State v. Serafino

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[Cite as State v. Serafino, 2006-Ohio-3993.] COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vsCHARLES P. SERAFINO Defendant-Appellant : : : : : : : : : JUDGES: Hon. W. Scott Gwin, P.J. Hon. Sheila G. Farmer, J. Hon. Julie A. Edwards, J. Case No. 05-COA-061 OPINION CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 04-CRI-007 JUDGMENT: Reversed and Remanded DATE OF JUDGMENT ENTRY: August 3, 2006 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant PAUL T. LANGE 307 Orange Street Ashland, OH 44805 DOUGLAS A. MILHOAN 601 South Main Street North Canton, OH 44720 Ashland County, Case No. 05-COA-061 2 Farmer, J. {¶1} By judgment entry filed November 14, 2005, appellant, Charles Serafino, was sentenced to an aggregate term of twenty months in prison after pleading guilty to one count of receiving stolen property in violation of R.C. 2913.51 and one count of theft in violation of R.C. 2913.02. {¶2} Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows: I {¶3} "THE IMPOSITION OF A PRISON SENTENCE IN THIS CASE WAS UNCONSTITUIONAL AS IT WAS BASED ON AN UNCONSTITUTIONAL STATUTE." I {¶4} Appellant claims the trial court erred in sentencing him. We agree. {¶5} Specifically, appellant claims the trial court sentenced him under unconstitutional statutes based upon the Supreme Court of Ohio's opinion in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, wherein the Foster court held R.C. 2929.14(B) and (C), R.C. 2929.19(B)(2), R.C. 2929.14(E)(4) and R.C. 2929.41(A), requiring "judicial factfinding before imposition of a sentence greater than the maximum term authorized by a jury verdict or admission of the defendant" and/or consecutive sentences, are unconstitutional. Id. at ¶83. The Foster court severed the statutes, and concluded "***trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences." Id. at ¶100. {¶6} In addition, the state concedes this issue in its brief at 2. Ashland County, Case No. 05-COA-061 {¶7} 3 In accordance with the directives of the Foster court, we grant the assignment of error and vacate the sentences herein. The matter is remanded to the trial court for resentencing pursuant to Foster. {¶8} The sole assignment of error is granted. {¶9} The judgment of the Court of Common Pleas of Ashland County, Ohio is hereby reversed and remanded. By Farmer, J. Gwin, P.J. and Edwards, J. concur. ___________________________________ ___________________________________ ___________________________________ JUDGES SGF/db 0711 Ashland County, Case No. 05-COA-061 4 IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vsCHARLES P. SERAFINO Defendant-Appellant : : : : : : : : : JUDGMENT ENTRY CASE NO. 05-COA-061 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Ashland County, Ohio is reversed and the matter is remanded to said court for further proceedings consistent with this opinion. ___________________________________ ___________________________________ ___________________________________ JUDGES

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