[Cite as State v. Gatewood, 2012-Ohio-4181.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
STATE OF OHIO : : Appellate Case No. 2012-CA-12 Plaintiff-Appellee : : Trial Court Case No. 06-CR-1155 v. : : HERMAN GATEWOOD : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : : ...........
OPINION
Rendered on the 14th day of September, 2012.
...........
LISA M. FANNIN, Atty. Reg. #0082337, Clark County Prosecutor’s Office, 50 East Columbia Street, Post Office Box 1608, Springfield, Ohio 45501 Attorney for Plaintiff-Appellee
BRANDIN D. MARLOW, Atty. Reg. #0076381, 150 North Limestone Street, Suite 218, Springfield, Ohio 45501 Attorney for Defendant-Appellant
.............
FAIN, J.
{¶ 1} Defendant-appellant Herman Gatewood appeals from his three-year sentence
for Possession of Crack Cocaine in an amount greater than five grams but less than ten grams, 2
in violation of R.C. 2925.11(A), following a jury trial. Gatewood contends that because the
degree of the offense was reduced, by 2011 H 86, before he was sentenced, from a third degree
felony to a fourth degree felony, the trial court erred by imposing a third-degree-felony
sentence for the offense. The State agrees with Gatewood, and so do we. The three-year
sentence for Possession of Crack is Reversed, and this cause is Remanded for re-sentencing
for that offense.
I. The Course of Proceedings
{¶ 2} In 2006, Gatewood was charged by indictment with one count of Possession
of Crack Cocaine in an amount greater than five grams but less than ten grams, in violation of
R.C. 2925.11(A), with a firearm specification; one count of Eluding or Fleeing, in violation of
R.C. 2921.331(B), with a firearm specification; one count of Conveying, or Attempting to
Convey, any Drug of Abuse onto the Grounds of a Detention Facility or a Mental Health or
Mental Retardation and Developmental Disability Facility, in violation of R.C. 2921.36(A)(2);
one count of Having a Weapon Under a Disability, in violation of R.C. 2923.13(A)(3); and
one count of Carrying a Concealed Weapon, in violation of R.C. 2923.12(A)(2), with a firearm
specification. The counts for Illegal Conveyance and for Having a Weapon Under a
Disability were dismissed shortly before trial.
{¶ 3} Following a jury trial, Gatewood was convicted of the three remaining counts,
and their firearm specifications. He was sentenced to five years for the Possession of Crack
Cocaine offense, five years for the Fleeing or Eluding offense, and twelve months for the
Carrying a Concealed Weapon offense. The firearm specifications were merged for 3
sentencing purposes into a single one-year sentence. The sentences were ordered to be served
consecutively for a total sentence of twelve years.
{¶ 4} Gatewood appealed. We reversed. State v. Gatewood, 2d Dist. Clark No.
2008 CA 64, 2009-Ohio-5610 (Gatewood I).
{¶ 5} After our reversal and remand, the State re-indicted Gatewood for Illegal
Conveyance and Having Weapons Under Disability, the counts it had dismissed prior to the
first trial. Following another jury trial, Gatewood was convicted on all counts and
specifications. He was sentenced to five years for Possession of Crack Cocaine, five years for
Fleeing and Eluding, five years for Illegal Conveyance, five years for Having a Weapon While
Under a Disability, and eighteen months for Carrying a Concealed Weapon. He was
sentenced to one, merged one-year sentence for the firearm specifications, for a total sentence
of 22½ years.
{¶ 6} Gatewood again appealed. We reversed and vacated Gatewood’s convictions
for Illegal Conveyance and for Having a Weapon While Under a Disability, and remanded this
cause for re-sentencing. State v. Gatewood, 2d Dist. Clark No. 2010 CA 18, 2012-Ohio-202
(Gatewood II).
{¶ 7} On February 14, 2012, Gatewood was re-sentenced, pursuant to our remand.
He was sentenced to three years for Possession of Crack Cocaine, plus one year for the firearm
specification, three years for Fleeing and Eluding, plus one year for the firearm specification,
and one year for Carrying a Concealed Weapon. The sentences for Possession of Crack
Cocaine and for Fleeing and Eluding, plus their firearm specifications, were ordered to be
served consecutively; the sentence for Carrying a Concealed Weapon was ordered to be served 4
concurrently, for a total sentence of eight years. The two firearm specifications were not
merged for sentencing purposes.
{¶ 8} At the sentencing hearing, Gatewood contended that the amendments to felony
sentencing in 2011 H 86 applied, with the result that he could only be sentenced for the
Possession of Crack Cocaine offense as a fourth-degree felony. The State and the trial court
disagreed, reasoning that because his 2010 conviction for that offense had not been reversed,
he remained convicted of Possession of Crack Cocaine as a third-degree felony. The trial
court recognized, however, that he could only be sentenced for that third-degree felony under
the new felony sentencing scheme.
{¶ 9} From his three-year sentence for Possession of Crack Cocaine, Gatewood
appeals.
II. Because Gatewood was Re-Sentenced After the Effective Date
of 2011 H 86, and the Nature of the Offense Was Not Changed,
He Could Only Receive a Sentence Prescribed for a Fourth Degree Felony
{¶ 10} Gatewood’s sole assignment of error is as follows:
THE TRIAL COURT ERRED WHEN IT FAILED TO APPLY OHIO
REVISED CODE §1.58(B) TO REDUCE A THIRD-DEGREE FELONY
POSSESSION OF COCAINE TO A FOURTH-DEGREE FELONY POSSESSION
OF COCAINE.
{¶ 11} Gatewood relies upon R.C. 1.58(B), which provides as follows:
If the penalty, forfeiture, or punishment for any offense is reduced by a reenactment or 5
amendment of a statute, the penalty, forfeiture, or punishment, if not already imposed, shall be
imposed according to the statute as amended.
{¶ 12} The State, agreeing with Gatewood, and conceding error, cites 2011 H 86, Section 3,
eff. September 30, 2011, which provides as follows:
The amendments to sections 2925.01, 2925.03, 2925.05, and 2925. 11 of the Revised
Code, and to division (W) of section 2929.01 of the Revised Code, that are made in this act
apply to a person who commits an offense involving marihuana, cocaine, or hashish on or
after the effective date of this act and to a person to whom division (B) of section 1.58 of the
Revised Code makes the amendments applicable.
The provisions of sections 2925.01, 2925.03, 2925.05, and 2925.11 of the Revised
Code, and of division (W) of section 2929.01 of the Revised Code, in existence prior to the
effective date of this act shall apply to a person upon whom a court imposed sentence prior to
the effective date of this act for an offense involving marihuana, cocaine, or hashish. The
amendments to sections 2925.01, 2925.03, 2925.05, and 2925.11 of the Revised Code, and to
division (W) of section 2929.01 of the Revised Code, that are made in this act do not apply to
a person upon whom a court imposed sentence prior to the effective date of this act for an
offense involving marihuana, cocaine, or hashish.
{¶ 13} The provisions of R.C. 1.58(B) do not apply if the result would be to alter the nature
of the offense of which the defendant has been convicted. State v. Kaplowitz, 100 Ohio St.3d 205,
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[Cite as State v. Gatewood, 2012-Ohio-4181.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
STATE OF OHIO : : Appellate Case No. 2012-CA-12 Plaintiff-Appellee : : Trial Court Case No. 06-CR-1155 v. : : HERMAN GATEWOOD : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : : ...........
OPINION
Rendered on the 14th day of September, 2012.
...........
LISA M. FANNIN, Atty. Reg. #0082337, Clark County Prosecutor’s Office, 50 East Columbia Street, Post Office Box 1608, Springfield, Ohio 45501 Attorney for Plaintiff-Appellee
BRANDIN D. MARLOW, Atty. Reg. #0076381, 150 North Limestone Street, Suite 218, Springfield, Ohio 45501 Attorney for Defendant-Appellant
.............
FAIN, J.
{¶ 1} Defendant-appellant Herman Gatewood appeals from his three-year sentence
for Possession of Crack Cocaine in an amount greater than five grams but less than ten grams, 2
in violation of R.C. 2925.11(A), following a jury trial. Gatewood contends that because the
degree of the offense was reduced, by 2011 H 86, before he was sentenced, from a third degree
felony to a fourth degree felony, the trial court erred by imposing a third-degree-felony
sentence for the offense. The State agrees with Gatewood, and so do we. The three-year
sentence for Possession of Crack is Reversed, and this cause is Remanded for re-sentencing
for that offense.
I. The Course of Proceedings
{¶ 2} In 2006, Gatewood was charged by indictment with one count of Possession
of Crack Cocaine in an amount greater than five grams but less than ten grams, in violation of
R.C. 2925.11(A), with a firearm specification; one count of Eluding or Fleeing, in violation of
R.C. 2921.331(B), with a firearm specification; one count of Conveying, or Attempting to
Convey, any Drug of Abuse onto the Grounds of a Detention Facility or a Mental Health or
Mental Retardation and Developmental Disability Facility, in violation of R.C. 2921.36(A)(2);
one count of Having a Weapon Under a Disability, in violation of R.C. 2923.13(A)(3); and
one count of Carrying a Concealed Weapon, in violation of R.C. 2923.12(A)(2), with a firearm
specification. The counts for Illegal Conveyance and for Having a Weapon Under a
Disability were dismissed shortly before trial.
{¶ 3} Following a jury trial, Gatewood was convicted of the three remaining counts,
and their firearm specifications. He was sentenced to five years for the Possession of Crack
Cocaine offense, five years for the Fleeing or Eluding offense, and twelve months for the
Carrying a Concealed Weapon offense. The firearm specifications were merged for 3
sentencing purposes into a single one-year sentence. The sentences were ordered to be served
consecutively for a total sentence of twelve years.
{¶ 4} Gatewood appealed. We reversed. State v. Gatewood, 2d Dist. Clark No.
2008 CA 64, 2009-Ohio-5610 (Gatewood I).
{¶ 5} After our reversal and remand, the State re-indicted Gatewood for Illegal
Conveyance and Having Weapons Under Disability, the counts it had dismissed prior to the
first trial. Following another jury trial, Gatewood was convicted on all counts and
specifications. He was sentenced to five years for Possession of Crack Cocaine, five years for
Fleeing and Eluding, five years for Illegal Conveyance, five years for Having a Weapon While
Under a Disability, and eighteen months for Carrying a Concealed Weapon. He was
sentenced to one, merged one-year sentence for the firearm specifications, for a total sentence
of 22½ years.
{¶ 6} Gatewood again appealed. We reversed and vacated Gatewood’s convictions
for Illegal Conveyance and for Having a Weapon While Under a Disability, and remanded this
cause for re-sentencing. State v. Gatewood, 2d Dist. Clark No. 2010 CA 18, 2012-Ohio-202
(Gatewood II).
{¶ 7} On February 14, 2012, Gatewood was re-sentenced, pursuant to our remand.
He was sentenced to three years for Possession of Crack Cocaine, plus one year for the firearm
specification, three years for Fleeing and Eluding, plus one year for the firearm specification,
and one year for Carrying a Concealed Weapon. The sentences for Possession of Crack
Cocaine and for Fleeing and Eluding, plus their firearm specifications, were ordered to be
served consecutively; the sentence for Carrying a Concealed Weapon was ordered to be served 4
concurrently, for a total sentence of eight years. The two firearm specifications were not
merged for sentencing purposes.
{¶ 8} At the sentencing hearing, Gatewood contended that the amendments to felony
sentencing in 2011 H 86 applied, with the result that he could only be sentenced for the
Possession of Crack Cocaine offense as a fourth-degree felony. The State and the trial court
disagreed, reasoning that because his 2010 conviction for that offense had not been reversed,
he remained convicted of Possession of Crack Cocaine as a third-degree felony. The trial
court recognized, however, that he could only be sentenced for that third-degree felony under
the new felony sentencing scheme.
{¶ 9} From his three-year sentence for Possession of Crack Cocaine, Gatewood
appeals.
II. Because Gatewood was Re-Sentenced After the Effective Date
of 2011 H 86, and the Nature of the Offense Was Not Changed,
He Could Only Receive a Sentence Prescribed for a Fourth Degree Felony
{¶ 10} Gatewood’s sole assignment of error is as follows:
THE TRIAL COURT ERRED WHEN IT FAILED TO APPLY OHIO
REVISED CODE §1.58(B) TO REDUCE A THIRD-DEGREE FELONY
POSSESSION OF COCAINE TO A FOURTH-DEGREE FELONY POSSESSION
OF COCAINE.
{¶ 11} Gatewood relies upon R.C. 1.58(B), which provides as follows:
If the penalty, forfeiture, or punishment for any offense is reduced by a reenactment or 5
amendment of a statute, the penalty, forfeiture, or punishment, if not already imposed, shall be
imposed according to the statute as amended.
{¶ 12} The State, agreeing with Gatewood, and conceding error, cites 2011 H 86, Section 3,
eff. September 30, 2011, which provides as follows:
The amendments to sections 2925.01, 2925.03, 2925.05, and 2925. 11 of the Revised
Code, and to division (W) of section 2929.01 of the Revised Code, that are made in this act
apply to a person who commits an offense involving marihuana, cocaine, or hashish on or
after the effective date of this act and to a person to whom division (B) of section 1.58 of the
Revised Code makes the amendments applicable.
The provisions of sections 2925.01, 2925.03, 2925.05, and 2925.11 of the Revised
Code, and of division (W) of section 2929.01 of the Revised Code, in existence prior to the
effective date of this act shall apply to a person upon whom a court imposed sentence prior to
the effective date of this act for an offense involving marihuana, cocaine, or hashish. The
amendments to sections 2925.01, 2925.03, 2925.05, and 2925.11 of the Revised Code, and to
division (W) of section 2929.01 of the Revised Code, that are made in this act do not apply to
a person upon whom a court imposed sentence prior to the effective date of this act for an
offense involving marihuana, cocaine, or hashish.
{¶ 13} The provisions of R.C. 1.58(B) do not apply if the result would be to alter the nature
of the offense of which the defendant has been convicted. State v. Kaplowitz, 100 Ohio St.3d 205,
2003-Ohio-5602, 797 N.E.2d 977, ¶ 29.
{¶ 14} 2011 H 86 eliminated the distinction that previously existed, for sentencing
purposes, between the possession of crack cocaine and the possession of powder cocaine. 6
Before the enactment of 2011 H 86, possession of between five and ten grams of crack
cocaine was a felony of the third degree, but possession of the same amount of powder
cocaine was a felony of the fourth degree. After the enactment, there is just one provision,
R.C. 2925.11(C)(4)(b), pertaining to the possession of cocaine, in either form, in an amount
between five and ten grams, and that provision makes the offense a felony of the fourth
degree.
{¶ 15} An argument could be made that by consolidating the powder cocaine and
crack cocaine situations into a single offense for sentencing purposes, the nature of the offense
of which Gatewood was convicted would be changed if the new sentencing scheme enacted by
2011 H 86 were to be applied to him. But the provisions of Section 3 of 2011 H 86, quoted
above, evince an intent on the part of the Ohio General Assembly that the new version of R.C.
2925.11 applies to a person, like Gatewood, who is being sentenced after the effective date of
the statute.
{¶ 16} We agree with both parties that Gatewood should have been sentenced for
Possession of Cocaine as a fourth-degree felony. The maximum sentence for a fourth-degree
felony is eighteen months. R.C. 2929.14(A)(4). The trial court erred by sentencing
Gatewood for Possession of Cocaine as a third-degree felony.
{¶ 17} Gatewood’s sole assignment of error is sustained.
III. Conclusion
{¶ 18} Gatewood’s sole assignment of error having been sustained, his sentence for
Possession of Cocaine is Reversed, and this cause is Remanded for re-sentencing for that 7
offense. The judgment of the trial court is Affirmed in all other respects.
GRADY, P.J., and FROELICH, J., concur.
Copies mailed to:
Lisa M. Fannin Brandin D. Marlow Hon. Douglas M. Rastatter