State v. Lewis, Unpublished Decision (9-25-2006) ( 2006 )

OPINION {¶ 1} Defendant-appellant, Ian Michael Lewis, pled guilty to a second-degree felony charge of robbery in violation of R.C.2911.02(A)(1). The trial court, citing R.C. 2929.14(B), sentenced appellant to a five-year prison term.

{¶ 2} Appellant presents one assignment of error which claims that the trial court erred by imposing a prison term that exceeded the minimum term for a second-degree felony.

{¶ 3} In State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, the Ohio Supreme Court held that portions of Ohio's statutory sentencing scheme were unconstitutional. Among the statutes found unconstitutional was R.C. 2929.14(B) and 2929.19(B)(2), concerning the imposition of a nonminimum prison term. Id. at ¶ 83, 97-99. The Foster court severed these sections from the sentencing code and instructed that all cases pending on direct review in which the unconstitutional sentencing provisions were utilized must be remanded for resentencing. Id. at ¶ 104. Because the trial court utilized R.C. 2929.14(B) to impose a nonminimum prison term, we must remand this case for resentencing consistent with Foster.

{¶ 4} Appellant's sole assignment of error is sustained.

{¶ 5} The judgment of the trial court is reversed as to sentencing only and the case is remanded is for resentencing.

Powell, P.J., and Bressler, J., concur.