Felony sentencing; judicial fact-finding; imposition of a maximum prison term.

[Cite as State v. Barrett, 2006-Ohio-6543.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO,

:

Plaintiff-Appellee,

: CASE NO.

CA2006-02-036

: O P I N I O N

- vs -

12/11/2006

:

TIMOTHY P. BARRETT, SR.,

:

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2005-06-1053

Robin N. Piper, Butler County Prosecuting Attorney, Michael A. Oster, Jr., Government Services Center, 315 High Street, 11th Fl., Hamilton, Ohio 45011, for plaintiff-appellee Repper, Powers & Pagan Ltd., Melynda W. Cook-Reich, 1501 First Avenue, Middletown, Ohio 45044, for defendant-appellant

WALSH, P.J.

Defendant-appellant, Timothy P. Barrett, Sr., pled guilty to a fifth-degree felony charge of theft in violation of R.C. 2913.02(A)(3). The trial court sentenced appel ant to three years of community control with several conditions and advised appellant that a violation of the conditions would result in the imposition of a 12-month jail sentence.

Appellant subsequently violated his community control conditions and the trial court, citing R.C. 2929.14(C), sentenced appellant to a maximum 12-month prison term.

- 1 -

Butler CA2006-02-036

Appellant presents one assignment of error which claims that the trial court erred when it sentenced him to a maximum term of imprisonment.

In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, the Ohio Supreme Court held that portions of Ohio's statutory sentencing scheme were unconstitutional. Among the statutes found unconstitutional was R.C. 2929.14(C), governing the imposition of a maximum term of imprisonment. Id. at ¶83, 97-99. The Foster court severed these sections from the sentencing code and instructed that all cases pending on direct review in which the unconstitutional sentencing provisions were utilized must be remanded for resentencing. Id. at ¶104. Because the trial court utilized R.C. 2929.14(C) to impose a maximum prison term, we must remand this case for resentencing consistent with Foster.

Appellant's sole assignment of error is sustained.

The judgment of the trial court is reversed as to sentencing only and the case is remanded for resentencing.

YOUNG and BRESSLER, JJ., concur.

- 2 -

- 2 -

[Cite as State v. Barrett, 2006-Ohio-6543.]

- 3 -