State v. Gonzalez-Ortiz
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[Cite as State v. Gonzalez-Ortiz, 2006-Ohio-3087.] IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY STATE OF OHIO, Plaintiff-Appellee, : : CASE NO. CA2005-06-171 : OPINION 6/19/2006 -vs: FERMIN GONZALEZ-ORTIZ, Defendant-Appellant. : : APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2005-04-0554 Robin N. Piper, Butler County Prosecuting Attorney, Daniel G. Eichel, Government Services Center, 315 High Street, 11th Floor, Hamilton, OH 45011-6057, for plaintiffappellee Brian K. Harrison, 240 East State Street, Trenton, OH 45067, for defendant-appellant POWELL, P.J. {¶1} Defendant-appellant, Fermin Gonzalez-Ortiz, appeals his convictions for four felony offenses. {¶2} Appellant pled guilty to two third-degree felony offenses of tampering with records, one fourth-degree felony offense of identity fraud, and one fifth-degree felony Butler CA2005-06-171 offense of forgery. The trial court sentenced appellant to three-year and two-year terms on the tampering with records charges, a one-year term for the identity fraud charge and a six-month term on the forgery charge, all of which were to be served concurrently. {¶3} On appeal, appellant presents a single assignment of error which reads as follows: {¶4} "THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT- APPELLANT WHEN IT SENTENCED HIM TO A TERM OF IMPRISONMENT IN EXCESS OF THE MINIMUM SENTENCE." {¶5} Appellant's assignment of error claims the trial court erred by imposing more than the one-year minimum sentence for a third-degree felony. Appellant maintains that the imposition of a nonminimum sentence based upon facts neither found by a jury nor admitted by appellant infringes upon appellant's constitutional right to a trial by jury as defined by the United States Supreme Court in Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct.2531. {¶6} The Ohio Supreme Court recently found portions of Ohio's statutory sentencing scheme unconstitutional and severed those portions from Ohio's sentencing code. See State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. Among these unconstitutional sections was R.C. 2929.14(B), which requires certain judicial findings before the imposition of more than a minimum sentence. See Foster at paragraph one of the syllabus. As a result of the severance of this provision from Ohio's felony sentence scheme, judicial fact-finding prior to the imposition of a sentence within the basic range of R.C. 2929.14(A) is no longer required. Id. at paragraph two of the syllabus. See, also, State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, paragraph three of the syllabus. {¶7} In this case, the trial court made certain findings under R.C. 2929.14(B) to -2- Butler CA2005-06-171 impose more than the minimum prison term. {¶8} The Foster court instructed that all cases pending on direct review in which the unconstitutional sentencing provisions were utilized must be remanded for sentencing. See Foster at ¶104. Accordingly, appellant's assignment of error is sustained. {¶9} The judgment of the trial court is reversed as to sentencing and the case is remanded for resentencing as to Counts One and Two. WALSH and BRESSLER, JJ., concur. -3- [Cite as State v. Gonzalez-Ortiz, 2006-Ohio-3087.]
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