State v. Thomas, 06-Ca-126 (12-21-2007)

OPINION {¶ 1} On September 15, 2004, Shea Thomas was convicted of felonious assault with a firearm specification. He was sentenced in the Clark County Common Pleas Court to seven (7) years on the felonious assault charge and three (3) years on the gun specification, with the sentences required to be served consecutively. Thomas' conviction was affirmed by this court on July 29, 2005.

{¶ 2} On July 3, 2006, Thomas filed a motion in the trial court styled, "Motion to Correct an Unlawful Sentence." Thomas contended in his motion that the trial court violated his right to jury to make the fact finding necessary to impose the maximum seven-year sentence he received. Thomas cited State v. Foster (2006), 109 Ohio St.3d 6 in support of his motion.

{¶ 3} The State argues that Foster applies only to those cases which were on direct review at the time Foster was decided; namely, February 27, 2006. We agree. Thomas' motion is at best a collateral attack on the September 15, 2004 judgment, and Foster has no application to collateral attacks on sentences previously imposed. See State v. Smith (August 25, 2006) Montgomery CA 21004.

{¶ 4} The assignment of error is overruled. The judgment of the trial court is Affirmed.

WOLFF, P.J., BROGAN, J., and DONOVAN, J., concur.