State v. Bell, L-07-1127 (1-18-2008)

DECISION AND JUDGMENT ENTRY {¶ 1} Defendant-appellant, Terry B. Bell, appeals the April 2, 2007 judgment of the Lucas County Court of Common Pleas, which sentenced appellant to five years of imprisonment for unlawful sexual conduct with a minor, R.C. 2907.04(A) and (B)(3), a third degree felony.

{¶ 2} Appellant raises the following assignment of error for our consideration:

{¶ 3} "1. The trial court committed prejudicial error when it sentenced appellant to a maximum sentence without stating on the record the findings and reasons required by statute."

{¶ 4} In his sole assignment of error, appellant contends that the trial court failed, as required under R.C. 2929.14(B), (C) and R.C.2929.19(B)(2)(d), to state its findings at the sentencing hearing and enumerate its reasons for the findings.

{¶ 5} In February 2006, the Supreme Court of Ohio decided State v.Foster, 109 Ohio St.3d 1, 2006-Ohio-856. In Foster, the court, applyingBlakely v. Washington (2004), 542 U.S. 296, and Apprendi v. NewJersey (2000), 530 U.S. 466, held that R.C. 2929.14(B), (C) and2929.19(B)(2), concerning the imposition of nonminimum and maximum sentences, violate a defendant's Sixth Amendment right to a trial by jury. Id. at paragraphs one and two of the syllabus. The Foster court severed these provisions from the sentencing code.

{¶ 6} In the present case, appellant was sentenced on April 2, 2007, over a year after the Foster decision was issued. Accordingly, because the provisions appellant relies on had been severed from the sentencing statutes, the trial court did not err when it failed reference them during sentencing. Appellant's assignment of error is not well-taken.

{¶ 7} On consideration whereof, we find that appellant was not prejudiced or prevented from having a fair proceeding and the judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Lucas County.

JUDGMENT AFFIRMED.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, P.J., Arlene Singer, J., Thomas J. Osowik, J. CONCUR.