COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 72962/72963/72964 STATE OF OHIO : ACCELERATED CASE : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION RONALD McBRIDE : : PER CURIAM Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : JULY 9, 1998 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case Nos. CR-346,340, 340674 : and CR-335,614 JUDGMENT : REMANDED FOR RE-SENTENCING. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor GINA VILLA, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JOHN P. PARKER Attorney at Law 4403 St. Clair Avenue Cleveland, Ohio 44103 PER CURIAM: -2- This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the records from the Cuyahoga County Court of Common Pleas, and the briefs of counsel. In this delayed appeal, defendant-appellant Ronald McBride appeals from sentences imposed upon him in three separate cases. Appellant first contends the trial court committed error in failing to sentence him pursuant to the new law commonly referred to as Senate Bill 2 in two of the cases. Appellant also contends the trial court failed to adequately explain its reasons for imposing the maximum sentence in the remaining case. This court has reviewed the record, determines the trial court's actions were improper and, therefore, remands appellant's cases for re-sentencing in accordance with this opinion. The record reflects appellant was indicted in App. No. 729621 for possession of heroin in violation of R.C. 2925.11. The date of the offense was stated on the indictment as October 22, 1996 ; thus, the offense was committed after the effective date of Senate Bill 2. Appellant was indicted in App. No. 729632 for grand theft in violation of R.C. 2913.02. The date of the offense was stated on the indictment as April 3, 1996 ; thus, the offense was committed prior to the effective date of Senate Bill 2. Therefore, in order to enhance the possible penalty, the indictment also contained two 1The trial court case number was CR-346,340. 2The trial court case number was CR-340,674. -3- furthermore clauses and a violence specification for three prior convictions. Appellant was indicted in App. No. 729643 for possession of heroin in violation of R.C. 2925.11. The date of the offense was stated on the indictment as December 29, 1995 ; thus, the offense was committed prior to the effective date of Senate Bill 2. Therefore, in order to enhance the possible penalty, the indictment also contained a furthermore clause and a violence specification for two prior convictions. Following several pretrials in appellant's cases, a plea agreement was arranged whereby the state would amend the indict- ments in App. Nos. 72963 and 72964 to remove the violence specifi- cations in exchange for appellant's plea of guilty to both the amended indictments in those cases and the original indictment in App. No. 72962. On January 17, 1997, the trial court held a plea hearing. In addressing appellant pursuant to Crim.R. 11(C), it advised appellant, with the concurrence of appellant's counsel, that in App. Nos. 72963 and 72964, appellant was subject to the potential punishments in effect prior to Senate Bill 2. Following the trial court's colloquy with appellant, the trial court accepted appellant's guilty pleas in all three cases. It then ordered a pre-sentence investigation and report. Thereafter, on February 7, 1997, the trial court imposed sentence upon appellant. In App. No. 72962, appellant received a 3The trial court case number was CR-335,614. -4- term of incarceration of one year, with the notation it was a Senate Bill 2 case. In both App. Nos. 72963 and 72964, appellant received terms of incarceration of two years. The trial court further ordered the terms in all three cases to be served concur- rently. Three days later, however, the trial court issued an order vacating appellant's sentences. On February 12, 1997, the trial court re-sentenced appellant to consecutive terms of incarceration on the three cases, stating the following as its reason: [On February 7, 1997,] I was shortly thereaf- ter, as you were leaving the courtroom, was notified by Deputy Robert Urban that you had attempted to pass something to your co-defen- dant. Subsequently, that was confiscated and shown to the Court. I had it tested through the Sheriff's Department. It came back posi- tive for marijuana. Subsequently, this court granted appellant's motion for a delayed appeal of his sentences. In the first of the two assignments of error appellant presents for this court's review, appellant argues the trial court committed plain error in sentencing him in App. Nos. 72963 and 72964 pursuant to the criminal sentencing statutes in effect at the time of the commission of the offenses rather than sentencing him pursuant to Senate Bill 2, which was in effect at the time of sentencing. 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. -5- Delgado (Apr. 9, 1998), Cuyahoga App. No. 71497, unreported (en banc). Accordingly, appellant's first assignment of error is sustained. Appellant further argues, in his second assignment of error, that the trial court failed to comply with statutory requirements prior to imposing the maximum sentence in App. No. 72962. In view of this court's disposition of appellant's first assignment of error, this assignment of error may be considered moot. App.R. 12(A)(1)(c). Nevertheless, in order to provide gui- dance for appellant's re-sentencing, the trial court is reminded of this court's decision in State v. Banks (Nov. 27, 1997), Cuyahoga App. No. 72121, unreported; see, also, State v. Garcia (Mar. 2, 1998), Clermont App. No. CA97-04-042, unreported. Without explicit findings in the record as required by R.C. 2929.12(B) and R.C. 2929.14(C), a trial court's imposition of the maximum penalty is unsupported. R.C. 2953.08(G)(1). Cf., State v. Assad and Abdelhady (June 11, 1998), Cuyahoga App. Nos. 72648 and 72649, unreported. Accordingly, this cause is remanded for further proceedings consistent with this opinion. -6- This cause is remanded for re-sentencing and for further proceedings consistent with this opinion. 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 Cuyahoga County 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. __________________________________ JAMES M. PORTER, PRESIDING JUDGE __________________________________ LEO M. SPELLACY, 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 .