State v. McDole, Unpublished Decision (2-27-1998) ( 1998 )

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] OPINION AND JUDGMENT ENTRY

* * * * * Pursuant to 6th Dist.Loc.App.R. 12(C), this case is assigned to the court's accelerated docket.

Appellant, the state of Ohio, appeals from a judgment of the Wood County Court of Common Pleas sentencing James D. McDole for a violation of R.C. 2919.21(A)(2)(e), felony nonsupport.

James McDole was indicted on one count of felony nonsupport in October 1996. The indictment states that McDole failed to provide adequate support for his child for a period from June 1994 through June 1996. On May 14, 1997, the trial court journalized an order reflecting McDole's entry of a guilty plea to the charged offense. On July 14, 1997, the court sentenced McDole "under the language of Senate Bill 2, effective July 1, 1996 [sic] for the offense of Non-support, a violation of R.C.2919.21(A)(2)(e), a felony of the Fifth degree."

The sole issue raised by appellant is whether the trial court erred in sentencing McDole under R.C. 2929.11, as effective on July 1, 1996, rather than the sentencing statute in effect prior to that date. This issue was previously decided by this court in State v. Mills (Aug. 29, 1997), Wood App. No. WD-97-012, unreported, where we held: "* * * [T]he trial court erred in sentencing appellee under Am.Sub.S.B. 2, as amended by S.B. 269, for an offense that he committed prior to July 1, 1996." This court has subsequently followed our holding in Mills. See Statev. Merrill (Jan. 23, 1998), Wood App. No. WD-96-044, unreported;_State v. Pearson (Oct. 10, 1997), Wood App. No. WD-96-067, unreported; State v. Gallagher (Sept. 30, 1997), Wood App. No. WD-97-007, unreported; State v. Serrato (Sept. 19, 1997), Wood App. No. WD-96-051, unreported.

Accordingly, the state's sole assignment of error is found well-taken.

The sentence imposed by the Wood County Court of Common Pleas is vacated. This cause is remanded to that court for resentencing consistent with this opinion. Court costs of this appeal are assessed to appellee.

SENTENCE VACATED.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 7/1/92.

_______________________________ Peter M. Handwork, P.J. JUDGE

_______________________________ Melvin L. Resnick, J. JUDGE

_______________________________ Richard W. Knepper, J. JUDGE

CONCUR.