[Cite as State v. Jones, 2012-Ohio-2900.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsCLARENCE JONES 

 Defendant-Appellant 

JUDGES: 

Hon. Patricia A. Delaney, P.J. 

Hon. William B. Hoffman, J. 

Hon. Sheila G. Farmer, J. 

Case No. 2011CA00284 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of 

Common Pleas, Case No. 2011-CR-1383 

JUDGMENT: Reversed and remanded 

DATE OF JUDGMENT ENTRY: June 25, 2012 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

JOHN D. FERRERO STEVEN A. REISCH 

Prosecuting Attorney Stark County Public Defender Office 

Stark County, Ohio 200 West Tuscarawas St., Suite 200 

 Canton, Ohio 44702 

By: RONALD MARK CALDWELL 

Assistant Prosecuting Attorney 

Appellate Section 

110 Central Plaza, South – Suite 510 

Canton, Ohio 44702-1413 
Stark County, Case No. 2011CA00284 2

Hoffman, J. 

{¶1} Defendant-appellant Clarence Jones appeals his sentence entered by the 

Stark County Court of Common Pleas. Plaintiff-appellee is the state of Ohio. 

STATEMENT OF THE CASE1

{¶2} On October 25, 2011, Appellant was indicted on one count of escape, in 

violation of R.C. 2921.34(A)(1), a second degree felony and one count of possession of 

cocaine, in violation of R.C. 2925.11(A).2

 Appellant pleaded guilty to the charges and 

the trial court sentenced Appellant to a total prison term of three years via Judgment 

Entry filed November 21, 2011. 

{¶3} On December 6, 2011, Appellant filed a motion to modify his sentence 

based upon the amended penalties in H.B. 86. The State filed a written response to the 

motion. Via Judgment Entry of December 14, 2011, the trial court denied Appellant's 

motion to modify his sentence. 

{¶4} Appellant now appeals, assigning as error: 

{¶5} “I. IT WAS AN ERROR OF LAW NOT TO APPLY §R.C. 2921.34 AS 

AMENDED EFFECTIVE SEPTEMBER 30, 2011, THEREBY SENTENCING THE 

APPELLANT TO A FOURTH DEGREE FELONY.” 

{¶6} R.C. 1.58(B) reads, in pertinent part: 

{¶7} “(B) If the penalty, forfeiture, or punishment for any offense is reduced by 

a reenactment or amendment of a statute, the penalty, forfeiture, or punishment, if not 

 

1

 A rendition of the facts is unnecessary for our disposition of this appeal. 

2

 Appellant does not challenge his conviction or sentence for possession of cocaine in 

the within appeal. 
Stark County, Case No. 2011CA00284 3

already imposed, shall be imposed according to the statute as amended (emphasis 

added). 

{¶8} H.B. 86 became effective September 30, 2011, sixteen days after 

Appellant committed the alleged offense, but prior to sentencing. The enacted 

legislation reads at Section 4: 

{¶9} "The amendments to sections 926.99, 1333.99, 1707.99, 1716.99, 

2909.03, 2909.05, 2909.11, 2913.02, 2913.03, 2913.04, 2913.11, 2913.21, 2913. 31, 

2913.32, 2913.34, 2913.40, 2913.401, 2913.42, 2913.421, 2913.43, 2913.45, 2913.46, 

2913.47, 2913.48, 2913.49, 2913.51, 2913.61, 2915.05, 2917. 21, 2917.31, 2917.32, 

2921.13, 2921.41, 2923.31, and 2981.07, division (B) of section 2929.13, and division 

(A) of section 2929.14 of the Revised Code that are made in this act apply to a person 

who commits an offense specified or penalized under those sections on or after the 

effective date of this section and to a person to whom division (B) of section 1.58 of the 

Revised Code makes the amendments applicable. 

{¶10} "The provisions of sections 926.99, 1333.99, 1707.99, 1716.99, 2909.03, 

2909.05, 2909.11, 2913.02, 2913.03, 2913.04, 2913.11, 2913.21, 2913.31, 2913. 32, 

2913.34, 2913.40, 2913.401, 2913.42, 2913.421, 2913.43, 2913.45, 2913.46, 2913.47, 

2913.48, 2913.49, 2913.51, 2913.61, 2915.05, 2917.21, 2917. 31, 2917.32, 2921.13, 

2921.41, 2923.31, and 2981.07 of the Revised Code in existence prior to the effective 

date of this section shall apply to a person upon whom a court imposed sentence prior 

to the effective date of this section for an offense specified or penalized under those 

sections. The amendments to sections 926.99, 1333.99, 1707.99, 1716.99, 2909.03, 

2909. 05, 2909.11, 2913.02, 2913.03, 2913.04, 2913.11, 2913.21, 2913.31, 2913.32, 
Stark County, Case No. 2011CA00284 4

2913.34, 2913.40, 2913.401, 2913.42, 2913.421, 2913.43, 2913.45, 2913.46, 2913.47, 

2913.48, 2913.49, 2913.51, 2913.61, 2915.05, 2917.21, 2917.31, 2917. 32, 2921.13, 

2921.41, 2923.31, and 2981.07 of the Revised Code that are made in this act do not 

apply to a person who upon whom a court imposed sentence prior to the effective date 

of this section for an offense specified or penalized under those sections." 

{¶11} R.C. 2921.34, the statute defining escape, for which Appellant was 

convicted, is not listed within the parameters of H.B. 86. The state properly notes 

legislation is presumed to be prospective in operation unless expressly made 

retroactive. State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163. The state argues 

because escape is not included within the list of statutory amendments in HB 86 Section 

4, it is not entitled to the benefit of the reduced penalty provided therein as the amended 

statute is presumed to be prospective in its application. 

{¶12} We disagree. Although section 4 specifically sets forth an extensive list of 

statutes specifically applying either R.C. 1.58 or specifically making H.B. 86 retroactive 

with regard to the named sections, we find the absence of the escape statute from the 

Section 4 list does not otherwise limit the applicability of R.C. 1.58. 

{¶13} The State further asserts R.C. 1.58 does not apply to give Appellant the 

benefit of the reduced sentence. The State relies upon the Ohio Supreme Court holding 

in State v. Kaplowitz, 100 Ohio St.3d 205, 2003-Ohio-5602, as support. In Kaplowitz, 

the Court held: 

{¶14} "Accordingly, we hold that R.C. 1.58(B) does not apply to give a criminal 

defendant the benefit of a reduced sentence if, by applying it, the court alters the nature 

of the offense, including specifications to which the defendant pled guilty or of which he 
Stark County, Case No. 2011CA00284 5

was found guilty. State v. Kinder (2000), 140 Ohio App.3d 235, 746 N.E.2d 1205, 

disapproved." 

{¶15} Here, Appellant was charged with and convicted of violating R.C. 

2921.34(A)(1). The statute, as amended, reads: 

{¶16} "(A)(1) No person, knowing the person is under detention, other than 

supervised release detention, or being reckless in that regard, shall purposely break or 

attempt to break the detention, or purposely fail to return to detention, either following 

temporary leave granted for a specific purpose or limited period, or at the time required 

when serving a sentence in intermittent confinement." 

{¶17} The Amendment Notes to the statute following the enactment of HB 86 

read, 

{¶18} "2011 H 86 inserted ', other than supervised release detention,' in division 

(A)(1); added divisions (A)(3), (C)(3), and (D); inserted “the offender violates division 

(A)(1) or (2) of this section, if' in division (C)(1); in division (C)(2), inserted “the offender 

violates division (A)(1) or (2) of this section and if either” and deleted 'if' before 'the 

offender is a person whom'; and made other nonsubstantive changes." 

{¶19} Upon review of the case law and the amendments set forth above, we find 

HB 86 does not substantively alter the nature of the offense to which Appellant was 

convicted; therefore, Kaplowitz is distinguishable. We find R.C. 1.58 applies to the 

sentence rendered. 

{¶20} Appellant's sole assignment of error is sustained. 
Stark County, Case No. 2011CA00284 6

{¶21} The judgment of the Stark County Court of Common Pleas is reversed, 

and the matter remanded to the trial court for resentencing in accordance with the law 

and this Opinion. 

By: Hoffman, J. 

Delaney, P.J. and 

Farmer, J. concur 

 s/ William B. Hoffman _________________

 HON. WILLIAM B. HOFFMAN 

 s/ Patricia A. Delaney _________________

 HON. PATRICIA A. DELANEY 

 s/ Sheila G. Farmer __________________

 HON. SHEILA G. FARMER 

 
Stark County, Case No. 2011CA00284 7

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

CLARENCE JONES : 

 : 

 Defendant-Appellant : Case No. 2011CA00284 

 For the reasons stated in our accompanying Opinion, The judgment of the Stark 

County Court of Common Pleas is reversed, and the matter remanded to the trial court 

for further proceedings in accordance with the law and this opinion. Costs to the state. 

 s/ William B. Hoffman _________________

 HON. WILLIAM B. HOFFMAN 

 s/ Patricia A. Delaney _________________

 HON. PATRICIA A. DELANEY 

 s/ Sheila G. Farmer __________________

 HON. SHEILA G. FARMER