State v. Townsend, Unpublished Decision (9-2-1997) ( 1997 )

OPINION Defendant-appellant, Billy Joe Townsend, appeals the denial of his petition for postconviction relief. For the reasons that follow, we affirm.

On June 12, 1989, appellant entered guilty pleas to three counts of attempted rape, aggravated felonies of the second degree, and three counts of attempted gross sexual imposition, fourth degree felonies. On July 19, 1989, the trial court sentenced appellant to concurrent indefinite prison terms of three to fifteen years on the attempted rape charges and concurrent definite terms of one year on each of the attempted gross sexual imposition charges.

On August 8, 1996, appellant filed his petition alleging that his indefinite sentence violated his constitutional rights and that he was entitled to be resentenced to a definite term pursuant to the provisions of Am.Sub.S.B. No. 2 (hereinafter "Senate Bill 2"). The trial court dismissed appellant's petition.

In a single assignment of error, appellant claims he was "denied due process of law when the lower court abused its discretion by not applying a statutory mandate that created a liberty interest for the appellant." Specifically, appellant claims the failure to resentence him to a definite term violates his right to equal protection under the Fourteenth Amendment and his right to be free from cruel and unusual punishment under the Eighth Amendment.

Appellant's contention that his indefinite sentence constitutes cruel and unusual punishment is without merit, State v. Payne (June 23, 1997), Madison App. No. CA96-11-053, unreported, as is his claim that he was denied equal protection and due process. State ex rel. Lemmon v. Ohio Adult Parole Auth. (1997), 78 Ohio St.3d 186. In addition, this court has previously considered and rejected the argument that individuals similarly situated to appellant are entitled to be resentenced under Senate Bill 2. State v. Miller (Dec. 30, 1996), Warren App. No. CA96-10-104, unreported.

Appellant's assignment of error is without merit and is hereby overruled.

Judgment affirmed.

KOEHLER and WALSH, JJ., concur.