State v. Quisenberry

634 N.E.2d 1009, 69 Ohio St. 3d 556

Opinions

Francis E. Sweeney, Sr., J.

We are asked to decide whether a violation of R.C. 2937.29 carries a definite or indefinite sentence. For the following reasons, we find R.C. 2937.99 requires the court to impose a definite term of imprisonment for a violation of R.C. 2937.29, an unclassified felony. Accordingly, we affirm the judgment of the appellate court.

In reaching our holding today, we are guided by the requirement that penal laws “shall be strictly construed against the state, and liberally construed in favor of the accused.” R.C. 2901.04(A). A definite term of imprisonment is more advantageous to a defendant because he does not have to appear before the parole board. Once the sentence is served, the defendant is released and the state loses supervision over the defendant.

With this principle in mind, we now turn to the statutes involved.

Appellee was found guilty of violating R.C. 2937.29, which provides that:

“When from all the circumstances the court is of the opinion that the accused will appear as required, either before or after conviction, the accused may be released on his own recognizance. A failure to appear as required by such recognizance shall constitute an offense subject to the penalty provided in section 2937.99 of the Revised Code.”

R.C. 2937.99, the statute we are asked to interpret, states:

“Whoever fails to appear as required, after having been released pursuant to section 2937.29 of the Revised Code, shall:

“(A) If the release was in connection with a charge of the commission of a felony * * * be * * * imprisoned in the penitentiary not less than one nor more than five years * * *.”

The offense appellee was convicted of, failure to appear, is an unclassified felony. See R.C. 2901.02(E). However, a question remains as to whether the phrase “not less than one nor more than five years” denotes a definite or indefinite term.

R.C. 2937.29 and 2937.99 were first enacted in 1965 and have never been amended. See 131 Ohio Laws 677. When the General Assembly overhauled R.C. Title 29 in 1973, these two statutes were, for some reason, left untouched. See 134 Ohio Laws, Part II, 1866. As a result, R.C. 2739.29 and 2739.99 are now somewhat anomalous. The felony is not classified by degree and the penalty is not described in language consistent with the rest of the Code. Thus, by way of analogy, both parties direct our attention to R.C. 2929.11, which sets forth the penalties for felonies.

R.C. 2929.11(A) provides:

“Whoever is convicted of or pleads guilty to a felony other than aggravated murder or murder, except as provided in division (D), (E), or (H) of this section or section 2929.23 of the Revised Code, shall be imprisoned for an indefinite term * * *.¹ The indefinite term of imprisonment shall consist of a maximum term as provided in this section and a minimum term fixed by the court as provided in this section. * * * ” (Emphasis and footnote added.)

The remainder of R.C. 2929.11 proceeds to provide penalties for felonies according to their degree. But as mentioned earlier, the felony of which appellee was convicted has no degree — it is unclassified. Therefore, R.C. 2929.11 is inapplicable. However, we look to it for guidance to determine the meaning of R.C. 2937.99. We note that R.C. 2929.11 uses the words “minimum” and “maximum” in describing indefinite terms of incarceration. Moreover, not a single subsection of R.C. 2929.11(B) omits these words when mandating an indefinite term. Conversely, R.C. 2937.99, the controlling statute, makes no such reference to “minimum” and “maximum” terms.

Instead, we consider the definite penalties for nonviolent third and fourth degree felonies, which are provided in R.C. 2929.11(D), to be more analogous. In discussing the definite penalties involved for these crimes, the General Assembly did not use the words “minimum” and “maximum.”

Based on the foregoing, we construe R.C. 2937.99(A) to mean that the trial court shall impose a definite sentence of at least one year but no greater than five years. A two-year definite sentence falls within the parameters of the statutory language and, thus, is appropriate.

Judgment affirmed.

Moyer, C.J., AW. Sweeney, Douglas, Resnick and Pfeifer, JJ., concur. Wright, J., dissents.

1 . R.C. 5145.01 allows for the imposition of definite or indefinite sentences.