Opinion
No. 06CA0013.
Rendered on the January 19, 2007.
(Criminal Appeal from Common Pleas Court), T.C. Case No. 05CR168.
Stephen K. Haller, Pros. Attorney; Elizabeth A. Ellis, Asst. Pros. Attorney, Atty. Reg. No. 0074332, Xenia, OH, Attorney for Plaintiff-Appellee.
Patrick J. Conboy, II, Huber Heights, OH, Atty. Reg. No. 0070073 Attorney for Defendant-Appellant.
OPINION
{¶ 1} Defendant, Michael Ferguson, was convicted on his pleas of no contest of twenty violations of R.C. 2907.323(A)(3), which prohibits use of a minor in nudity-oriented material or performances. The offense is a fifth degree felony. R.C. 2907.323(B). Fifth degree felonies are punishable by definite terms of imprisonment of six, seven, eight, nine, ten, eleven, or twelve months. R.C. 2929.14(A)(5).
{¶ 2} The trial court sentenced Ferguson to terms of imprisonment of ten months on each count on findings the court made pursuant to R.C. 2929.14(B). Some of those ten-month terms must be served consecutively on findings the court made pursuant to R.C. 2929.14(E). Ferguson filed a timely notice of appeal from that judgment on February 3, 2006.
{¶ 3} Ferguson argues that, because his greater than minimum and consecutive sentences were imposed on findings the court made, his sentence must be reversed and the case remanded for resentencing on the rule announced in State v. Foster , 109 Ohio St.3d 1, 2006-Ohio-856, which was decided on February 27, 2006, while Ferguson's appeal was pending.
{¶ 4} The State agrees and confesses error. We likewise agree. The assignment of error is therefore sustained, and Defendant's sentence will be reversed and the case remanded for resentencing.
WOLFF, P.J. And FAIN, J., concur.