A criminal sentence for a felony and a misdemeanor must be served at the same time, except for in a certain situations specified in state law, the Ohio Supreme Court ruled today.

In a 6-1 decision, the Supreme Court ruled a Lucas County man’s sentence for pleading guilty to one fifth-degree felony and one first-degree misdemeanor must run concurrently.Writing for the Court, Justice William M. O’Neill explained that Walter Polus’s crimes of receiving stolen property are not among the convictions that allow a trial court to order consecutive sentences for a felony and a misdemeanor.

The decision settles a conflict among Ohio appellate courts where some have found that R.C. 2929.41(B)(1) provides judges the discretion to run felony and misdemeanor sentences consecutively.

Polus Faced Numerous Charges
On two occasions, Polus purchased tools he suspected were stolen and later offered to sell them. In February 2013, he was indicted on two fifth-degree felony counts of receiving stolen property. The state then amended the charges to one felony and one first-degree misdemeanor of receiving stolen property, and Polus pled guilty. He was sentenced to 11 months in prison for the felony and six months in jail for the misdemeanor. The trial court imposed the sentences to run consecutively for a total of 17 months.

Later, Polus was charged with two more felony counts of receiving stolen property. He pled guilty to those and was ordered to two more 11-month consecutive sentences, for a total of 22 months that were to begin once he finished the 17 months from the February conviction. Polus appealed to the Sixth District Court of Appeals arguing that R.C. 2929.41(A) required his first felony sentence and his misdemeanor sentence run concurrently, effectively reducing his total time of incarceration by six months.

Sixth District Sees Trouble with Statute
The Sixth District found its decision conflicted with rulings of the Fifth and Eighth districts on the interpretation of the sentencing law and certified the conflict to the Supreme Court. Justice O’Neill noted the Sixth District found R.C. 2929.41 to be ambiguous because a provision in R.C. 2929.41(B)(1) appears to give judges the discretion to impose felony and misdemeanor sentences to run consecutively while R.C. 2929.41(A)(1) would appear to prohibit the consecutive sentences unless 2929.41(B)(3) applies. The exceptions in (B)(3) do not apply to the crimes Polus committed, the Court ruled.

Justice O’Neill explained that unlike the Sixth District, the Court found no ambiguity with the statute. He wrote R.C. 2929.41(A) enacts a general rule that applies to all sentencing except for the “clearly delineated exceptions” in the law. The Court found the only exceptions granted are for the exceptions found in (B)(3), and that (B)(1) does not provide any discretion.

The Court is not following past interpretations of this code section because the law has been rewritten since the issue was last before the high court, Justice O’Neill noted. In its 1991 State v. Butts decision the Court determined the statute stated “in any case” a misdemeanor must run concurrently with a felony, but state lawmakers changed the law twice, once in 2000, and again in 2004, adding the provision that is now the exceptions in 2929.41(B)(3).

“Although some lower courts have read R.C. 2929.41(B)(1) to contradict our conclusion, we do not. We must presume that the General Assembly intended every part of the statute to be effective,” he wrote.

Justice O’Neill explained that R.C. 2929.41(B)(1) directs trial judges to order three misdemeanors – pandering sexually oriented matter involving children, escape, and possession of a deadly weapon while under detention – to run consecutively with a felony conviction. The only other misdemeanors that can run consecutively with a felony are those specified in R.C. 2929.41(B)(3), he concluded.

The Court affirmed the Sixth District and remanded the case to the trial court for further proceedings.

Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Judith Ann Lanzinger, Sharon L. Kennedy, and Judith L. French concurred in the decision.

Justice Terrence O’Donnell dissented without an opinion.

2014-1062. State v. Polus, Slip Opinion No. 2016-Ohio-655.

View oral argument video of this case.

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