COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70853 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION HENRY YISHA : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION FEBRUARY 13, 1997 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-331106 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES PHILIP J. KOREY, ESQ. Cuyahoga County Prosecutor Leader Building, Suite 410 PAUL J. DALEY, Assistant 526 Superior Avenue Prosecuting Attorney Cleveland, Ohio 44114 1200 Ontario Street Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, P.J., Defendant-appellant Henry Yisha appeals from his convictions following a no contest plea to two counts of assaulting two different police officers (R.C. 2903.13). Defendant claims the indictment should have been dismissed for failure to observe the ninety-day speedy trial requirement for misdemeanors or, in the alternative, he should have been sentenced for a first degree misdemeanor not a fourth degree felony. We find no merit to the appeal and affirm the judgment below on the authority of State v. Wilson (1997), 77 Ohio St.3d 334. Defendant was arrested on October 28, 1995 in Parma for allegedly assaulting two Parma police officers. The complaint under which defendant was charged alleged that an assault on a police officer is a felony of the fourth degree. Defendant was bound over to the grand jury which returned a two-count indictment on December 6, 1995, to which defendant entered a plea of not guilty. On February 13, 1996, defendant filed a motion to dismiss the indictment based on speedy trial, or alternatively, to reduce or treat the indictment as a misdemeanor on the grounds that an assault on a peace officer is a misdemeanor, not a felony. Since ninety days had elapsed from the date of his arrest, defendant argued he should have been discharged under R.C. 2945.71(B)(2) or only sentenced for a misdemeanor, not a felony. The motions were overruled by the trial court. - 3 - On April 30, 1996, defendant entered a no contest plea to the indictment reserving his right to appeal the adverse ruling on the motion to dismiss based on speedy trial and/or the motion to reduce the indictment to a misdemeanor. (Tr. 3-5, 10-11). The trial court ruled that the indictment charged two felonies of the fourth degree, not first degree misdemeanors. The trial court sentenced the defendant to eighteen months on each count, the sentences to run consecutively. The court then suspended the sentence and placed the defendant on five years probation with conditions. Defendant then timely filed this appeal. We will address defendant's assignments of error together because they present a single underlying issue. I. THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT'S MOTION TO DISMISS BASED ON SPEEDY TRIAL WHERE THE INDICTMENT UNDER FORMER R.C. 2913.13, EFFECTIVE OCTOBER 6, 1994, CHARGED THE DEFENDANT WITH ASSAULT WITH A SPECIFICATION THAT THE ALLEGED VICTIM IS A PEACE OFFICER; THE INDICTMENT CHARGED A MISDEMEANOR, THUS REQUIRING THE STATE TO BRING THE DEFENDANT TO TRIAL WITHIN NINETY (90) DAYS. II. THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT TO A FELONY INSTEAD OF A MISDEMEANOR. The issues in this case arise from the fact that in 1994 the 120th General Assembly amended R.C. 2903.13 twice. The first amendment was in Am. Sub. Senate Bill 116, effective September 29, 1994. S.B. 116, as stated in the preamble, was "to make the offense of assault a fourth degree felony if the victim is a peace officer, a fire fighter, or a person performing emergency medical - 4 - service, ***." The second amendment was in Am. Sub. House Bill 571, effective October 6, 1994. The purpose of H.B. 571, as stated in the preamble, was "to allow indemnification of state officers and employees for certain punitive and exemplary damages ***." As noted, the two Bills were passed within days of each other, and H.B. 571 did not include the language in S.B. 116, making an assault on a peace officer a felony. In fact, Section 2 of H.B. 571 stated "That existing sections *** 2903.13 *** of the Revised Code are hereby repealed." The issue thus presented is whether an assault on a police office is a misdemeanor or felony, i.e., whether the later H.B. 571 repealed the amendment of S.B. 116 making it a felony. The answer is found in State v. Wilson (1997), 77 Ohio St.3d 334 which recently held that the later amendment did not repeal the earlier amendment making an assault on a police officer a felony. The Supreme Court stated: The ultimate question in this case is what "existing section" of R.C. 2903.13 is repealed by the later enacted law. If the later enactment repealed the change incorporated in the law passed two days earlier, making assaults on law enforcement officers a felony, then the trial court here was without authority to classify Wilson's offense as a fourth-degree felony. We conclude, however, that the "existing sections" repeal contained in the later enacted law was limited in scope so as not to effect a repeal of the amendment to R.C. 2903.13 instituted in the earlier Act. Accordingly, we reverse the judgment of the appellate court and reinstate the original conviction. * * * - 5 - The amendment making assaults on law enforcement officers a felony is absent from the version of that statute found in the later enacted law. As such, the "existing sections" repealer found in the later Act did not repeal the R.C. 2903.13 amendment making assaults on law enforcement officers a felony. Absent such a repeal, there is nothing to suggest that the amendment to R.C. 2903.13 making assaults on law enforcement officers a felony is irreconcilable with the later amendment, which modernizes terminology used in that section. We therefore conclude that the classification of Wilson's sentence as a fourth-degree felony was appropriate. Id. at 335, 337. Finding the Supreme Court decision "on all fours" with the instant case, we overrule the defendant's assignments of error. Judgment affirmed. - 6 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, J., and SPELLACY, J., CONCUR. JAMES M. PORTER PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .