[Cite as State v. Taylor, 138 Ohio St.3d 194, 2014-Ohio-460.] 

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

[Cite as State v. Taylor, 138 Ohio St.3d 194, 2014-Ohio-460.] 

Criminal law—R.C. 1.58(B)—2011 Am.Sub.H.B. No. 86—A defendant may 

benefit from the decrease in a classification and a penalty enacted after 

the commission of the offense but before sentencing. 

(Nos. 2012-2136—Submitted November 6, 2013—Decided February 13, 2014.) 

CERTIFIED by the Court of Appeals for Summit County, 

No. 26279, 2012-Ohio-5403. 

_______________ 

O’DONNELL, J. 

{¶ 1} The Ninth District Court of Appeals certified a conflict between its 

decision in this case and decisions of the Fifth District Court of Appeals in State 

v. Gillespie, 2012-Ohio-3485, 975 N.E.2d 492 (5th Dist.) and State v. David, 5th 

Dist. Licking No. 11-CA-110, 2012-Ohio-3984, on the following issue: whether 

the defendant may benefit from the decrease in a classification and penalty of an 

offense enacted by the General Assembly that becomes effective after the 

commission of the offense but before sentencing on that offense. 

{¶ 2} On July 23, 2011, Lucious Taylor stole $550 worth of cologne 

from a Sears store. At that time, R.C. 2913.02 classified that theft offense as a 

fifth-degree felony. However, prior to sentencing, the General Assembly enacted 

Am.Sub.H.B. No. 86 (“H.B. 86”), effective September 30, 2011, which amended 

several sections of the criminal code to decrease the offense classifications, 

thereby reducing the penalty or punishment for some offenses, and among other 

changes made theft of property valued at less than $1,000 a first-degree 

misdemeanor and correspondingly reduced the maximum punishment for the 

offense. On December 27, 2011, the trial court convicted Taylor of a 
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misdemeanor and sentenced him for that offense. The appellate court, in a twoto-one decision, reversed the trial court and held that because nothing in H.B. 86 

provided that Taylor was entitled to benefit from the decrease in classification of 

the theft offense, he should have been convicted of a felony, but had been 

correctly sentenced as a misdemeanant. 

{¶ 3} The outcome of this case is directly affected by R.C. 1.58(B), 

which specifies that if the penalty or punishment for an offense has been reduced 

by amendment of a statute, the reduced penalty or punishment shall be imposed 

unless sentence had been previously imposed. 

{¶ 4} We answer the certified question in the affirmative and conclude 

that the legislature intended to afford the benefit of a decreased theft offense 

classification to offenders like Taylor, and therefore the trial court properly 

convicted and sentenced him for a misdemeanor violation. 

Facts and Procedural History 

{¶ 5} On July 23, 2011, Lucious Taylor shoplifted $550 worth of 

cologne from a Sears department store in Akron, Ohio. A Summit County grand 

jury subsequently indicted him for theft of property valued at $500 or more but 

less than $5,000, a fifth-degree felony. 

{¶ 6} Effective September 30, 2011, the General Assembly enacted H.B. 

86, and among other changes to Ohio’s sentencing laws, it decreased the 

classification of theft of property valued at less than $1,000, making the offense a 

first-degree misdemeanor, which correspondingly reduced the punishment for that 

offense. 

{¶ 7} On December 19, 2011, Taylor pled no contest to theft, and the 

trial court convicted and sentenced him for a first-degree misdemeanor. 

{¶ 8} The state obtained leave to appeal the court’s decision to convict 

Taylor of a misdemeanor rather than a felony. In a divided opinion, the Ninth 

District Court of Appeals concluded that the trial court had properly sentenced 
January Term, 2014 

3

Taylor as a first-degree misdemeanant, but it determined that the court should 

have convicted Taylor of a felony, because the General Assembly had not made 

the amendments to R.C. 2913.02 retroactive and because it concluded that R.C. 

1.58(B) applies only to the penalty, forfeiture, or punishment for an offense, not 

to decreases in classification or degree of offenses. 

{¶ 9} The dissent in the appellate court referenced the uncodified law 

enacted by H.B. 86, noting that it afforded the benefit of the amendments to all 

offenders included pursuant to R.C. 1.58(B), not only those who committed 

offenses on or after the effective date of the enactment. It concluded that because 

R.C. 1.58 applied to Taylor, the decrease in classification and degree enacted by 

H.B. 86 should apply as well. 

{¶ 10} The appellate court certified a conflict with State v. Gillespie, 

2012-Ohio-3485, 975 N.E.2d 492 (5th Dist.), and State v. David, 5th Dist. Licking 

No. 11-CA-110, 2012-Ohio-3984. In the conflict cases, the Fifth District Court of 

Appeals concluded that by incorporating R.C. 1.58(B) in uncodified law enacted 

by H.B. 86, the General Assembly signaled its intent for the amended version of 

R.C. 2913.02 to apply to a person sentenced on and after September 30, 2011. 

The court explained that the value of the property stolen relates only to the 

penalty that may be imposed, and for property valued at less than $1,000, “[t]hat 

penalty is a misdemeanor offense with a misdemeanor sentence not a felony 

offense with a misdemeanor sentence.” Gillespie at ¶ 15. 

{¶ 11} We accepted the certified conflict for resolution. 

Law and Analysis 

{¶ 12} The General Assembly is vested with the power to define, classify, 

and prescribe punishment for offenses committed in Ohio. State v. Bates, 118 

Ohio St.3d 174, 2008-Ohio-1983, 887 N.E.2d 328, ¶ 12; State v. Thompkins, 75 

Ohio St.3d 558, 560, 664 N.E.2d 926 (1996); State v. Rush, 83 Ohio St.3d 53, 57, 
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697 N.E.2d 634 (1998) (opinion of Moyer, C.J., and Cook and Lundberg Stratton, 

JJ.). 

{¶ 13} We have recognized that concomitant with its plenary power to 

prescribe crimes and penalties, the legislature may extend the benefit of lesser 

penalties and reduced punishment to those who committed offenses prior to the 

effective date of legislation. State v. Morris, 55 Ohio St.2d 101, 378 N.E.2d 708 

(1978), syllabus. However, an offender may not benefit from a reduction in the 

penalty or punishment when the legislature expressly provides that the amended 

sentencing provisions apply only to those offenses committed on or after the 

effective date of the enactment. See Rush at paragraph two of the syllabus. 

{¶ 14} Our role, in the exercise of the judicial power granted to us by the 

Constitution, is to interpret the law that the General Assembly enacts, and the 

primary goal in construing a statute is to ascertain and give effect to the intent of 

the legislature. State v. Robinson, 124 Ohio St.3d 76, 2009-Ohio-5937, 919 

N.E.2d 190, ¶ 18. We are guided in this task in this case by the uncodified 

language provided in Section 4 of H.B. 86: 

The amendments to section[ ] * * * 2913.02 * * * 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. 

{¶ 15} R.C. 1.58(B) provides: “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 already imposed, shall be imposed 

according to the statute as amended.” 
January Term, 2014 

5

{¶ 16} The central position advanced by the state is that R.C. 1.58(B) 

refers to amendments to the penalty, forfeiture, or punishment for an offense and 

does not refer to amendments to the classification or degree of an offense. The 

flaw in that position, however, is that implicit in a decrease in the classification of 

an offense from a felony of the fifth degree to a misdemeanor of the first degree is 

a corresponding reduction in the penalty or punishment for that conduct. That is 

what has occurred here, and we resolve this case in accordance with the express 

intent of the legislature as contained in the title of H.B. 86: “to increase from 

$500 to $1,000 the threshold amount for determining increased penalties for theftrelated offenses * * * [and] to increase by 50% the other threshold amounts for 

determining increased penalties for those offenses.” 

{¶ 17} The real question presented here is not that the amendments to 

R.C. 2913.02 changed the penalty or punishment provisions or the criminal 

offense classifications, but rather whether the amendments apply to those in 

Taylor’s circumstances, who had committed the theft offense prior to the effective 

date of the amendment. In this regard, the legislature intended that the 

amendments apply to all offenders, regardless of when their offenses were 

committed, because it conditioned application of the reduced penalty—which 

arises by virtue of the reduced classification—on whether or not the offenders had 

been previously sentenced. This conclusion accords with the goals of the General 

Assembly to reduce the state’s prison population and to save the associated costs 

of incarceration by diverting certain offenders from prison and by shortening the 

terms of other offenders sentenced to prison. Ohio Legislative Service 

Commission, Fiscal Note & Local Impact Statement to Am.Sub.H.B. 86, at 3 

(Sept. 30, 2011), available at www.legislative.state.oh.us/fiscalnotes.cfm 

?ID=129_HB_86&ACT=As%20Enrolled (accessed Dec. 17, 2013). 

{¶ 18} In resolving this case, the appellate court concluded that Taylor 

should have been convicted of a felony offense but sentenced as a misdemeanant. 
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Notably, the legislature has provided no statutory authority for those convicted of 

a felony offense to be sentenced pursuant to the sentencing statute for 

misdemeanants. And as we observed in State v. Fischer, 128 Ohio St.3d 92, 

2010-Ohio-6238, 942 N.E.2d 332: 

Judges have no inherent power to create sentences. * * * 

Rather, judges are duty-bound to apply sentencing laws as they are 

written. * * * “[T]he only sentence which a trial court may impose 

is that provided for by statute. A court has no power to substitute a 

different sentence for that provided for by statute or one that is 

either greater or lesser than that provided for by law.” Colegrove 

[v. Burns], 175 Ohio St. [437,] 438, 25 O.O.2d 447, 195 N.E.2d 

811 [(1964)]. 

Id. at ¶ 22. 

Conclusion 

{¶ 19} R.C. 1.58(B) provides that if the penalty or punishment for an 

offense is reduced by amendment of a statute and if sentence has not already been 

imposed, then the amended reduced penalty or punishment shall be imposed. 

Thus, in accordance with R.C. 1.58(B) and the uncodified portion of Section 4 of 

H.B. 86, the determining factor on whether the provisions of H.B. 86 apply to an 

offender is not the date of the commission of the offense but rather whether 

sentence has been imposed. 

{¶ 20} In this case, Taylor had not been sentenced as of the date the 

amendments became effective and therefore pursuant to R.C. 1.58(B), the court 

had a duty to impose sentence in accord with the amended statutes. 

{¶ 21} We therefore answer the certified conflict in the affirmative and 

reverse the judgment of the court of appeals.
January Term, 2014 

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Judgment reversed. 

PFEIFER, Acting C.J., and HARSHA, LANZINGER, KENNEDY, and O’NEILL, 

JJ., concur. 

FRENCH, J., dissents. 

WILLIAM H. HARSHA, J., of the Fourth Appellate District, sitting for 

O’CONNOR, C.J. 

____________________ 

HARSHA, J., concurring. 

{¶ 22} The question presented by this certified-conflict case is whether 

the legislature intended to provide the benefit of both a decreased penalty and a 

lower offense classification to offenders who committed their offense prior to the 

enactment of 2011 Am.Sub.H.B. No. 86 (“H.B. 86”) but who were not sentenced 

until after the act’s effective date. I concur in the majority opinion and emphasize 

one factor that bolsters my conclusion: the express reference in section 4 of H.B. 

86 to R.C. 1.58(B). 

{¶ 23} Why would the legislature have included the reference to R.C. 

1.58(B), which would have applied by operation of law if the reference had not 

been included, unless its inclusion was intended to have some independent impact 

on the question of retroactivity? Was it mere surplusage, i.e., superfluous? The 

General Assembly is not presumed to do a useless thing, and when language is 

inserted in a statute, it is inserted to accomplish a definite purpose. State v. 

Wilson, 77 Ohio St.3d 334, 336, 673 N.E.2d 1347 (1997). We are reminded to 

avoid a construction that would render any provision meaningless or superfluous. 

Rhodes v. New Philadelphia, 129 Ohio St.3d 304, 2011-Ohio-3279, 951 N.E.2d 

782, ¶ 23. This court and the rules of statutory construction have admonished 

those charged with discerning legislative intent to apply every word used in 

legislation. State v. Moaning, 76 Ohio St.3d 126, 128, 666 N.E.2d 1115 (1996). 
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{¶ 24} The legislature instructed us that “[t]he amendments to section[] 

* * * 2913.02 * * * of the Revised Code * * * apply * * * to a person to whom 

division (B) of section 1.58 * * * makes the amendments applicable.” (Emphasis 

added.) Section 4 of H.B. 86. R.C. 1.58(B) applies to reduce Taylor’s penalty 

because he was not sentenced until after the effective date of H.B. 86. Because 

R.C. 1.58 applies to reduce Taylor’s penalty, the uncodified language in H.B. 86 

makes all the amendments to R.C. 2913.02 also apply, i.e., he gets both a reduced 

penalty and reduced classification regardless of whether “classification” and 

“penalty” are in effect one and the same. 

{¶ 25} If the legislature had intended that only a reduced-penalty benefit 

would apply to Taylor, it did not have to refer to R.C. 1.58(B). That result would 

have occurred by operation of law. Thus, it is clear to me that the legislature 

intended its reference to R.C. 1.58(B) to have the effect we give it. 

____________________ 

 FRENCH, J., dissenting. 

{¶ 26} The central question before us is whether the classification level of 

an offense qualifies as a “penalty” or “punishment” to the offender, apart from 

any actual sentence the offender receives. Because the answer to this question is 

no, and because the majority largely avoids the issue, I must respectfully dissent. 

{¶ 27} 2011 Am.Sub.H.B. No. 86 (“H.B. 86”) amended R.C. 2913.02, 

changing Taylor’s theft of $550 worth of cologne from a fifth-degree felony to a 

first-degree misdemeanor. We must decide whether this amendment, which 

became effective after Taylor committed his offense, but before he was sentenced, 

retroactively applies to Taylor. Section 4 of H.B. 86 (“Section 4”) explains how 

retroactivity should work for offenders in Taylor’s position, stating: “The 

amendments to * * * [R.C.] 2913.02 * * * apply * * * to a person to whom 

division (B) of section 1.58 of the Revised Code makes the amendments

applicable.” By the plain terms of Section 4, a defendant can receive the 
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retroactive benefit of the statutory amendment only if R.C. 1.58(B) “makes the 

amendment[] applicable” to him. Thus, to determine whether an amendment will 

retroactively apply to a defendant, a court must filter the amendment through R.C. 

1.58(B) to determine whether R.C. 1.58(B) forces application of the amendment. 

{¶ 28} R.C. 1.58(B) provides that “[i]f the penalty, forfeiture, or 

punishment for any offense is reduced by * * * amendment of a statute, the 

penalty, forfeiture, or punishment, if not already imposed, shall be imposed 

according to the statute as amended.” (Emphasis added.) Plainly, not all statutory 

amendments will be retroactive under R.C. 1.58(B). Only those dealing with a 

“penalty, forfeiture, or punishment” qualify. Thus, we must ultimately determine 

whether the amendment in Taylor’s case qualifies as a change in Taylor’s penalty, 

forfeiture, or punishment. 

{¶ 29} H.B. 86 changed the classification level for Taylor’s theft offense 

from a fifth-degree felony to a first-degree misdemeanor. An offense-level 

classification, by itself—and aside from any actual sentence—is not a penalty or 

punishment. Taylor argues that because a felony conviction carries numerous 

collateral disadvantages, such as losing the right to vote, to hold certain public 

offices, or to apply for certain licensures, the offense-level classification is itself a 

penalty. This argument is not persuasive. R.C. 1.58(B) covers only reductions in 

“the penalty, forfeiture, or punishment for any offense.” (Emphasis added.) 

Having a felony record may independently disadvantage Taylor, but any such 

disadvantages would not arise from application of R.C. 2913.02 and would not be 

penalties for Taylor’s theft offense. They would simply be the general 

consequences of being a felon. 

{¶ 30} Moreover, not every higher offense-level classification carries 

additional consequences. Not all offenders will be faced with the difference 

between a felony conviction and a misdemeanor conviction. Some offenses may 
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have changed only from a level-three felony to a level-four felony, or from a 

level-two misdemeanor to a level-three misdemeanor. 

{¶ 31} Taylor focuses solely on the collateral disabilities associated with 

felonies, but even a felony conviction does not necessarily entail any additional 

consequences for a particular defendant. For instance, if an offender already had 

ten felony convictions on his record, one additional felony conviction may not 

result in any new disabilities; the offender would already have been subject to the 

normal consequences of being a convicted felon. Simply put, not every offenselevel classification comes with collateral consequences. And even if it did, the 

classification level still would not qualify as a penalty or punishment under R.C. 

1.58(B). 

{¶ 32} Nevertheless, the majority concludes that Taylor could not be 

convicted as a felon and sentenced as a misdemeanant. I disagree with the 

rationales supporting this conclusion. 

{¶ 33} First, the majority states that an offense classification cannot be 

separated from the offense penalty because “implicit in a decrease in the 

classification of an offense * * * is a corresponding reduction in the penalty or 

punishment for that conduct.” (Majority opinion at ¶ 16.) That is incorrect. A 

decrease in offense classification does not necessarily have any corresponding 

reduction in the penalty or punishment. For example, in Taylor’s case, the 

decrease in his offense classification had no effect on the penalty he received. At 

the sentencing hearing, the trial judge sentenced Taylor to two years of 

community-control sanctions for his theft. After some discussion of H.B. 86, the 

judge decreased Taylor’s offense level from a fifth-degree felony to a first-degree 

misdemeanor. The judge explained, however, that Taylor’s sentence would have 

been the same regardless of how the offense was classified, stating: “Now, none 

of this [the change in classification] is going to affect you in any practical order. 

You will still be on probation.” Thus, it is incorrect to say that a decrease in 
January Term, 2014 

11

classification necessarily corresponds to a decrease in the actual penalty or 

punishment for a crime. The two are not inextricably intertwined. 

{¶ 34} Second, the majority predicates its decision on the idea that “the 

legislature has provided no statutory authority for those convicted of a felony 

offense to be sentenced pursuant to the sentencing statute for misdemeanants.” 

(Majority opinion at ¶ 18.) But the legislature provided precisely that authority 

through H.B. 86 and R.C. 1.58(B); together, both sections allow convicted felons 

to be sentenced as misdemeanants. And by exercising this authority, courts will 

be fulfilling their duty—contrary to the majority’s suggestion otherwise—“to 

apply sentencing laws as they are written.” State v. Fischer, 128 Ohio St.3d 92, 

2010-Ohio-6238, 942 N.E.2d 332, ¶ 22. R.C. 1.58(B) demands that in situations 

like Taylor’s, the pre-H.B. 86 version of the relevant criminal statute apply for 

purposes of determining the offense classification, and the post-H.B. 86 version 

apply for purposes of determining the offender’s sentence. In splitting the 

classification from the sentence, trial courts are applying the sentencing laws as 

written; they must simply apply different versions of the laws for different 

purposes. 

{¶ 35} Finally, I disagree with the majority’s reading of Section 4. The 

majority states that “because R.C. 1.58 applied to Taylor, the decrease in 

classification and degree enacted by H.B. 86 should apply as well.” (Majority 

opinion at ¶ 9.) The concurrence echoes this reasoning, stating that “[b]ecause 

R.C. 1.58 applies to reduce Taylor’s penalty, the uncodified language in H.B. 86 

makes all the amendments to R.C. 2913.02 also apply.” (Concurring opinion at 

¶ 24.) In essence, both opinions read H.B. 86 to say that all the statutory 

amendments apply to a defendant so long as R.C. 1.58(B) applies to the 

defendant. 

{¶ 36} Not so. Section 4 clearly states that an amendment applies to an 

offender only if R.C. 1.58(B) makes the amendment apply. It does not state that 
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an amendment applies to a defendant simply whenever R.C. 1.58(B) applies to a 

defendant. The distinction is this: R.C. 1.58(B) may apply to a defendant in 

some sense (for instance, to give him the benefit of a decreased sentence), but this 

general application of R.C. 1.58(B) does not make all other statutory amendments 

apply to the defendant as well. Here, R.C. 1.58(B) applies to Taylor, but it does 

not “make[] the [R.C. 2913.02 offense-level] amendments applicable” to Taylor, 

as H.B. 86 requires. It is this critical distinction that the majority and the 

concurrence fail to acknowledge. 

{¶ 37} Ultimately, both the majority and the concurrence narrowly focus 

on who should receive the benefit of retroactive amendments, without asking 

which amendments even apply retroactively. The opinions assume, incorrectly, 

that any statutory amendment will apply retroactively through R.C. 1.58(B). But 

the plain language of R.C. 1.58(B) belies any such conclusion. Only amendments 

dealing with penalties, forfeitures, or punishments can apply through R.C. 

1.58(B). And an amendment changing the classification of an offense is not an 

amendment to a penalty or punishment. It is not, therefore, entitled to retroactive 

application. Accordingly, I would hold that Taylor was not entitled to have his 

offense reduced to a first-degree misdemeanor. I would answer the certifiedconflict question in the negative and affirm the judgment of the court of appeals. 

Because the majority has concluded otherwise, I dissent. 

____________________ 

 Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Richard 

S. Kasay, Assistant Prosecuting Attorney, for appellee. 

 Neil P. Agarwal, for appellant. 

 Timothy Young, Ohio Public Defender, and Stephen Goldmeier, Assistant 

Public Defender, urging reversal for amicus curiae, Office of the Ohio Public 

Defender. 

_________________________