Opinion
C.A. No. 2005 CA 42.
Rendered on November 9, 2006.
Criminal Appeal from Common Pleas Court, T.C. No. 05 CR 345.
James D. Bennett, Atty. Reg. No. 0022729, First Assistant Prosecuting Attorney, 201 West Main Street, Safety Building, Troy, Ohio 45373, Attorney for Plaintiff-Appellee.
Steven R. Layman, Atty. Reg. No. 0034124, Miami County Public Defender, Miami County Courthouse, 215 W. Main Street, Troy, Ohio 45373, Attorney for Defendant-Appellant.
OPINION
{¶ 1} Tyrone Starks pleaded guilty to an information charging aggravated assault, a fourth degree felony. The sentencing range for the offense was 6-18 months. The court imposed a 17-month sentence, finding the minimum term would not adequately protect the public and would demean the seriousness of the offense. See R.C. 2929.14(B)(2).
{¶ 2} Starks advances two assignments of error.
{¶ 3} "1. THE TRIAL COURT ERRED BY FAILING TO CONSIDER ALL PERTINENT SENTENCING FACTORS AND BY FAILING TO IMPOSE THE MINIMUM SENTENCE.
{¶ 4} "2. THE TRIAL COURT ERRED BY IMPOSING NON-MINIMUM SENTENCES CONTRARY TO THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND THE AUTHORITY CONTAINED IN BLAKELY V. WASHINGTON AND UNITED STATES V. BOOKER."
{¶ 5} Sentencing in this case predated the Ohio Supreme Court's decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. In Foster, R.C. 2929.14 was declared unconstitutional, and that holding was applied to all cases on direct review. Id. 31. As such, the sentence in this case must be reversed and the case must be remanded for resentencing.
{¶ 6} The second assignment of error is sustained and the first assignment is overruled as moot.
{¶ 7} The sentence will be reversed and the matter will be remanded for resentencing. In all other respects, the judgment will be affirmed.
Brogan, J. and Walters, J., concur.
(Hon. Sumner E. Walters retired from the Third District Court of Appeals sitting by assignment of the Chief Justice of the Supreme Court of Ohio).