COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59620 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : JAMES KASMERSKI : : Defendant-Appellant : : DATE OF ANNOUNCEMENT DECEMBER 19, 1991 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-229427 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS-JONES DANIEL E. SHIELDS Cuyahoga County Prosecutor 2000 Standard Building 8th Floor Justice Center 1370 Ontario Street 1200 Ontario Street Cleveland, Ohio 4411 Cleveland, Ohio 44113 -2- PATRICIA A. BLACKMON, J.: Appellant James Kasmerski was indicted for Drug Trafficking in violation of R.C. 2925.03, Drug Abuse in violation of R.C. 2925.11, Permitting Drug Abuse in violation of R.C. 2925.13 and on two counts of Possession of Criminal Tools in violation of R.C. 2923.24. After the prosecution dismissed four counts of the indictment, Appellant pleaded guilty to the remaining count, which was Trafficking in cocaine, a Schedule II Drug in an amount equal to or exceeding the bulk amount, but in amount of less than three times that amount. Thereafter, Appellant was convicted and sentenced to an indefinite term of incarceration, which was three to fifteen years with three years of actual incarceration. On March 23, 1989, Appellant filed a motion to correct the sentence from an indefinite term to that of a definite term of incarceration. On May 30, 1989, the trial court denied his motion and Appellant filed this delayed appeal on April 11, 1990. Although the appeal was untimely, this court on April 27, 1990, pursuant to App. R. 5(A), granted Appellant leave to appeal. The issue raised on appeal is whether the trial court properly sentenced Appellant to an indefinite term of incarceration. Because we hold that the trial court properly sentenced Appellant under both provisions of the Ohio Drug law statute, R.C. 2925 and R.C. 2929, we affirm. The facts in this case were not disputed. On December 7, 1988, Appellant was sentenced to a term of three to fifteen years incarceration with three years actual incarceration. Subsequent- -3- ly Appellant moved the court to correct the sentence to a term of three years actual incarceration rather than the three to fifteen. The trial court was not persuaded, and Appellant appealed assigning two errors for our review: THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT TO AN INDEFINITE TERM OF IMPRISONMENT AFTER APPELLANT PLED GUILTY TO TRAFFICKING IN DRUGS IN VIOLATION OF OHIO REVISED CODE 2925.03(A)(5). THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT SENTENCED APPELLANT TO AN INDEFINITE TERM OF IMPRISONMENT RATHER THAN A DEFINITE TERM OF IMPRISONMENT. R.C. 2925.03, in pertinent part, provides that: (A) No person shall knowingly do any of the following: (5) Sell or offer to sell a controlled substance in an amount equal to or exceeding the bulk amount, but in an amount less than three times that amount; (C) If the drug involved is any compound, mixture, preparation, or substance included in schedule I with the exception of marihuana or in schedule II, whoever violates this section is guilty of aggravated trafficking. (5) Where the offender has violated division (A)(5) of this section, aggravated trafficking is a felony of the second degree, and the court shall impose a sentence of actual incarceration of three years ***. R.C. 2929.11, in pertinent part, provides that: (B) Except as provided in *** Chapter 2925 of the Revised Code, terms of imprisonment for felony shall be imposed as follows: (5) For a felony of the second degree, the minimum term shall be two, three, four, or five years, and the maxi- mum term shall be fifteen years. -4- In State v. Christopher (Apr. 26, 1990), Cuyahoga App. No. 56870, unreported at 11, this court held that: A violation of Ohio's drug law statute, R.C. 2925, requires imposition of sentence under the provisions of both R.C. 2925 and R.C. 2929. State v. Leggett (Feb. 5, 1990), Cuyahoga App. No. 57815, unreported. R.C. 2925 is applied as a penalty enhancement statute which must be read and enforced in conjunction with R.C. 2929. Id.; State v. Smith, (1989), 42 Ohio St. 3d 60. We overrule our earlier decision in State v. Russo (Feb. 25, 1988), Cuyahoga App. No. 53571, unreported, in light of the Supreme Court's analysis in State v. Smith, supra. By implication, this court also overruled State v. Borden (June 11, 1987), Cuyahoga App. No. 53267, unreported. Compare Borden with Russo. Under this court's analysis in Christopher, the trial court sub judice properly sentenced Appellant to a mandatory term of three years actual incarceration under R.C. 2925.03(C)(5) in conjunction with an indefinite term of three to fifteen years under R.C. 2929.11(B)(5). Appellant's two assignments of error are not well taken. Judgment affirmed. -5- It is ordered that Appellee recover of Appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. DYKE, P.J., and SPELLERBERG,* J., CONCUR. PATRICIA A. BLACKMON JUDGE (*JUDGE THOMAS R. SPELLERBERG, SENECA COUNTY COMMON PLEAS COURT, SITTING BY ASSIGNMENT.) N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .