Opinion
C.A. Case No. 16683. T.C. Case No. 84-CR-1856, 84-CR-1604.
Rendered June 5, 1998.
MATHIAS H. HECK, JR., Prosecuting Attorney, By: STEVEN J. RING, Assistant Prosecuting Attorney, Attorneys for Plaintiff-Appellee.
ROBERT B. BRANTLEY, #188-987, Defendant-Appellant.
OPINION
The Montgomery County Common Pleas Court denied Appellant, Robert Brantley, his petition to vacate or set aside his prior criminal sentence pursuant to R.C. 2953.21, by summary judgment. Brantley appeals, pro se, assigning two errors:
I. TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT IN DENYING APPELLANT TO BE RESENTENCED UNDER REVISED CODE 1.58(B) SAID ERROR DEPRIVED APPELLANT OF HIS RIGHT TO DUE PROCESS OF LAW GUARANTEED HIM UNDER ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
II. APPELLANT WAS DENIED DUE PROCESS AND EQUAL PROTECTION UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION BY THE TRIAL COURTS FAILURE TO RESENTENCE APPELLANT UNDER SENATE BILL 2, REVISED CODE 1.58(B)
Both of Appellant's Assignments of Error raise the issue of whether he is entitled to be resentenced under S.B. 2, having been convicted and sentenced over twelve (12) years earlier, on November 19, 1985.
Appellant's claim of favor from S.B. 2 is misplaced. By its specific language the sentencing provisions extant prior to July 1, 1996, apply to him, because he was "a person upon whom a court imposed a term of imprisonment prior to that date." S.B. 2, Sec. 5.
Nor is he aided by R.C. 1.58, inasmuch as the legislature specifically excluded that section from consideration as to the July 1, 1996, sentencing watershed. AmSub. S.B. 2, Section 3.
Finally, Appellant claims the disparate sentencing under the old and new sentencing provisions denies him equal protection of the laws, as incorporated within the Fourteenth Amendment to the U.S. Constitution. That claim is rejected upon authority of State exc rel. Lemmon v. Ohio Adult Parole Authority (1997), 78 Ohio St.3d 186. See also, this court's holding in, e.g., State v. Robinson (1997), C.A. No. 16173, Montgomery County, unreported.
The essence of it all is that S.B. 2 is not retroactive.
The assignments of error are overruled and the summary judgment of the Montgomery County Common Pleas Court is affirmed.
BROGAN, J., and KERNS, J., concur.
(Hon. Joseph D. Kerns, Retired from the Court of Appeals, Second Appellate District and Hon. John R. Milligan, Retired from the Court of Appeals, Fifth Appellate District, Sitting by Assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Steven J. Ring
Robert B. Brantley
Hon. John W. Kessler