COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71361 : ACCELERATED DOCKET STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION STEVEN T. ABELT : : : Defendant-Appellant : PER CURIAM : : DATE OF ANNOUNCEMENT OF DECISION : FEBRUARY 27, 1997 CHARACTER OF PROCEEDING : Criminal appeal from Common Pleas Court Case No. CR-211856 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES STEVEN T. ABELT, Pro Se Cuyahoga County Prosecutor #196-048 LISA REITZ WILLIAMSON Grafton Correctional Institution Assistant Prosecuting Attorney 2500 S. Avon-Belden Road The Justice Center Grafton, Ohio 44044 1200 Ontario Street Cleveland, Ohio 44113 - 2 - PER CURIAM: This case came on for hearing upon the accelerated calendar of our court pursuant to App.R. 11.1 and Loc.R. 25, the records from the court of common pleas, and the briefs of counsel. This docket allows for statements of the reasons for our decision to be in brief and conclusionary form. Steven T. Abelt appeals pro se, from a September 3, 1996 judgment of the common pleas court denying his petition for post- conviction relief in which he sought to vacate his 1987 sentences for aggravated burglary and two counts of rape in an effort to have the court resentence him in accordance with the new sentencing penalties contained in Senate Bill 2, effective July 1, 1996. During the early morning hours of August 24, 1986, after a fight with his wife and an evening of drinking with his cousin, Abelt broke into his neighbor's house and raped her. The Cuyahoga County Grand Jury indicted him for aggravated burglary and two counts of rape. On February 2, 1986, a jury found him guilty of these charges and on April 2, 1987, the court sentenced him to concurrent terms of eight to twenty-five years. Our court affirmed these convictions in State v. Abelt (April 21, 1988), Cuyahoga App. No. 53655, unreported. The instant matter arose on August 26, 1996, when Abelt filed a petition for post-conviction relief to vacate his - 3 - sentences claiming entitlement to resentencing in accordance with new sentencing penalties provided for in Ohio Senate Bill 2. Specifically, Abelt argues the resentencing would reduce his sentence from 8-25 years to a maximum of ten years. On September 3, 1996, the trial court denied the petition finding that Senate Bill 2 does not apply retroactively, and, therefore, could not be the basis of imposing sentence on Abelt. Abelt now appeals from that denial and assigns the following as error for our review. I. DOES THE APPELLANT'S CONSTITUTIONAL RIGHT TO EQUAL PROTECTION AND DUE PROCESS, AS GUARANTEED UNDER THE FOURTEENTH AMENDMENT, REQUIRE THE COURT TO RE- SENTENCE THE APPELLANT, PURSUANT TO THE NEW SENTENCING GUIDELINES SET FORTH IN OHIO SENATE BILL 2? Abelt contends that the trial court erred in denying his petition for post-conviction relief alleging that failure to modify the sentences in accordance with the new criminal penalties established in Senate Bill 2, constitutes a denial of due process and equal protection in that the state punishes those convicted of crimes prior to July 1, 1996, the effective date of Senate Bill 2, differently from those convicted after that date. The state maintains however, that the court properly denied the petition because the Ohio Constitution prohibits ex post - 4 - facto legislation and because Senate Bill 2, as amended by Senate Bill 269, is not retroactive in application. The question then presented for our consideration is whether the failure to resentence the appellant in accordance with the penalties for crimes established in Senate Bill 2 constitutes a denial of the due process or a violation of the equal protection rights of the appellant. The Ohio Constitution provides in part that The general assembly shall have no power to pass retroactive laws ***. Article II Sec. 28. Similarly, the United States Constitution in Article I, Section 9, specifically prohibits passage of any ex post facto law and in Section 10, places a similar prohibition on the states. With this view, we examine Amended Senate Bill 2, which provides in part: 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) if 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 and after July 1, 1996, apply to a person whom commits an offense on or after that date. Accordingly, Senate Bill 2 as amended is, by its express terms, to be applied prospectively, to persons who commit - 5 - offenses on and after July 1, 1996. Hence, it does not apply to appellant. Furthermore, R.C. 1.58(B) which controls this case, states in relevant part: If the penalty, forfeiture, or punishment for any offense is reduced by reenactment or amendment of a statute, the penalty, forfeiture or punishment, if not already imposed, shall be imposed according to the statute as amended. (Emphasis added.) Obviously, since Abelt has been sentenced in this case on April 2, 1987 in accordance with penalties then in effect and since our court affirmed the trial court in that regard, R.C. 1.58 precludes application of any other punishment since sentence has already been imposed on him in this case. This is in full accord with the constitutional provisions which preclude passage of any ex post facto legislation. We, therefore, conclude that the argument advanced by Abelt is without merit because the provisions of Senate Bill 2 which provides for new criminal penalties applies only to those persons committing offenses on and after July 1, 1996. The assignment of error is overruled and the judgment of the trial court is affirmed. - 6 - It is ordered that appellee recover of appellant 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. 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. JOSEPH J. NAHRA, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE LEO M. SPELLACY, JUDGE 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 .