DocketNumber: No. 05 COA 018.
Judges: WISE, J.
Filed Date: 4/20/2006
Status: Non-Precedential
Modified Date: 4/18/2021
{¶ 2} On March 15, 2005, appellant pled guilty to aggravated robbery (F-1), abduction (F-3), and petty theft (M-1). On April 25, 2005, following a hearing, appellant was sentenced to a term of imprisonment of eight years for aggravated robbery and a term of imprisonment of four years for abduction, as well as one-hundred eighty days in jail for petty theft. The sentences were ordered to be served concurrently.
{¶ 3} On July 1, 2005, appellant, having obtained leave to file a delayed appeal, filed a notice of appeal. He herein raises the following two Assignments of Error:
{¶ 4} "I. THE TRIAL COURT'S SENTENCE IN THE INSTANT CASE IS CONTRARY TO LAW AND DOES NOT SERVE THE OVERRIDING PURPOSES OF FELONY SENTENCING.
{¶ 5} "II. THE TRIAL COURT ERRED IN IMPOSING SENTENCE UPON THE DEFENDANT IN EXCESS OF THE MINIMUM SENTENCE ON ALL FELONY COUNTS AS REQUIRED BY THE CONSTITUTION."
{¶ 7} However, the Ohio Supreme Court, in State v. Foster,
___ Ohio St.3d ___,
{¶ 8} To remedy Ohio's felony sentencing statutes, the Ohio Supreme Court severed the Blakely-offending portions that either create presumptive minimum or concurrent terms or require judicial factfinding to overcome the presumption. Foster at ¶ 97. Thus, the Court concluded "* * * that trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences." Id. at ¶ 100.
{¶ 9} Accordingly, because appellant's "more than the minimum" sentences are based upon an unconstitutional statute that is deemed void, this matter is remanded to the trial court for a new sentencing hearing.
{¶ 10} Appellant's Second Assignment of Error is sustained in part.
{¶ 12} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Ashland County, Ohio, is hereby reversed in part and remanded for further sentencing proceedings consistent with this opinion.
Wise, P.J., Edwards, J., and Boggins, J., concur.
Costs to be split evenly between appellant and the State of Ohio.