DocketNumber: No. 05CA0071.
Citation Numbers: 2006 Ohio 3930
Judges: EDWARDS, J.
Filed Date: 7/31/2006
Status: Non-Precedential
Modified Date: 4/17/2021
{¶ 3} Thereafter, on July 26, 2005, appellant withdrew his former not guilty plea and pleaded guilty to two counts of trafficking in crack cocaine, one a felony of the fifth degree and the other a felony of the second degree.1 As memorialized in a Judgment Entry filed on October 11, 2005, appellant was sentenced to four years in prison on the second degree felony and was placed on community control on the fifth degree felony. Appellant now raises the following assignment of error on appeal:
{¶ 4} "I. THE TRIAL COURT ERRED IN IMPOSING A NON-MINIMUM SENTENCE ON APPELLANT WHERE THE FACTS NECESSARY TO IMPOSE SUCH A SENTENCE HAD NEITHER BEEN PROVEN TO A JURY NOR ADMITTED BY APPELLANT, THEREBY DEPRIVING APPELLANT OF HIS RIGHT TO A JURY TRIAL AND DUE PROCESS OF LAW AS GUARANTEED BY THE
{¶ 5} "II. THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A NON-MINIMUM SENTENCE ON APPELLANT, AS SUCH A SENTENCE IS CONTRARY TO LAW AND IS NOT SUPPORTED BY THE RECORD FROM THE SENTENCING HEARING. R.C. 2953.08."
{¶ 7} Recently, the Ohio Supreme Court, in State v. Foster,
{¶ 8} To remedy Ohio's felony sentencing statutes, the Ohio Supreme Court, in Foster, severed the Blakely-offending portions that either create presumptive minimum or concurrent terms or require judicial factfinding to overcome the presumption. Foster at paragraph 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 paragraph 100.
{¶ 9} Accordingly, because appellant's "more than the minimum" sentence is based upon an unconstitutional statute that was deemed void in Foster supra, appellant's two assignments of error are sustained.
{¶ 10} Appellant's sentence is, therefore, vacated, and the matter is remanded for resentencing in accordance with Foster, supra.
Edwards, J. Hoffman, P.J. and Boggins, J. concur.