State v. Bollar

171 Ohio St.3d 678

220 N.E.3d 690

The STATE of Ohio, Appellee,

v.BOLLAR, Appellant.

Nos. 2021-0756

2021-0769

Supreme Court of Ohio.

Submitted April 13, 2022

Decided December 9, 2022

Kyle L. Stone, Stark County Prosecuting Attorney, and Timothy E. Yahner, Assistant Prosecuting Attorney, for appellee.

Timothy Young, Ohio Public Defender, and Max Hersch, Assistant Public Defender, for appellant.

Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, and Byers Emmerling, Assistant Attorney General, urging affirmance for amicus curiae, Ohio Attorney General Dave Yost.

Fischer, J.{¶ 1} In this case, we are asked to determine whether an offender must receive separate prison terms for multiple firearm specifications when the criminal offenses to which those firearm specifications are attached have been merged as allied offenses. Because the plain language of R.C. 2929.14(B)(1)(g) requires that certain offenders receive prison terms for multiple specifications, we hold that imposing separate prison terms for multiple firearm specifications is required in situations like the one in this case.

FACTUAL AND PROCEDURAL BACKGROUND

{¶ 2} Appellant, Marquis Bollar, pleaded guilty to three felonies: involuntary manslaughter, felonious assault, and having weapons while under a disability. The count for each offense was accompanied by a firearm specification.

{¶ 3} During the sentencing hearing, Bollar argued that the involuntary-manslaughter and felonious-assault counts should be merged for purposes of sentencing. Appellee, the state of Ohio, argued that R.C. 2929.14(B)(1)(g) required that sentences for two of the three firearm specifications run consecutively to each other and consecutively to the sentence for the underlying offense. Bollar countered that because the three firearm specifications arose from one act by one person, a sentence on only one specification could be imposed.

{¶ 4} The trial court merged the involuntary-manslaughter and felonious-assault counts; however, it imposed a three-year prison term for each of the firearm specifications linked to those counts.

{¶ 5} The Fifth District Court of Appeals affirmed in a two-to-one decision. 2021-Ohio-1578, 172 N.E.3d 499, ¶ 32. In doing so, the appellate court rejected Bollar's argument that because the involuntary-manslaughter and felonious-assault counts merged, he could be sentenced for only one firearm specification. Id. at ¶ 13. The court reasoned that R.C. 2929.14(B)(1)(g) prescribes that if an offender pleads guilty to felonious assault and one or more additional felonies and if that offender pleads guilty to a firearm specification in connection with those felonies, then the sentencing court must impose a mandatory prison term for each of the two most serious specifications to which the offender has pleaded guilty. Id. at ¶ 20. The court emphasized that even though the involuntary-manslaughter and felonious-assault counts merged for the purpose of sentencing, Bollar's pleas of guilty to those offenses did not cease to exist. Id. at ¶ 21. The court further noted that no double-jeopardy concerns exist when imposing separate prison terms for multiple firearm specifications under R.C. 2929.14(B)(1)(g), because the legislature has specifically authorized this cumulative punishment. Id. at ¶ 25. Because Bollar met the requirements of R.C. 2929.14(B)(1)(g), the Fifth District concluded that the trial court properly imposed separate prison terms for the firearm specifications attached to the involuntary-manslaughter and felonious-assault offenses to which he had pleaded guilty. Id. at ¶ 29.

{¶ 6} A dissenting judge reasoned that without the imposition of a sentence for the felonious-assault count, the trial court lacked the "ability to impose a related sentence-enhancing specification." Id. at ¶ 36 (Wise, J., dissenting). In so concluding, the dissenting judge noted that he agreed with the analyses set forth in the Ninth District's decision in State v. Roper , 9th Dist. Summit Nos. 26631 and 26632, 2013-Ohio-2176, 2013 WL 2368766, and in the Eighth District's decision in State v. Doyle , 2019-Ohio-979, 133 N.E.3d 890 (8th Dist.). 2021-Ohio-1578, 172 N.E.3d 499 at ¶ 38-40 (Wise, J., dissenting).

{¶ 7} On Bollar's motion, the Fifth District certified that its decision was in conflict with the decisions in Roper and Doyle . We subsequently determined that a conflict exists and ordered briefing on the following issue:

Whether Ohio's legislature has specifically authorized cumulative punishments for multiple firearm specifications that were committed as part of the same act or transaction under the narrowly tailored, specifically designated circumstances set forth in R.C. 2929.14(B)(1)(g), when the underlying felonies attendant to the firearm specifications are merged at sentencing as allied offenses of similar import pursuant to R.C. 2929.14(C)(4).

164 Ohio St.3d 1409, 2021-Ohio-2795, 172 N.E.3d 178. We also accepted jurisdiction over the sole proposition of law in Bollar's discretionary appeal: "Trial courts cannot impose a prison sentence for a specification attached to an offense that merged under R.C. 2941.25 and did not result in a conviction." See 164 Ohio St.3d 1410, 2021-Ohio-2795, 172 N.E.3d 179. We sua sponte consolidated the two cases for briefing. Id.

ANALYSIS

{¶ 8} Bollar argues that a person cannot be sentenced for a firearm specification unless the person was convicted of the underlying offense. Bollar asserts that because he was not convicted of the merged count of felonious assault, he cannot be sentenced for the specification attached to that count. He further argues that to uphold the Fifth District's decision, this court would have to overrule State v. Ford , 128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d 498, and conclude that R.C. 2929.14(B)(1)(g) provides an exception to merger.

{¶ 9} The state responds that the plain language of R.C. 2929.14(B)(1)(g) requires the result reached by the Fifth District below.

{¶ 10} As we have explained before, when analyzing an issue of statutory interpretation, " ‘[t]he question is not what did the general assembly intend to enact, but what is the meaning of that which it did enact.’ " State v. Hudson , 169 Ohio St.3d 216, 2022-Ohio-1435, 203 N.E.3d 658, ¶ 21, quoting Slingluff v. Weaver , 66 Ohio St. 621, 64 N.E. 574 (1902), paragraph two of the syllabus. If the statute's language is plain and unambiguous, we apply it as written. Portage Cty. Bd. of Commrs. v. Akron , 109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d 478, ¶ 52, citing State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn. , 74 Ohio St.3d 543, 545, 660 N.E.2d 463 (1996).

{¶ 11} R.C. 2929.14(B)(1)(b) provides that "[e]xcept as provided in division (B)(1)(g) of this section, a court shall not impose more than one prison term on an offender under division (B)(1)(a) of this section for felonies committed as part of the same act or transaction."

{¶ 12} As explicitly noted in R.C. 2929.14(B)(1)(b), the general rule in that statute is subject to the exception set forth in R.C. 2929.14(B)(1)(g), which provides:

If an offender is convicted of or pleads guilty to two or more felonies, if one or more of those felonies are aggravated murder, murder, attempted aggravated murder, attempted murder, aggravated robbery, felonious assault, or rape, and if the offender is convicted of or pleads guilty to a specification of the type described under division (B)(1)(a) of this section in connection with two or more of the felonies, the sentencing court shall impose on the offender the prison term specified under division (B)(1)(a) of this section for each of the two most serious specifications of which the offender is convicted or to which the offender pleads guilty and, in its discretion, also may impose on the offender the prison term specified under that division for any or all of the remaining specifications.

{¶ 13} In resolving the conflict that exists among the courts of appeals regarding whether R.C. 2929.14(B)(1)(g) permits imposing sentences for multiple firearm specifications for felonies that were committed as part of the same act or transaction when the underlying offenses have been merged, we begin by reviewing the principles set forth in this court's previous decisions in this area of the law.

{¶ 14} In State v. Whitfield , 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 23, this court emphasized that R.C. 2941.25(A) prohibits "convictions" for allied offenses. In interpreting that statute, the court stated that "a ‘conviction’ consists of a guilty verdict and the imposition of a sentence or a penalty." (Emphasis sic.) Id. at ¶ 24. The significance of the Whitfield decision rests in the fact that when allied offenses are merged, if the judgment of conviction on the offense for which the defendant was sentenced is reversed on appeal, the state may seek to have the defendant sentenced on remand for the merged offense. See id. at ¶ 25.

{¶ 15} In Whitfield , this court defined "conviction" as encompassing both a guilty verdict and the imposition of a sentence. Id. at ¶ 24. This definition may be seen as creating tension with R.C. 2929.14(B)(1)(g), which applies when "an offender is convicted of or pleads guilty to" multiple felonies and firearm specifications. In that statute, "convicted" can mean only "found guilty"; it cannot be read to include that the offender's sentence has also been imposed, because that statute provides that a sentence will be imposed only if the offender is convicted (i.e., found or pleaded guilty).

{¶ 16} We now clarify that this court's definition of "conviction" in Whitfield does not apply to R.C. 2929.14(B)(1)(g). In applying that statutory provision, we simply use the plain meaning of "convicted": found guilty. See Black's Law Dictionary 421-422 (11th Ed.2019) (defining the verb "convict" as "to find (a person) guilty of a criminal offense upon a criminal trial * * * [or] a plea of guilty"). As the Eighth District acknowledged...