State v. Foxwell, (Ohio 2006)
Linked as:
Summary
Sentence void. Matter remanded to trial court for resentencing in accordance with State v. Foster, ___ Ohio St.3d. ___, 2006-Ohio-856.
Summary
Sentence void. Matter remanded to trial court for resentencing in accordance with State v. Foster, ___ Ohio St.3d. ___, 2006-Ohio-856.
Text
[Cite as State v. Foxwell, 2006-Ohio-1229.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-05-1203
Appellee Trial Court No. CR-2005-1089
v.
Jay Foxwell DECISION AND JUDGMENT ENTRY
Appellant Decided: March 17, 2006
* * * * *
Julia R. Bates, Prosecuting Attorney, and Andrew J. Lastra,
Assistant Prosecuting Attorney, for appellee.
Thomas A. Sobecki, for appellant.
* * * * *
HANDWORK, J.
This case is before the court on appeal from the judgment of the Lucas County Court of Common Pleas which, following a plea of no contest to the charge of
- 1 -
attempted gross sexual imposition, a felony of the fourth degree, in violation of R.C. 2923.02 and R.C. 2907.05(A)(4), sentenced appellant to 16 months in state prison and found by clear and convincing evidence that appellant is a child-victim offender.
Appellant appeals the sentence imposed by the trial court and raises the following sole assignment of error:
"The court erred to the prejudice of appellant in sentencing him to a term of incarceration and for a term exceeding the statutory minimum, for a first felony offense."
This case is controlled by the recent decision of the Supreme Court of Ohio in State v. Foster, ___ Ohio St.3d. ___, 2006-Ohio-856, which held several of Ohio's sentencing statutes1 unconstitutional for violating the Sixth Amendment to the United States Constitution in the manner set forth in Apprendi v. New Jersey (2000),
1Foster holds that the following statutory sections are unconstitutional: R.C. 2929.14(B), (C), (D)(2)(b), (D)(3)(b), and (E)(4); R.C. 2929.19(B)(2); and R.C. 2929.41(A).
2.
- 2 -
Upon remand, the trial court shall consider those portions of the sentencing code that are unaffected by the decision in Foster. Id. at ¶ 105. Trial courts are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences, and have full discretion to impose a prison sentence within the statutory range. Id. at ¶ 100.
In this case, the trial court relied on R.C. 2929.14(B) when sentencing appellant to more than the shortest prison term possible. This section has been held unconstitutional by the Ohio Supreme Court in Foster. Accordingly, although appellant's sentence was in compliance with R.C. 2929.14(A), based on the Ohio Supreme Court's ruling in Foster, appellant's sentence is void and must be vacated. Appellant's sole assignment of error is therefore found well-taken.
The judgment of the Lucas County Court of Common Pleas is therefore reversed. This matter is remanded to the trial court for a new sentencing hearing in accordance with Foster, supra. The state is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Lucas County.
JUDGMENT REVERSED.
3.
- 3 -
STATE V. JAY FOXWELL
L-05-1203
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98.
Peter M. Handwork, J.
____________________
JUDGE Mark L. Pietrykowski, J.
____________________
Arlene Singer, P.J. JUDGE CONCUR.
____________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio's Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court's web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.
4.
- 4 -
Sponsored links
