State v. Meek
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[Cite as State v. Meek, 2006-Ohio-3544.] THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO STATE OF OHIO, Plaintiff-Appellee, : OPINION : CASE NO. 2006-L-029 - vs - : JESSE N. MEEK, : Defendant-Appellant. : Criminal Appeal from the Court of Common Pleas, Case No. 05 CR 000451. Judgment: Sentence vacated and matter remanded for resentencing. Charles E. Coulson, Lake County Prosecutor, and Gregory J. Mussman, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For PlaintiffAppellee). R. Paul LaPlante, Lake County Public Defender, and Vanessa R. Clapp, Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For DefendantAppellant). COLLEEN MARY O TOOLE, J. {¶1} On November 17, 2005, Jesse N. Meek, appellant, pled guilty to one count of assault on a peace officer, a fourth degree felony, in violation of R.C. 2903.13. On January 25, 2006 appellant was sentenced to serve eighteen months in prison. {¶2} Appellant has raised one assignment of error: {¶3} The trial court erred when it sentenced the defendant-appellant to a maximum and more than the minimum sentence based upon a finding of factors not found by the jury or admitted by the defendant-appellant in violation of the defendantappellant s state and federal constitutional rights to trial by jury. {¶4} In sentencing appellant, the trial court relied upon judicial factfinding, formerly mandated by statute, but now deemed unconstitutional and void by the Supreme Court of Ohio. On that basis, appellant s assignment of error is with merit. {¶5} Appellant s sentence in this case is impacted by the recent decision of the Supreme Court of Ohio in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. In Foster, the Supreme Court held that R.C. 2929.14(B) and (C) and 2929.19(B)(2) are unconstitutional for violating the Sixth Amendment because they deprive a defendant of the right to a jury trial, pursuant to Apprendi v. New Jersey (2000), 530 U.S. 466, and Blakely v. Washington (2004), 542 U.S. 296. {¶6} Further, pursuant to United States v. Booker (2005), 543 U.S. 220, the Supreme Court s remedy was to sever the unconstitutional provisions of the Revised Code, including R.C. 2929.14(B) and (C) and 2929.19(B)(2). After severance, judicial factfinding is not required before imposing a sentence within the basic ranges authorized by R.C. 2929.14(A) based on a jury verdict or admission of the defendant. Foster at paragraph two of the syllabus. {¶7} Since Foster was released while this case was pending on direct review, appellant s sentence is void, must be vacated, and remanded for resentencing. Foster at ¶103-104. Upon remand, the trial court is no longer required to make findings or give 2 its reasons for imposing maximum or more than minimum sentences. Id. at paragraph seven of the syllabus. {¶8} The sentence of the Lake County Court of Common Pleas is vacated. This matter is remanded for resentencing and for proceedings consistent with this opinion pursuant to Foster. DIANE V. GRENDELL, J., CYNTHIA WESTCOTT RICE, J., concur. 3
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