COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71497 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION ABRAHAM DELGADO : : Defendant-Appellant : EN BANC : : : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 9, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-337202 JUDGMENT: AFFIRMED BUT REMANDED FOR RE-SENTENCING. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: MARK R. MAJER, ESQ. Assistant County Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JOHN P. PARKER, ESQ. The Brownhoist Bldg. 4403 St. Clair Avenue Cleveland, Ohio 44103 En Banc before: BLACKMON, Administrative Judge; PATTON, NAHRA, DYKE, SPELLACY, SWEENEY, PORTER, O'DONNELL, KARPINSKI, McMONAGLE, ROCCO, and CORRIGAN. O'DONNELL, Judge: -2- This appeal is before our entire court pursuant to the En Banc Procedure contained in an Amendment to Article 8(b) of Standing Resolution of the Eighth District Court of Appeals adopted September 1, 1996. Abraham Delgado appeals from a common pleas court jury verdict finding him guilty of aggravated assault, a lesser but included offense of felonious assault, challenging the sufficiency and weight of the evidence, and urging the court committed plain error by not giving him a choice to be sentenced in accordance with the provisions of Senate Bill 2. After a panel of our court heard this matter and announced its decision, which conflicted on the Senate Bill 2 issue with State v. Dempsey (Nov. 20, 1997), Cuyahoga App. No. 71479, unreported, we stayed journalization, and our court considered this matter en banc in accordance with our local rules of court adopted to promote uniform rulings throughout the Eighth Appellate District. The record before us reveals that on the evening of October 6, 1995, at Pinky's Bar, in Cleveland, Abraham Delgado challenged Tony Medina to a game of pool, and wagered five dollars that he could beat Medina using only one hand. During the game, because Delgado used both hands to make a shot, Medina considered the game forfeited and demanded payment on the bet. Delgado, however, did not pay and approached the bar. At that point, two of Medina's friends approached Delgado seeking the five dollar payment, and punched him in the mouth. An argument ensued and the bartender ordered them outside. Delgado first asked a barmaid to call the police, and then went outside where he saw a group of males urging -3- Medina to fight him. Delgado went back into the bar where he received change for a ten dollar bill and, after going back outside, threw five dollars at Medina's feet, drew his knife, and then stabbed him in the stomach and fled. On April 4, 1996, the grand jury indicted Delgado on one count of felonious assault with a violence specification. The court conducted a trial, the jury found him guilty of aggravated assault, and, on September 27, 1996, the court sentenced Delgado to a term of 1/ to 5 years incarceration for his participation in this case. Delgado now appeals and presents four assignments of error for our consideration, the first of which states: I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT IN SENTENCING HIM TO AN INDEFINITE PERIOD OF INCARCERATION WHEN THE TRIAL COURT FAILED TO JOURNALIZE ITS FINDING OF A VIOLENCE SPECIFICATION PURSUANT TO R.C. 2941.143. Delgado complains that the court erred by sentencing him to an indeterminate term of incarceration because the court did not journalize its finding of a violence specification. The record reflects that Delgado stipulated to his prior conviction, which obviated the need to journalize a finding. Accordingly, we overrule this assignment of error. Delgado's second and third assignments of error state: II. THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THE APPELLANT'S CONVICTION. III. THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE. Delgado argues his conviction is not supported by sufficient evidence and is against the manifest weight of the evidence, urging that the state failed to prove guilt beyond a reasonable doubt because he acted in self-defense. The state argues Delgado's conviction is supported by sufficient evidence and is not against the manifest weight of the evidence, contending it presented sufficient, credible evidence which proved beyond a reasonable doubt that he committed aggravated assault. The issues then presented for our review are whether Delgado's conviction is supported by sufficient evidence and whether it is against the manifest weight of the evidence. Crim.R. 29(A) provides that a conviction shall be supported by sufficient evidence, and states in relevant part: *** The court upon motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment *** if the evidence is insufficient to sustain a conviction of such offense or offenses ***. We recognize the difference between a challenge regarding the sufficiency of the evidence and one with respect to the manifest weight of the evidence. The test for sufficiency of the evidence is found in State v. Martin (1983), 20 Ohio App.3d 172, at 175: As to the claim of insufficiency of the evidence, the test is whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. -5- This test has also been recognized in State v. Taylor (1997), 78 Ohio St.3d 15, where the court stated at 18: *** the relevant inquiry is whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt ***. Thus, the sufficiency test raises a question of law for court determination prior to jury consideration of the evidence and involves reviewing the evidence in a light most favorable to the state to determine whether evidence has been presented on all of the essential elements of the crime. R.C. 2903.12 sets forth the elements of aggravated assault and provides in relevant part: (A) No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly: (1) Cause serious physical harm to another; (2) Cause or attempt to cause physical harm to another by means of a deadly weapon ***. Regarding Delgado's sufficiency challenge, the record reflects the state presented evidence from several eyewitnesses who saw the argument and the stabbing. After viewing that evidence in a light most favorable to the state, any rational trier of fact could have found that Delgado committed aggravated assault. Accordingly, his second assignment of error is overruled. -6- We next consider Delgado's challenge regarding the manifest weight of the evidence. This test is also found in Martin, supra, at 175: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42; ***. Regarding the manifest weight question, a review of the record demonstrates that the jury had the opportunity to hear testimony not only from the eyewitnesses, but also from Delgado himself; he claimed self-defense, but then denied the stabbing claiming accident; two state's witnesses contradicted this claim by testifying they heard Delgado admit to stabbing Medina as he sought refuge in their home. After weighing this evidence and all reasonable inferences drawn therefrom, and considering the credibility of the witnesses, we cannot say that the jury clearly lost its way and created such a manifest miscarriage of justice. Accordingly, this assignment of error is also overruled. Delgado's fourth assignment of error states: IV. THE TRIAL COURT COMMITTED PLAIN ERROR AND TRIAL COUNSEL WAS INEFFECTIVE UNDER THE SIXTH AMENDMENT WHEN THE APPELLANT WAS NOT GIVEN THE -7- OPTION OF BEING SENTENCED UNDER THE LAW OF S.B.2. Delgado contends the court committed plain error by failing to offer him an opportunity to be sentenced under provisions of Senate Bill 2, which provide for a definite term of imprisonment, and further contends that the failure of his defense counsel to request this opportunity constituted ineffective assistance of counsel. The state argues that because Delgado failed to raise the sentencing matter at trial, he has waived the right to raise it on appeal, and also urges that the provisions of Senate Bill 2 apply only to offenses committed on or after July 1, 1996 and, thus, exclude Delgado because he committed the offense on October 6, 1995. The issues then presented for our consideration concern whether the trial court committed plain error in sentencing Delgado, and whether he received effective assistance of counsel. We are confronted here with a question involving a conflict of laws resulting from the amendment of Senate Bill 2, S5 by Am.Sub.S.B. 269, which reads as follows: Section 5. The provisions of the Revised Code in existence prior to July 1, 1996, shall apply to a person upon whom a court imposed a term of imprisonment prior to that date and, notwithstanding division (B) of Section 1.58 of the Revised Code, to a person upon whom a court, on or after that date and in accordance with the law in existence prior to that date, imposes a term of imprisonment for an offense that was committed prior to that date. The provisions of the Revised Code in existence on and after July 1, 1996, apply to a person who commits an offense on or after that date. (Emphasis added). -8- R.C. 1.58(B), a rule of statutory construction, states: 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. (Emphasis added). The conflict arises here because the notwithstanding language of Section 5 purports to obviate R.C. 1.58(B), but does not expressly repeal that code section as required by Art. II of the Ohio Constitution, which states in S15(D): No law shall be revived or amended unless the new act contains the entire act revived, or the section or sections amended, and the section or sections amended shall be repealed. (Emphasis added). Simply stated, Am.Sub.S.B. 269 establishes the date of the commission of an offense as determinative of which penalty to impose, while R.C. 1.58(B) establishes the date on which sentence is imposed as the determinative date. Clearly, the conflict is irreconcilable, and the courts of this state are divided on the application of law in these cases. Significantly, however, while apparently recognizing this conflict, the legislature chose to utilize a notwithstanding clause in its temporary enabling legislation in an effort to resolve the conflict, but in enacting Am.Sub.S.B. 269, it did not expressly repeal R.C. 1.58(B), as mandated by Art. II of the Ohio Constitution. Absent repeal of R.C. 1.58(B), we recognize that a conflict exists and we are required to construe statutes defining penalties strictly against the State and liberally in favor of the appellant. See R.C. 2901.14(A). -9- Several courts have considered the use and meaning of the term notwithstanding, as used by the legislature in other legislation. In State, ex rel. Carmean v. Bd. of Edn. Of Hardin Cty. (1960), 170 Ohio St. 415, the court defined notwithstanding at 422 to mean: *** without prevention or obstruction from or by; in spite of ***. See also State, ex rel. PIA Psychiatric Hospitals, Inc., v. Ohio Certificate of Need Review Bd. (1991), 60 Ohio St.3d 11. Views held by other courts that Am.Sub.S.B. 269 should be given effect because it utilizes the notwithstanding clause to express clear legislative intent or because its later enactment constitutes an implicit repeal of R.C. 1.58(B) do not affect our outcome. We recognize the court in State, ex rel. Bd. of Edn., v. Schumann, Clerk(1966), 7 Ohio St.2d 41, stated in relevant part at 44: Where two sections of the General Code contain inconsistent provisions relating to the same subject-matter, the later enactment must prevail and the earlier is repealed by implication. (Emphasis added). Even assuming that the legislature did implicitly repeal R.C. 1.58(B), we must then consider the provisions of R.C. 1.58(A) which state in pertinent part: (A) The reenactment, amendment, or repeal of a statute does not, except as provided in division (B) of this section: *** (4) Affect any *** proceeding *** in respect of any *** penalty, forfeiture, or punishment; and the *** proceeding *** may be *** continued, *** and the penalty, forfeiture, or punishment imposed, as if the statute had not been repealed or amended. (Emphasis added). -10- The Supreme Court relied upon this specific section in State, ex rel. PIA Psychiatric Hospitals, Inc., v. Ohio Certificate of Need Review Bd., supra to preserve the rights of those who commenced proceedings under a law prior to its termination. Clearly, the legislature has neither repealed nor attempted to repeal R.C. 1.58(A)(4). Therefore, since Delgado's case had commenced prior to the purported repeal of R.C. 1.58(B), he is entitled to its protections, as if it had not been repealed. This reasoning has been the subject of comment in State ex rel. Maynard v. Corrigan (1998), 81 Ohio St.3d 332, where the court in its per curiam opinion considered the application of Senate Bill 2 to litigants who had been sentenced prior to July 1, 1996. There, the court noted at 333: Appellants did not specifically allege that they were sentenced after July 1, 1996. Cf. State v. Rush (July 7, 1997), Stark App. No. 96CA419, unreported. (Neither Am.Sub.S.B. No. 2 nor Am.Sub.S.B. No. 269 repealed R.C. 1.58, so R.C. 1.58 applies to persons sentenced after July 1, 1996 despite the language of Am.Sub.S.B. No. 269.); ***. (Emphasis added). Accordingly, our conclusion is that since the legislature did not repeal R.C. 1.58(B) as mandated by the Ohio Constitution, we are required to apply it; but assuming arguendo, it has been implicitly repealed by the notwithstanding clause contained in Am.Sub.S.B. 269, by operation of R.C. 1.58(A)(4), Delgado is entitled to be sentenced under the provisions of R.C. 1.58(B) as if that section had not been repealed. Judgment accordingly. -11- -12- It is ordered that appellant recover of appellee 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 Common Pleas Court 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. TERRENCE O'DONNELL JUDGE NAHRA, DYKE, SPELLACY, SWEENEY, KARPINSKI, McMONAGLE, ROCCO, concur. PATTON, BLACKMON, PORTER, CORRIGAN, concur in part and dissent in part. KARPINSKI also concurs with a separate opinion. 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 clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(a). COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71497 : CONCURRING STATE OF OHIO : : AND Plaintiff-Appellee : : DISSENTING v. : : OPINION ABRAHAM DELGADO : : Defendant-Appellant : : DATE: APRIL 9, 1998 JOHN T. PATTON, J., CONCURRING IN PART AND DISSENTING IN PART: Although I agree with the court's disposition of the first three assigned errors, I dissent from the fourth assignment of error. The trial court did not commit plain error by sentencing Delgado to an indefinite term of incarceration under the sentencing provisions existing prior to Senate Bill 2. This court should adhere to the view adopted by an overwhelming majority of appellate districts considering the issue that Am.Sub. S.B. No. 269 is neither ambiguous nor does it repeal R.C. 1.58(B) in any sense of the word. I would find Am.Sub. S.B. No. 269 is special legislation under R.C. 1.51 that evinces the General Assembly's intent to create a limited exception in which S.B. No. 2 does not apply to persons who committed offenses prior to July 1, 1996. I Ordinarily, R.C. 1.58(B) would require the sentencing court to impose the more lenient definite sentence of R.C. 2929.14(A)(4) as opposed to the harsher indefinite sentence under the older statute. -2- However, an amendment to S.B. No. 2, Am.Sub. S.B. No. 269, limited the applicability of R.C. 1.58(B) by providing that notwithstanding division (B) of section 1.58(B) of the Revised Code, the sentencing provisions of the Revised Code in existence on July 1, 1996 apply to persons who commit an offense on or after that date. The majority, relying exclusively on the panel decision in State v. Dempsey (Nov. 20, 1997), Cuyahoga App. No. 71479, unreported and, by reference in Dempsey to State v. Toler (Sept. 19, 1997), Hamilton App. No. C-960833, unreported, rejects Am.Sub. S.B. No. 269. In Toler, the court found that Am.Sub. S.B. No. 269 conflicts with R.C. 1.58(B) to the point that an ambiguity exists as to the proper application of the law. Claiming the statutory obligation to strictly construe criminal statutes against the state, Toler found the more lenient provisions of S.B. No. 2 must apply. Toler and the panel decision in Dempsey also found Am.Sub. S.B. No. 269 conflicts with R.C. 1.58(B) to the extent it re- pealed R.C. 1.58(B), but failed to do so in conformity with Article II, Section 15(D) of the Ohio Constitution. II I believe both Dempsey and Toler found an ambiguity in the amendment to S.B. No. 2 where none exists. In State ex rel. Burrows v. Indus. Comm. (1997), 78 Ohio St.3d 78, 81, the court discussed the standard for reviewing ambiguous statutes in order to determine legislative intent: *** [i]n determining legislative intent, we must first look to the plain language of [the -3- statute in question]. "If the meaning of the statute is unambiguous and definite, it must be applied as written and no further interpre- tation is necessary." State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn. (1996), 74 Ohio St.3d 543, 545. Unambiguous statutes are to be applied according to the plain meaning of the words used, Roxane Labo- ratories, Inc. v. Tracy (1996), 75 Ohio St.3d 125, 127, and courts are not free to delete or insert other words, State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 220. Dempsey inappropriately relied upon the common pleas court decision in State v. Mills (Dec. 9, 1996), Wood C.P. No. 95CR331, unreported. The Wood County Court of Appeals overruled Mills two months before Dempsey's release, so it had no precedential value at the time. See State v. Mills (Aug. 29, 1997), Wood App. No. WD-97- 012, unreported.Dempsey should not have relied upon the the Mills common pleas court decision. In Toler, the court held *** that there is a conflict between R.C. 1.58(B) and the temporary law created by Senate Bill 2. That conflict creates an ambiguity as to application of the appropriate law. Id., unreported at 4. An overwhelming majority of appellate districts across the state have rejected this argument. For example, in State v. McGee (July 2, 1997), Lorain App. No. 96CA006507, unreported, the court stated: S.B. 2 unambiguously sets forth the circum- stances under which its revised sentencing provisions are to be applied. *** The General Assembly clearly established that pre-July 1, 1996, sentencing provisions are to be applied to those who committed offenses prior to July 1, 1996, regardless of when they are sen- tenced. Id. at 11-12. -4- See, also, State v. Mitchell (Sept. 4, 1997), Franklin App. No. 97APA03-351, unreported ( We believe that the intention of the legislature was clear to keep in place the criminal sentences handed out prior to July 1, 1996 and to have persons who committed crimes before July 1, 1996 sentenced under the law in effect on the date the crimes were committed. ); State v. Hurston (Nov. 7, 1997), Montgomery App. No. 16217, unreported ( In our view, [Section 5 of Senate Bill 2, as amended by Section 2 of Am.Sub. S.B. No. 269] demonstrates a clear legislative intent that S.B. No. 2 applies only to crimes committed on or after July 1, 1996. ); State v. Phillips (Nov. 14, 1997), Allen App. No. 1097-37, unreported ( By express language, the provisions of S.B. No. 2 apply prospectively to persons who commit offenses after July 1, 1996. ); State v. Vance(June 27, 1997), Clark App. No. 96-CA-84, unreported (same); State v. Cox (Apr. 28, 1997), Warren App. Nos. CA96-07-069 and CA- 08-075, unreported (same). In fact, Toler's conclusion that an ambiguity exists between S.B. No. 2 and R.C. 1.58(B) appears to be at odds with State v. Bauer (Apr. 9, 1997), Hamilton App. No. C-960223, unreported, an earlier decision from that same court where it stated, the General Assembly specifically provided that Senate Bill 2 may not be applied retrospectively. *** It is clear that Sections 5 and 6 reflect the General Assembly's intent to apply Senate Bill 2 only on a prospective basis. Id. at 2.1 1 At least two members of the Hamilton County Court of Appeals, First Appellate District, now believe Toler was incorrectly decided. In State v. Grubbs (Dec. 26, 1997), Hamilton -5- Even if there f statutory construction would nonetheless that sets forth the legislature's intent to create a to the more general provisions of R.C. 1.58(B). R.Cwas some ambigui 1.49, which contains considerations suggested for determining legislative intent behind statutes, states: If a statute is ambiguous, the court, in determining the intention of the legislature, may consider among other matters: (A) The object sought to be attained; (B) The circumstances under which the statute was enacted; * * * The only substantive analysis dealing with sentencing changes and R.C. 1.58(B) is found in State v. Collier (1984), 22 Ohio App.3d 25.2 In Collier, the court held that an amendment to R.C. 2913.02 came within the provisions of R.C. 1.58(B) and required the sentencing court to impose a penalty within the amendment when the App. No. C-970030, unreported, Judges Gorman and Shannon stated their belief that Toler is wrongly decided, but should be followed out of respect for stare decisis. Judge Gorman, citing to the First District's opinion in Bauer, stated, [a]s this court has held, the clear language of Sections 5 and 6 of Senate Bill 2 demonstrates `the General Assembly's intent to apply [Senate Bill 2] only on a prospective basis.' Grubbs, unreported at 12. Significantly, Judge Shannon joined Judge Gorman's concurring opinion criticizing Toler, despite being a member of that original unanimous panel decision. 2 In State v. Burton (1983), 11 Ohio App.3d 261, the court considered the same issue and likewise found R.C. 1.58(B) required that Burton receive the benefit of the lesser sentence provided for in the amended statute, but did so in conclusory form without any meaningful analysis. -6- offense occurred prior to, but sentencing occurred after, the effective date of the amendment. The court reached this holding [s]ince the amending legislation did not specifically provide whether the amendment was to be applied to pending criminal proceedings ***. Id. at 26-27 (emphasis added). This case differs significantly from Collier because Am.Sub. S.B. No. 269 contains a very clear articulation of intent to limit the applicability of the sentencing law. Am.Sub. S.B. No. 269 states, notwithstanding division (B) of section 1.58(B) of the Revised Code, [the provisions of the Revised Code existing prior to the effective date of the amendments will apply] to a person upon whom a court on or after that date and in accordance with the law in existence prior to that date, imposes a term of imprisonment for an offense that was committed prior to that date. This statement clearly and unambiguously sets forth both the object sought to be attained by Am.Sub. S.B. No. 269 (the effective date of S.B. No. 2) and the circumstances under which the Am.Sub. S.B. No. 269 had been enacted (in order to eliminate the possibility that persons committing crimes before the effective date of S.B. No. 2, but sentenced after that effective date, would be sentenced under the new law). III I also believe the majority errs by following Dempsey and concluding that Am.Sub. S.B. No. 269 did not expressly repeal R.C. 1.58(B), ante at 9, as required by the constitution. -7- The General Assembly may enact specific laws which create exceptions to more general laws. In State ex rel. Dublin Securi- ties, Inc. v. Ohio Div. of Securities (1994), 68 Ohio St.3d 426, 429, the supreme court stated: It is a well-settled principle of statutory construction that when two statutes, one general and the other special, cover the same subject matter, the special provision is to be construed as an exception to the general statute which might otherwise apply. (cita- tions omitted). The General Assembly codified the common-law rule in 1972 by enacting R.C. 1.51. That statute states: If a general provision conflicts with a spe- cial or local provision, they shall be con- strued, if possible, so that effect is given to both. If the conflict between the provi- sions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provi- sion is the later adoption and the manifest intent is that the general provision prevail. In construing R.C. 1.51, the court has ruled that "[w]here there is no manifest legislative intent that a general provision of the Revised Code prevail over a special provision, the special provision takes precedence." State v. Frost (1979), 57 Ohio St.2d 121, paragraph one of the syllabus; see, also Cincinnati v. Thomas Soft Ice Cream, Inc. (1977), 52 Ohio St.2d 76, 80; State ex rel. Myers v. Chiaramonte (1976), 46 Ohio St.2d 230. The majority's holding that Am.Sub. S.B. No. 269 impliedly repealed R.C. 1.58(B) appears to stem wholly from its citation to an outdated case, State ex rel. Bd. of Edn. v. Schumann (1966), 7 Ohio St.2d 41, as authority for the proposition that inconsistent -8- statutory provisions relating to the same subject matter results in the latter provision's repeal by implication. Schumannwas effectively overruled in 1972 by the adoption of R.C. 1.51. In Cincinnati v. Thomas Soft Ice Cream, Inc., supra, the court noted that in R.C. 1.51 the General Assembly codified the inveterate judicial policy, now dating back one hundred seventy years, that courts will not determine that a statute is repealed by implication. Id., at 78-79, citing Ludlow v. Johnston (1828), 3 Ohio 553, 564; see, also State v. Frost, 57 Ohio St.2d at 124 ("It has been a long-standing rule that courts will not hold prior legislation to be impliedly repealed by the enactment of subsequent legislation unless the subsequent legislation clearly requires that holding. This rule of statutory construction was codified in 1972 in R.C. 1.51.") (citation omitted); Leach v. Collins (1931), 123 Ohio St. 530, 533. Whatever precedential value Schumann once had is no longer viable in light of R.C. 1.51 and subsequent authority. The General Assembly's authority to pass laws that apply notwithstanding other provisions of the Revised Code is so well- accepted that the majority's conclusion to the contrary is baseless. In fact, the General Assembly often drafts statutes with language that indicates the statute is to apply notwithstanding other provisions of the Revised Code to the contrary, and the courts have not questioned the constitutionality of any of these provisions. See e.g., State ex rel. Newell v. Cuyahoga Cty. Court of Common Pleas (1977), 77 Ohio St.3d 269, 270; State v. Oxenrider -9- (1979), 60 Ohio St.2d 60, 61; State v. Smathers (1996), 113 Ohio App.3d 155, 157. The General Assembly's decision to limit the application of R.C. 1.58(B) under the circumstances does not constitute a usurpation of the only application and the only function that R.C. 1.58(B) ever has. Toler, supra, unreported at 5. As the previously quoted precedent demonstrates, the supreme court routinely upholds statutes with clauses making them effective notwithstanding the language of other statutes. R.C. 1.58(B)'s function continues in many other aspects. Notably, the penalty, forfeiture and sentencing provisions of R.C. 1.58(B) remain in force prospectively, meaning that any further laws passed that reduce those penalties will be subject to the new statute as amended unless the legislature were to pass similar legislation creating an exception. Moreover, the majority's conclusion that adoption of Am.Sub. S.B. No. 269 constitutes an implied repeal of R.C. 1.58(B) cannot stand because the General Assembly did not exhibit a manifest intent to repeal R.C. 1.58(B). Repeal is defined as the abrogation or destruction of a law by a legislative act. State ex rel. Carmean v. Bd. of Ed. of Hardin County (1960), 170 Ohio St. 415, 419. By adopting Am.Sub. S.B. No. 269, the General Assembly clearly showed its intent to create an exception to R.C. 1.58(B), not to abrogate that statute in its entirety.3 3 For this reason, the majority's citation to R.C. 1.58(A)(4) is equally irrelevant, for absent proof of a repeal in the first instance, that section has no application. -10- IV Criminal statutes must be strictly construed against the state, but strict construction is misplaced in this circumstance. In State v. Warner (1990), 55 Ohio St.3d 31, 62, the court stated: *** we are mindful that [t]he cannon in favor of strict construction of criminal statutes is not an obstinate rule which overrides common sense and evident statutory purpose. The canon is satisfied if the statutory language is given fair meaning in accord with the manifest intent of the General Assembly ***. (citations omitted). This court should adhere to overwhelming precedent and common sense by upholding the obvious intent of the General Assembly. I would find that Am.Sub.S.B. No. 2 is neither ambiguous nor an implied repeal of R.C. 1.58(B). For this reason I would overrule the fourth assignment of error, affirm the judgment in its entirety and certify the decision of the majority to the Ohio Supreme Court as in conflict with State v. Vance (June 30, 1997), Ross App. No. 96CA2247, unreported; State v. Phillips (Nov. 14, 1997), Allen App. No. 1-97-37, unreported; Statev. Dere (June 30, 1997), Ross App. No. 96CA2247, unreported; State v. Mills (Aug. 29, 1997), Wood App. No. WD-97-012, unreported; State v. McGee (July 2, 1997), Lorain App. No. 96CA006507, unre- ported; State v. Mitchell (Sept. 4, 1997), Franklin App. No. 97APA03-351; and State v. Cox (Apr. 28, 1997), Warren App. No. DA96- 07-069, unreported, pursuant to Article IV, Section 3(B)(4) of the Ohio Constitution. -11- PATRICIA A. BLACKMON, A.J., JAMES M. PORTER, J., and MICHAEL J. CORRIGAN, J., concur in the foregoing Concurring and Dissenting Opinion. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71497 STATE OF OHIO : : : Plaintiff-Appellee : : CONCURRING v. : : OPINION ABRAHAM DELGADO : : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: APRIL 9, 1998 KARPINSKI, J., CONCURRING: I concur with the majority but write separately to clarify two points raised by the dissent. First, the dissent misreads the majority opinion as saying that Am. Sub. S.B. No. 269 constitutes an `implied' repeal of R.C. 1.58(B). On the contrary, the majority merely noted that other courts have this opinion and then proceeded to discuss it, arguendo. Second, the dissent misdirects the focus from the central issue. The issue is not whether the legislature intended to make the sentencing bill retroactive or to limit its applicability. The issueis whether the legislature intended to repeal the prior law. It is not possible to infer the intent to repeal from notwith- standing language. This language merely exempts or limits; it does not repeal. Only a repeal of R.C. 1.58(B) would deter its effect. This problem in the legislation was first raised by Judge -2- Kurfess, formerly Speaker of the House. When a judge who was such an experienced and respected legislative leader objects that the legislature did not follow necessary procedures, there is even more .