COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72385, 72386 STATE OF OHIO Plaintiff-appellee JOURNAL ENTRY vs. AND NEIL R. KLOSTERMEYER OPINION Defendant-appellant DATE OF ANNOUNCEMENT OF DECISION: APRIL 23, 1998 CHARACTER OF PROCEEDINGS: Civil appeals from Common Pleas Court Cases Nos. CR-177990, CR- 194751 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. NEIL R. KLOSTERMEYER, pro se Cuyahoga County Prosecutor No. 184-438 Mansfield Correctional Inst. ARTHUR A. ELKINS, ESQ. P.O. Box 788 Assistant County Prosecutor Mansfield, Ohio 44901 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- KARPINSKI, J.: Defendant-appellant Neil Klostermeyer appeals pro se in these consolidated appeals from the denial of his petitions for post- conviction relief ( PCR Petitions ) in two separate plea-bargained convictions. Defendant seeks to vacate the sentences imposed in the two cases more than a decade ago and apply the new criminal felony sentencing statutes, which became effective on July 1, 1996. In the first case, CR-177990, defendant was indicted approximately sixteen years ago for carrying a concealed weapon and having a weapon while under disability. On January 19, 1983, he entered into a plea bargain and pled guilty to carrying a concealed weapon. The weapon disability charge was dismissed. He was thereafter sentenced to an indefinite term of one-to-ten years imprisonment and began execution of his sentence. He was apparently released on parole in January 1984, but his parole was revoked in connection with his second case. On November 23, 1984, defendant was indicted in the second case, CR-194751, for aggravated robbery and felonious assault with accompanying specifications. On April 9, 1985, he again entered into a plea bargain and pled guilty to aggravated robbery with a violence specification. The felonious assault charge was dismissed. Defendant was thereafter sentenced to an indefinite term of eight-to-fifteen years imprisonment. Revised Code 2929.41(B)(3) required the sentence in the second case to be served consecutive to the indefinite sentence in the first case. -3- Defendant s onvictions. In 1996, apdid not file direct appeals from either of hic defendant's convictions, the Ohio General Assembly adopted a new criminal felony sentencing scheme. The new felony sentencing statutes were expressly made effective for offenses committed on or after July 1, 1996. On July 8, 1996, defendant filed PCR Petitions seeking to vacate and modify his sentences. He subsequently amended his PCR Petitions to discuss additional case authority. His PCR Petitions as amended simply relied on matters of record and were not supported by evidence. Defendant argued that the failure to make the new statutory sentencing scheme retroactive violated equal protection and substantive due process of law. The trial court in each case denied defendant's PCR Petition and filed findings of fact and conclusions of law. Defendant pro se timely appealed. This court consolidated the two appeals for hearing and disposition. During the course of these appeals, defendant filed a motion for summary judgment requesting judgment in his favor on appeal because the prosecution did not timely file its appellee's briefs. A motion panel of this court referred the motion for summary judgment to the merit panel and granted the prosecution leave to file its appellee's briefs.1 Defendant has not articulated any assignment of error as required by App.R. 16, but argues generally that failure to apply 1 We deny defendant's motion for summary judgment. Civ.R. 56, governing summary judgment, does not apply to appeals in appellate courts seeking review of trial court judgments. Civ.R. 1(C)(1). -4- the new statutory felony criminal sentencing provisions to modify his sentence denies him equal protection and substantive due process of law. The Ohio Supreme Court expressly rejected this argument, however, in State ex rel. Lemon v. Ohio Adult Parole Authority (1997), 78 Ohio St.3d 186, stating as follows: *** contrary to appellants' contentions on appeal, the refusal of the General Assembly to retroactively apply the differing provisions of Am.Sub.S.B. No. 2 to persons convicted and sentenced before July 1, 1996 did not violate their rights to equal protection and due process under the Fourteenth Amendment to the United States Constitution. Id. at 188. This court expressly rejected the same retroactivity arguments defendant discussed in his amendments to his PCR Petitions. State v. Edwards (May 22, 1997), Cuyahoga App. No. 71598, unreported (discussing Teague v. Lane (1989), 489 U.S. 288). Under these circumstances, defendant's PCR Petitions did not state a claim for relief. See also State v. Abelt (Feb. 27, 1997), Cuyahoga App. No. 71361, unreported. Accordingly, defendant's argument is overruled. Judgments 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. O'DONNELL, P.J., and McMONAGLE, J., CONCUR. DIANE KARPINSKI 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 .