COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71705 STATE OF OHIO : : Plaintiff-Appellee : JOURNAL ENTRY : v. : AND : JEFFREY ULREY : OPINION : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 30, 1998 CHARACTER OF PROCEEDING: Criminal appeal from the Cuyahoga County Common Pleas Court, Case No. CR-338346 JUDGMENT: CONVICTION AND SENTENCE VACATED AND CAUSE REMANDED FOR FURTHER PROCEEDINGS. DATE OF JOURNALIZATION: ______________________________ APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor CHRISOPHER L. FREY, Assistant The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES A. DRAPER Cuyahoga County Public Defender DANIEL SCULLY Assistant Public Defender 1200 W. Third Street, N.W. 100 Lakeside Place Cleveland, Ohio 44113-1569 O'DONNELL, J.: Jeffrey Ulrey appeals from a judgment of the common pleas court, entered after he pled guilty to having a weapon while under -2- a disability with a violence specification, urging that despite his agreement to the one and one-half to five-year sentence which the court imposed, because the court sentenced him after July 1, 1996, it should have sentenced him in accordance with the law as amended by the legislature on July 1, 1996, not the law in effect at the time he committed the offense. We agree, and because of the mutual mistake of both of the parties and the court as to the penalty, we rescind the plea agreement, vacate the judgment and sentence imposed in this case, and remand the matter to the trial court for further proceedings. The parties generally agree on the facts in this case which suggest that on April 9, 1996, while executing a warrant on an unrelated case involving drug trafficking and possession of criminal tools, Sheriff's Department detectives arrested Ulrey and recovered a loaded .22 caliber gun from him. As a result, the grand jury returned indictments against the appellant in this case for carrying a concealed weapon and having a weapon while under a disability, which contained a firearm specification and two violence specifications. On August 12, 1996, in accordance with a negotiated plea and sentencing agreement, the appellant pled guilty to having a weapon while under a disability with a violence specification, and the state nolledthe remaining count of carrying a concealed weapon and the other violence and firearm specifications. The court then accepted the plea and sentenced Ulrey to 1/ to 5 years, a sentence which the parties had agreed upon as part of their plea agreement. -3- Ulrey now appeals from that plea, however, and raises one assignment of error for our review which states: THE TRIAL COURT ERRED IN SENTENCING THE APPELLANT IN ACCORDANCE WITH OHIO SENTENCING LAW AS IT EXISTED PRIOR TO JULY 1, 1996, WHEN IT SENTENCED HIM AFTER THAT DATE FOR AN OFFENSE THAT WAS COMMITTED PRIOR TO THAT DATE, SINCE R.C. 1.58(B) MANDATES THAT HE SHOULD HAVE BEEN SENTENCED IN ACCORDANCE WITH SENTENCING LAWS IN EFFECT AFTER THAT DATE. Ulrey contends the court erred when it sentenced him in accordance with the penalties in effect at the time he committed the offense, instead of the newly-enacted penalties established by S.B. 2 as codified in R.C. 2929.14, which became effective on July 1, 1996. The state urges the court sentenced Ulrey in accordance with the penalties in effect at the time he committed the offense; that Ulrey agreed to that sentence as part of the plea bargain; and that the state substantially changed its position by agreeing to nolle the concealed weapon charge and two specifications against him. The issue then presented for our review is whether the court erred when it sentenced Ulrey according to the penalties in effect at the time he committed the offense, instead of those in effect at the time the court sentenced him. The General Assembly changed criminal penalties in this state when it enacted Senate Bill 2. S.B. 2, S5 states in pertinent part: 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 to a person upon whom a court, on or after that date and in accordance with the law in existence prior to that date, -4- imposed a term of imprisonment for an offense that was committed prior to that date. However, the General Assembly, apparently recognizing a potential conflict with R.C. 1.58, amended that portion of the law in S.B. 269, S3, which states: That Section 5 of Am. Sub. S.B. 2 of the 121st General Assembly be amended to read as follows: Sec. 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 Sec. 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.) Thus, in S.B. 269, the General Assembly attempted to clarify the language of S.B. 2 by referencing R.C. 1.58(B) and purporting to nullify its application in this instance. R.C. 1.58(B) 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). Hence, a conflict exists between the provisions of S.B. 2 as amended by S.B. 269 and the provisions of R.C. 1.58, a rule of statutory construction. In this regard, R.C. 2901.04(A) provides: Sections of the Revised Code defining * * * penalties shall be strictly construed against the state and liberally construed in favor of the accused. We note further in this context that Art. 2, S 15(D), of the Ohio Constitution states: -5- 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. Our review of the action taken by the General Assembly reveals that while the re-enactment of the penalty provisions of the criminal code amended the penalties for having a weapon while under a disability, that body did not amend or repeal the provisions of R.C. 1.58(B). On the contrary, it attempted to clarify its intent by adding language in S.B. 269 to include the phrase notwithstanding Division(B) of Section 1.58 of the Revised Code . However, this language is a purported legislative limitation or amendment of Section 1.58(B) of the Revised Code which, in violation of Art. 2, S15(D), of the Ohio Constitution, supra, does not repeal R.C. 1.58(B). Accordingly, the conflict between S.B. 2 as amended by S.B. 269 and R.C. 1.58 must be resolved by construing the language against the State of Ohio and in favor of the accused pursuant to R.C. 2901.04(A). Therefore, we conclude that, because the General Assembly did not amend or repeal R.C. 1.58(B), and because that statute provides for imposition of a reduced amended penalty in these circumstances, persons who committed offenses prior to July 1, 1996 but who are sentenced after that date are entitled to the benefits it confers. However, the facts in this case reveal that Ulrey agreed to plead guilty to the crime of having a weapon while under a disability, the state agreed to nolle the weapons charge and the other two specifications, and the court agreed to impose a negotiated 1/ to 5 year minimum sentence. Ulrey now challenges -6- that sentence and, under these circumstances, we must examine the nature of the plea agreement to determine its enforceability, considering our earlier analysis. In State v. Butts (1996), 112 Ohio App.3d 683, this court stated in relevant part at 685-86: `A plea bargain itself is contractual in nature and subject to contract-law standards.' Baker v. United States (C.A.6, 1986), 781 F.2d 85, 90. * * * a plea agreement * * * is a valid contract with the state. Here, Ulrey entered into a contract whereby the state changed its position and permitted him to plead guilty to one count of having a weapon while under a disability with a violence specification, predicated upon the belief that he would be incarcerated for a term of 1/ to 5 years, as reiterated by the prosecutor, defense counsel, the appellant and the trial court, all of whom mistakenly believed the 1/ to 5 year term should have been applied in this case. The doctrine of mutual mistake constitutes grounds for rescission of a contract. Reilley v. Richards (1994), 69 Ohio St.3d 352. Further, a mutual mistake of either fact or law permits rescission. State ex rel. Walker v. Lancaster City School Dist. Bd. Of Edn. (1997), 79 Ohio St.3d 216. Here, since the parties and the court made a mutual mistake in connection with the plea bargain agreement, we rescind it and vacate both the conviction and the sentence imposed in this case and remand this matter for further proceedings. -7- Judgment of conviction and the sentence thereon is vacated and the entire matter is remanded for further proceedings. -8- This cause is remanded to the Common Pleas court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SWEENEY, A.J., CONCURS; KARPINSKI, J., CONCURS IN JUDGMENT ONLY. JUDGE TERRENCE O'DONNELL 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 .