The state cannot impose a repeat-offender penalty for a sex crime that occurred before but was not discovered until after a later sex crime conviction, the Ohio Supreme Court ruled recently.

A Supreme Court majority reversed the Second District Court of Appeals and reinstated a sentence imposed in 2017 by the Montgomery County Common Pleas Court against Gerald Pendergrass.

The Supreme Court ruled that R.C. 2907.04(B)(4) is ambiguous and it was unclear to the Court whether Pendergrass’ second conviction for unlawful sexual conduct with a minor could be elevated from a fourth-degree to a second-degree felony.

Nevertheless, Pendergrass’ interpretation of the law was better than the state’s, the majority ruled. To the extent that the text of the statute fails to provide a definitive answer to the question, Pendergrass is entitled to the lesser charge under the “rule of lenity,” the Court ruled.

Writing for the Court majority, Justice R. Patrick DeWine stated the law allows for the penalty to be enhanced “if the offender previously has been convicted of” a specified sex crime without making clear whether that conviction had to precede the currently charged criminal act, or whether it is sufficient if the conviction preceded the current indictment. Justice DeWine wrote that Pendergrass made the better argument that the law means the penalty can be enhanced only if the other conviction preceded the criminal act.

Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy and Michael P. Donnelly joined Justice DeWine’s opinion. Justice Melody J. Stewart concurred in judgment only.

In a dissenting opinion, Justice Patrick F. Fischer wrote the law is unambiguous, and once Pendergrass had a conviction on his record for a sex crime, his penalty could be enhanced for the second conviction regardless of when the actual crimes took place. Justice Judith L. French joined Justice Fischer’s dissent.

In September 2016, Pendergrass was convicted of unlawful sexual conduct with a minor under R.C. 2907.04. The criminal conduct occurred between October and December of 2015.

Law enforcement then discovered a prior incident in Pendergrass’ past. In September 2017, he was indicted for unlawful sexual conduct that occurred between May 2013 and May 2015. That conduct occurred before the conduct he was convicted of in 2016. In the indictment, the Montgomery County Prosecutor’s Office sought to enhance the penalty from a fourth-degree to a second-degree felony under R.C. 2907.04(B)(4) because Pendergrass had been previously convicted in 2016 of a sex crime.

Pendergrass asked the trial court to dismiss the indictment. He argued he could not be charged with the higher crime that occurred in early 2015 based on a conviction for a crime committed in late 2015. The trial court agreed and dismissed the charge.

The prosecutor’s office appealed, and the Third District agreed with the state that the law allowed for the enhanced penalty. Pendergrass appealed to the Supreme Court, which agreed to hear the case.

The Court explained that R.C. 2907.04(B)(4) states if “the offender previously has been convicted of or pleaded guilty to [rape, sexual battery, or unlawful sexual conduct with a minor], unlawful sexual conduct with a minor is a felony of the second degree.”

Justice DeWine explained that the law on its face does not obviously indicate what “previously” refers to. The prosecutor argued that for the enhancement to apply, the language only required that Pendergrass had to be convicted of any of the crimes cited in (B)(4) at the time he was indicted. The office argued Pendergrass had a conviction on his record in 2017 when he was charged again with unlawful sexual conduct with a minor and the state could seek the enhanced penalty.

The opinion stated that the state seems to argue that because Pendergrass’ interpretation is more restrictive and would apply the enhancement to fewer cases, then the state’s interpretation should win.

“But when interpreting criminal statutes, close calls don’t go to the state, and in the face of ambiguity, we don’t default to interpreting the statute so as to allow the state to punish more rather than less. Indeed, the exact opposite is true,” the Court stated.

The majority opinion noted that rather than reading R.C. 2907.04(B)(4) in isolation, Pendergrass’ interpretation makes more sense when paired with the broader language of the statute. The Court noted that R.C. 2907.04(B) states, “Whoever violates this section is guilty of unlawful sexual conduct with a minor.”

The combination of the present tense “violates” with “previously has been convicted” indicates that the enhancement depends on a previous conviction at the time of violation. In Pendergrass’ case, he had not been convicted of a sex crime when he had unlawful sexual conduct with a minor between May 2013 and May 2015. His first conviction for a sex crime occurred in September 2016.

“This suggests that in order for the enhancement to apply, a defendant must have a qualifying conviction when he commits the charged offense," the opinion stated.

The Court also noted that R.C. 2901.04(A) contains Ohio’s rule of lenity, which indicates “offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused.” Because the unlawful-sexual-conduct law is at least ambiguous, the rule of lenity applies and entitles Pendergrass to the lesser penalty, the Court concluded.

Justice Fischer wrote the case “boils down to nothing more than the plain and unambiguous language of the statute.” To enhance the penalty, the state must prove a prior conviction is present on the offender’s record when the subsequent charge is made. The legislature did not include anything in the statute about the timing of when the actual offenses occurred, the dissent noted.

“Thus, R.C. 2907.04(B) plainly states that a person must only have an applicable prior conviction on his or her record at the time new charges are filed in order for that offender to be liable for a second-degree felony,” the dissent stated. “To hold otherwise would be to limit the General Assembly's ability to execute its intent and to, effectively, make this court a legislative policymaker.”