State v. Moore
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[Cite as State v. Moore, 2006-Ohio-2810.] COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee JUDGES: Hon. William B. Hoffman, P.J. Hon. Julie A. Edwards, J. Hon. John F. Boggins, J. -vsCase No. 05CAA11077 BENJAMIN LUTHER MOORE OPINION Defendant-Appellant CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 03CRI070269 JUDGMENT: Vacated and Remanded DATE OF JUDGMENT ENTRY: June 2, 2006 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant DAVID YOST Delaware County Prosecutor 140 N. Sandusky St. Delaware, Ohio 43015 CHAD A. HEALD 125 N. Sandusky St. Delaware, Ohio 43015 Delaware County, Case No. 05CAA11077 2 Hoffman, P.J. {¶1} Defendant-appellant Benjamin Luther Moore appeals his sentence entered by the Delaware County Court of Common Pleas, following his conviction on one count of Identity Fraud, a felony of the fourth degree. STATEMENT OF THE CASE1 {¶2} Following appellant s entering a guilty plea to the aforementioned charge, the trial court ordered a pre-sentence investigation. On November 9, 2005, appellant was sentenced to the maximum penalty of eighteen months imprisonment consecutive to the Federal sentence appellant was then serving. The trial court also ordered restitution and imposed costs. The sentence was journalized via Judgment Entry of Sentence filed November 15, 2005. It is from that entry appellant prosecutes this appeal, assigning as error: {¶3} I. THE TRIAL COURT ERRED BY SENTENCING THE APPELLANT TO THE MAXIMUM PRISON TERM. {¶4} II. THE TRIAL COURT ERRED BY SENTENCING THE APPELLANT TO CONSECUTIVE SENTENCES. {¶5} III. THE TRIAL COURT ERRED BY SENTENCING MR. MOORE TO A NON-MINIMUM PRISON TERM BASED ON FACTS NOT FOUND BY THE JURY OR ADMITTED BY MR. MOORE. 2 1 A rendition of the facts is unnecessary for our resolution of appellant s assignments of error. 2 Appellant orally withdrew his fourth assignment of error at oral argument. Delaware County, Case No. 05CAA110077 3 I & II {¶6} We address appellant s first and second assignments of error together as we find their disposition both controlled by the Ohio Supreme Court s recent decision in State v. Foster, ___Ohio St.3d___, 2006-Ohio-856. {¶7} The trial court sentenced appellant to the maximum sentence, making the requisite finding under R.C. 2929.14 (C), and ordered the sentence to be served consecutively to the Federal sentence appellant was then serving, making the requisite finding under R.C. 2929.14 (E)(4). In Foster, the Ohio Supreme Court found R.C. 2929.14 (C) and R.C. 2929.14 (E)(4) unconstitutional. Id., at syllabus no. 1 and 3, respectively. The Foster Court determined sentences based on unconstitutional statutes are void and the appropriate disposition is to vacate the sentence and remand the matter to the trial court for a new sentencing hearing. Id. at para. 103. Based upon Foster, we sustain appellant s first and second assignments of error. III {¶8} Based upon our disposition of appellant s first and second assignments of error, we find appellant s argument herein to be moot. Delaware County, Case No. 05CAA110077 {¶9} 4 Appellant s sentence is ordered vacated and the case remanded to the trial court for resentencing. By: Hoffman, P.J. Edwards, J. and Boggins, J. concur ___________________________________ HON. WILLIAM B. HOFFMAN ___________________________________ HON. JULIE A. EDWARDS ___________________________________ HON. JOHN F. BOGGINS Delaware County, Case No. 05CAA11077 5 IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vs- BENJAMIN LUTHER MOORE Defendant-Appellant : : : : : : : : : : JUDGMENT ENTRY Case No. 05CAA11077 For the reasons specified in our accompanying Memorandum-Opinion, appellant s sentence is ordered vacated and the case is remanded to the trial court for resentencing. Costs assessed to appellee. ___________________________________ HON. WILLIAM B. HOFFMAN ___________________________________ HON. JULIE A. EDWARDS ___________________________________ HON. JOHN F. BOGGINS
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