State v. Banks, Unpublished Decision (8-7-2006)

OPINION {¶ 1} Defendant-appellant, Robert W. Banks, pled guilty to one count of burglary, a second-degree felony under R.C.2911.12(A)(1), and received a nonminimum sentence of four years in prison.

{¶ 2} On appeal, appellant presents two assignments of error for review:

{¶ 3} First assignment of error:

{¶ 4} "THE TRIAL COURT ERRED AS A MATTER OF LAW BY IMPROPERLY SENTENCING APPELLANT."

{¶ 5} Second assignment of error:

{¶ 6} "THE TRIAL COURT ERRED AS A MATTER OF LAW BY IMPOSING MORE THAN THE MINIMUM SENTENCE WITHOUT SPECIFICALLY FINDING THE FACTORS SET FORTH IN R.C. 2929.14(B)."

{¶ 7} Appellant claims the trial court erred by imposing more than the minimum sentence for a second-degree felony. The Ohio Supreme Court recently found several portions of Ohio's statutory sentencing scheme unconstitutional and severed them from Ohio's sentencing code. See State v. Foster, 109 Ohio St.3d, 2006-Ohio-856. Among those unconstitutional sections was R.C.2929.14(B), which requires certain judicial findings before the imposition of more than a minimum prison term. See Foster at paragraph one of the syllabus. As a result of the severance of this provision from Ohio's felony sentencing scheme, judicial fact-finding prior to the imposition of a sentence within the basic range of R.C. 2929.14(A) is no longer required. Id. at paragraph two of the syllabus. See, also, State v. Mathis,109 Ohio St. 3d 54, 2006-Ohio-855, paragraph three of the syllabus.

{¶ 8} In this case, the trial court made findings under R.C.2929.14(B) to impose more than the minimum prison term for a second-degree felony.

{¶ 9} The Foster court instructed that all cases pending on direct review in which the unconstitutional sentencing provisions were utilized must be remanded for resentencing. See Foster at ¶ 104. Accordingly, appellant's first assignment of error is sustained. On remand, the trial court will have full discretion to impose a sentence within the statutory range and is no longer required to make findings or give reasons for imposing more than the minimum sentence.

{¶ 10} Given our disposition of the first assignment of error, appellant's second assignment of error is rendered moot.

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

Powell, P.J., and Walsh, J., concur.