Ohio Supreme Court: Sexual conduct law ‘ambiguous’ on repeat-offender charges

Courtesy of the Ohio Supreme Court

Ohio Supreme Court justices last week ruled in favor of a Montgomery County man’s argument that he couldn’t be charged as a repeat offender in a sex-crime case because of a previous crime discovered after he was convicted.

Gerald Pendergrass was convicted of unlawful sexual conduct with a minor in September 2016, and the next year he was indicted for similar alleged crimes that prosecutors said happened between 2013 and 2015. 

When Pendergrass was indicted in 2017, prosecutors wanted to enhance the charges from fourth-degree felonies to more severe second-degree felonies because he had been previously convicted. 

The language of the Ohio Revised Code charge for unlawful sexual conduct states that if someone “previously has been convicted of or pleaded guilty,” the felonies can be enhanced.

In successfully getting his indictment dismissed in a lower court, Pendergrass said the alleged crimes predated the conviction and therefore couldn’t be counted in a charge after the fact. 

The appeals court reversed the decision, saying “any conviction for a qualifying offense prior to the indictment” allowed for the more severe felony charges, according to court documents.

Disagreeing, Justice Patrick DeWine wrote in the Supreme Court’s majority opinion that repeat-offender enhancements would only apply if “at the time of the offense,” an offender had been convicted of a sex crime. 

The main issue in the case, according to DeWine, is the meaning of “previously” in the statute, something which the law does not spell out clearly.

“The point is that it is not our role, and we are ill-equipped, to divine statutory meaning based on hunches about policy outcomes we suspect the legislature might have preferred,” DeWine wrote.

Justice Patrick F. Fischer, joined by Justice Judith L. French, dissented to the majority, saying the “applicable words (in the revised code statute) are unambiguous.” 

He said the use of the word “previously” can be interpreted as meaning any related conviction on a person’s record when charges are filed, not when the crime is committed.

“On its face, this statute is clear,” Fischer wrote. “…The wording could not be clearer. The only way to make (the statute) ambiguous is to either add or subtract words or concepts, which this court cannot, and absolutely should not, do.”

In regard to the ambiguity of the statute, DeWine said “we don’t default to interpreting the statute so as to allow the state to punish more rather than less.”

Chief Justice Maureen O’Connor, along with Justice Sharon L. Kennedy and Justice Michael P. Donnelly, concurred with DeWine’s opinion, and Justice Melody Stewart agreed to the judgment alone.