State v. Pettus (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Pettus, Slip Opinion No. 2020-Ohio-4836.]




                                           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
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      South Front Street, Columbus, Ohio 43215, of any typographical or other
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      the opinion is published.



                          SLIP OPINION NO. 2020-OHIO-4836
             THE STATE OF OHIO, APPELLEE, v. PETTUS, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
       may be cited as State v. Pettus, Slip Opinion No. 2020-Ohio-4836.]
Criminal     law—R.C.       2913.61(C)(1)—R.C.          2913.61(C)(1)       allows     for   the
        aggregation of multiple theft offenses involving one victim into a single
        count, regardless of the status of the victim—Certified-conflict case
        dismissed as improvidently certified—Court of appeals’ judgment affirmed.
 (Nos. 2019-0914 and 2019-1027—Submitted June 16, 2020—Decided October
                                          13, 2020.)
    APPEAL from and CERTIFIED by the Court of Appeals for Hamilton County,
                             No. C-170712, 2019-Ohio-2023.
                                   __________________
        FISCHER, J.
        {¶ 1} In this appeal, we are asked to determine whether R.C. 2913.61(C)(1)
permits aggregation of certain theft offenses only when the victim is an elderly
person, a disabled adult, an active-duty service member, or a spouse of an active-
                             SUPREME COURT OF OHIO




duty service member. We conclude that the language of the statute unambiguously
allows for the aggregation of multiple theft offenses involving one victim into a
single count, regardless of the status of the victim.
                     I. Factual and Procedural Background
       {¶ 2} In connection with multiple alleged incidents of passing fraudulent
checks at four separate banks, appellant, Lashawn Pettus, was charged with four
counts of theft in violation of R.C. 2913.02(A)(3), among other charges. Each
count of theft related to a different bank, and Pettus was alleged to have presented
multiple fraudulent checks to each bank. In accordance with R.C. 2913.61(C)(1),
each theft count aggregated the multiple instances of theft alleged against each
respective bank.
       {¶ 3} Pettus filed a motion to dismiss each of the four theft counts. In
support of his motion, he argued that each count was improperly aggregated into
one offense, because R.C. 2913.61(C)(1) permits aggregation only when the victim
of a theft offense was an elderly person, a disabled adult, an active-duty member of
the military, or the spouse of an active-duty member of the military. The trial court
denied Pettus’s motion to dismiss. After a bench trial, the court found Pettus guilty
of each theft offense.
       {¶ 4} The First District Court of Appeals vacated Pettus’s sentences in part
and remanded for resentencing after concluding that the trial court erred in
imposing consecutive sentences without making required findings at the sentencing
hearing. 2019-Ohio-2023, ¶ 85. The appellate court otherwise affirmed the trial
court’s judgment. Id. In doing so, the First District rejected Pettus’s argument that
the trial court erred by denying his motion to dismiss. Id. at ¶ 39-40. The court
stated that R.C. 2913.61(C)(1) is unambiguous and that based on the plain language
of the statute, the clause requiring that the victim of an offense be an elderly person
or disabled adult is limited to violations of R.C. 2913.31 and 2913.43. Id. at ¶ 36.
The court accordingly held that R.C. 2913.61(C)(1) does not limit the aggregation




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                                  January Term, 2020




of theft offenses under R.C. 2913.02 to theft offenses involving victims who are
elderly persons, disabled adults, or military persons. Id. at ¶ 39.
        {¶ 5} The First District certified a conflict after determining that its
judgment was in conflict with the Twelfth District’s judgment in State v. Phillips,
12th Dist. Clinton No. CA2009-03001, 2010-Ohio-2711. This court determined
that a conflict exists and ordered briefing on the conflict question certified by the
First District:


                  When a defendant is convicted of multiple theft offenses
        committed in the offender’s same employment, capacity, or
        relationship to another, does R.C. 2913.61(C) permit the offenses to
        be aggregated where the victim of the offense is not an elderly
        person, a disabled adult, or an active duty service member or spouse
        of an active duty service member?


See 157 Ohio St.3d 1417, 2019-Ohio-3797, 131 N.E.3d 955. This court also
accepted jurisdiction over the first proposition of law set forth in Pettus’s
jurisdictional appeal: “R.C. 2913.61(C)(1) allows aggregation of theft offenses only
when the victims are elderly or disabled or who are in the military or who are
spouses of those in the military.” See 157 Ohio St.3d 1419, 2019-Ohio-3797, 131
N.E.3d 962. We consolidated the conflict case and jurisdictional case. Id.
      II. The Conflict Portion of this Case Was Improvidently Certified
        {¶ 6} Before analyzing the issue in this appeal, we first dismiss the certified-
conflict case as improvidently certified. In order for a conflict to be properly before
us, the judgment of the court of appeals certifying the conflict must conflict with
the judgment of another court of appeals upon the same question. Whitelock v.
Gilbane Bldg. Co., 66 Ohio St.3d 594, 596, 613 N.E.2d 1032 (1993). After
reviewing the record in this case, we conclude that there is not a certifiable conflict




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between the First District’s judgment in this case and the Twelfth District’s
judgment in Phillips. The facts of the two cases render them distinct.
       {¶ 7} In Phillips, the state charged the defendant with a single violation of
R.C. 2913.02(A)(1) that aggregated thefts involving multiple victims. 2010-Ohio-
2711 at ¶ 5. The Twelfth District sua sponte raised the issue whether the state
properly tried all the alleged theft offenses as a single offense. Id. at ¶ 64. In doing
so, it first considered whether the offenses could be aggregated under R.C.
2913.61(C)(2), which permits aggregation of offenses in certain cases involving
multiple victims. Id. at ¶ 70. After analyzing that statute, it concluded that R.C.
2913.61(C)(2) did not permit aggregation under the facts in Phillips. Id. at
¶ 70-71. It then proceeded to state that “R.C. 2913.61(C)(1) does not apply because
the subsection is limited to thefts involving elderly or disabled victims, through the
offender’s employment, capacity, or relationship with another.”            Id. at ¶ 72.
Notably, the court engaged in no analysis of R.C. 2913.61(C)(1) beyond that
conclusory statement that the statute did not apply in the case.
       {¶ 8} Unlike Phillips, this case does not involve aggregation of thefts
involving multiple victims into a single count.          Instead, this case involves
aggregation of multiple thefts involving one victim into a single count for each
victim. Given this significant difference, we conclude that the two cases are not in
conflict upon the same question. We accordingly dismiss the certified-conflict case
as improvidently certified.
                                    III. Analysis
       {¶ 9} Despite dismissing the certified-conflict case, our consideration of the
proposition of law presented in Pettus’s jurisdictional appeal provides us an
opportunity to determine whether R.C. 2913.61(C)(1) permits aggregation of theft
offenses only when the victims are elderly persons, disabled adults, active-duty
members of the military, or spouses of those military members.




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                               January Term, 2020




       {¶ 10} Statutory interpretation is a question of law that is reviewed de novo.
State ex rel. Natl. Lime & Stone Co. v. Marion Cty. Bd. of Commrs., 152 Ohio St.3d
393, 2017-Ohio-8348, 97 N.E.3d 404, ¶ 14, citing Ceccarelli v. Levin, 127 Ohio
St.3d 231, 2010-Ohio-5681, 938 N.E.2d 342, ¶ 8. When construing a statute, our
primary concern is legislative intent. State v. Marcum, 146 Ohio St.3d 516, 2016-
Ohio-1002, 59 N.E.3d 1231, ¶ 8. When determining legislative intent, we first look
to the plain language of the statute, and if that language is unambiguous and
definite, we apply it as written. Summerville v. Forest Park, 128 Ohio St.3d 221,
2010-Ohio-6280, 943 N.E.2d 522, ¶ 18, citing Hubbell v. Xenia, 115 Ohio St.3d
77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 11.
       {¶ 11} “To discern legislative intent, we read words and phrases in context
and construe them in accordance with rules of grammar and common usage.”
Mahoning Edn. Assn. of Dev. Disabilities v. State Emp. Relations Bd., 137 Ohio
St.3d 257, 2013-Ohio-4654, 998 N.E.2d 1124, ¶ 15. When interpreting a statute,
“ ‘significance and effect should, if possible, be accorded to every word, phrase,
sentence and part of an act.’ ” Weaver v. Edwin Shaw Hosp., 104 Ohio St.3d 390,
2004-Ohio-6549, 819 N.E.2d 1079, ¶ 13, quoting Wachendorf v. Shaver, 149 Ohio
St. 231, 78 N.E.2d 370 (1948), paragraph five of the syllabus. Furthermore, “we
determine the intent of the legislature by considering the object sought to be
attained.” Symmes Twp. Bd. of Trustees v. Smyth, 87 Ohio St.3d 549, 554, 721
N.E.2d 1057 (2000).
       {¶ 12} R.C. 2913.61(C)(1) provides:


             When a series of offenses under section 2913.02 of the
       Revised Code, or a series of violations of, attempts to commit a
       violation of, conspiracies to violate, or complicity in violations of
       division (A)(1) of section 1716.14, section 2913.02, 2913.03, or
       2913.04, division (B)(1) or (2) of section 2913.21, or section




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                              SUPREME COURT OF OHIO




        2913.31 or 2913.43 of the Revised Code involving a victim who is
        an elderly person or disabled adult, is committed by the offender in
        the offender’s same employment, capacity, or relationship to
        another, all of those offenses shall be tried as a single offense. When
        a series of offenses under section 2913.02 of the Revised Code, or a
        series of violations of, attempts to commit a violation of,
        conspiracies to violate, or complicity in violations of section
        2913.02 or 2913.43 of the Revised Code involving a victim who is
        an active duty service member or spouse of an active duty service
        member is committed by the offender in the offender’s same
        employment, capacity, or relationship to another, all of those
        offenses shall be tried as a single offense. The value of the property
        or services involved in the series of offenses for the purpose of
        determining the value as required by division (A) of this section is
        the aggregate value of all property and services involved in all
        offenses in the series.


        {¶ 13} As can be seen in the clauses that form the first sentence of the
provision, R.C. 2913.61(C)(1) provides for aggregation in two separate and distinct
instances. First, the statute provides for aggregation when there has been a “series
of offenses” under R.C. 2913.02, which proscribes theft. Second, the statute
provides for aggregation when there has been a “series of violations of, attempts to
commit a violation of, conspiracies to violate, or complicity in violations of” certain
listed offenses involving a victim who is an elderly person or disabled adult. This
reading is not only logical given the structure of the sentence, but it is also necessary
in order to accord full meaning to the provision.
        {¶ 14} With his proposition of law, Pettus argues that the portion of the
sentence requiring that the victim be an elderly person or disabled adult applies to




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                                 January Term, 2020




all offenses listed in the statute. This reading, however, renders a portion of the
statute redundant, and we generally will not approve of a reading of a statute that
renders its words superfluous. See E. Ohio Gas Co. v. Pub. Util. Comm., 39 Ohio
St.3d 295, 299, 530 N.E.2d 875 (1988). The redundancy inherent in Pettus’s
preferred reading of the statute is embodied in the provision’s dual references to
R.C. 2913.02. If the “elderly person or disabled adult” clause applies to both
references to R.C. 2913.02, then one of the references to R.C. 2913.02 is redundant.
Instead, in order to accord full meaning to the provision, we must read the “elderly
person or disabled adult” clause as having limited application. As noted above, the
“elderly person or disabled adult” clause applies to a series of violations of,
attempts to commit a violation of, conspiracies to violate, or complicity in
violations of R.C. 2913.02. When, however, a person commits a series of R.C.
2913.02 offenses, the offenses will be aggregated, regardless of the status of the
victim.
          {¶ 15} R.C. 2913.61(C)(1) thus clearly delineates between the two
instances in which theft offenses may be aggregated: (1) when an individual
commits a series of theft offenses and (2) when an individual commits a series of
violations of, attempts to commit a violation of, conspiracies to violate, or
complicity in violations of the theft statute involving a victim who is an elderly
person or disabled adult. (It bears noting that pursuant to the final clause of the first
sentence of R.C. 2913.61(C)(1), the offenses must have been committed by the
offender in the offender’s same employment, capacity, or relationship to another in
order to be aggregated.) In other words, theft offenses can be aggregated under the
first clause of R.C. 2913.61(C)(1), regardless of the status of the victim, while other
series of violations of offenses listed in (C)(1), attempts to commit those offenses,
conspiracies to commit those offenses, and complicity in those offenses can be
aggregated only when the victim is an elderly person or disabled adult.




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                             SUPREME COURT OF OHIO




       {¶ 16} This analysis also applies to the second sentence of R.C.
2913.61(C)(1), as the subsection’s first and second sentences are substantially
similar. Like the first sentence, the second sentence of R.C. 2913.61(C)(1) initially
states that a series of theft offenses under R.C. 2913.02 can be aggregated
regardless of the status of the victim, while the second part of the sentence states
that a series of violations of, attempts to commit a violation of, conspiracies to
violate, or complicity in violations of R.C. 2913.02 or 2913.43 are aggregated only
when the offenses involve a victim who is an active-duty service member or the
spouse of an active-duty service member. The absence of a comma in the second
sentence (following the phrase “involving a victim who is an active duty service
member or spouse of an active duty service member”) does not change this.
       {¶ 17} We also note that we see no significant distinction between
“offenses” and “violations” as used in the statute. The definitional statute of Title
29 of the Revised Code treats the two words as functionally synonymous. See, e.g.,
R.C. 2901.01(A)(9) (establishing that a “violation” of certain statutes, laws, or
ordinances constitutes an “offense of violence”). We accordingly conclude that
there is no meaningful difference in R.C. 2913.61(C) between the use of “offenses”
in relation to R.C. 2913.02 and “violations” in relation to other statutes.
       {¶ 18} In light of the above analysis, we hold that the unambiguous
language of R.C. 2913.61(C)(1) allows aggregation of theft offenses, regardless of
the status of the victim. Having determined that the statute is unambiguous, we
apply it as written, engage in no further analysis, and decline to address arguments
relating to the legislature’s intent in enacting R.C. 2913.61(C)(1), whether the
language of R.C. 2913.61(C)(1) achieves its intended effect, and whether other
statutory language would be preferable.
                                  IV. Conclusion
       {¶ 19} We dismiss the certified-conflict case as improvidently certified. As
to the jurisdictional appeal, we conclude that R.C. 2913.61(C)(1) is unambiguous




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                                  January Term, 2020




in allowing for the aggregation of multiple theft offenses involving one victim into
a single count, regardless of the status of the victim. We accordingly affirm the
judgment of the First District.
                                                                Judgment affirmed.
       O’CONNOR, C.J., and KENNEDY, FRENCH, WILLAMOWSKI, DONNELLY, and
STEWART, JJ., concur.
       JOHN R. WILLAMOWSKI, J., of the Third District Court of Appeals, sitting
for DEWINE, J.
                                  _________________
       Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M.
Heenan, Assistant Prosecuting Attorney, for appellee.
       Anzelmo Law and James A. Anzelmo, for appellant.
                                  _________________




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