State v. Jenkins , 2015 Ohio 4583 ( 2015 )

[Cite as State v. Jenkins, 2015-Ohio-4583.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102462
STATE OF OHIO
PLAINTIFF-APPELLANT
vs.
MICHAEL JENKINS
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-585521-B
BEFORE: Stewart, J., Jones, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: November 5, 2015
ATTORNEYS FOR APPELLANT
Timothy J. McGinty
Cuyahoga County Prosecutor
Daniel T. Van
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
ATTORNEY FOR APPELLEE
Patrick S. Lavelle
Van Sweringen Arcade, Suite 250
123 West Prospect Street
Cleveland, OH 44115
MELODY J. STEWART, J.:
{¶1} A jury found defendant-appellee Michael Jenkins guilty of rape, complicity to
commit rape, and kidnapping. Although the offenses occurred in 1994 (at a time when
the sentencing law provided for indefinite sentencing), the court imposed definite
sentences under the current sentencing regime, Am.H.B. No. 86, effective September 30,
2011. The court imposed a sentence consistent with a line of decisions from this court
holding that R.C. 1.58(B) allowed defendants like Jenkins, whose crimes were committed
before the effective date of H.B. 86, to be sentenced under that statute’s sentencing
provisions because the penalties for rape under H.B. 86 had been reduced from those
penalties in effect at the time he committed his crimes (in 1994, the maximum penalty for
rape was up to 25 years; under H.B. 86, the maximum penalty is 11 years). See State v.
Jackson, 8th Dist. Cuyahoga No. 100877, 2014-Ohio-5137; State v. Girts, 8th Dist.
Cuyahoga No. 101075, 2014-Ohio-5545; State v. Steele, 8th Dist. Cuyahoga Nos. 101139
and 101140, 2014-Ohio-5431.
{¶2} The state of Ohio appeals, arguing that the court erred by ordering a definite
term of incarceration because Jenkins should have been subject to a indefinite sentence
under the sentencing law as it existed at the time Jenkins committed his offenses. The
state candidly acknowledges that it is arguing contrary to controlling authority from this
appellate district and that it offers this assignment of error solely to preserve further
appellate review. On that basis, we summarily overrule the state’s assignment of error.
See State v. Hill, 8th Dist. Cuyahoga No. 101633, 2015-Ohio-2389, ¶ 13; State v. Bryan,
8th Dist. Cuyahoga No. 101209, 2015-Ohio-1635, ¶ 5; State v. Irby, 8th Dist. Cuyahoga
No. 102263, 2015-Ohio-2705, ¶ 5.
{¶3} Judgment affirmed.
It is ordered that appellee recover of said appellant 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
MELODY J. STEWART, JUDGE
LARRY A. JONES, SR., P.J., and
PATRICIA ANN BLACKMON, J., CONCUR