COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73023 STATE OF OHIO : : ACCELERATED DOCKET Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION SHELLY X. OLIVER : : PER CURIAM Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION JULY 9, 1998 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-336463 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: MARK MAJER (#0058504) Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: NICHOLAS K. THOMAS (#0043617) The Brownhoist Building 4403 St. Clair Avenue Cleveland, Ohio 44103-1125 PER CURIAM: Defendant-appellant Shelly X. Oliver ( appellant ) appeals from the denial of his motion to modify sentence. -2- Appellant assigns the following errors for review: I. THE TRIAL COURT DEPRIVED THE APPELLANT HIS DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENT RIGHTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 SECTION 10 OF THE OHIO CONSTITUTION. II. THE TRIAL COURT MISSTATED THE TERMS OF SENTENCING WHICH DENIED THE APPELLANT OF HIS DUE PROCESS RIGHTS UNDER THE FIFTH AMENDMENT AND THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 SECTION 10 OF THE OHIO CONSTITUTION. Finding the first assignment of error to have merit, the judgment of the trial court is reversed and remanded for re- sentencing. I. Appellant was indicted for aggravated vehicular assault (R.C. 2903.08) and driving under the influence of alcohol (R.C. 4511.19). The charges stemmed from an incident which occurred on March 3, 1996, when the vehicle driven by appellant collided with a parked car. The parked car struck a man standing next to it, severing the man's left leg. Appellant appeared before the trial court on September 30, 1996, and entered a plea of no contest to both counts of the indictment. The trial court found appellant guilty of both offenses. The trial court sentenced appellant to one and a half years for the aggravated vehicular assault charge and six months for the driving under the influence of alcohol charge. Both sentences were to be served concurrently. -3- On July 16, 1997, appellant filed a motion to modify sentence. In his motion, appellant argued that he should be sentenced in accordance with Senate Bill Two. The trial court denied appellant's motion as it found that Senate Bill Two did not provide for retroactive application. Appellant has appealed from that ruling. II. In his first assignment of error, appellant asserts the trial court deprived him of due process by not amending his sentence under the provisions of Senate Bill Two. Appellant argues Senate Bill Two is applicable to his case because he did not enter his plea until after the July 1, 1996, effective date of Senate Bill Two. R.C. 1.58(B) provides: If the penalty, forfeiture, or punishment for any offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture, or punishment, if not already imposed, shall be imposed according to the statute as amended. In State v. Delgado (April 9, 1998), Cuyahoga App. No. 71497, unreported, this court en banc applied R.C. 1.58(B) where the offense occurred prior to the effective date of Senate Bill Two but the defendant was not sentenced until after Senate Bill Two went into effect. Based on this court's ruling in Delgado, the trial court erred by not granting appellant's motion to modify sentence. The case is remanded for re-sentencing in accordance with the provisions of Senate Bill Two. Appellant's first assignment of error is well-taken. -4- III. Based on the disposition of appellant's first assignment of error, the second assignment of error is moot. Judgment reversed and remanded. This case is reversed and remanded for further proceedings consistent with this Journal Entry and Opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. 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. JAMES M. PORTER, P.J. -5- LEO M. SPELLACY, JUDGE KENNETH A. ROCCO, JUDGE N.B. This 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(B) 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 .