribe punishment for crimes committed within the state.”
State v. Young (1980), 62 Ohio St.2d 370, 392,
16 O.O.3d 416, 429,
406 N.E.2d
499, 512 (Locher, J., dissenting). See, also, State v. Morris (1978),
55 Ohio St.2d
101, 112,
9 O.O.3d 92, 98,
378 N.E.2d 708, 715. It is the General Assembly, of
course, that possesses authority to determine the effective dates of enactments
passed pursuant to its legislative powers. See, e.g., State ex rel. Ach v. Evans
(1914),
90 Ohio St. 243, 247,
107 N.E. 537, 538; State ex rel. Clark v. Brown
(1965),
1 Ohio St.2d 121, 125-126,
30 O.O.2d 478, 481,
205 N.E.2d 377, 381-382.
In the instant case, the original language expressed the General Assembly’s intent
that the provisions of S.B. 2 be applied only to crimes committed on or after its
effective date.4 The “notwithstanding” language added by Section 3 of S.B. 269 is
no more than a redundant expression of this aim.
4. In its original, unamended form, Section 5 of S.B. 2 read as follows:
“The provisions of the Revised Code in existence prior to July 1, 1996, shall apply to a
person upon whom a court imposed a term of imprisonment prior to that date and to a person upon
whom a court, on or after that date and in accordance with the law in existence prior to that date,
imposed a term of imprisonment for an offense that was committed prior to that date.
6
January Term, 1998
{¶ 12} The language at issue does not alter or modify R.C. 1.58(B). It
eliminates uncertainty as to S.B. 2’s effective date by distinctly resolving any
perceived conflict between Section 5 of S.B. 2 and R.C. 1.58(B). The phrase
“notwithstanding division (B) of section 1.58 of the Revised Code” communicates
the General Assembly’s proactive purpose by arresting R.C. 1.58(B)’s operation in
this instance. The language defines the time, as chosen by the General Assembly,
at which the new provisions of S.B. 2 are to be applied and prior to which they are
of no effect. R.C. 1.58(B) remains operable and unchanged for future application.
{¶ 13} More important, however, this express statement by the General
Assembly was unnecessary. R.C. 1.51 provides that if the conflict between a
special provision and a general provision of the code is irreconcilable, the special
provision “prevails as an exception to the general provision, unless the general
provision is the later adoption and the manifest intent is that the general provision
prevail.” See, also, R.C. 1.52 (if irreconcilable conflict exists, the later enacted
statute prevails). In this case, the irrefutable “manifest intent” is that S.B. 2 prevail.
Thus, the original language of Section 5 of S.B. 2, a later enacted specific provision,
was sufficient to ensure that the sentencing terms of S.B. 2 would apply only to
crimes committed on or after its effective date despite R.C. 1.58(B), a previously
enacted general rule of construction. See, e.g., Bellian v. Bicron Corp. (1994), 69
Ohio St.3d 517, 519,
634 N.E.2d 608, 610; State ex rel. Dublin Securities, Inc. v.
Ohio Div. of Securities (1994),
68 Ohio St.3d 426, 429-431,
627 N.E.2d 993, 996-
997; State v. Chippendale (1990),
52 Ohio St.3d 118, 120-123,
556 N.E.2d 1134,
1136-1137. The “notwithstanding” language later added to S.B. 2 is a thorough,
“The provisions of the Revised Code in existence on and after July 1, 1996, apply to a
person who commits an offense on or after that date.” 146 Ohio Laws, Part VI, 7810.
7
SUPREME COURT OF OHIO
yet superfluous, elucidation of the General Assembly’s intent that the special
provision control.5
{¶ 14} Based upon the foregoing, we hold that the phrase “notwithstanding
division (B) of section 1.58 of the Revised Code,” contained in Section 5 of S.B. 2
as amended by Section 3 of S.B. 269, cannot be construed as an attempt to amend
R.C. 1.58(B). Because the General Assembly has expressly stated that the amended
sentencing provisions of S.B. 2 are applicable only to those crimes committed on
or after its effective date, R.C. 1.58(B) is inapplicable. The amended sentencing
provisions of S.B. 2 apply only to those crimes committed on or after July 1, 1996.
EX POST FACTO AND RETROACTIVITY ANALYSIS
{¶ 15} Mitchell and Rush also argue that the prospective application of S.B.
2’s sentencing provisions is a violation of the constitutional prohibitions against ex
post facto and retroactive legislation. See Section 10, Article I, United States
Constitution; Section 28, Article II, Ohio Constitution. Although not properly
raised below, in criminal cases this court may “consider constitutional challenges
to the application of statutes in specific cases of plain error or where the rights and
interests involved may warrant it.” In re M.D. (1988), 38 Ohio St.3d 149,
527
N.E.2d 286, syllabus. Because Mitchell and Rush now present, albeit in tardy
fashion, a constitutional argument in a criminal case that if correct would indicate
that plain error occurred, we will address the issue. That it is an argument without
merit further supports consideration of the matter in the interest of judicial
5. Mitchell also contends that R.C. 2901.04(A), which states that criminal code sections defining
offenses or penalties are to be construed strictly against the state and liberally in favor of the accused,
requires us to hold R.C. 1.58(B) applicable. This codified rule of construction is pertinent where
statutory language is ambiguous and requires further interpretation: it is inapposite here. See, e.g.,
State v. Flontek (1998),
82 Ohio St.3d 10,
693 N.E.2d 767; Freedom Rd. Found. v. Ohio Dept. of
Liquor Control (1997),
80 Ohio St.3d 202, 205,
685 N.E.2d 522, 525, fn. 1; State v. Quisenberry
(1994),
69 Ohio St.3d 556,
634 N.E.2d 1009. In this case, there is no ambiguity. To the contrary,
we are faced with two unambiguous provisions that appear to be in direct conflict.
8
January Term, 1998
economy. See State v. Campbell (1994), 69 Ohio St.3d 38, 41,
630 N.E.2d 339,
345, fn. 2.
{¶ 16} Section 10, Article I of the United States Constitution forbids state
legislatures from passing any “ex post facto Law.” “[T]he Clause is aimed at laws
that ‘retroactively alter the definition of crimes or increase the punishment for
criminal acts.’ ” California Dept. of Corrections v. Morales (1995), 514 U.S. 499,
504,
115 S.Ct. 1597, 1601,
131 L.Ed.2d 588, 594, quoting Collins v. Youngblood
(1990),
497 U.S. 37, 41-43,
110 S.Ct. 2715, 2718-2719,
111 L.Ed.2d 30, 39.
Beazell v. Ohio (1925),
269 U.S. 167, 169-170,
46 S.Ct. 68, 68-69,
70 L.Ed. 216,
217.
{¶ 17} Contrary to what Rush and Mitchell maintain, our ex post facto
inquiry does not focus “on whether a legislative change produces some ambiguous
sort of ‘disadvantage[.]’ ” Morales, 514 U.S. at 506,
115 S.Ct. at 1602,
131 L.Ed.2d
at 595, fn. 3. Legislation violates the Ex Post Facto Clause if it makes a previously
innocent act criminal, increases the punishment for a crime after its commission,
or deprives the accused of a defense available at the time the crime was committed.
Collins at 42,
110 S.Ct. at 2719,
111 L.Ed.2d at 39.
{¶ 18} Rush and Mitchell contend that by creating an exception to R.C.
1.58(B) and thereby making the terms of S.B. 2 prospective only, the General
Assembly engaged in unconstitutional retroactive legislation. Bearing in mind the
Supreme Court’s clear explanation of what constitutes impermissible ex post facto
lawmaking, however, the General Assembly’s prescript that S.B. 2 apply only to
crimes committed on or after its effective date evades the prohibition. See State v.
Smith (1997), 80 Ohio St.3d 89, 101,
684 N.E.2d 668, 683; State v. Wickline (1996),
74 Ohio St.3d 369, 371,
658 N.E.2d 1052, 1054 (applying ex post facto analysis to
judicial precedent).
{¶ 19} The General Assembly did not increase the relevant criminal
penalties by making S.B. 2 a prospective law. The penalties applicable to Rush,
9
SUPREME COURT OF OHIO
Mitchell, and Toler remain unchanged from the time each committed his crime.
Accordingly, S.B. 2 does not, as Rush suggests, “inflict[ ] a greater punishment
than the law annexed to the crime when committed.”
{¶ 20} The argument that prospective application of S.B. 2 violates the
prohibition against retroactive legislation found in Section 28, Article II of the Ohio
Constitution is equally untenable. As with their ex post facto argument, Rush and
Mitchell claim that because S.B. 2 expressly applies only to crimes committed on
or after its effective date, it retroactively extinguishes their R.C. 1.58(B) right to
reduced sentences.
{¶ 21} “[T]he issue of whether a statute may constitutionally be applied
retrospectively does not arise unless the General Assembly has specified that the
statute so apply.” Sturm v. Sturm (1992), 63 Ohio St.3d 671, 673,
590 N.E.2d 1214,
1215, fn. 2, citing Van Fossen v. Babcock & Wilcox Co. (1988),
36 Ohio St.3d 100,
106,
522 N.E.2d 489, 495. In this instance, the General Assembly has specified
S.B. 2 to be a prospective law applicable only to those crimes committed on or after
July 1, 1996. This choice of a bright-line, prospective-only operation is not
constitutionally prohibited retroactive legislation that takes away a vested right or
imposes a new disability. See State ex rel. Matz v. Brown (1988),
37 Ohio St.3d
279, 281-282,
525 N.E.2d 805, 807-808; Van Fossen,
36 Ohio St.3d at 106,
522
N.E.2d at 495. “[T]o adopt defendant[s’] position would be to freeze law in time
and to never allow amendments to the criminal justice system.” State v. Smith,
80
Ohio St.3d at 101, 684 N.E.2d at 682 (applying equal protection analysis to the
constitutional amendment eliminating from the jurisdiction of the courts of appeals
the review of capital appeals). Simply put, the legislation at issue falls outside the
defined parameters of prohibited retroactive legislation.
{¶ 22} Accordingly, we hold that Section 5 of S.B. 2, as amended by
Section 3 of S.B. 269, does not violate the constitutional prohibitions against ex
post facto and retroactive legislation.
10
January Term, 1998
DISPOSITIONS
{¶ 23} In case No. 97-1778 (Johnnie D. Rush), the judgment of the Stark
County Court of Appeals is reversed and the original sentence imposed by the trial
court is reinstated. In case Nos. 97-2121 and 97-2123 (Brian K. Mitchell), the
judgment of the Franklin County Court of Appeals is affirmed. In case No. 97-
2266 (Nathaniel Toler), the judgment of the Hamilton County Court of Appeals is
reversed and the original sentence imposed by the trial court is reinstated.
Judgment accordingly.
MOYER, C.J., and LUNDBERG STRATTON, J., concur.
F.E. SWEENEY, J., concurs in the syllabus and judgment.
DOUGLAS, RESNICK and PFEIFER, JJ., concur in judgment only.
__________________
11
