COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73370 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-Appellee : JOURNAL ENTRY : -vs- : AND : FORREST JONES, III : OPINION : Defendant-Appellant : : PER CURIAM Date of Announcement of Decision: JULY 9, 1998 Character of Proceeding: Criminal appeal from Court of Common Pleas Case No. CR-345051 Judgment: Reversed and remanded for resentencing. Date of Journalization: Appearances: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor JAY L. MATTES, Assistant Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: SCOTT A. STEVENSON, ESQ. 460 Paige Avenue Barberton, Ohio 44203 PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 25. -2- Defendant-appellant Forest Jones, III appeals from his sentence for drug trafficking in Schedule I drugs in an amount equal to or exceeding three times the bulk amount, a felony of the first degree. Defendant contends that he should have been given a lighter sentence under Senate Bill 2 because he was sentenced after July 1, 1996, the date of enactment of Senate Bill 2. We find merit to the appeal and remand for resentencing. The defendant's acts to which he pled guilty to occurred on March 20, 1996. Under the Pre-Senate Bill 2 Law, the penalty for drug trafficking (R.C. 2925.03(A)(7)), a felony of the first degree, is imprisonment for a minimum period of 4, 5, 6 or 7 years up to 25 years, and actual incarceration of at least five years; a fine of up to $10,000 and a mandatory fine of $7,500. On May 1, 1997, defendant was sentenced under Pre-Senate Bill 2 Law to a minimum of 5 years incarceration to a maximum of 25 years. However, if the defendant had been sentenced in accordance with the new Senate Bill 2 Law, his offense would now be classified as a felony of the fourth degree with a presumption for incarceration for a definite period of 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 or 18 months. (R.C. 2929.14(A)(4)). On May 7, 1997, after defendant was sentenced, he filed a motion to advise and re-sentence according to new law requesting the court to modify his sentence so that he would be given the benefit of a sentence under Senate Bill 2. The trial court denied that motion on June 9, 1997. Defendant filed a motion for a delayed appeal to this Court which was granted on October 21, 1997. -3- Defendant's sole assignment of error states as follows: I. THE TRIAL COURT COMMITTED ERR [SIC] WHEN IT SENTENCED DEFENDANT BASED ON THE SENTENCING LAW IN EFFECT PRIOR TO JULY 1, 1996, INSTEAD OF THE NEW LAW WHICH TOOK EFFECT ON JULY 1, 1996 IN VIOLATION OF THE OHIO CONSTITUTION, REVISED CODE SECTION 1.58 AND DUE PROCESS. Defendant asserts that the trial court committed plain error in sentencing him pursuant to the criminal sentencing statutes in effect at the time of the commission of the offense rather than sentencing him pursuant to Senate Bill 2, which was in effect at the time of sentencing. Defendant's assertion is well taken. 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 sole assignment of error is sustained. The matter is reversed and remanded to the trial court for the limited purpose of resentencing in accordance with the penalty provisions contained in Senate Bill 2. -4- 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 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 .