COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71267, 71268, 71269, & 71270 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION ANDREW E. MILLER : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 11, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-243721. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Roger Kramer Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: Andrew E. Miller, pro se #223-784 Trumbull Correctional Institution P.O. Box 901 Leavittsburg, Ohio 44430 2 SWEENEY, JAMES D., C.J.: Defendant-appellant Andrew E. Miller, pro se, appeals from the denial of his Petition for Post-Conviction Relief made pursuant to R.C. 2953.21 in the cases under review. The Petition, which sought to modify his sentences in light of the passage of Am.Sub.S.B. 2, was filed during the term of imprisonment on the sentences outlined below and was denied without elucidation by the trial court without an evidentiary hearing and using a half-sheet journal entry. The consolidated appeals herein include the following trial court case numbers and sentences which were the subject of the Petition: 1. Appellate case no. 71267/trial court case No. CR-243721: defendant sentenced on September 14, 1990, to a term of 3 to 15 years on one count of Drug Abuse (R.C. 2925.11), consecutive to sentences in CR-245308, 246484 and 248704, plus costs; 2. Appellate case no. 71268/trial court case No. CR-245308: defendant sentenced on September 14, 1990, to a term of 3 to 15 years on one count of Possession of Criminal Tools (R.C. 2923.24), consecutive to sentences in CR-243721, 246984 and 248704, plus costs; 3. Appellate case No. 71269/trial court case No. CR-246984: defendant sentenced on March 28, 1990, to a term of 3 years actual for a firearm specification followed by a term of 15 to 25 years with 15 years actual time on one count of Aggravated Robbery (R.C. 2911.01); and, 4. Appellate case No. 71270/trial court case No. CR-248704: defendant sentenced on September 14, 1990, to a term of 3 years actual for a firearm specification followed by a term of 12 to 15 years with 12 years actual time on one count of Felonious Assault (R.C. 2903.11), consecutive to sentences in CR- 243721, 246984 and 245308, plus costs. For the reasons adduced below, we affirm. 3 A review of the record on appeal indicates that the trial court, by entry journalized June 24, 1997, filed a judgment entry which this appellate court has interpreted as a Findings of Fact and Conclusions of Law. See State ex rel. Miller v. McMonagle (July 11, 1997), Cuyahoga App. No. 72637, unreported. This judgment entry provides in pertinent part the following in denying the Petition: * * * It is hereby ordered that defendant's motion to modify his sentence to conform with sentences imposed under Senate Bill 2 be denied. Senate Bill 2, as amended by Senate Bill 269 has no application to defendants already in custody of the Department of Rehabilitation and Correction. See, State ex rel. Lemmon v. Ohio Adult Parole Authority (1997), 78 Ohio St.3d 186; State v. Abelt (Feb. 27, 1997), Cuy.App.No. 71361, unreported. IT IS SO ORDERED. * * * Two assignments of error have been presented for our review. I THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO VACATE AND SET ASIDE SENTENCE AND MODIFY SAID SENTENCE. TRIAL COURT SHOULD HAVE HELD THAT APPELLANT'S SENTENCE NOW VIOLATES EQUAL PROTECTION RIGHTS, EQUATES TO CRUEL AND UNUSUAL PUNISHMENT WHEN COMPARED TO SENATE BILL 2 AND SHOULD HAVE HELD THAT SENATE BILL 2'S, NON-RETROACTIVITY CREATES THIS NON- RETROACTIVITYOR PARTIAL RETROACTIVITY CREATES THIS EQUAL PROTECTION RIGHTS VIOLATION AND CRUEL AND UNUSUAL PUNISHMENT WHEN READ IN TANDEM WITH THE PRESENT SENTENCING GUIDELINES THE APPELLANT IS UNDER NOW THEREFORE SENATE BILL 2 SHOULD BE HELD UNCONSTITUTIONAL. II THE AMENDMENT OF SECTION FIVE OF SENATE BILL 4 2, WHICH EFFECTIVELY OVERRIDES THE PROVISIONS OF PROCESS OF LAW AS GUARANTEED BY THE UNITED STATES CONSTITUTIONR.C. 1.58(B), DEPRIVES APPELLANT OF DUE1. In the first assignment, appellant argues that his sentences, which he is presently serving by virtue of having been sentenced prior to the enactment of Am.Sub.S.B. 2, should be modified so as to conform to the sentencing guidelines enacted by the passage of Am.Sub.S.B. 2, which became effective on July 1, 1996. Appellant argues that the failure to resentence him under the new guidelines, giving prospective rather than retrospective application to the sentencing guidelines contained in Am.Sub.S.B. 2, amounts to a denial of equal protection. In his second assignment, appellant argues that the amendment to Am.Sub.S.B. 2, which specifically provided prospective application of the new sentencing guidelines by excluding the application of R.C. 1.58(B)2, deprives him of due 1Section 5 of Am.Sub.S.B. 2 provides: Sec. 5. The provisions of the Revised Code in existence prior to July 1, 1996, shall apply to a person upon whom a court imposed a term of imprisonment prior to that date and notwithstanding division (B) of Section 1.58 of the Revised Code, to a person upon whom a court, on or after that date and in accordance with the law in existence prior to that date, imposes a term of imprisonment for an offense that was committed prior to that date. The provisions of the Revised Code in existence on or after July 1, 1996, apply to a person whom commits an offense on or after that date. 2R.C. 1.58(B) provides in relevant part: If the penalty, forfeiture, or punishment for any offense is reduced by reenactment or amendment of a statute, the penalty, 5 process by not allowing his existing sentence to be modified under the current guidelines. Concerning the first assignment, this same argument was presented in State ex rel. Lemmon v. Ohio Adult Parole Auth., supra, State v. Abelt, supra, and found to be without merit. On this authority, the first assignment of error is overruled. Concerning the second assignment, it is noted that R.C. 1.58(B), which allows a person who is awaiting sentencing to obtain the benefit of amended sentencing/punishment criteria, only applies to those persons awaiting imposition of sentence. In the case sub judice, appellant was sentenced prior to the enactment of the new sentencing guidelines of Am.Sub.S.B. 2. Accordingly, R.C. 1.58(B) does not apply to the sentencing of appellant. See State v. Abelt, supra,at 4-5. Likewise, the non-application of the new sentencing guidelines to the appellant's sentences, which sentences were imposed prior to July 1, 1996, is not a violation of either equal protection or due process under the Fourteenth Amendment. See State ex rel. Lemmon v. Ohio Adult Parole Auth., supra, at 188; State v. Abelt, supra, at 4-5. The second assignment of error is overruled. Judgment affirmed. forfeiture or punishment, if not already imposed, shall be imposed according to the statute as amended. (Italization added.) 6 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 Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA A. BLACKMON, J., and, LEO M. SPELLACY, J., CONCUR. ______________________________ JAMES D. SWEENEY CHIEF JUSTICE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .