[Cite as State v. Lay,
2012-Ohio-5102.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
STATE OF OHIO :
: Appellate Case No. 2011-CA-29
Plaintiff-Appellee :
: Trial Court Case Nos. 05-CR-215
v. : Trial Court Case Nos. 05-CR-251
: Trial Court Case Nos. 05-CR-51
JERRY R. LAY :
: (Criminal Appeal from
Defendant-Appellant : (Common Pleas Court)
:
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OPINION
Rendered on the 2nd day of November, 2012.
...........
NICK SELVAGGIO, Atty. Reg. #0055607, Champaign County Prosecutor’s Office, 200
North Main Street, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
JERRY R. LAY, #456-077, Chillicothe Correctional Institution, Post Office Box 5500,
Chillicothe, Ohio 45601
Defendant-Appellant, pro se
.............
FAIN, J.
{¶ 1} Defendant-appellant Jerry R. Lay appeals from a November 14, 2011 order
denying his motion to modify his sentence imposed in 2006 for eight counts of Gross Sexual
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Imposition, to which he had pled guilty. Lay contends that the trial court erred by failing to
apply the provisions of 2011 H.B. 86, which amended various provisions pertaining to
criminal sentencing.
{¶ 2} 2011 H.B. 86 does not apply to a sentence, like this one, that was imposed
before the effective date of the statute. Therefore, the trial court did not err by declining to
apply H.B. 86. The order of the trial court from which this appeal is taken is Affirmed.
I. The Proceedings in 2006
{¶ 3} In January 2006, Lay pled guilty to eight counts of Gross Sexual Imposition,
all felonies of the third degree. Six other counts, the nature of which we cannot determine
from this record, were dismissed. Also, the State agreed to delete from each of the counts to
which Lay pled guilty the fact that he had a prior conviction. The offenses to which Lay pled
guilty occurred during the period from 1993 through 1996.
{¶ 4} Both Lay and the State agreed, on the record, “that sentencing will occur
under the old section 2929.11(D)(1) [presumably the version of the statute in effect when the
offenses were committed] which would allow for a possible one, one and a half or two year
sentence on each of the eight counts.”
{¶ 5} Three days later, Lay appeared for sentencing. The parties and the trial court
had reviewed a pre-sentence investigation report. The trial court classified Lay as a sexual
predator, and sentenced him to two years on each of seven of the counts, and one year on the
remaining count, all to be served consecutively, for a total sentence of fifteen years. The trial
court also ordered this sentence to be served consecutively to a sentence Lay was then serving
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in another case. The trial court observed “that Defendant’s prison stay and return to society
will be through the Adult Parole Authority based on parole provisions,” and both parties
agreed with that statement.
II. The Proceedings in 2011
{¶ 6} In November 2011, Lay filed a “Petition to Modify and/or Reduce Sentence
Pursuant to R.C. §1.58 & §1.52, HB 86.” In the order from which this appeal is taken, the
trial court noted that Lay was requesting that the trial court order his sentences to be served
concurrently, rather than consecutively, relying upon 2011 H.B. 86.
{¶ 7} The trial court denied the petition, finding “that H.B. 86 does not affect the
imposition of consecutive sentences in Defendant’s case.” From the denial of his petition,
Lay appeals.
III. Because Lay’s Sentence Was Imposed Before 2011 H.B. 86
Became Effective, It Has No Application to Him
{¶ 8} Lay’s sole assignment of error is as follows:
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN RULING
HOUSE BILL 86 IS NO [sic] RETROACTIVE.
{¶ 9} Lay appears to be arguing that as a result of 2011 H.B. 86, the trial court could
not impose consecutive sentences without making the findings required by R.C.
2929.14(C)(4). We disagree.
{¶ 10} When Lay was sentenced, on January 20, 2006, the trial court asserted that it
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was not required to make any particular findings, but nevertheless made the following
findings:
The Court finds that the offenses here are the result of circumstances likely to
recur. The Court finds victim of the offense did not induce or facilitate the offense.
The Court finds that there are no substantial grounds tending to excuse or justify the
offenses. The Court finds that there was no strong provocation that caused the
Defendant to offend. The Court finds that Defendant has a history of criminal
activity.
…
The Court finds that each of the sentences shall be conserved [sic]
consecutively to each other and consecutive to the current Clark County case.
The Court makes the finding of consecutive sentence based on all the
circumstances that have previously been announced.
The Court finds that such a sentence as set forth by the Court is necessary to
protect the public, punish the Defendant, is not disproportionate to the sentences of
defendants of other similar crimes.
The Court finds that the harm is so great or unusual that a single term does not
adequately reflect the seriousness of the conduct.
The Court further finds that the Defendant’s criminal history shows that
consecutive terms are needed to protect the public.
Those findings by the Court are also reasons by the Court for imposing
sentence.
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Findings and reasons are not necessary under Ohio law but they are given as an
explanation of the basis for the sentencing.
The Court finds specifically that Defendant caused serious emotional harm to
the victim in this case. The Court finds that these are in fact sex offenses. The Court
finds Defendant’s pattern of conduct has become progressively more serious.
The sentence for the crimes that Defendant has pleaded guilty to here is a
similar sentence to the type of sentence that would have taken place if the Defendant’s
original plea deal were able to proceed.
The Court does not adopt the Prosecutor’s remarks about allegations of
Defendant’s conduct that are not the subject of formal charges – formal criminal
charges or convictions.
The Court does not find that there was any cruelty in Defendant’s conduct – as
cruelty that is set forth in the statute.
{¶ 11} At the conclusion of the sentencing hearing, the trial court asked each party if
it “[sought] anything else then from this hearing?” Lay did raise an issue concerning his
sexual predator classification, but raised no other issues in response to this question.
{¶ 12} At the time of Lay’s sentencing, R.C. 2929.14(E)(4) required, as a predicate
for the imposition of consecutive sentences, a finding that “the consecutive service is
necessary to protect the public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and
to the danger the offender poses to the public.” That statute also required, as a predicate for
the imposition of consecutive sentences, at least one of three additional findings: that the
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offender was already under control of the court due to an earlier conviction, that at least two of
the offenses were committed as part of a course of conduct and the harm was so great or
unusual that no single prison term adequately reflects the seriousness of the conduct, or that
the offender’s history of criminal conduct demonstrates that consecutive sentences are
necessary to protect the public. State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-856,
845
N.E.2d 470, ¶ 65. Although the trial court in the case before us may have been under the
misimpression that it did not need to make the required findings, it can be seen from the trial
court’s statement at sentencing quoted above that it did, in fact, make the findings that were
required at that time.
{¶ 13} As Lay notes in his brief, shortly after his sentencing, State v. Foster was
decided on February 27, 2006. Foster held that the statutory requirement that a trial court
must make certain findings before imposing consecutive sentences violated the United States
Constitution; it therefore severed that requirement (and certain other fact-finding
requirements, as well) from the statute. Id., ¶ 99-102. Thus, if the trial court in this case was
under the impression that it was not required to make any findings of fact, the trial court was
prescient, in view of the forthcoming decision in Foster.
{¶ 14} In 2009, after State v. Foster, the Supreme Court of the United States decided
Oregon v. Ice, 555 U.S. 160,
129 S.Ct. 711,
172 L.Ed.2d 517 (2009). In that case, an Oregon
statute that required judicial fact-finding as a prerequisite for the imposition of consecutive
sentences was upheld as constitutional. Ohio defendants argued, after Oregon v. Ice, that the
result of the holding in that case was to resurrect the statutory requirement of judicial
fact-finding as a prerequisite for the imposition of consecutive sentences, which the Ohio
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General Assembly had not repealed.
{¶ 15} But in State v. Hodge, 128 Ohio St.3d 1,
2010-Ohio-6320,
941 N.E.2d 768, ¶
39, the Supreme Court of Ohio held that Oregon v. Ice did not revive the Ohio statutory
requirement of judicial fact-finding as a prerequisite for the imposition of consecutive
sentences. The Supreme Court did note, however, that as a result of Oregon v. Ice, the Ohio
General Assembly was free to enact new legislation requiring that findings be made.
Id.
{¶ 16} In 2011 H.B. 86, the Ohio General Assembly did, in fact, enact a new, but
slightly different, requirement of judicial fact-finding as a prerequisite for the imposition of
consecutive sentences. H.B. 86 contains many amendments to criminal sentencing
provisions; the judicial fact-finding requirement is codified in R.C. 2929.14(C)(4):
If multiple prison terms are imposed on an offender for convictions of multiple
offenses, the court may require the offender to serve the prison terms consecutively if
the court finds that the consecutive service is necessary to protect the public from
future crime or to punish the offender and that consecutive sentences are not
disproportionate to the seriousness of the offender's conduct and to the danger the
offender poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed pursuant to
section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release
control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more
courses of conduct, and the harm caused by two or more of the multiple offenses so
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committed was so great or unusual that no single prison term for any of the offenses
committed as part of any of the courses of conduct adequately reflects the seriousness
of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the offender.
{¶ 17} Lay argued to the trial court in support of his petition, and here on appeal, that
the provisions of 2011 H.B. 86 must be applied to him.
{¶ 18} Section 4 of 2011 H.B. 86 contains provisions specifying the retroactive or
prospective effects of the amendments to specified sections of the Revised Code, but R.C.
2929.14(C) is not mentioned. Division (A) of R.C. 2929.14 is mentioned, but not the other
divisions of R.C. 2929.14.
{¶ 19} Lay cites R.C. 1.58, which provides as follows:
(A) The reenactment, amendment, or repeal of a statute does not, except as
provided in division (B) of this section:
(1) Affect the prior operation of the statute or any prior action taken thereunder;
(2) Affect any validation, cure, right, privilege, obligation, or liability
previously acquired, accrued, accorded, or incurred thereunder;
(3) Affect any violation thereof or penalty, forfeiture, or punishment incurred in
respect thereto, prior to the amendment or repeal;
(4) Affect any investigation, proceeding, or remedy in respect of any such
privilege, obligation, liability, penalty, forfeiture, or punishment; and the investigation,
proceeding, or remedy may be instituted, continued, or enforced, and the penalty,
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forfeiture, or punishment imposed, as if the statute had not been repealed or amended.
(B) 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.
{¶ 20} Division (A) of R.C. 1.58 clearly provides that an amendment or reenactment
of a statute shall not affect prior actions unless Division (B) applies. Division(B) provides
that when a statutory penalty or punishment is reduced by a statutory reenactment or
amendment, the reduced penalty or punishment shall apply if the penalty or punishment is not
“already imposed.”
{¶ 21} Lay’s sentence was imposed in 2006, more than five years before the effective
date of 2011 H.B. 86. Therefore, by operation of R.C. 1.58, the amendments to criminal
sentencing set forth in 2011 H.B. 86 do not apply to him.
{¶ 22} Lay also cites R.C. 1.52. But that statute deals with situations in which the
General Assembly enacts irreconcilable statutes or irreconcilable amendments, providing that
unless the statutes or amendments can be harmonized, the latest statute or amendment in date
of enactment shall prevail. R.C. 1.52 has no application to this case. This case does not
involve two statutes, or two amendments, that are irreconcilable. This case involves the issue
of whether a criminal sentencing amendment enacted in 2011 has application to a sentence
imposed in 2006. By the plain operation of R.C. 1.58(B), it does not.
{¶ 23} The trial court correctly ruled that 2011 H.B. 86 has no application to the
sentence imposed upon Lay in 2006. Lay’s sole assignment of error is overruled.
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IV. Conclusion
{¶ 24} Lay’s sole assignment of error having been overruled, the order of the trial
court denying his petition to modify his sentence, from which this appeal is taken, is Affirmed.
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FROELICH and HENDON, JJ., concur.
(Hon. Sylvia Sieve Hendon, First District Court of Appeals, sitting by assignment of the Chief
Justice of the Supreme Court of Ohio).
Copies mailed to:
Nick Selvaggio
Jerry Lay
Hon. Roger B. Wilson
