State v. Ryan

[Cite as State v. Ryan, 2012-Ohio-5070.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 98005

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

ERIC S. RYAN
DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-536369

BEFORE: E. Gallagher, J., Cooney, P.J., and Keough, J.

RELEASED AND JOURNALIZED: November 1, 2012
ATTORNEY FOR APPELLANT

Rick L. Ferrara
2077 East 4th Street
Second Floor
Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Melissa Riley
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:

{¶1} Eric Ryan (“appellant”) appeals from his sentencing in the Cuyahoga

County Court of Common Pleas. For the following reasons, we affirm.

{¶2} On April 20, 2010, a Cuyahoga County Grand Jury charged Ryan with

kidnapping with one and three-year firearm specifications, notice of prior conviction and

repeat violent offender specifications; aggravated robbery with one and three-year firearm

specifications, notice of prior conviction and repeat violent offender specifications, two

counts of carrying a concealed weapon, having weapons while under disability with one

and three-year firearm specifications, two counts of drug possession with a one-year

firearm specification, two counts of drug trafficking with a one-year firearm specification,

possession of criminal tools and having weapons while under disability with a one-year

firearm specification. Further, the state sought, through the indictment, the forfeiture of a

firearm and/or a cellular telephone. It is noted that the dates that these alleged crimes

were committed were March 26, 2010 and April 7, 2010.

{¶3} On September 26, 2011, appellant entered pleas of guilty to an amended

charge of robbery with a one-year firearm specification (Count 2), two counts of drug

possession, with one-year firearm specifications (Counts 5 and 7), two counts of drug

trafficking with one-year firearm specifications (Counts 6 and 8), possession of criminal
tools (Count 9), one count of carrying a concealed weapon (Count 10) and one count of

having weapons while under disability with a one-year firearm specification (Count 11).

{¶4} The parties agreed, prior to the plea, that the firearm specifications attendant

to Counts 5-11 would “run concurrent to one another” but consecutive to the firearm

specification on Count 2.

{¶5} On October 27, 2011, the trial court sentenced appellant to three years on the

count of robbery with a one year term for the firearm specification to be served prior to

and consecutive to the underlying sentence. The court sentenced Ryan to a one-year

prison sentence on each of the two drug possession and the two drug trafficking charges to

be served concurrent with each other but consecutive to the one-year term for the firearm

specifications; one year each for possession of criminal tools and carrying a concealed

weapon to be served concurrently; and three years for having weapons while under

disability with a one-year sentence for the firearm specification. The court ordered the

prison sentences for robbery and having weapons while under disability to run

consecutively, in addition to the consecutive sentences imposed for the one-year firearm

specification, for a total prison sentence of seven years.

{¶6} On that same date, the trial court sentenced appellant for a multitude of

charges in CR-5363811 for which he was found to be guilty at the conclusion of trial.

We will address this matter in a limited fashion as the trial court imposed a two-year

1
This case is also currently on appeal with this court and was assigned as Appeal
No. 98101.
sentence in that case on one of the counts, to-wit: having weapons under disability and

that term was to be served consecutive to a sentence of three years for the attendant

firearm specification on that count. The trial court specified that the sentence imposed in

the case now before this court be served consecutively to the term of three years for the

gun specification on the weapons disability charge in CR-536381.

{¶7} The trial court noted, on the record, that the sentencing factors outlined in

R.C. 2929.11 and 2929.12 had been considered, and of particular relevance to this appeal,

that the trial court had considered R.C. 2929.14(C)(4) in arriving at its determination that

consecutive sentences were appropriate in this case.2

{¶8} In his sole assignment of error, Ryan states as follows:

The trial court acted contrary to law when it imposed consecutive sentences
without authority to do so under the Ohio Revised Code.
{¶9} Appellant argues that the trial court erred by imposing consecutive sentences

in violation of R.C. 2929.41. We disagree.

{¶10} R.C. 2929.41 outlines the presumption in favor of concurrent sentences in

cases where multiple sentences are imposed for criminal acts. R.C. 2929.41(A) states:

Except as provided in division (B) of this section, division (E) of section
2929.14, or division (D) or (E) of section 2971.03 of the Revised Code, a
prison term, jail term, or sentence of imprisonment shall be served

2
The transcript indicates that the trial court stated the consecutive sentences were
imposed pursuant to “2929.14(D)(4).” (Emphasis added.) Tr. 108. Because
2929.14(D)(4) relates to postrelease control and does not address reasons for
imposing consecutive sentences, we proceed on the assumption that the trial court
misspoke and intended to cite 2929.14(C)(4), which references to consecutive
sentences.
 concurrently with any other prison term, jail term, or sentence of
imprisonment imposed by a court of this state, another state, or the United
States. Except as provided in division (B)(3) of this section, a jail term or
sentence of imprisonment for misdemeanor shall be served concurrently
with a prison term or sentence of imprisonment for felony served in a state
or federal correctional institution.

{¶11} R.C. 2929.41(A) thus provides four exceptions to the general presumption

of concurrent operation: by operation of R.C. 2929.41(B) and its subsections; R.C.

2929.14(E) and its subsections; R.C. 2971.03(D) or R.C. 2971.03(E). Each exception

will be examined in turn.

{¶12} R.C. 2929.41(B) contains three subsections. R.C. 2929.41(B)(1) applies

only to misdemeanor sentences; R.C. 2929.41(B)(2) references situations where the

defendant has been sentenced to a prison term by a court of another state or the United

States in addition to the sentence imposed by the Ohio court and R.C. 2929.41(B)(3)

embraces situations where the defendant was convicted of certain vehicular felonies and

related misdemeanors. The appellant concedes that none of these three situations is

presented here and thus, R.C. 2929.41(B) does not provide a basis for imposing

consecutive sentences.

{¶13} R.C. 2971.03(D) and 2971.03(E) addresses situations where the defendant

was found guilty of, or pleaded guilty to, violent sex offenses or sexually violent predator

specifications. The appellant acknowledges that he was not convicted of, nor did he

plead guilty to, any sex offenses or related specifications and thus, R.C. 2971.03(D) and

2971.03(E) do not provide a basis for imposing consecutive sentences.
 {¶14} The remaining exception by which the trial court may have imposed

consecutive sentences on appellant is R.C. 2929.14(E). That section states:

The court shall impose sentence upon the offender in accordance with
section 2971.03 of the Revised Code, and Chapter 2971 of the Revised Code
applies regarding the prison term or term of life imprisonment without
parole imposed upon the offender and the service of that term of
imprisonment if any of the following apply: * * *

{¶15} Given that R.C. 2929.41(A) already refers to specific subsections of R.C.

2971.03, the further reference to R.C. 2929.14(E), which points to other portions of R.C.

2971.03, appears to be surplusage. As this court recently noted, a long-standing tenet of

statutory interpretation is that courts must avoid statutory interpretations that render any

part of a statute “surplusage or nugatory.” Westgate Ford Truck Sales, Inc. v. Ford

Motor Co., 8th Dist. No. 96978, 2012-Ohio-1942, 971 N.E.2d 967, ¶ 14, quoting State

Farm Fire & Cas. Co. v. Old Republic Ins. Co., 466 Mich. 142, 146, 644 N.W.2d 715

(2002).

{¶16} We must therefore resolve the apparent irregularity of R.C. 2929.41(A)’s

reference to R.C. 2929.14(E). In undertaking this statutory interpretation, we apply the

oft-repeated maxim that a court’s “paramount concern is the legislative intent in enacting

the statute.” Grey v. Walgreen Co., 8th Dist. No. 96846, 2011-Ohio-6167, ¶ 12, quoting

State v. Buehler, 113 Ohio St.3d 114, 2007-Ohio-1246, ¶ 29. Analysis of the statutory

history of R.C. 2929.14 provides illumination of the legislative intent in enacting the

statute.
 {¶17} The General Assembly recently passed 2011 Am.Sub. H.B. No. 86

(hereinafter “H.B. 86”), which amended R.C. 2929.14 and numerous other sections of the

Revised Code. H.B. 86 took effect on September 30, 2011. Of particular relevance to this

case, H.B. 86 made revisions to both R.C. 2929.41(A) and 2929.14. In Section 11 of

H.B. 86, the General Assembly provided a statement of legislative intent for the revisions

to those sections:

In amending division (E)(4) of section 2929.14 and division (A) of section
2929.41 of the Revised Code in this act, it is the intent of the General
Assembly to simultaneously repeal and revive the amended language in
those divisions that was invalidated and severed by the Ohio Supreme
Court’s decision in State v. Foster (2006), 109 Ohio St.3d 1. The amended
language in those divisions is subject to reenactment under the United States
Supreme Court’s decision in Oregon v. Ice (2009), 555 U.S. 160, and the
Ohio Supreme Court’s decision in State v. Hodge (2010), ___ Ohio St.3d
___, Slip Opinion No. 2010-Ohio-6320 and, although constitutional under
Hodge, supra, that language is not enforceable until deliberately revived by
the General Assembly.

(Emphasis added.)

{¶18} We next turn to the as-drafted text of H.B. 86, which indicates what

language the bill adds to the affected statutes (underlined text) and what it removes

(struck-through text). The as-drafted copy of H.B. 86 indicates that the entire existing

text of R.C. 2929.41(A) was removed, and then the exact same text was added — the

“simultaneous repeal and revi[val]” mentioned by Section 11 of H.B. 86. Of particular

importance, the as-drafted version of H.B. 86 also indicates revisions to R.C. 2929.14:

divisions (B) and (C) of the prior version of R.C. 2929.14 were deleted, with the result

that the prior division (E) “moved up” and became the new division (C).
 {¶19} These revisions, combined with the statement of legislative intent in Section

11 of H.B. 86, convince the court that the General Assembly intended to reenact the full

statutory scheme that existed prior to the Foster/Ice/Hodge line of cases and the enactment

of H.B. 86. As relevant to this case, that leads to the conclusion that in the legislature’s

haste to emphasize the “simultaneous repeal and revi[val]” of the language of R.C.

2929.41(A), a simple legislative oversight resulted in the failure to update the

cross-reference in the “revived” R.C. 2929.41(A) from “division (E) of section 2929.14”

to “division (C) of 2929.14.” Perhaps even more persuasively, the General Assembly has

itself acknowledged and corrected its mistake. The as-enrolled copy of 2011 Am.Sub.

S.B. No. 337 (hereinafter “S.B. 337”), which becomes effective on September 28, 2012,

corrects the mistaken cross-reference in R.C. 2929.41(A). After S.B. 337 takes effect,

R.C. 2929.41(A) will list “division (C) of 2929.14” as one of the four exceptions to the

general presumption of concurrent sentences, rather than “division (E) of 2929.14.” S.B.

337 does not compel our conclusion that the errant cross-reference in R.C. 2929.14(A)

was a simple legislative oversight, nor is it controlling in this case because it was not in

effect at the time of appellant’s sentencing, but it does provide further evidence of the

legislature’s intent when it enacted H.B. 86, which supports our reasoning.

{¶20} After reaching the conclusion that the legislature erred, the next question is

whether we may apply the statute as the legislature intended it to be applied, rather than

according to the literal text of the statute. R.C. 2901.04(A) states that “sections of the

Revised Code defining offenses or penalties shall be strictly construed against the state,
and liberally construed in favor of the accused.” As noted by this court in State v.

Virasayachack, 138 Ohio App.3d 570, 741 N.E.2d 943 (8th Dist.2000), “[o]rdinarily, we

must presume the legislature means what it says; we cannot amend statutes to provide

what we consider a more logical result.” Id. at 574. However, Virasayachack also

reasoned that:

when the terms of the statute, as written, would never be applicable, and the
simple substitution of one character would result in a term that would
always be applicable, we must conclude that the statute contains an
obviously typographical error, and we may correct the error and give effect
to the obvious intent of the statute.

Id. at 574, citing Brim v. Rice, 20 Ohio App.2d 293, 295-296, 253 N.E.2d 820 (1st

Dist.1969). Additionally, in State v. Gomez, 9th Dist. Nos. 25496 and 25501,

2011-Ohio-5475, the court held that:

[w]hen it appears beyond a doubt that a statute, when read literally as
printed, is impossible of execution, or will defeat the plain object of its
enactment, or is senseless, or leads to absurd results or consequences, a
court is authorized to regard such defects as the result of error or mistake,
and to put such construction upon the statute as will correct the error or
mistake by permitting the clear purpose and manifest intention of the
Legislature to be carried out.

(Emphasis added and internal citation omitted.) Id. at ¶ 30.

{¶21} This court is further persuaded by the words of the United States Supreme

Court in Chickasaw Nation v. United States, 534 U.S. 84, 122 S.Ct. 528, 151 L.Ed.2d 474.

In that case, the court noted that “canons [of statutory interpretation] are not mandatory

rules. They are guides that need not be conclusive” and are intended to assist courts in

determining the legislative intent underlying a statute. (Internal quotation marks and
citation omitted.) Id. at 94 . To the extent that the appellant’s strictly textual reading of

R.C. 2929.41(A) and appellant’s rule of lenity argument runs contrary to the legislative

intent evinced by Section 11 of H.B. 86, those arguments cannot be allowed to overcome

the intent of the legislature.

{¶22} The principles referenced in Chickasaw Nation and the precedents of

Virasayachack and Gomez lead us to conclude that we are empowered to “correct” the

typographical error caused by the amendments contained in H.B. 86 in order to effectuate

the legislative intent of the General Assembly. In further support of this conclusion, we

note that despite the legislative drafting error in H.B. 86, subsequent cases have

recognized the connection between R.C. 2929.41(A) and 2929.14(C) and applied the

sentencing scheme as the legislature intended. See State v. Williams, 5th Dist. No.

11-CA-115, 2012-Ohio-3211, at ¶ 23-32 (recognizing the interplay of the two statutes but

remanding due to a lack of required judicial fact-finding); State v. Petkovic, 8th Dist. No.

97548, 2012-Ohio-4050, at ¶ 27-34 (“The crux of defendant’s argument is that the court

failed to make the R.C. 2929.14(C)(4) findings revived by Am. Sub. H.B. 86 before

imposing consecutive sentences.”) (Emphasis added.)

{¶23} The only remaining consideration, then, is to determine whether the trial

court correctly applied R.C. 2929.14(C) in imposing consecutive sentences on appellant.

R.C. 2929.14(C)(4) is most relevant:

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:

***

(c) The offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the
offender.

{¶24} At the sentencing hearing, the trial court clearly referenced appellant’s

criminal record, required by R.C. 2929.14(C)(4), that the consecutive sentences were

necessary to protect the public from future crime and were not disproportionate to the

seriousness of appellant’s conduct and, by R.C. 2929.14(C)(4)(c), that the consecutive

sentences were necessary to protect the public from future crime by appellant.

{¶25} Appellant’s sole assignment of error is overruled.

{¶26} The judgment of the trial court is affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said lower court to carry this

judgment into execution. The defendant’s conviction having been affirmed, any bail

pending appeal is terminated. Case remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE

COLLEEN CONWAY COONEY, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR