Ohio Supreme Court Invalidates Portion of Statute Permitting Consecutive Sentences for Felony and Misdemeanor Offenses

On February 25, 2016, the Ohio Supreme Court issued a decision in State v. Polus that invalidated a provision of Revised Code section 2929.41, which pertains to Concurrent and Consecutive Sentences. (Concurrent Sentence = more than one sentence served at the same time; Consecutive Sentence = more than one sentence served one after the other.)

The facts of that case are as follows: Walter Polus was convicted of one count of Receiving Stolen Property, a felony of the 5^th degree, and one count of Receiving Stolen Property, a misdemeanor of the 1^st degree. The trial court sentenced Polus to prison on the felony and jail on the misdemeanor and ordered the sentences to be served consecutively. Polus appealed his sentence.

The initial provision of R.C. 2929.41 states:

(A)

Except as provided in division (B) of this section, division (C) 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 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.

Thus, according to this section, the jail sentence for Polus’ misdemeanor must be served concurrently with his felony prison sentence, with the exception of section (B)(3). (As will be discussed later, (B)(3) pertains to traffic-related convictions involving vehicular assaults, vehicular homicides, and OVI.)

The problem is, R.C. 2929.41 does not stop with Section (A) or (B)(3), for that matter. It contains a section (B)(1), which states:

(B)(1)

A jail term or sentence of imprisonment for a misdemeanor shall be served consecutively to any other prison term, jail term, or sentence of imprisonment when the trial court specifies that it is to be served consecutively or when it is imposed for a misdemeanor violation of section 2907.322, 2921.34, or 2923.131 of the Revised Code. When consecutive sentences are imposed for misdemeanor under this division, the term to be served is the aggregate of the consecutive terms imposed, except that the aggregate term to be served shall not exceed eighteen months.

Section (B)(1) permits misdemeanor and felony sentences to be served consecutively “when the trial court specifies that it is to be served consecutively.” So, does Section (A), which makes no reference whatsoever to Section (B)(1), control? Or does Section (B)(1) negate the general provision of Section (A) and give the trial court the authority to impose consecutive sentences when it “specifies” its intentions in the sentencing entry? In other words, in just about all cases involving felony and misdemeanor sentences, how do you reconcile one section where the sentences must be served concurrently with a later section that states that they may be served consecutively when the trial court says so?

The Ohio Supreme Court found this to be unconstitutionally ambiguous and invalidated Section (B)(1). Thus, Polus’ sentences were ordered to be run concurrently with one another.

As a result, under R.C. 2929.41, in all cases, the trial court must impose concurrent sentences for felony and misdemeanor convictions, with the exceptions stated in (B)(3):

A jail term or sentence of imprisonment imposed for the following misdemeanors:

• Driving Under Suspension
• Driving Under OVI Suspension
• Driving Under Financial Responsibility Law Suspension or Cancellation
• Failure to Reinstate License

OVI

MUST be served consecutively for felony violations of:

• Aggravated Vehicular Homicide
• Aggravated Vehicular Assault
• OVI
• Involuntary Manslaughter involving the operation of a motor vehicle by the offender

If you know someone who is serving consecutive sentences in violation of this Ohio Supreme Court ruling, contact Criminal Defense Attorney Jonathan Horwitz today. We proudly represent clients throughout Southwest Ohio.