DocketNumber: No. 05CA3017.
Citation Numbers: 2006 Ohio 4335
Judges: ABELE, J.
Filed Date: 8/8/2006
Status: Non-Precedential
Modified Date: 4/18/2021
{¶ 2} Appellant assigns the following error for review and determination:
i. "THE TRIAL COURT VIOLATED THE APPELLANT'S
{¶ 3} In the late evening of July 6 and early morning of July 7, 2003, a disturbance arose at Farley Square apartments. Apparently, the reason for the disturbance was a dog that defecated in another resident's yard. The situation escalated to a stand-off between two groups of residents, each shouting racial epithets at the other. Sometime during that confrontation, appellant and his wife, Amy Kerns, emerged from their apartment and joined in the fray. At some point, someone threw a beer can that struck appellant's wife's head. Police eventually arrived and instructed the crowd to return to their apartments.
{¶ 4} The next day appellant and his wife left their apartment to visit a doctor. In the apartment complex parking lot, Carlton Cave approached the Kernses. The men exchanged words and Cave began to strike appellant in the face. The uncontroverted evidence revealed that Cave was the initial aggressor in this incident. Amy Kerns attempted to step between them, and, during that momentary interlude, appellant drew a knife. Cave attempted to withdraw and appellant chased Cave through the parking lot before he finally caught him. The two men tussled and Cave suffered a fatal stab wound. Appellant then took his wife to the doctor and fled the area. Five months later authorities apprehended appellant.
{¶ 5} The Scioto County Grand Jury returned an indictment charging appellant with murder in violation of R.C.
{¶ 6} Appellant testified that he had attempted to protect his wife. He stated that he chased Cave to inform him that did not want any more trouble, not to inflict injury. Regarding the stabbing, appellant's testimony was somewhat unclear. At one point, appellant claimed that he could not recall when he stabbed Cave. At another point, appellant claimed that the stabbing had been an accident and that Cave had fallen onto his knife.
{¶ 7} At trial the jury found appellant not guilty of murder, but guilty of voluntary manslaughter. See R.C.
{¶ 8} In State v. Kerns,
{¶ 9} Appellant asserts in his sole assignment of error that the trial court erred in sentencing him to a term of imprisonment greater than the statutory minimum. In particular, he contends that the trial court engaged in judicial factfinding by relying on R.C.
{¶ 10} We need not analyze this case under Blakely and Booker because the Ohio Supreme Court recently applied those cases to Ohio's felony sentencing scheme and determined that R.C.
{¶ 11} When a sentence is based on an unconstitutional statute, the remedy is to vacate that sentence and remand the case for a new sentencing hearing. See Foster, supra at ¶ 103. Furthermore, this principle applies to all cases, including ones like the sub judice that are on direct appeal. Id. at ¶ 106.
{¶ 12} Accordingly, we hereby sustain appellant's assignment of error, vacate his sentence and remand the case for re-sentencing in light of Foster.
JUDGMENT REVERSED, SENTENCE VACATED AND CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Harsha, P.J. Kline, J.: Concur in Judgment Opinion.