State v. Rose

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[Cite as State v. Rose, 2006-Ohio-2653.] IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee : C.A. Case No. 21114 v. : T.C. Case No. 05-CR-00202 WILLIAM ROSE : (Criminal Appeal from Common Pleas Court) Defendant-Appellant : ........... OPINION Rendered on the 19th day of May , 2006. ........... MATHIAS H. HECK, JR., Prosecuting Attorney, By: JENNIFER B. FREDERICK, Assistant Prosecuting Attorney, Atty. Reg. #0076440, Appellate Division, P.O. Box 972, 301 W. Third Street, Suite 500, Dayton, Ohio 45422 Attorneys for Plaintiff-Appellee JAMES S. ARMSTRONG, Atty. Reg. #0020638, 131 N. Ludlow Street, Suite 1311, Dayton, Ohio 45402 Attorney for Defendant-Appellant ............. FAIN, J. {¶ 1} Defendant-appellant William Rose appeals from his sentence for Kidnapping, to which he pled guilty. He was indicted on two counts of Kidnapping, but pled guilty to one count, with the other count being dismissed. Rose was sentenced to imprisonment for seven years. The minimum term is three years. {¶ 2} Rose s sole assignment of error is as follows: 2 {¶ 3} THE TRIAL COURT ERRED BY IMPOSING A SENTENCE GREATER THAN THE MAXIMUM [sic, minimum is obviously intended] SENTENCE PERMITTED BY R.C. 2929.14(B) WHEN APPELLANT HAD NOT PREVIOUSLY SERVED A PRISON SENTENCE AND A JURY DID NOT MAKE A DETERMINATION OF THE FACTORS NECESSARY TO SUPPORT AN INCREASE OF THE SENTENCE. {¶ 4} In imposing a more-than-minimum sentence, the trial court relied upon R.C. {¶ 5} 2929.14(B), having made the findings required by that statute for the imposition of a more-than-minimum sentence. That statutory requirement has been held to violate the Sixth Amendment of the United States Constitution. State v. Foster, 2006-Ohio-856. Pursuant to State v. Foster, Rose s sole assignment of error is sustained, his sentence is Reversed, and this cause is Remanded for re-sentencing in accordance with State v. Foster, supra. ............. WOLFF and VALEN, JJ. concur. (Hon. Anthony Valen, retired from the Twelfth Appellate District, sitting by assignment of the Chief Justice of the Supreme Court of Ohio). Copies mailed to: Jennifer B. Frederick James S. Armstrong Hon. John W. Kessler

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