State v. Pendergrass (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State

v. Pendergrass, Slip Opinion No. 2020-Ohio-3335.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2020-OHIO-3335

THE STATE OF OHIO, APPELLEE, v. PENDERGRASS, APPELLANT.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as State v. Pendergrass, Slip Opinion No. 2020-Ohio-3335.]

Criminal law—Statutory interpretation—Rule of lenity—Unlawful sexual conduct

with a minor—Sentencing enhancement in R.C. 2907.04(B)(4) for previous

qualifying conviction requires that the defendant had the qualifying

conviction when he committed the charged offense—Court of appeals’

judgment reversed.

(No. 2018-1814—Submitted January 29, 2020—Decided June 17, 2020.)

APPEAL from the Court of Appeals for Montgomery County, No. 27814,

2018-Ohio-3813.

_________________

DEWINE, J.

{¶ 1} The statute that criminalizes unlawful sexual conduct with a minor,

R.C. 2907.04, says that an offender is subject to an enhanced penalty if he

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“previously has been convicted of” certain listed sex crimes. R.C. 2907.04(B)(4).

The question we have to resolve is “previous to what?”

{¶ 2} The state maintains that the enhancement applies if at the time of

indictment the offender has previously been convicted of a qualifying sex crime.

Gerald Pendergrass, the appellant in this case, says no, the enhancement only

applies if at the time of the offense the offender has previously been convicted of a

qualifying sex crime. Looking to the text of the statute, and mindful of the rule of

lenity, we conclude that Pendergrass has the better of the argument. As a

consequence, we reverse the judgment of the court of appeals below and reinstate

the judgment of the trial court.

Facts and procedural history

{¶ 3} In September 2016, Pendergrass was convicted of one count of

unlawful sexual conduct with a minor, in violation of R.C. 2907.04.1 Then, in

September 2017, Pendergrass was again indicted for unlawful sexual conduct with

a minor. The 2017 indictment alleged that the criminal behavior occurred sometime

between May 2013 and May 2015—that is, before the September 2016 conviction.

This later indictment sought to enhance the charges from fourth-degree felonies to

second-degree felonies under R.C. 2907.04(B)(4). That subdivision elevates the

penalty for violating R.C. 2907.04 if the defendant “previously has been convicted

of” certain sex crimes, including unlawful sexual conduct with a minor.

{¶ 4} Pendergrass moved to dismiss the indictment on the ground that the

enhancement does not apply when the alleged criminal conduct predates the prior

conviction. The trial court agreed with Pendergrass and granted his motion. The

state appealed and the court of appeals reversed. The majority of the panel agreed

with the state that any conviction for a qualifying offense prior to the indictment

1. According to the court of appeals, the 2016 indictment was for criminal behavior that occurred

sometime between October 1 and December 1, 2015. 2018-Ohio-3813, 111 N.E.3d 120, ¶ 2.

Although the record does not contain that indictment, the parties do not dispute these dates.

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was sufficient to trigger the R.C. 2907.04(B)(4) enhancement. Because

Pendergrass had been convicted of unlawful sexual conduct with a minor in

September of 2016, they reasoned that the 2017 indictment could include the

enhancement, even though the charged criminal activity predated the prior

conviction. 2018-Ohio-3813, 111 N.E.3d 120, ¶ 17; id. at ¶ 26 (Froelich, J.,

concurring).

The statutory text

{¶ 5} In interpreting a statute, we begin with the statutory language.

R.C. 2907.04(B) states:

(B) Whoever violates this section is guilty of unlawful

sexual conduct with a minor.

(1) Except as otherwise provided in divisions B(2), (3), and

(4) of this section, unlawful sexual conduct with a minor is a felony

of the fourth degree.

***

(4) If the offender previously has been convicted of or

pleaded guilty to [rape, sexual battery, or unlawful sexual conduct

with a minor], unlawful sexual conduct with a minor is a felony of

the second degree.

(Emphasis added.) Under dispute here is the proper interpretation of the phrase

“previously has been convicted” in subdivision (B)(4). Our resolution of that

dispute turns on determining the referent of “previously” so as to allow us to answer

the question “previous to what?” Is any qualifying conviction previous to the

indictment sufficient, or must the conviction have been previous to the charged

criminal act?

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{¶ 6} On its face, the statute does not directly answer the question. There

is no obvious textual referent to the word “previously.” Nonetheless, both the state

and Pendergrass argue that the statutory language supports their preferred

interpretation. Because our initial reading of the statute does not provide an

obvious answer to the question in front of us, we turn to the arguments of each

party.

The state’s argument lacks textual support

{¶ 7} The state, in its brief, insists that the plain meaning of the statutory

language unambiguously requires only that the qualifying conviction predate the

new indictment. But the state doesn’t engage in any actual analysis of the statutory

text. Instead, it relies largely upon arguments about case law and public policy to

support its preferred reading.

{¶ 8} The state hangs its hat primarily on this court’s decisions in State v.

Smith, 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283, and State v. Brantley,

1 Ohio St.2d 139, 205 N.E.2d 391 (1965). Smith dealt with a sexually-violent-

predator specification that imposed a greater penalty on a person convicted of a

sexually violent offense when that person was found to be a “sexually violent

predator”—defined as one “ ‘who has been convicted of or pleaded guilty to

committing * * * a sexually violent offense and is likely to engage in the future in

one or more sexually violent offenses.’ ” (Emphasis in Smith.) Smith at ¶ 8. At

issue was whether the sexually-violent-predator enhancement could be premised

on the conviction for a sexually violent offense in the same indictment or whether

there had to be a prior conviction for a sexually violent offense. This court said

that there had to be a conviction “prior to the indictment”—language upon which

the state seizes. Id. at ¶ 32. But given that the statutory language and the legal

question under dispute in Smith are wholly unlike those presented here, it is hard to

see how Smith is a relevant precedent.

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{¶ 9} The same goes for Brantley. In that case, a gambling statute imposed

a misdemeanor penalty “for the first offense” and a felony penalty “for each

subsequent offense.” Id. at 140. The defendant violated the statute in 1961 and

was convicted for that violation in March of 1962. Id. at 141. He violated the

statute a second time in February 1962. Id. This court had to decide whether the

defendant could be indicted for a “subsequent offense” even though the second

crime had been committed prior to the first conviction. This court reasoned that

since the statute referenced the first or subsequent offense and not first or

subsequent conviction, it did not matter that the conviction for the first offense

occurred after the commission of the second offense—the second offense was a

subsequent one. Id. For obvious reasons, Brantley is of limited use here:

R.C. 2907.04(B)(4) uses totally different language—“previously has been

convicted of” rather than “subsequent offense.” And the temporal order is

different—the present case involves an enhancement for the first-committed crime,

whereas Brantley involved an enhancement for the second-committed crime.

{¶ 10} The state and the dissenting opinion argue that had the General

Assembly intended that the previous conviction predate the criminal act, it could

have said so explicitly. But this sort of argument makes little sense when

confronted with two plausible competing interpretations of a statute.2 Sure, the

General Assembly could have said that the heightened penalty applies only when

the previous conviction predates the offense. But it just as easily could have said

that the heightened penalty applies whenever the previous conviction predates the

indictment. So the fact that it said neither proves nothing.

2. Rather, this sort of argument makes sense only when one party offers up an interpretation that

imposes additional implied constraints on the application of a statute that aren’t based in the plain

text. It’s of no use at all in the case of a bona fide ambiguity in the statutory language. In that sort

of case, it will always be equally true for both competing interpretations that the General Assembly

could have more clearly stated its aims.

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{¶ 11} In a similar vein, the state and the dissenting opinion contend that

Pendergrass’s interpretation would require us to insert words into the statute so as

to limit its application to cases where the qualifying conviction came before the

charged criminal act. Again, this line of reasoning makes little sense when

confronted with an interpretive dispute arising from a statute’s failure to explicitly

differentiate between two competing interpretations. In such a case, making either

interpretation explicit will require inserting additional words. In essence, the state

and the dissenting opinion seem to share the view that because Pendergrass’s

interpretation is more restrictive than the state’s, insofar as it makes the

enhancement apply in fewer cases, the state’s interpretation wins. But when

interpreting criminal statutes, close calls don’t go to the state, and in the face of an

ambiguity, we don’t default to interpreting the statute so as to allow the state to

punish more rather than less. Indeed, the exact opposite is true. See R.C.

2901.04(A).

{¶ 12} Finally, the state makes a policy argument based on the fact that

children often delay in reporting instances of sex abuse, and hence, someone like

Pendergrass might avoid the heightened penalty altogether if victims come forward

in a certain order. But that argument illustrates one of the problems with

hypothesizing about the General Assembly’s preferred policy outcomes—one tends

to hypothesize the policy outcomes that they personally endorse.

{¶ 13} Indeed, if one takes to divining statutory meaning through guesses

about the legislature’s preferred policy outcomes, it is not hard to come up with

outcomes that cut against the state’s interpretation. For example, on the state’s

interpretation, when a defendant has committed multiple violations of R.C.

2907.04, the minimum sentence he faces would depend on the order in which the

prosecution brings charges. If the prosecution brings charges in a staggered

manner, rather than all at once, then the minimum penalty on the later charged

crimes increases. In short, the severity of the penalty is contingent solely on how

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the crime is prosecuted and not on differences in what a defendant did. As the

United States Supreme Court has commented, it is a “strange consequence[]” for a

statute to allow the prosecution to increase the punishment solely by altering the

manner—i.e., the order—of charging the crimes. Deal v. United States, 508 U.S.

129, 134, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993).

{¶ 14} Further, the state’s interpretation allows for the harsher punishment

of a person for something that he hasn’t yet done at the time he commits the criminal

act. Remember that Pendergrass is being prosecuted for a crime that he is alleged

to have committed sometime between May 2013 and May 2015. The previous

conviction that the state now treats as triggering the heightened penalty was for a

crime that occurred towards the end of 2015. Thus, at the time he committed the

offense at issue in this appeal, Pendergrass would have reasonably expected that he

was committing a crime that was a felony of the fourth degree, and not a felony of

the second degree.

{¶ 15} The point is that it is not our role, and we are ill-equipped, to divine

statutory meaning based on hunches about policy outcomes we suspect the

legislature might have preferred. And here, there is no more reason to presume that

legislators would want to include a heightened penalty whenever a person is

convicted of a crime a second time, than that they would want to include a

heightened penalty only when a person fails to correct his ways again after having

once been punished. See Deal at 136.

{¶ 16} Thus, after working through the state’s arguments, we still don’t

have a credible answer to the question “previous to what,” and we are largely where

we started. The dissenting opinion suggests that in not accepting the state’s

interpretation, this court is making the mistake of “search[ing] for ambiguity before

looking at the specific language of the statute.” Dissenting opinion at ¶ 33. But as

we have explained, the specific language of the statute presents an interpretive

puzzle that cannot be glossed over—the word “previously” needs a referent that

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can answer the question “previous to what?” And the statutory language provides

no obvious answer to that question. While it is true that a court ought not create an

ambiguity where none exists, it is equally true that a court ought not ignore a bona

fide interpretive puzzle that must be resolved.

{¶ 17} Towards the conclusion of its opinion, the dissent insists that “R.C.

2907.04(B) plainly states that a person must only have an applicable prior

conviction on his or her record at the time new charges are filed in order for that

offender to be liable for a second-degree felony.” Dissenting opinion at ¶ 37. As

should be obvious by now, the statute doesn’t plainly state that at all. If the General

Assembly had said that, then there would be no question regarding the proper

interpretation of the statute. But it didn’t, so here we are.

The best textual argument supports Pendergrass’s interpretation

{¶ 18} Pendergrass argues that the plain reading of the text as a whole—as

well as federal and state case law—supports his interpretation. At the very least,

he says, the statute is ambiguous, and thus he should win under the rule of lenity.

{¶ 19} We find some merit in his textual argument. Where we are is that

one cannot resolve the interpretive dispute by a casual glance at the face of the text,

because there is no obvious referent for the word “previously” in R.C.

2907.04(B)(4) that provides a clear answer to the question “previous to what.”

Rather, one must draw an inference. And while there is no slam-dunk argument for

either position here, Pendergrass’s read on the statute at least has some textual

support.

{¶ 20} Looking to the broader statutory language, rather than just

subdivision (B)(4) in isolation, reveals some basis for thinking that the referent is

the criminal act.

{¶ 21} Here again is the relevant statutory language in R.C. 2907.04(B):

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(B) Whoever violates this section is guilty of unlawful

sexual conduct with a minor.

***

(4) If the offender previously has been convicted of [a

qualifying offense], unlawful sexual conduct with a minor is a

felony of the second degree.

(Emphasis added.)

{¶ 22} Read together then, the statute provides: If “whoever violates this

section” “previously has been convicted” of a qualifying offense then “unlawful

sexual conduct with a minor is a felony of the second degree.” Thus, in context,

the passages suggest that the “previously has been convicted” language refers to

“whoever violates.” The combination of the present tense “violates” with

“previously has been convicted” indicates that the existence of the enhancement

depends on a previous conviction at the time of the violation.

{¶ 23} To illustrate why this is the most natural reading, consider another

grammatically analogous statement. Consider a house rule that provides:

“Whoever steals cookies from the cookie jar gets no dessert tonight, and if he has

previously been caught stealing from the cookie jar, he gets no dessert for a week.”

The intuitive meaning here is that if you steal cookies again after you were caught

the first time, you don’t get dessert for a week.

{¶ 24} So, based on the broader statutory language there is reason to think

that the referent for the word “previously” in subdivision (B)(4) is the violation, not

the indictment. This suggests that in order for the enhancement to apply, a

defendant must have a qualifying conviction when he commits the charged offense.

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At a minimum, the case should be decided in Pendergrass’s favor based on the

rule of lenity

{¶ 25} As we have explained, looking to the language of the statute,

Pendergrass has the more plausible interpretation. But even if there are remaining

doubts, the statute is at least ambiguous. R.C. 2901.04(A)—Ohio’s statutory rule

of lenity—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 we have explained, the function of this rule is to prevent a court from

“interpret[ing] a criminal statute so as to increase the penalty it imposes on a

defendant if the intended scope of the statute is ambiguous.” State v. Elmore, 122

Ohio St.3d 472, 2009-Ohio-3478, 912 N.E.2d 582, ¶ 38; see also United States v.

Santos, 553 U.S. 507, 514, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008) (plurality

opinion). Because no sound textual argument resolves the facial ambiguity in the

statute in favor of the state’s interpretation, at the very least, Pendergrass prevails

under the rule of lenity.

Conclusion

{¶ 26} We reverse the court of appeals and reinstate the trial court’s

judgment.

Judgment reversed.

O’CONNOR, C.J., and KENNEDY and DONNELLY, JJ., concur.

STEWART, J., concurs in judgment only.

FISCHER, J., dissents, with an opinion joined by FRENCH, J.

_________________

FISCHER, J., dissenting.

{¶ 27} Respectfully, I must dissent.

{¶ 28} This case simply asks this court to interpret only the meaning of the

phrase “previously has been convicted” in R.C. 2907.04(B)(4). And as statutory

interpretation involves a question of law, this court must review the judgment of

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the court of appeals de novo. State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010,

998 N.E.2d 401, ¶ 9. When interpreting a statutory provision, our primary concern

must be to “ascertain and give effect to the intention[s]” of the legislature. State v.

Vanzandt, 142 Ohio St.3d 223, 2015-Ohio-236, 28 N.E.3d 1267, ¶ 7, citing Henry

v. Cent. Natl. Bank, 16 Ohio St.2d 16, 242 N.E.2d 342 (1968), paragraph two of the

syllabus. To determine legislative intent, we first look to the plain language of the

statute. Id. “If the meaning of the statute is unambiguous and definite, it must be

applied as written and no further interpretation is necessary.” (Emphasis added.)

State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d 543,

545, 660 N.E.2d 463 (1996). And that is the exact situation at bar.

The Statute Is Unambiguous

{¶ 29} R.C. 2907.04 states:

(A) No person who is eighteen years of age or older shall

engage in sexual conduct with another, who is not the spouse of the

offender, when the offender knows the other person is thirteen years

of age or older but less than sixteen years of age, or the offender is

reckless in that regard.

(B) Whoever violates this section is guilty of unlawful

sexual conduct with a minor.

(1) Except as otherwise provided in divisions (B)(2), (3), and

(4) of this section, unlawful sexual conduct with a minor is a felony

of the fourth degree.

(2) Except as otherwise provided in division (B)(4) of this

section, if the offender is less than four years older than the other

person, unlawful sexual conduct with a minor is a misdemeanor of

the first degree.

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(3) Except as otherwise provided in division (B)(4) of this

section, if the offender is ten or more years older than the other

person, unlawful sexual conduct with a minor is a felony of the third

degree.

(4) If the offender previously has been convicted of or

pleaded guilty to a violation of section 2907.02 [rape], 2907.03

[sexual battery], or 2907.04 of the Revised Code or a violation of

former section 2907.12 of the Revised Code, unlawful sexual

conduct with a minor is a felony of the second degree.

(Emphasis added.)

{¶ 30} On its face, this statute is clear. The applicable words are

unambiguous: “If the offender previously has been convicted of or pleaded guilty

to a [a qualifying offense], unlawful sexual conduct with a minor is a felony of the

second degree.” Id. That wording could not be clearer. The only way to make

R.C. 2907.04(B)(4) ambiguous is to either add or subtract words or concepts, which

this court cannot, and absolutely should not, do. See Cincinnati City School Dist.

Bd. of Edn. v. State Bd. of Edn., 122 Ohio St.3d 557, 2009-Ohio-3628, 913 N.E.2d

421, ¶ 19; In re Adoption of Holcomb, 18 Ohio St.3d 361, 366, 481 N.E.2d 613

(1985).

The Plain Language of R.C. 2907.04

{¶ 31} A person commits the offense of unlawful sexual conduct with a

minor when his actions satisfy the elements of the offense set forth in division (A)

of the statute. However, unlike division (A), subdivision (B)(4) provides an

element that enhances the degree of the offense when the charging document

provides notice that the additional element is alleged to exist and it is then proved

beyond a reasonable doubt that the element does exist. See R.C. 2945.75(A)(1);

State v. Gwen, 134 Ohio St.3d 284, 2012-Ohio-5046, 982 N.E.2d 626, ¶ 11 (“When

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the existence of a prior conviction affects the degree of the offense * * * it must be

proven beyond a reasonable doubt before the level of the offense may be

increased”).

{¶ 32} Because a qualifying prior conviction has no bearing on whether a

person commits a violation of unlawful sexual conduct with a minor under R.C.

2907.04(A), the violation giving rise to the subsequent prosecution does not serve

as any type of defining event that the previous conviction must precede. On the

contrary, if division (A) sets forth the elements of the offense that must be proved

beyond a reasonable doubt for a finding of guilt, while subdivisions (B)(1) through

(4) designate at what level and degree the offense will be charged based on the

presence of an additional element or lack thereof, then it is only logical for the

phrase “previously has been convicted” to refer to the period of time before charges

are filed or an indictment is secured. Had the General Assembly intended that the

prior conviction be entered before the alleged violation that is the subject of the

subsequent prosecution, it could have—rather simply and explicitly—stated that

requirement, as it has done elsewhere in the Revised Code. See, e.g.,

R.C. 2950.01(F)(1)(j) (imposing a tier II sex-offender classification when the

offender pleads guilty to or is convicted of “[a]ny sexually oriented offense that is

committed after the sex offender previously has been convicted of * * * any sexually

oriented offense or child-victim oriented offense for which the offender was

classified a tier I sex offender/child-victim offender” [emphasis added]). The

legislature did not do so, and this court should not do so now.

{¶ 33} We must be careful not to search for ambiguity before looking at the

specific language of the statute—that is, we must avoid the risk of creating an

ambiguity where none exists by getting lost in our attempts to analyze the statute

rather than simply looking to the plain meaning of the statute’s specific wording at

the outset. We must look to the statute first to determine whether its meaning is

plain. State ex rel. Herman v. Klopfleisch, 72 Ohio St.3d 581, 584, 651 N.E.2d 995

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(1995); see also Iddings v. Jefferson Cty. School Dist. Bd. of Edn., 155 Ohio St.

287, 290, 98 N.E.2d 827 (1951) (“When the meaning is plain from the language

employed, an attempt to construe it only tends to make ambiguous that which is

simple and clear”). Since R.C. 2907.04(B) is clear and unambiguous on its face,

no further analysis is needed. See Herman at 584; Savarese, 74 Ohio St.3d at 545,

660 N.E.2d 463.

{¶ 34} I would reject Pendergrass’s argument that if R.C. 2907.04(B)(4)

requires only that a conviction be entered prior to a subsequent indictment, then the

term “previously” is rendered meaningless in that provision. In making this

argument, Pendergrass relies upon United States v. Talley, 16 F.3d 972 (8th

Cir.1994). In Talley, the 8th Circuit Court of Appeals was called upon to interpret

the requirements of 18 U.S.C. 924(e), a federal sentencing-enhancement provision

that applies to “ ‘a person who violates section 922(g) of this title and has three

previous convictions * * * for a violent felony or serious drug offense.’ ” (Emphasis

in Talley.) Id. at 975, quoting 18 U.S.C. 924(e)(1). The court reasoned,

If previous convictions meant those convictions a defendant had

accumulated prior to sentencing, Congress could have omitted the

word previous because, at sentencing, a district court could never

consider convictions not yet in existence. Thus, adoption of the

government’s interpretation of previous convictions effectively

would render the term previous superfluous.

(Emphasis sic.) Id. at 975-976.

{¶ 35} Unlike the Eighth Circuit in Talley, in addressing the offense-level-

enhancement issue before us, this court should not conclude that the word

“previously” is rendered meaningless unless we interpret R.C. 2907.04(B)(4) to

require any such conviction to be entered prior to the commission of an offense

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charged subsequently. Within R.C. 2907.04(B), there are four separate provisions

that outline the offense levels for unlawful sexual conduct with a minor.

Subdivision (B)(1) states that “unlawful sexual conduct with a minor is a felony of

the fourth degree.” Then, depending on the age of the offender in relation to the

victim, subdivisions (B)(2) and (B)(3) either reduce or enhance the offense level or

degree. Lastly, subdivision (B)(4) states that unlawful sexual conduct with a minor

is a felony of the second degree “[i]f the offender previously has been convicted of

* * * a violation of section 2907.02, 2907.03, or 2907.04 * * *.” When viewed in

light of the provisions in (B)(1) through (3), the term “previously” in (B)(4) retains

obvious and logical meaning because it clarifies that a person facing charges for

unlawful sexual conduct with a minor for the first time, if convicted, is guilty of a

fourth-degree felony, not a second-degree felony. If the legislature had used the

phrase “has been convicted” instead of “previously has been convicted” in

subdivision (B)(4), that language could cause confusion and ambiguity as to

whether a first-time offense becomes a second-degree felony, once a conviction is

entered on that offense.

{¶ 36} The inclusion of the word “previously” in R.C. 2907.04(B)(4) also

aids courts when applying that subdivision in cases involving multiple counts of

unlawful sexual conduct with a minor. If the word “previously” were omitted from

the statute, then in a case in which a defendant is convicted of multiple counts of

that offense within the same case, the sentencing court could treat one of the counts

as a fourth-degree felony and the remaining counts as second-degree felonies. This

scenario is foreclosed, however, due to the wording of R.C. 2907.04(B)(4). The

inclusion of the word “previously” in that subdivision makes it clear that a

conviction for unlawful sexual conduct with a minor is a second-degree felony only

when the offender has already been convicted of a qualifying offense in an earlier

case.

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Plain Language

{¶ 37} This case boils down to nothing more than the plain and

unambiguous language of a statute. Although R.C. 2907.04(B)(4) establishes that

a prior conviction is an element to be proved beyond a reasonable doubt, the

legislature did not require that the conviction be present prior to the commission of

the offense that is subsequently charged. In other words, the fact that a conviction

is an element of the offense that must be raised and proven at trial does not mean

that the conviction must exist when the charged conduct occurs and not just when

the offense is charged. Thus, R.C. 2907.04(B) plainly states that a person must

only have an applicable prior conviction on his or her record at the time new charges

are filed in order for that offender to be liable for a second-degree felony. To hold

otherwise would be to limit the General Assembly’s ability to execute its intent and

to, effectively, make this court a legislative policymaker. That is not, and should

not be, the role of this court. See Arbino v. Johnson & Johnson, 116 Ohio St.3d

468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 113; see also Iddings, 155 Ohio St. at

290, 98 N.E.2d 827 (“To construe or interpret what is already plain is not

interpretation but legislation, which is not the function of courts”).

Conclusion

{¶ 38} I agree with the state that the plain and unambiguous language of the

phrase “previously has been convicted” in R.C. 2907.04(B)(4) requires only that a

person have a qualifying prior conviction on his or her record at the time new

charges are filed in order for that offender to be liable for a second-degree felony.

Nothing, absolutely nothing, in subdivision (B)(4) of the statute, or even R.C.

2907.04 as a whole, explicitly or impliedly indicates that the General Assembly

intended that the prior conviction have preceded the conduct giving rise to a

subsequent indictment. The plain language of R.C. 2907.04(B)(4) is

unambiguous—it requires only that the person have been previously convicted of a

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qualifying offense before the state initiates criminal proceedings for a violation of

R.C. 2907.04.

{¶ 39} For these reasons, I must respectfully dissent and would affirm the

judgment of the Second District Court of Appeals.

FRENCH, J., concurs in the foregoing opinion.

_________________

Mathias H. Heck, Montgomery County Prosecuting Attorney, and Heather

N. Ketter and Lisa M. Light, Assistant Prosecuting Attorneys, for appellee.

Timothy Young, Ohio Public Defender, and Victoria A. Bader, Assistant

State Public Defender, for appellant.

_________________

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