Appellant’s sentence is contrary to law pursuant to State v. Foster. Reversed and remanded for resentencing.

[Cite as State v. Stamper, 2006-Ohio-2659.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO

:

Plaintiff-Appellee

: C.A. CASE NO. 21192

v.

:

T.C. NO. 05 CR 1586

ANTHONY STAMPER

:

(Criminal Appeal from Common Pleas Court) Defendant-Appellant

:

:

. . . . . . . . . .

O P I N I O N

Rendered on the 19th day of May , 2006.

. . . . . . . . . .

R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

BEN M. SWIFT, Atty. Reg. No. 0065745, 333 W. First Street, Suite 445, Dayton, Ohio 45402 Attorney for Defendant-Appellant

. . . . . . . . . .

DONOVAN, J.

This matter is before the court on the Notice of Appeal of Anthony Stamper, filed August 3, 2005. Stamper entered a no contest plea to one count of child endangering, in violation of R.C. 2919.22(A), a felony of the third degree, and he appeals the trial court's September 23, 2005 imposition of a three year term of imprisonment at the Ohio Department of Rehabilitation and

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Correction. At the sentencing hearing, the trial court found that "the shortest prison term would demean the seriousness of this offense and not adequately protect the public from future offenses by you."

Stamper's sole assignment of error is as follows:

"THE TRIAL COURT ERRED IN IMPOSING A SENTENCE THAT WAS EXCESSIVE AND CONTRARY TO LAW"

The Ohio Supreme Court recently declared R.C. 2929.14(B), pursuant to which Stamper was sentenced, along with other parts of Ohio's felony sentencing scheme, unconstitutional.

State v. Foster, __ Ohio St.3d __, 2006-Ohio-856, syllabus, p.1, (citing Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S. Ct. 2348, 147 L.Ed.2d 435, and Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403). R.C. 2929.14's requirement, in relevant part, that the sentencing court find, prior to imposing sentence, that the shortest prison term allowed would demean the seriousness of the defendant's crime or would inadequately protect the public, violated the defendant's Sixth Amendment right to a jury trial on the facts relied upon in enhancing sentence.

Id. Pursuant to Foster, Stamper's sentence is contrary to law. The Foster court instructed that all cases pending on direct review in which the unconstitutional sentencing provisions were utilized must be remanded for resentencing. Stamper's sentence is reversed, and the matter is remanded for resentencing.

. . . . . . . . . .

GRADY, P.J. and BROGAN, J., concur.

Copies mailed to:

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R. Lynn Nothstine Ben M. Swift Hon. John W. Kessler

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