COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71982 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-Appellee : JOURNAL ENTRY : -vs- : AND : FRANKLIN WILLIAMS : OPINION : Defendant-Appellant : : PER CURIAM Date of Announcement of Decision: JULY 2, 1998 Character of Proceeding: Criminal appeal from Court of Common Pleas Case No. CR-338885 Judgment: Sentence vacated; remanded for resentencing. Date of Journalization: Appearances: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES JAMES A. DRAPER Cuyahoga County Prosecutor Cuyahoga County Public Defender ARTHUR A. ELKINS, Asst. ROBERT M. INGERSOLL, Asst. RONALD JAMES, Asst. Public Defender Prosecuting Attorneys 100 Lakeside Place 1200 Ontario Street 1200 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113-7583 -2- PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 25. Defendant-appellant Franklin Williams appeals from his sentence following a guilty plea to attempted robbery (R.C. 2911.02/2923.02) pursuant to which he was sentenced to a term of two to ten years. Defendant contends that he was sentenced subsequent to the effective date (July 1, 1996) of Am. S.B.2 and was entitled to be sentenced under the more lenient standards of the new legislation. We agree and remand the case to the trial court for resentencing. On May 11, 1996, the Cuyahoga County Grand Jury indicted defendant in a one count indictment which charged him with robbery (R.C. 2911.02) and contained both aggravated felony and violence specifications. On September 4, 1996, the defendant entered a guilty plea. In return for his plea, the State agreed to delete all specifications from the indictment and to add the attempt statute, R.C. 2923.02, making the crime an aggravated felony of the third degree. On September 26, 1996, in an action journalized on October 3, 1996, the trial court sentenced defendant to a term of two to ten years. At no time during the sentencing hearing were the new sentencing laws created by Am. S.B.2 ever discussed. This Court has allowed a delayed appeal. Defendant's two assignments of error state as follows: -3- I. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FAILED TO SENTENCE FRANKLIN WILLIAMS PURSUANT TO SENATE BILL NO. 2. II. FRANKLIN WILLIAMS WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, WHEN TRIAL COUNSEL, FAILED TO OBJECT TO HIS SENTENCE, WHICH WAS ILLEGAL. Prior to July 1, 1996, attempted robbery was an aggravated felony of the third degree, punishable by two to ten years imprisonment.However, after July 1, 1996, pursuant to Am. S.B.2, the offense of attempted robbery under R.C. 2911.02(A)(3) became a felony of the fourth degree with a sentence, pursuant to R.C. 2929.14, of 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 or 18 months. Defendant contends that his sentence of two to ten years was illegal; that since he was sentenced after the effective date of Am. S.B.2 he should have received the sentence appropriate under S.B.2; in this case, a sentence of 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 or 18 months rather than two to ten years. The disposition of this assignment of error is controlled by the following decisions issued by this Court: State v. Dempsey (Nov. 20, 1997), Cuyahoga App. No. 71479, unreported and State v. Delgado (April 9, 1998), Cuyahoga App. No. 71497, unreported (en banc). Accordingly, defendant's first assignment of error is sustained. His sentence is vacated and the case is remanded to the trial court for the limited purpose of resentencing in accordance with the penalty provisions contained in Am. S.B. 2. Defendant's second assignment of error is moot and will not be addressed. App.R. 12(A)(1)(c). -4- Sentence vacated; remanded for resentencing. -5- It is ordered that appellant recover of appellee his 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. 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. JAMES M. PORTER, PRESIDING JUDGE ANN DYKE, JUDGE KENNETH A. ROCCO, 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 of decision by the .