-
{¶ 51} While I concur with the majority in its assessment of the first, second and third assignments of error, I respectfully dissent as to the fourth assignment. Specifically, I would vacate appellant's sentence and remand the cause for a new sentencing hearing.
{¶ 52} Appellant was sentenced under R.C.
2929.14 (B). The Ohio Supreme Court's recent decision in State v. Foster, ___ Ohio St.3d ___,2006-Ohio-856 , found several sections of the revised code to be unconstitutional, including R.C.2929.14 (B), and severed the offending portions from the statutes. As a result, trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or state reasons for imposing more than the minimum sentences. Foster, supra.{¶ 53} Because appellant's sentence was based on an unconstitutional statute, it is deemed void, and the appellant is entitled to a new sentencing hearing, although the parties may stipulate to the sentencing court acting on the record before it.Foster, supra.
{¶ 54} In accordance with the decision in Foster involving appeals with sentencing claims pending on review, I would vacate appellant's sentence and remand this cause to the trial court for a new sentencing hearing.
Document Info
Docket Number: No. 86302.
Citation Numbers: 2006 Ohio 2210
Judges: CHRISTINE T. McMONAGLE, J.:
Filed Date: 5/4/2006
Precedential Status: Non-Precedential
Modified Date: 4/18/2021