State v. Anderson
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[Cite as State v. Anderson, 2006-Ohio-6815.] IN THE COURT OF APPEALS OF MIAMI COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee : C.A. CASE NO. 06CA4 vs. : T.C. CASE NO. 05CR180 HOWARD M. ANDERSON : (Criminal Appeal from Common Pleas Court) Defendant-Appellant : . . . . . . . . . O P I N I O N Rendered on the 22nd day of December, 2006. . . . . . . . . . Anthony E. Kendell, Asst. Pros. Attorney, Atty. Reg. No. 0067242, 201 West Main Street, Troy, OH 45373 Attorney for Plaintiff-Appellee Andrew R. Pratt, Atty. Reg. No. 0022729, 18 East Water Street, Troy, OH 45373 Attorney for Defendant-Appellant . . . . . . . . . GRADY, P.J. {¶ 1} Defendant, Howard M. Anderson, entered Alford pleas of no contest to two charges of gross sexual imposition, R.C. 2907.05(A)(1), information. which The had court judgments of conviction. been alleged accepted the in pleas a and bill of entered Defendant was sentenced to a term of imprisonment of seventeen months on each charge, the sentences 2 to be served concurrently. ASSIGNMENT OF ERROR {¶ 2} THE TRIAL COURT ERRED AND ACTED CONTRARY TO LAW BY FAILING TO PROPERLY CONSIDER ALL SENTENCING FACTORS AS REQUIRED BY OHIO STATUTORY LAW AND BY FAILING TO IMPOSE THE MINIMUM SENTENCE REQUIRED. {¶ 3} Defendant s offenses are felonies of the fourth degree. R.C. 2907.05(B)(1). The minimum statutory sentence of incarceration for fourth degree felonies is six months. R.C. 2929.14(A)(4). The trial court justified its greater sentences of seventeen months on findings the court made pursuant to R.C. 2929.14(B)(2), that a minimum term would demean the seriousness of Defendant s adequately protect the public. offense and not Defendant argues that the record does not support the findings the court made. However, we need not reach that issue. {¶ 4} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, the Supreme Court held that the findings the court is mandated by R.C. 2929.14(B) to make violate Amendment right to a jury trial. imposed must be reversed and a defendant s Id., ¶61. the case Sixth Sentences thus remanded for resentencing pursuant to Foster if an appeal was pending when Foster was decided. Id., ¶104. 3 {¶ 5} Foster was decided on February 27, 2006. Defendant had filed his notice of appeal to this court on January 19, 2006. He is therefore entitled to the benefit that Foster confers on the error Defendant assigns. {¶ 6} The assignment of error is sustained. The judgment of the trial court is reversed, in part, and the case is remanded for resentencing per Foster. BROGAN, J. And DONOVAN, J., concur. Copies mailed to: Anthony E. Kendell, Esq. Andrew R. Pratt, Esq. Hon. Jeffrey M. Welbaum
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