[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as State v. Pribble, Slip Opinion No. 2019-Ohio-4808.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 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.

S LIP O PINION N O

. 2019-O HIO -4808

T HE S TATE OF O HIO , A PPELLANT , v . P RIBBLE , A PPELLEE

. [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it may be cited as State v. Pribble, Slip Opinion No. 2019-Ohio-4808.] Criminal law—Sentencing—Trial court corr ectly sentenced defe ndant convicted of illegal assembly or possession of chemicals for manufacture of methamphetamine under R.C. 2925.041(C)(1) to mandatory five-year prison term rather than under R.C. 2929.14(A)(3)(b) to one to three years in prison—Court of appeals’ judgmen t reversed and sentence reinstated. (No. 2017-1758—March 6, 2019—Decided November 26, 2019.)

A PPEAL from the Court of Appeals for Adams County, No. 17CA1041, 2017-Ohio-8499.

_________________ K

ENNEDY , J. {¶ 1} This is a discretionary appeal from the Fourth District Court o f Appeals concerning which of two sentencing statutes applies to violations of R.C.S UPREME C OURT OF O HIO

2 2925.041(A)—knowingly assembling or possessing one or more chem icals that may be used to manufacture a controlled substance with the inte nt to manufacture a controlled substance—when the drug in question is methampheta mine and the

defendant has committed certain prior offenses. R.C. 2925.041( C)(1) specifies a mandatory punishment for viola tions of R.C. 2925.041(A) by cert ain repeat offenders: “one of the prison terms prescribed for a felony of the third degree that is not less than five years.” But R.C. 2929.14(A)(3)(b), a sen tencing statute that applies more broadly to third-degree felonies, caps sentences a t 36 months in prison for third-degree felonies not listed in R.C. 2929.14(A)(3)(a), and a violation of R.C. 2929.041(A) is not included in that list. The court of appeals held that R.C. 2925.041(C)(1) and 2929.14(A)(3)(b) a re in conflict, and applyi ng the rule of lenity—codified in R.C. 2901.04(A) (“sections of the Revised Co de defining offenses or penalties shall be strictly construed against the s tate, and liberally

construed in favor of the accuse d”)—determined that R.C. 2929.1 4(A)(3)(b) and its lesser, three-year max imum penalty prevails. {¶ 2} We agree that the two statutes conflict, but applying the rule of statutory construction codified in R.C. 1.51, we conclude that the mandatory fiveyear sentence prescribed by R.C. 2925.041(C)(1) is a special pr ovision that prevails as an exception to the general statute, R.C. 2929.14(A)(3)(b). Because applying

R.C. 1.51 resolves the conflict be tween the two statutes, it is unnecessary to invoke the rule of lenity. We theref ore conclude that R.C. 2925.041(C )(1) applies to the

defendant in this case and reverse the judgment of the court of appeals. I. THE TEXT AND HISTORY OF R.C. 2925.041 AND 2929.14(A)(3) {¶ 3} R.C. 2925.041(A) defines the offense at issue in this case: “No person shall knowingly assemble or posse ss one or more chemicals that may be used to

manufacture a controlled substance in schedule I or II with the intent to manufacture

a controlled substance in schedule I or II in violation of sect ion 2925.04 of the Revised Code.” Under R.C. 2925.04, “[n]o person shall knowingl y cultivateJanuary Term, 2019

3 marihuana or knowingly manufactur e or otherwise engage in any p art of the production of a controlled subs tance.” R.C. 2925.04(A). Absen t certain

circumstances not at issue he re, a violation of R.C. 2925.041(A ) is a third-degree felony pursuant to R.C. 2925.041(C). If the drug involved is m ethamphetamine and the offender previously has been convicted of or pleaded gu ilty to a felony drug-abuse offense two or mor e times, R.C. 2925.041(C)(1) requi res a prison sentence of at least two years. And if the offender two or mor e times previously has been convicted of or pleaded g uilty to a felony drug-abuse offense, at least one

of which involved the manufacture of methamphetamine or another controlled substance, the penalty increases to a mandatory prison term of at least five years:

If the violation of division (A) of this section is a felony of the third degree under this division and if the chemical or chemicals assembled or possessed in violati on of division (A) of this sec tion may be used to manufacture methamphetamine, there either is a presumption for a prison term for the offense or the court shal l impose a mandatory prison term on the offender, determined as

follows: (1) Except as otherwise provided in this division, there is a presumption for a prison term for the offense. If the offender two or more times previously has been convicted of or pleaded guilty t o a felony drug abuse offense, except as otherwise provided in this division, the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the third degree th at is not less than two years. If the offender two or more times previously has been convicted of or ple aded guilty to a felony drug abuse offense and if at least one of those previous convictions or guilty pleas was to a violation of division (A) of this section, a violationS UPREME C OURT OF O HIO

4 of division (B)(6) of sect ion 2919.22 of the Revised Code [allowing a child to be in the vicinity of a controlled-substance-manufac turing offense under R.C. 2925.04 or 2925.041], or a violation of division (A) of section 2925.04 of the Revised Code [engaging in the production of a controlled substance], the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the third degree that is not less than five years.

(Emphasis added.) R.C. 2925.041(C). {¶ 4} R.C. 2925.041 first included a specific penalty for methampheta mine manufacturing in 2006. See Am.Sub.S.B. No. 53, 151 Ohio Laws, Part I, 806, 835- 836. It prescribed “as a mandatory prison term one of the pris on terms prescribed for a felony of the third degree that is not less than five yea rs” if a violator of R.C. 2925.041(A) had one prior conviction of a drug-manufacturing of fense. Former 2925.041(C)(1), 151 Ohio Laws, Part I, at 835. {¶ 5} The other statute at issue in this case is R.C. 2929.14(A)(3), which sets forth the prison terms applicable to third-degree felony c onvictions. In 2006,

when R.C. 2925.041 first addressed methamphetamine manufacturin g, R.C. 2929.14(A)(3) read, “For a felony of the third degree, the pris on term shall be one, two, three, four, or five years.” Am.Sub.H.B. No. 473, 150 Ohi o Laws, Part IV, 5707, 5731. {¶ 6} In 2011, R.C. 2929.14(A)(3) was amended by 2011 Am.Sub.H.B. No. 86 (“H.B. 86”), which enacted subs tantial changes to Ohio’s fel ony-sentencing scheme. H.B. 86 divided R.C. 2929.14( A)(3) into subdivisions ( a) and (b). Under the amendment, R.C. 2929.14(A)(3)(a) narrows the applicability of third-degreefelony sentences longer than three years; it specifically ident ifies violations for which a judge may impose prison terms from 12 to 60 months. As amended, R.C. 2929.14(A)(3)(b) limits sentences to three years for third-degr ee felonies to whichJanuary Term, 2019

5 division (A)(3)(a) does not apply. The version of R.C. 2929.14 (A)(3) that is applicable in this case read:

(a) For a felony of the third degree that is a violation of section 2903.06, 2903.08, 2907.03, 2907.04, or 2907.05 of the

Revised Code or that is a vi olation of section 2911.02 or 2911. 12 of

the Revised Code if the offende r previously has been convicted of or pleaded guilty in two or more separate proceedings to two or more violations of section 2911.01, 2911.02, 2911.11, or 2911.12 of the Revised Code, the prison term sh all be twelve, eighteen, twenty

four, thirty, thirty-six, forty-two, forty-eight, fifty-four, o r sixty

months. (b) For a felony of the third degree that is not an offense for which division (A)(3)(a) of this section applies, the prison te rm shall be nine, twelve, eighteen, twenty-four, thirty, or thirty-six m onths.

2014 Am.Sub.H.B. No. 234. {¶ 7} H.B. 86 also amended R.C. 2925.041( C)(1). That amendment added a requirement for imposing the mandatory five-year sentence, re stricting its application to certain third-strike offenders: the offender mus t have committed two prior felony drug-abuse offenses , one of which involved the man ufacture of a

controlled substance.

II. FACTUAL AND PROC EDURAL BACKGROUND {¶ 8} In May 2016, defendant-appellee, Dar ian J. Tribble, was indicte d in the Adams County Court of Common Pleas on one count of illegal assembly or possession of chemicals for the manufacture of a controlled sub stance— specifically, methamphetamine—in violation of R.C 2925.041(A), a third-degree felony. On February 3, 2017, a jur y convicted Pribble of the c harge.S UPREME C OURT OF O HIO

6 {¶ 9} There is no dispute that given P ribble’s prior convictions of a felony drug-manufacturing offense in 2009 and a felony drug-possession offense in 2015, he met the prior-convictions requi rement that triggers sentenci ng pursuant to the third-strike provision in R.C . 2925.041(C)(1). The issue here is whether the mandatory five-year sentence prescribed by R.C. 2925.041(C)(1) applies to anyone given the limits established by R.C. 2929.14(A)(3) regarding th e imposition of fiveyear sentences for third-degree felonies. The trial court dete rmined that R.C. 2925.041(C)(1) prevailed over R.C. 2929.14(A)(3)(b) and sentenc ed Pribble to a five-year prison term. Pribbl e appealed the sentence. {¶ 10} Citing its decision in State v. Clark , 4th Dist. Highland No. 14CA20, 2015-Ohio-5003, the Fourth Distric t Court of Appeals reversed P ribble’s sentence. The court held that R.C. 2929.14( A)(3)(b) conflicts with R.C. 2 925.041(C)(1) and that pursuant to the rule of lenity, R.C. 2929.14(A)(3)(b), the less punitive sentencing statute, applies. We accepted the state’s jurisdict ional appeal. 152 Ohio St.3d 1442, 2018-Ohio-1600, 96 N.E.3d 298. The state asserts a single proposition

of law:

When a defendant is convicted of a third-degree felony charge of illegal assembly of chemicals for the manufacture of drugs pursuant to R.C. 2925.041(A), the chemicals could have been use d to manufacture methamphetamine, and the defendant has two or more prior felony drug abuse convi ctions, at least one of which is listed in R.C. 2925.041(C)(1), the trial court is required to s entence the defendant under R.C. 2925.041(C)(1) to a mandatory prison term of “not less than five years.”January Term, 2019

7 III. LAW AND ANALYSIS {¶ 11} Both R.C. 2925.041(C)(1) and R.C. 2929.14(A)(3) address sentencing for third-degree fe lonies. R.C. 2925.041(C)(1) is c lear in its requirement that two-time felony drug-abuse offenders with at l east one prior conviction involving the producti on of methamphetamine receive five-year prison terms. Neither party argues that R.C. 2925.041(C)(1) fails to establish that legislative intent. Although R.C. 2925.041(C)(1) does not itse lf set forth the fiveyear sentence, it states that “t he court shall impose as a mand atory prison term one of the prison terms prescribed for a felony of the third degree that is not less than five years .” (Emphasis added.) A five-year prison term is indeed an available termof-years sentence in the sentencing scheme for third-degree fel onies. The question

before us is whether R.C. 2929.14(A)(3)—and its limitation of t he third-degree felonies for which sentences greater than three years may be im posed—somehow foils the plain legislative in tent behind R.C. 2925.041(C)(1). {¶ 12} “It is a well-settled rule of statutory interpretation that sta tutory provisions be construed together and the Revised Code be read a s an interrelated body of law.” State v. Moaning , 76 Ohio St.3d 126, 128, 666 N.E.2d 1115 (1996). “ ‘This court in the interpretation of related and co-existing statutes must harmonize and give full application to all * * * statutes [concerning the same subject matter] unless they are irreconcilable and in hopeless conflict.’ ” United Tel. Co. of Ohio

v. Limbach , 71 Ohio St.3d 369, 372, 643 N.E.2d 1129 (1994), quoting Johnson’s Mkts., Inc. v. New Carlisle Dept. of Health , 58 Ohio St.3d 28, 35, 567 N.E.2d 1018 (1991); State v. Cook , 128 Ohio St.3d 120, 2010-Ohio-6305, 942 N.E.2d 357, ¶ 45. But when statutes conflict, as R.C. 2925.041(C)(1) and 2929.14( A)(3)(b) do in this case, “we must resort to statutor y interpretation and construe the statutes so as to give effect to the legislature’s intent.” Summerville v. Forest Park , 128 Ohio St.3d 221, 2010-Ohio-6280, 943 N.E.2d 522, ¶ 24.S UPREME C OURT OF O HIO

8 A. Application of R.C. 1.51 {¶ 13} “It is a well-settled principle of statutory construction that when an

irreconcilable conflict exists between two statutes that addres s the same subject matter, one general and the other special, the special provisio n prevails as an exception to the general statute.” State v. Conyers , 87 Ohio St.3d 246, 248, 719 N.E.2d 535 (1999). R.C. 1.51, the statutory version of this ge neral/specific canon, recognizes that optimally, conflicting statutes should be const rued “so that effect is given to both” but provides that “[i]f the conflict between the provisions is irreconcilable, the special or local provision prevails as an e xception to the general provision, unless the general pr ovision is the later adoption a nd the manifest intent is that the general provision prev ail.” The rationale behind t he general/specific canon is that “ ‘the particular provision is established upon a nearer and more exact view of the subject than the general, of which it may be regard ed as a correction.’ Or think of it this way: the sp ecific provision comes closer to addressing the very problem posed by the case at hand and is thus more deserving of credence.” Scalia & Garner, Reading Law: The Interpretation of Legal Texts 183 (2012), quoting Jeremy Bentham, General View of a Complete Code of Laws , reprinted in 3 The Works of Jeremy Bentham 210 (John Bowring Ed.1843). 1. R.C. 2925.041(C)(1) is the more specific statute {¶ 14} Here, R.C. 2925.041(C)(1) purports t o address “the very problem posed by the case at hand,” Scalia & Garner at 183—the methamph etamine crisis, a specific problem caused by a specific drug—and is thus more d eserving of

credence. 1

1. A compelling moment from Pribble’s trial demonstrates why th e General Assembly might seek a mandatory lengthy sentence for repeat methamphetamine manufac turers. The trial judge spoke eloquently about the large number of potential jurors who could not serve on the jury in this case, because they could not be fair to Pribble given the effect that drug abuse had had on their own lives.January Term, 2019

9 {¶ 15} R.C. 2925.041(C)(1) is the more specific of the two statutes. It addresses sentencing for viola tions involving the manufacture o f a specific drug, methamphetamine, by a narrow gr oup of offenders, two-time felon y drug-abuse offenders with at least one conviction or guilty plea involving the manufacture of a controlled substance. R.C. 2929.14(A)(3), on the other hand, i s a general sentencing statute for t hird-degree felonies. {¶ 16} R.C. 2925.041(C)(1) is also more specific as to the sentence prescribed—five years—as opposed to the sentencing options avai lable under R.C. 2929.14(A)(3), which run from nine months to five years. If th e General Assembly had wanted the five-year sentence prescribed by R.C. 2929.14(A) (3)(a) to be available under R.C. 2925.041(C)(1), why would it not simply ad d R.C. 2925.041(C)(1) to the third-degree felonies listed in R.C. 2929 .14(A)(3)(a) for which a five-year sentence may be imposed? Because that would defeat the purpose of instituting a mandatory five-year sentence for certa in methamphetamine-production offenses—penalties for the offenses listed in R.C. 2929.14(A)(3)(a) have a range of discretionary sentences availa ble that begin at 12 months. And unlike R.C. 2925.041(C)(1), which prescribes a man datory five-year sentence, the statutes listed in R.C. 2929.14(A)(3)(a) at the t ime of Pribble’s offense did not themselves specify sentencing ranges for violations; th e most specific statute simply stated that “[t]he court shall impose * * * a ma ndatory prison term equal to one of the prison terms prescribed in section 2929.14 of the Revised Code for a felony of the third degree,” 2007 Am.Sub.S.B. No. 10, for mer R.C. 2907.05(C)(2). {¶ 17} Because it includes wide, discre tionary sentencing ranges, R.C. 2929.14(A)(3) could not accommodate the General Assembly’s inte nt specifically regarding punishment for third-strike methamphetamine manufactu rers—namely,

to withhold from trial courts the discretion to impose a senten ce of less than five years on two-time felony drug-abuse offenders convicted of this particular crime.S UPREME C OURT OF O HIO

10 The General Assembly reflected that specific intent by separate ly prescribing the penalty in a more specific st atute. R.C. 2925.041(C)(1) is a c lear exception to R.C. 2929.14(A)(3)(b). 2. The applicable portion of R.C. 2929.14(A )(3) was not enacted later in time {¶ 18} Still, under R.C. 1.51, when a specific and a general provision are in irreconcilable conflict, the ge neral provision prevails if it w as enacted later in time

“and the manifest intent is tha t the general provision prevail. ” The general provision here, however, was not en acted later tha n the specifi c provision. {¶ 19} As discussed above, special p enalties for methamphetamine production were first instituted in 2006. However, in 2011, R. C. 2925.041(C)(1) was amended in the same bill, H.B. 86, that amended R.C. 2929.1 4(A)(3), the thirddegree-felony-sentencing provisi on. H.B. 86 constrained the al ready limited application of R.C. 2925.041(C)(1)— before 2011, that statute al so limited the number of third-degree felonies to which the mandatory five-yea r sentence applied—by adding the requireme nt that an offender have at leas t two prior felony drug-abuse convictions, including one conviction involving drug manufacturing. The change to R.C. 2925.041(C)(1) happened at the same time as the relevant changes to R.C. 2929.14(A)(3), and therefore, the general provi sion was not the later adoption. Further, ther e was no change to R.C. 2929.14(A )(3) from the

enactment of H.B. 86 until the time of Pribble’s offense. 2 Therefore, we need not

address what would be the next consideration under R.C. 1.51—wh ether “the

manifest intent is that the general provision prevail.” See, e.g. , State ex rel. Dublin Securities, Inc. v. Ohio Div. of Securities , 68 Ohio St.3d 426, 431, 627 N.E.2d 993 (1994). We note, however, that even if that analysis were nece ssary, “[i]t has been

2. Effective March 21, 2017, 2016 Sub.H.B. No. 470 added assist ing suicide, R.C. 3795.04, to the offenses listed in R.C. 2929.14(A)(3)(a). Effective March 22, 2019, Am.Sub.S.B. No. 201 added certain child-pornography offenses, R.C. 2907.321, 2907.322, an d 2907.323, to the offenses listed in R.C. 2929.14(A)(3)(a).January Term, 2019

11 a long-standing rule that courts will not hold prior legislatio n to be impliedly repealed by the enactment of s ubsequent legislation unless the subsequent legislation clearly requires that holding,” State v. Frost , 57 Ohio St.2d 121, 124, 387 N.E.2d 235 (1979). {¶ 20} Upon applying R.C. 1.51, R.C. 2925.041(C)(1) prevails over R.C. 2929.14(A)(3)(b). R.C. 2925.041(C)(1) provides an exception to general thirddegree-felony sentencing. B. R.C. 1.47(C) provides an additional relevant consideration {¶ 21} “In enacting a statute, it is presumed that * * * [a] just and reasonable result is intended.” R.C. 1.47(C) . Here, an incongruous resul t would occur if R.C. 2929.14(A)(3)(b) applied to offenders like Pribble who are elig ible to be sentenced under the third-strike provision in R.C. 2925.041(C)(1). Under R.C. 2925.041(C)(1), a defendant with t wo prior felony drug-abuse of fenses that do not include a previous drug-manufactur ing offense faces a mandatory prison term of “not less than two years.” If R.C. 2929.14(A)(3)(b) controlled the sentencing of a defendant convicted under R.C. 2925.041(A) whose two prior offe nses do include drug manufacturing, that defendant could be sentenced to as lit tle as nine months in prison, given the discretionary range available under that p rovision. Therefore, the defendant without the prior conviction for drug manufacturi ng could end up

with a harsher sentence than the defendant who did have a previ ous drugmanufacturing conviction. The leg islature could not have inten ded that result. C. The rule of lenity does not apply {¶ 22} In holding that R.C. 2929.14(A)(3)(b) prevails over R.C. 2925.041(C)(1), the court of appeals relied on another rule of construction, the rule of lenity. “The rule of lenity is a principle of statutory con struction that provides that a court will not interpret a criminal statute so as to inc rease the penalty it imposes on a defendant if the inte nded scope of the statute is ambiguous.” State v.

Elmore , 122 Ohio St.3d 472, 2009-Ohio-3478, 912 N.E.2d 582, ¶ 38. Th eS UPREME C OURT OF O HIO

12 codification of the rule in R .C. 2901.04(A) states that “sectio ns of the Revised Code defining offenses or penalties shall be strictly construed agai nst the state, and liberally construed in favor of the accused.” {¶ 23} Are we again at odds, this time b etween statutes that instruct us how to construe statutes? No, because the rule of lenity is not th e first place to turn when interpreting conflicting criminal statutes. The rule of lenity is properly applied when, “after all the legitimate tools of interpretation have be en applied, ‘a reasonable doubt persists.’ ” Scalia & Garner, Reading Law: The Interpretation of Legal Texts , at 299, quoting Moskal v. United States , 498 U.S. 103, 108, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990). The United States Supreme Court h as also noted the limited applicability of the rule of lenity: “That rule, as we have repeatedly emphasized, applies only if, ‘aft er considering text, structure , history and purpose, there remains a grievous ambiguity or uncertainty in the statut e such that the Court must simply guess as to what Congress intended.’ ” Abramski v. United States , 573 U.S. 169, 188, 134 S.Ct. 2259, 189 L.Ed.2d 262 (2014), fn. 14, quoting Maracich v. Spears , 570 U.S. 48, 76, 133 S.Ct. 2191, 186 L.Ed.2d 275 (2013). We agree that if other principles of construction resolve a conflict between two criminal statutes, there is no need to apply the rule of lenity. “ ‘ “The rule co mes into operation at the end of the process of constr uing what Congress has expresse d, not at the beginning as an overriding consideration of being lenient to wr ongdoers.” ’ ”

Elmore at ¶ 40, quoting Gozlon-Peretz v. United States , 498 U.S. 395, 410, 111 S.Ct. 840, 112 L.Ed.2d 919 (1991), quoting Callanan v. United States , 364 U.S. 587, 596, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961). There is no need to perpetuate the idea that there is an intractable conflict requiring applicatio n of the rule of lenity when another rule of statutory c onstruction resolves the confli ct, as R.C. 1.51 does

here.January Term, 2019

13 IV. CONCLUSION {¶ 24} The trial court followed the applicable statute, R.C. 2925.041( C)(1), in sentencing Pribble. That statute conflicts with R.C. 2929.1 4(A)(3)(b), but we

conclude that the rule of statut ory construction codified in R. C. 1.51 resolves the conflict: the mandatory five-year sentence prescribed by R.C. 2 925.041(C)(1) is a special provision that prevails as an exception to the general statute, R.C. 2929.14(A)(3)(b). Because applying R.C. 1.51 resolves the conf lict between the two statutes, it is unnecessary to invoke the rule of lenity. R.C. 2925.041(C)(1) applies to Pribble, and the court of appeals therefore erred in reversing his sentence. Accordingly, we reverse the court of appeals’ judgment and rein state the sentence imposed by the trial court. Judgment reversed

and sentence reinstated.

F RENCH and S TEWART , JJ., concur.

O’C ONNOR , C.J., and F ISCHER , J., concur in judgment only.

D E W INE , J., dissents, with an opinion.

D ONNELLY , J., dissents, with an opinion.

_________________ D E W INE , J., dissenting. {¶ 25} We are confronted with conflicting statutory directives as to t he permissible punishment for a cr ime. One statute says a judge m ust impose a prison sentence of 9 to 36 months; anothe r statute ordains a flat five -year sentence. The lead opinion applies a tool of statutory construction to conclu de that the longer sentence must be imposed. But in my view, that tool fails to p rovide a satisfactory answer in this case. I would turn to the rule of lenity and ho ld that the shorter sentencing range applies. {¶ 26} The crime here is the assembly or possession of chemicals for u se in making methamphetami ne, codified in R.C. 2925.041 (“the illegal -assemblyS UPREME C OURT OF O HIO

14 statute”). A provision of that statute (“the illegal-assembly provision”) provides that for certain third-time drug offenders, the punishment shal l be “one of the prison terms prescribed for a felony of the third degree that is not l ess than five years.” R.C. 2925.041(C)(1). {¶ 27} The above language was added to t he illegal-assembly statute in

2006. See Am.Sub.S.B. No. 53, 151 Ohio Laws, Part I, 806, 835. At the ti me, R.C. 2929.14—the statute that prescribe s offenses for felonies (“the felony-sentencing statute”)—authorized a sentence of one to five years for third- degree felonies. See Am.Sub.H.B. No. 473, 150 Ohio Laws, Part IV, 5707, 5731. Thus, in 2006, a fiveyear sentence was permissible under both statutes and there was no real dispute that the law required that sentence to be imposed. {¶ 28} Some years later, the General Assembly changed tack and rewrote the felony-sentencing statute. It reduced the sentencing range for most third-degree

felonies to 9 to 36 months and e numerated certain offenses elig ible for a heightened

sentence of 12 to 60 months. See R.C. 2929.14(A)(3) (“the sentence-shortening provision”); 2011 Am.Sub.H.B. No. 86 (“H.B. 86”). Illegal asse mbly was not among the enumerated offenses subj ect to the longer sentencing range. Thus, beginning in 2011, a trial court confronted with a third-time f elony drug offender convicted of illegally assembling chemicals to produce methamph etamine was instructed to impose a term of 9 to 36 months under the sentenc e-shortening provision and to impose a term of “not less than five years” un der the illegalassembly provision. {¶ 29} The lead opinion looks to R.C. 1.51 to resolve the conflict bet ween the two statutes. That section instructs that in the event of an irreconcilable conflict, a “special” provision applies over a “general” provision, unles s the general provision was adopted later in time and the General Assembly ma nifested an intent that the general provision prevail. The lead opinion ultimatel y concludes that the illegal-assembly provision is a special provision that takes pr ecedence over theJanuary Term, 2019

15 general sentence-shortening provision. Thus, the lead opinion applies the five-year

term set forth in t he illegal-assembly provision. Lead opinion at ¶ 2. {¶ 30} I am not convinced. As I see it, the general/special rule does not persuasively resolve the conflic t between the statutes. First, as Justice Donnelly illustrates in his dissenting opinion, it is by no means clear that the lead opinion has correctly labeled these statutes as “specific” and “general.” A strong argument can be made that both are specific. The illegal-assembly provision can be said to be specific in that it explicitly names the illegal-assembly offen se and sets forth a minimum penalty for the offense. But the sentence-shortening p rovision can also be said to be specific in that it explicitly lists every third- degree felony for which a judge may impose a sentence longer than three years. {¶ 31} If both provisions are specific, then R.C. 1.51 does not apply and, under R.C. 1.52, the more recently enacted provision prevails. The lead opinion says that both the felony-sentencing statute and the illegal-as sembly statute were amended as part of the same bill and, therefore, neither can be said to be the later enactment. Lead opinion at ¶ 19. See 2011 Am.Sub.H.B. No. 86. The problem with this assertion is that the illegal-assembly provision was not among the provisions of the illegal-assemb ly statute amended in 2011. . We are told that “[a]

statute which is reenacted or ame nded is intended to be a conti nuation of the prior statute and not a new enactment, so far as it is the same as th e prior statute.” R.C. 1.54. The “key language” in the illegal-assembly statute—that imposing “one of the prison terms prescribed for a felony of the third degree th at is not less than five years,” R.C. 2925.041(C)(1)—was untouched by the amendments ena cted as part

of H.B. 86. See In re Petition to Annex 320 Acres to the Village of S. Lebanon , 64 Ohio St.3d 585, 595, 597 N.E.2d 463 (1992). That provision the refore dates back to the time of its original enactment in 2006. Conversely, the pertinent provision in the felony-sentencing statute —the sentence-shortening provis ion— was substantively amended by H.B. 86 in 2011. Thus, it seems only fair to view theS UPREME C OURT OF O HIO

16 sentence-shortening provision as the later adoption. If both p rovisions are considered to be specific, then the later-enacted sentence-shor tening provision applies. See R.C. 1.51; R.C. 1.52. {¶ 32} But even if we accept the lead opinion’s characterizations of t he illegal-assembly provision as specific and the sentence-shorten ing provision as general, we must still grapple with the manifest-intent portion of R.C. 1.51. If the general provision is the later a doption, R.C. 1.51 requires us to examine whether the General Assembly revealed a manifest intent that the genera l provision prevail. The lead opinion does not reach this issue, but there is some e vidence of such an intent. H.B. 86—the bill creating the new felony-three sentenc ing range—states that it was enacted in part “t o revise some of the penalties * * * for all third degree felony drug offenses that currently have mandatory prison terms ” and “to change the sentencing structure * * * for felonies of the third degree that are not specified types of offenses.” That statem ent of intent directly addresse s enactments such as the illegal-assembly provision. . Thus, I am not persuaded th at R.C. 1.51 supports the result reached by the lead opinion. {¶ 33} There is an additional problem with the lead opinion’s logic. Even if we accept its questionable conclusions that (1) the illegal- assembly provision is specific and the sentence-shorte ning provision general and (2) the sentenceshortening provision is not the l ater enactment, the lead opini on still fails to account for the ambiguity within the text of the illegal-assembly provi sion itself. By its terms, the illegal-assembly provision requires both that the tr ial court impose “one of the prison terms prescribed for a felony of the third degree ” and that the court impose a prison term of “not less than five years.” R.C. 2925. 041(C)(1). This directive made sense under the pr ior version of the felony-sent encing statute when all third-degree felonies were subject to a maximum five-year p rison term. Under the current version, however, diffe rent third-degree felonies a re subject to different sentencing ranges, and a five-year sentence is no longer prescr ibed for the third-January Term, 2019

17 degree felony offense of illegal assembly. Thus, for a court t o follow the statute’s directive and impose one of the penalties “prescribed for a fel ony of the third degree that is not less than five year s,” it would need to impose a pe nalty “prescribed” for a different felony of the third degree—that is, it would need t o impose a penalty that was specifically not prescribed for the illegal-assembly o ffense. {¶ 34} All of this is a long way of saying that the rule of statutory construction relied on by the lead opinion doesn’t convincingly answer the question in front of us. Nor do any of our other ordinary tools of stat utory construction. In such a situation, the legislature has instructed that “sections of the Revised Code defining offenses or penalties shall be strictly construed agai nst the state, and liberally construed in favor of the accused.” R.C. 2901.04(A). This statutory provision is a codification of the rule of lenity, the idea tha t “ambiguous criminal laws [are] to be interpreted in favor of the defendants subject ed to them,” United

States v. Santos , 553 U.S. 507, 514, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008) (Scalia, J.). There are go od reasons for such a rule:

This venerable rule not only vi ndicates the fundamental princip le

that no citizen should be held ac countable for a violation of a statute whose commands are uncertain, or subjected to punishment that i s not clearly prescribed. It also places the weight of inertia u pon the party that can best induce Congress to speak more clearly and k eeps courts from making crimina l law in Congress’s stead.

Id. {¶ 35} It is true that we employ trad itional methods of textual interp retation to determine at the outset whether the provision at issue is tr uly ambiguous; the rule of lenity “operates only at the end of the process of construct ion.” (Cleaned up.)

United States v. R.L.C. , 503 U.S. 291, 311, 112 S.Ct. 1329, 117 L.Ed.2d 559 (1992)S UPREME C OURT OF O HIO

18 (Thomas, J., concurring in part and concurring in judgment). B ut when those methods fail to yield a satisf actory construction, the rule of lenity instructs that we

must choose the construction that favors the criminal defendant

. {¶ 36} That is precisely the situation here. Our well-established met hods of statutory construction do not convi ncingly resolve the conflict between the statutes, nor do they clarify the ambiguous language regarding punishment within the illegal-assembly provision. The rule of lenity compels us to o pt for the shorter sentencing range. Because the l ead opinion concludes otherwise , I respectfully

dissent.

_________________ D ONNELLY , J., dissenting. {¶ 37} I dissent. The Fourth District Court of Appeals got it exactly right when it held that the General Assembly created an irreconcilabl e conflict between R.C. 2929.14(A)(3) and 2925.041(C)(1), and frustrating as it ma y be, courts are obligated to strictly construe those statutes against the state until the General Assembly reconciles their discor dant language. The conflict be tween the statutes cannot be resolved as the majority has decided without contorti ng the nature of the conflict, the text of the statutes themselves, and the role of strict construction in the process. The correct outcome her e is to affirm the judgment of the court of appeals.

I. Introduction {¶ 38} Before I enter into the jumble of numbers and letters that inev itably piles up when picking apart sta tutory provisions, I want to fra me this conflict in plain English. This matter doe s not actually involve a clean c onflict; it does not involve two statutes that indepe ndently prescribe conflicting s entences. The two statutory provisions at issue in this case are interrelated. O ne statute used to prescribe a range of prison sentences. The other statute incor porated that sentencing range but added an ex tra requirement. Subsequently, the sentencing-January Term, 2019

19 range statute changed in a way that made it impossible to satis fy the extra requirement. {¶ 39} One solution to this problem would be to pretend that the extra

requirement statute is actually a stand-alone sentencing provis ion that no longer incorporates the sentencing-range statute (despite the fact tha t the extrarequirement statute still says that it incorporates the sentenc ing-range statute) and that the specific nature of the extra requirement indicates tha t the General Assembly

meant for it to be a stand-alone exception to the sentencing-ra nge statute. Another solution would be to modify the extra requirement so that it ca n remain at least partially effective in light of the sentencing-range statute th at the extra-requirement statute expressly incorporates. {¶ 40} The lead opinion concludes that the former solution is the only possible choice when considering the canon of statutory constru ction that favors a specific over a general provisi on. I would hold that the latte r solution is the better choice, even when using the lead opinion’s chosen analytical to ols. I would also hold that the appropriate analyt ical tool for this conflict in penal statutory language

is the rule of strict construction, also ca lled the rule of len ity. And under the rule of lenity, the latter solu tion is all but required. II. A proper understanding o f the statutes involved {¶ 41} The allegedly general statute in this conflict is R.C. 2929.14( A)(3) (“F3 statute”), which prescribes a range of prison sentences fo r third-degree

felonies. It is divided int o one general and one specific prov ision. For most thirddegree felonies, it prescribes pri son terms of “nine, twelve, e ighteen, twenty-four, thirty, or thirty-six months.” R.C. 2929.14(A)(3)(b) (“general F3 provision”). For a special subset of enumerated third-degree felony offenses, it prescribes prison terms of “twelve, eighteen, twen ty-four, thirty, thirty-six, fo rty-two, forty-eight, fifty-four, or sixty months.” R.C. 2929.14(A)(3)(a) (“specific F3 provision”).S UPREME C OURT OF O HIO

20 {¶ 42} The allegedly specific statute in this conflict is a provision within R.C. 2925.041, which governs the offense of illegal assembly or possession of

chemicals for the manufacture of drugs. The specific provision at issue provides

that for certain third-strike offenders who have violated the s tatute, “the court shall impose as a mandatory prison term one of the prison terms presc ribed for a felony of the third degree that is not less than five years.” R.C. 29 25.041(C)(1) (“thirdstrike provision”). {¶ 43} The plain language of the forego ing statutes, as well as their interrelationship, reveal that the F3 statute is not necessaril y a general statute, the third-strike provision is not an independent speci fic statute, the third-strike provision conflicts with both the general and specific F3 provi sions, and the true

conflict lies withi n the third-strike provision itself. . A. R.C. 2929.14(A)(3) is no longer just a general statute {¶ 44} When the third-strike provision was added to R.C. 2925.041 in 2 006,

the version of the F3 statute th at was in effect could fairly b e characterized as a general statute, with nothing in particular to prevent the judi ciary from inferring special exceptions in other statutes that address specific offe nses. At that time, it stated: “For a felony of the third degree, the prison term shal l be one, two, three, four, or five years.” Former R.C. 2929.14(A)(3), Am.Sub.H.B. N o. 473, 150 Ohio Laws, Part IV, 5707, 5731. {¶ 45} But in 2011, the General Assembly revamped the F3 statute to prescribe a range of definite sentences from 9 to 36 months for most third-degree felony offenses in the general F3 provision, R.C. 2929.14(A)(3) (b). 2011 Am.Sub.H.B. No. 86 (“H.B. 86”). The General Assembly also crea ted an exception for certain specified felonies, prescribing a range of 12 to 60 months in the specific F3 provision, R.C. 2929.14(A)(3)(a). {¶ 46} The specific F3 provision, R.C. 2929.14(A)(3)(a), lists many offenses for which a sentence of up to five years may be impose d, includingJanuary Term, 2019

21 vehicular homicide (R.C. 2903.06), aggravated vehicular assault (R.C. 2903.08), sexual battery (R.C. 2907.03), unl awful sexual conduct with a m inor (R.C. 2907.04), gross sexual imposition (R.C. 2907.05), and certain t ypes of robbery and burglary offenses (R.C. 2911.02 and 2911.12). It is quite a va riety. But it is not a variety wide enough to characterize R.C. 2929.14(A)(3)(a) eithe r as a general statute, or as anything other than a specific exception to the general F3 provision, R.C. 2929.14(A)(3)(b), for particular offenses deemed by the Ge neral Assembly to

be more severe in nature than m ost third-degree felonies. {¶ 47} To remove any suspicion that the specific F3 provision could somehow be generally applied to other unenumerated offenses by judicial inference alone, the F3 statute further specifies that the general F3 pro vision—and not the specific F3 provision—must apply to any “felony of the third de gree that is not an offense for which division (A)(3)(a) of this section applies .” (Emphasis added.) R.C. 2929.14(A)(3)(b). {¶ 48} The F3 statute is no longer the g eneral statute that it was in 2006. It is now bifurcated into two sepa rate provisions. Even assuming that R.C. 2929.14(A)(3)(b) is a general statutory provision, R.C. 2929.14 (A)(3)(a) remains a specific provision of limited application. B. R.C. 2925.041(C)(1) is not an independent variable {¶ 49} The third-strike provision in R.C. 2925.041(C)(1) is not a stan dalone sentencing provision. Rather than prescribing a definite sentence or range for repeat offenders, the third- strike provision states that “o ne of the prison terms prescribed for a felony of the third degree” applies. R.C. 292 5.041(C)(1). In other words, the third-strike provisi on does not prescribe the prison terms involved; the

F3 statute does. {¶ 50} What makes the third-strike pr ovision an allegedly specific sta tute is that it narrows the sentencing range prescribed in the F3 statu te by raising the floor of that range to “not less than five years,” R.C. 2925.041(C)(1 ). It is not a fullS UPREME C OURT OF O HIO

22 exception: it does not purport to alter the ceiling of the rang e provided in the F3 statute, and it does not provide its own sentence or range of s entences independent

of the F3 statute. {¶ 51} Without using a sentencing range prescribed by the F3 statute, the third-strike provision in R.C . 2925.041(C)(1) would have no ind ependent force; it would impose a five-year minimum on nothing. C. The five-year minimum in R.C. 2925.041(C)(1) conflicts with both the specific and the genera l sentencing provisions in R.C. 2929.14(A)(3)

{¶ 52} There was no conflict between the third-strike provision of R.C

. 2925.041(C)(1) and the F3 statute, R.C. 2929.14(A)(3), in 2006. The five-year minimum in the third-strike provision made some sense when it w as enacted in 2006, because the F3 statute provided a general range of one to five years for all third-degree felonies at the time. I stress that it made only some sense. This is because the practical result of combining a five-year minimum i n the third-strike provision with a five-year max imum in the F3 statute in 2006 wa s the requirement of a sentence of exactly fiv e years, with no discretion left to the sentencing court. {¶ 53} Why the General Assembly decided to add the aura of judicial discretion to the third-strike provision when none existed is u nclear. What matters, though, is that the General Assembly did notchoose to simply state in the thirdstrike provision of R.C. 2925.041(C )(1) that a mandatory five-y ear sentence—no more and no less—applied; it chos e to make the third-strike pro vision dependent upon the range permitted in the F3 statute. 3

3. It is at this point that the justices joining the lead opin ion most deviate from the text of the statutes to achieve their desired result. The lead opinion characterize s R.C. 2925.041(C)(1) as imposing a singular, independent “mandatory five-year sentence,” lead opin ion at ¶ 16, despite the fact that the actual text provides only a minimum and is entirely dependent u pon the sentences prescribed in R.C. 2929.14(A)(3). The lead opinion also claims that the “purpose” behind R.C. 2925.041 is inconsistent with linking division (C)(1) to an entire range of sentences in R.C. 2929.14(A)(3), lead opinion at ¶ 16, despite the fact that the text of R.C. 2925.04 1(C)(1) expressly creates that exact link.January Term, 2019

23 {¶ 54} In 2011, the five-year floor in the third-strike provision ceas ed to make any sense at all. The five-year minimum is not allowed by the general F3 provision, R.C. 2929.14(A)(3)(b), becau se the new general range allows sentences of up to only three years. And the five-year minimum is not al lowed by the specific F3 provision, R.C. 2929.14(A)(3)(a), because the plain language of that provision prohibits the application of its 12-to-60-month sentencing rang e to offenses that are not listed. As noted above, the offenses listed in the specifi c F3 provision are diverse. But they do not include the offense defined in R.C. 2 925.041, nor do they include any offenses that are similar to that offense. {¶ 55} This court has already held that if an offense is not listed in the specific F3 provision, R.C. 2929.14(A)(3)(a), then the 9-to-36- month range in the general F3 provision—and not the five-year range in the specifi c F3 provision— applies. State v. South , 144 Ohio St.3d 295, 2015-Ohio-3930, 42 N.E.3d 734, ¶ 18.

In South , the court considered a sente ncing provision, R.C. 2929.14(B)( 4), prescribing a discretionary sentencing range of “ ‘any duration specified’ ” in the F3 statute for certain offenses for operating a vehicle while u nder the influence of alcohol or drugs (“OVI”). South at ¶ 18. Similarly to this case, the reference in R.C. 2929.14(B)(4) to the F3 statute signified a potential sent ence of “one, two, three, four, or five years” prior to 2011, former R.C. 2929.14( A)(3), Am.Sub.H.B. No. 473, 150 Ohio Laws, Part IV, at 5731, but when the F3 statu te was amended in H.B. 86, the meaning of the reference changed. {¶ 56} There was no statutory conflict for this court to resolve in South , because the language of R.C. 2929.14(B)(4) was flexible and sti ll had meaning, albeit a different meaning, after H.B. 86 became effective in 2 011. See South at ¶ 7. The court was able to harmonize the language in the speci fic OVI-sentencing provision with the general sentencing range in R.C. 2929.14(A)( 3)(b), leaving no reason to further discuss the significance of the 12-to-60-mont h sentencing range in the specific F3 pr ovision, R.C. 2929.14(A)(3)(a).S UPREME C OURT OF O HIO

24 {¶ 57} Unlike the language of R.C. 2929.14(B)(4) at issue in South , the language of the third-strike provision of R.C. 2925.041(C)(1) i s not flexible and

cannot be harmonized with the general F3 provision, R.C. 2929.1 4(A)(3)(b). Also

unlike in South , our consideration of the statutory language here does not sto p at the general F3 provision. We must also consider the exception provided in the specific F3 provision, R.C. 2929.14(A)(3)(a). The additional c onsideration is significant to how we must resolve the conflict between the thi rd-strike provision and the F3 statute. The majority cannot conclude merely that t he third-strike provision is intended to be an exception to the general F3 prov ision, R.C. 2929.14(A)(3)(b); it would also have to determine that the thir d-strike provision is intended to be an exception to the exclusive nature of the exce ption created by the specific F3 provision, R.C. 2929.14(A)(3)(a). III. The applicable tool s of interpretation {¶ 58} Given the context provided above r egarding the nature of the st atutes and the conflict, I disagree with the lead opinion’s conclusion that “the mandatory five-year sentence prescribed by R.C. 2925.041(C)(1) is a speci al provision that prevails as an exception to the general statute, R.C. 2929.14(A )(3)(b),” lead opinion at ¶ 24. Instead, the third-strike provision of R.C. 2925.041( C)(1) does not independently prescribe a five-year sentence, the analysis does not stop at the general F3 provision, R.C. 2929.14( A)(3)(b), and the appropriat e canons of statutory interpretation must be applied to the conflict betwee n the third-strike provision and the specific F 3 provision, R.C. 2929.14(A)(3)(a). A. The general/specific canon and R.C. 1.51 {¶ 59} The lead opinion primarily relie s on the general/specific canon of interpretation articulated in R. C. 1.51 and Scalia & Garner, Reading Law: The Interpretation of Legal Texts 183 (2012). In the event of a n irreconcilable conflict between statutory provisions, the canon instructs that “the spe cial or local provision prevails as an exception to the general provision, unless the g eneral provision is theJanuary Term, 2019

25 later adoption and the manifest intent is that the general prov ision prevail.” R.C. 1.51. With a proper understanding of the statutes involved, it is doubtful that the general/specific canon is particularly relevant to the conflict . But even if we consider it to be the most relevant rule, the application of th is rule renders a result different from the one reached by the lead opinion. 1. R.C. 2925.041(C)(1) is not the more specific statute {¶ 60} As explained above, the third-strike provision in R.C. 2925.041(C)(1) is not a stand-alone sentencing provision. Thus , it is not quite accurate to characterize the third-strike provision as a specif ic statute that can apply instead of the F3 statute. Even assuming that it is proper to call the third-strike provision a specific statute in this context, it is not more sp ecific than provisions

within the F3 statute. {¶ 61} R.C. 2925.041(C) addresses the punishments that may be applicab le to the specific offense of illegal assembly or possession of ch emicals for the manufacture of methamphetamine. It is certainly more specific than R.C. 2929.14(A)(3)(b), which prescribes sentences for third-degree f elony offenses in general. But the specific F3 provision, R.C. 2929.14(A)(3)(a), enumerates specific

offenses that are considered to be more severe in nature than m ost third-degree felonies and allows a special r ange of more severe punishments to apply to those

enumerated offenses. {¶ 62} The specific F3 provision, R.C. 2929.14(A)(3)(a), is, at the ve ry least, on equal footing with the third-strike provision in R.C. 2925.014(C)(1) in terms of specificity. The exclusivity of the enumerated list o f offenses in the specific F3 provision, as well as the instruction in R.C. 2929. 14(A)(3)(b) that the 12-to-60-month sentencing range is unavailable for any “felony of the third degree

that is not an offense for whic h division (A)(3)(a) of this sec tion applies,” prohibits

the inference that the third-s trike provision is an exception t o division (A)(3)(a) orS UPREME C OURT OF O HIO

26 (A)(3)(b). Accordingly, the th ird-strike provision cannot prev ail as the more specific statute.

2. The sentencing ranges of both the spec ific and the general provisions of R.C. 2929.14(A)(3) were enacted later in time {¶ 63} The offense of illegal assembly or possession of chemicals for the manufacture of drugs, R.C. 2925.041, was first established in 2 001. Sub.H.B. No. 7, 149 Ohio Laws, Part II, 4000, 4012-4013. Originally, any vi olation of R.C. 2925.041 was a third-degree felony. Id . In 2004, the legislature added a felonylevel enhancement to R.C. 2925.041(C): the offense remained a t hird-degree felony but was raised to a second-degree felony for violations committ ed near a juvenile

or a school. Am.Sub.S.B. N o. 58, 150 Ohio Laws, Part V, 7494, 7504-7505. {¶ 64} In 2006, the General Assembly add ed sanction-level enhancements for violations involving methamph etamines by requiring certain sentencing minimums: under R.C. 2925.041(C)(1) for third-degree felony off enses and under division (C)(2) for second-degree felony offenses. Am.Sub.S.B. No. 53, 151 Ohio Laws, Part I, 806, 834-836. Each subdivision had two enhanceme nt steps: the first step applied to any violation i nvolving methamphetamine manufac turing and the second step applied if the offend er also had a prior conviction for certain drug offenses—specifically, drug manufacturing or drug-related child endangerment. The sentencing minimums for the first and second steps were two and five years for third-degree felonies and thr ee and five years for second-d egree felonies. {¶ 65} In 2011, the General Assembly changed the aggravating circumstances that qualified for the enhancement steps in R.C. 2925.041(C)(1). 2011 Am.Sub.H.B. No. 86. Now, the first step for third-degree- felony violations applies if the offende r has two or more prior convictions for a ny felony drug offense, and the second step applies if at least one of those c onvictions was for drug manufacturing or drug-related ch ild endangerment. But the sent encing structure for the steps remained the same; the sentencing minimums for th e first and secondJanuary Term, 2019

27 steps are still two and five years for third-degree felonies, a nd they are still three and five years for second-degree felonies. {¶ 66} Meanwhile, for decades, R.C. 2929.14(A)(3), the F3 statute, had provided the same sentencing stru cture for third-degree felony offenses: a simple range of one to five years. See Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136, 7464. But in 2011, the General Assembly completely overhauled the sentencing structure for third-degree felonies in the F3 statute, creating the bifurcated special and general sentencing r anges described above. {¶ 67} The statutory conflict here is not related to the nature of an offender’s violation of R.C. 2925.041 or what the offender has done to qua lify for certain felony or sanction enhancements within R.C. 2925.041. The conf lict arises from

the structure of the sanctions imposed on those felony-enhancem ent or sanctionenhancement steps. Although some aspects of R.C. 2929.041 have changed, the actual sentencing structure and minimum terms for the enhanceme nt steps in R.C. 2929.041(C) have remained t he same since 2006. See R.C. 1.54 (“A statute which

is reenacted or amended is inte nded to be a continuation of the prior statute and not a new enactment, so far as it is the same as the prior statute” ). The significant changes to the sentencing struct ure of the F3 statute were enac ted later in time. 3. The result of employi ng the general/specific canon {¶ 68} Because R.C. 2929.14(A)(3)(a) is a specific statute and prohibi ts the inference that the third-strike provision is an exception to di vision (A)(3)(a) or (A)(3)(b), the third-strike p rovision of R.C. 2925.041(C)(1) ca nnot prevail as the more specific statute. Because the prison-term ranges in the F 3 statute were enacted later in time than the minimum ranges in the third-strike provi sion, the ranges in the F3 statute must prevail. {¶ 69} Irrespective of the result, thoug h, application of the general/ specific canon of interpretation (and its later-in-time exception) do no t truly address the

conflict in this case. This is not the kind of case in which w e must resolve a conflictS UPREME C OURT OF O HIO

28 between two completely separate statutes that make no reference to each other and that prescribe conflicting penalties of independent force. The conflict that needs to be resolved is actually within the third-strike provision itsel f. The language of the third-strike provision at issue here is: “the court shall impos e as a mandatory prison term one of the prison terms prescribed for a felony of the thi rd degree that is not less than five years,” R.C. 2925.041(C)(1). The first part of this provision indicates that the general rule for third-degree felonies applies, and th e second part states a number that cannot apply under the general rule for third-degre e felonies. When

an irreconcilable conflict of thi s nature “occurs with penal pr ovisions, the result

should favor the accused.” Scalia & Garner at 190. In other w ords, the rule of lenity must apply. B. The rule of le nity and R.C. 2901.04(A) {¶ 70} Contrary to the lead opinion’s representation, when it comes to criminal statutes, the rule of lenity is not always the last ki d picked in gym class. As the lead opinion notes, see lead opinion at ¶ 23, some leading authorities have advised that the rule of lenity can apply only “after all the l egitimate tools of interpretation have been applie d, ‘a reasonable doubt persists. ’ ” Scalia & Garner at 299, quoting Moskal v. United States , 498 U.S. 103, 108, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990). But those same authorities have also argue d that many tools of interpretation are not appropriate in the context of crimina l statutes. See, e.g. , Moskal at 132 (Scalia, J., dissenting) (inferences regarding legislat ive purpose should not be used to construe an ambiguous penal statute again st a criminal defendant); United States v. R.L.C. , 503 U.S. 291, 307, 112 S.Ct. 1329, 117 L.Ed.2d 559 (1992) (Scalia, J., dissenting) (legislative history should not be used to construe an ambiguous penal statute against a criminal defendant). Furt her, the same authorities have argued that the rule of lenity is not limited to instances of “ ‘grievous ambiguity,’ ” Scalia & Garner at 299, quoting Muscarello v. UnitedJanuary Term, 2019

29 States , 524 U.S. 125, 139, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998). I nstead, they have argued, the breadth of the rule’s use should be increased:

On the whole, it might fairly be said that the rule of lenity i s underused in modern judicial decision-making—perhaps the consequence of zeal to smite the wicked. The defendant has alm ost always done a bad thing, and the instinct to punish the wrongdo er is a strong one. But a fair system of laws requires precision in the definition of offenses and punishme nts. The less the courts in sist on precision, the less the legislatures will take the trouble to p rovide it.

(Footnote omitted.) Id. at 301. {¶ 71} I think the rule of lenity ought to apply to the interpretation of

criminal statutes far more than it has been applied in recent y ears. Although

criminal laws should not be “constr ued so strictly as to defeat the obvious intention of the legislature,” we should f irst and foremost value the fac t that the age-old rule of lenity “is founded on the tende rness of the law for the righ ts of individuals [as well as] the plain principle that the power of punishment is ve sted in the legislative, not in the judicial department.” United States v. Wiltberger , 18 U.S. 76, 77, 95, 5 L.Ed. 37 (1820). And if we are to say with a straight face tha t ignorance of the law is no excuse, then we must insist that lack of clarity in the l aw is no excuse either. See McBoyle v. United States , 283 U.S. 25, 27, 51 S.Ct. 340, 75 L.Ed. 816 (1931) (“it is reasonable that a fair warning should be given to the w orld in language that the common world will understand, of what the law intends to do if a certain line is passed”). {¶ 72} Further, even if the rule of lenity is considered a last resort by some

conservative modern authorities on statutory interpretation, it cannot be considered a last resort in Ohio criminal law, because our General Assembl y has specificallyS UPREME C OURT OF O HIO

30 instructed otherwise in R.C. 2901.04(A): “[S]ections of the Rev ised Code defining offenses or penalties shall be strictly construed against the s tate, and liberally

construed in favor of the accused.” The instruction in R.C. 29 01.04(A) is a “specific” rule that prevails ove r other general rules of const ruction in R.C. Chapter 1 by the very terms of one of those rules. See R.C. 1.51 (general/specific canon). {¶ 73} The lead opinion dismisses the General Assembly’s own instructi on on its intent by invoking judicial ly created canons of statutor y interpretation and by citing cases suggesting that the rule of lenity should be appli ed only as a last resort after considering all other ca nons of interpretation. As a gen eral notion, I disagree that there is a hierarchy of ca nons of interpretation that is a s immutable as the lead opinion and its cited cases let on. Regardless, the alleged hi erarchy of canons of interpretation does not trump the l egislature’s clear expressio n of its intent to us in R.C. 2901.04(A): “Dear judicial branch, if there is an ambiguit y or conflict in these statutes, our intent was to take the more lenient course of act ion.” That is as crystal clear as legislative intent can g et. Canons of statutory inter pretation are certainly

not more authoritative than the statutes themselves and therefo re cannot undo the explicit intent of the legislature. {¶ 74} Accordingly, the rule of lenity is the appropriate canon of interpretation to use in attempting to resolve the conflicting language in the thirdstrike provision, R.C. 2925.041(C)(1).

IV. Resolution of the conflic t through the rule of lenity {¶ 75} The nature of the conflict here is clear: the General Assembly made a mistake. Either it meant (but failed) to reduce the minimum prison term in the third-strike provision of R.C . 2925.041(C)(1) to match the new, lesser maximum prison term permitted by the 9-to-36-month range in the general F3 statute, R.C. 2929.14(A)(3)(b), or it meant (but failed) to either divorce th e third-strike provision from the F3 statute or include it in the list of exceptions in the specific F3 provision.

We should not fix the mistake for the General Assembly; it is n ot our place to stepJanuary Term, 2019

31 into the shoes of the legislature to speak on its behalf. See Bell v. United States , 349 U.S. 81, 83, 75 S.Ct. 620, 99 L.Ed. 905 (1955) (the rule of lenity, rather than a judicial fix, must apply “when C ongress leaves to the Judiciary the task of imputing to Congress an undeclared will”). We must therefore strictly c onstrue the thirdstrike provision in R.C. 2925.041(C )(1) until the General Assem bly provides language that is capable of being harmonized within the crimina l code. {¶ 76} In order to strictly construe R.C. 2925.041(C)(1), we would not need to invalidate the third-strike provision in its entirety. When invalidation becomes necessary, a court “ ‘should re frain from invalidating more of the statute than is necessary.’ ” Alaska Airlines, Inc. v. Brock , 480 U.S. 678, 684, 107 S. Ct. 1476, 94 L.Ed.2d 661 (1987), quoting Regan v. Time, Inc. , 468 U.S. 641, 652, 104 S.Ct. 3262, 82 L.Ed.2d 487 (1984) (plurality opinion). The portion o f the third-strike provision that incorporates the F 3 statute but raises the manda tory minimum sentence to the maximum sentence allowable by the F3 statute is just as valid now

as it was before the F3 statute was amended. The only part of the third-strike provision that cannot currently b e applied is the extent to whi ch it exceeds the threeyear maximum in the general sentencing range in R.C. 2929.14(A) (3)(b). Accordingly, to strictly constr ue the third-strike provision wh ile preserving it to the extent that it can be applied, we need only reduce the number f ive to the number

three. {¶ 77} Because the rule of lenity allows for a reasonable resolution o f the internal conflict within the language of the third-strike provi sion of R.C. 2925.041(C)(1) and its external conf lict with the general and s pecific provisions of the F3 statute, the lead opinion’s appeal to the absurd-result principle, embodied in R.C. 1.47(C), is unavailing. Although the terms of the F3 stat ute prevail over the terms of the third-strike provi sion, they do not render the thi rd-strike provision completely inoperative. A defend ant facing punishment pursuant to the third-strike provision of R.C. 2925.041(C)(1) would be sentenced to a mandat ory prison termS UPREME C OURT OF O HIO

32 of not less than three years and could not be sentenced to as l ittle as nine months in prison as the lead opinion claims. {¶ 78} Finally, it bears noting that the lead opinion’s solution requi res deletion of most of the relevant language in the third-strike p rovision of R.C. 2925.041(C)(1): “the court shall impose as a mandatory prison t erm one of the prison terms prescribed for a felony of the third degree that i s not less than five years.” My solution of changing the number five to the number three is far simpler. It also reflects the fairest possible reading of the applicable statutes and does the least violence to the language. Thus, in addition to providing a just and logical result, applying the rule of len ity to this particular conflict provides the simplest, most straightforward solution.

V. Conclusion {¶ 79} Although the lead opinion implies otherwise, its objective cann ot be to allow the third-strike provision of R.C. 2925.041(C)(1) to i ndependently apply as its own specific sentencing p rovision to the exclusion of th e provisions of R.C. 2929.14(A)(3), the F3 statute. Qu ite the opposite; the justice s joining the lead opinion know that the F3 statute must apply: the third-strike p rovision in R.C. 2925.041(C)(1) expressly requires as much. The problem is that the lead opinion is trying to insinuate the third -strike provision into the spec ial, harsher sentencing range permitted in the later-e nacted R.C. 2929.14(A)(3)(a) desp ite the fact that the plain language of R.C. 2929.14(A)(3)(a) does not allow the thir d-strike provision of R.C. 2925.041(C)(1) to be included. {¶ 80} It is possible that the General Assembly’s intent was exactly a s the justices joining the lead opinion infer, and it is just as poss ible that its intent was otherwise. Regardless, we should not speculate to resolve this kind of conflict, especially in the context of penal statutes. Until the General Assembly makes its intent clear in the general and specific sentencing provisions of the F3 statute and the third-strike provision of R.C. 2925.041(C)(1), we should st rictly construe theJanuary Term, 2019

33 third-strike provision so that its sentencing minimum does not exceed the maximum allowed by the general sentencing provision in R.C. 2929.14(A)( 3)(b). The Fourth District Court of Appeals understood this quite well, and I wou ld therefore affirm its judgment.

_________________ David C. Kelley, Adams County Prosecuting Attorney, and Mark R. Weaver, Assistant Prosecuting Attorney, for appellant. Timothy Young, Ohio Public Def ender, and Allen Vender, Assistan t Public Defender, for appellee.

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