State v. Klair
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[Cite as State v. Klair, 2006-Ohio-5539.] COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vsJASON KLAIR Defendant-Appellant : : : : : : : : : JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Sheila G. Farmer, J. Case No. 06CA49 OPINION CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 06CR00002 JUDGMENT: Sentence Vacated and Remanded DATE OF JUDGMENT ENTRY: October 19, 2006 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant DAVID W. MALLETT 20 South Second Street 4th Floor Newark, OH 43055 ANDREW T. SANDERSON 21 West Church Street Suite 201 Newark, OH 43055 Licking County, Case No. 06CA49 2 Farmer, J. {¶1} On January 9, 2006, the Licking County Grand Jury indicted appellant, Jason Klair, on one count of receiving stolen property in the fifth degree in violation of R.C. 2913.51 and one count of burglary in the second degree in violation of R.C. 2911.12. On April 10, 2006, appellant pled no contest to the charges. By judgment entry filed April 11, 2006, the trial court found appellant guilty and sentenced him to nine months on the receiving stolen property count and four years on the burglary count. The trial court ordered the sentences to be served "consecutively with each other and to any other case from Morrow, Franklin or Delaware County." {¶2} Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows: I {¶3} "THE SENTENCING OF THE DEFENDANT-APPELLANT PURSUANT TO THE OHIO REVISED CODE WAS UNCONSTITUTIONAL AND AN ABUSE OF DISCRETION." I {¶4} Appellant claims his sentence was unconstitutional. Specifically, appellant argues two points: 1) his sentence was unlawful because it was ordered to be served consecutively with a misdemeanor sentence from Morrow County; and 2) his sentence is subject to remand pursuant to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. We agree. {¶5} In its brief at 4, the state concedes both issues. Therefore, appellant's sentence is vacated and the matter is remanded for resentencing pursuant to Foster. Licking County, Case No. 06CA49 3 {¶6} The sole assignment of error is granted. {¶7} The sentence of the Court of Common Pleas of Licking County, Ohio is vacated and the matter is remanded to said court for resentencing. By Farmer, J. Gwin, P.J. and Hoffman, J. concur. ___________________________________ ___________________________________ ___________________________________ JUDGES SGF/sg 1005 Licking County, Case No. 06CA49 4 IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vsJASON KLAIR Defendant-Appellant : : : : : : : : : JUDGMENT ENTRY CASE NO. 06CA49 For the reasons stated in our accompanying Memorandum-Opinion, the sentence of the Court of Common Pleas of Licking County, Ohio is vacated and the matter is remanded to said court for resentencing pursuant to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. Costs to appellee. ___________________________________ ___________________________________ ___________________________________ JUDGES
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