COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73446 & 73447 STATE OF OHIO : : ACCELERATED DOCKET PLAINTIFF-APPELLEE : : JOURNAL ENTRY vs. : : AND JAMES PENLAND : : OPINION DEFENDANT-APPELLANT : : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION: JULY 23, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-327777 & CR-338433. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: ________________________________ APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Lynn Loritts Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Paul Mancino, Jr., Esq. 75 Public Square, Suite 1016 Cleveland, Ohio 44113-2098 -2- PER CURIAM: An accelerated appeal is authorized pursuant to App.R. 11.1 and Loc.R. 25. The purpose of an accelerated docket is to allow an appellate court to render a brief and conclusory decision. Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App.3d 158; App.R. 11.1(E). For the reasons adduced below, we reverse and remand for resentencing. In the appeal sub judice, defendant-appellant James Penland, aka Omar Clark, appeals from his sentences imposed by the trial court in two criminal cases subsequent to his pleas of guilty entered on September 30, 1997. In CR-327777 (appeal no. 73446), defendant pled guilty to one count of Drug Abuse1 (knowingly obtaining, possessing or using cocaine in less than bulk amount) in violation of R.C. 2925.11(A)2. In CR-338433 (appeal no. 73447), defendant pled guilty to another count of Drug Abuse3 in violation of R.C. 2925.11(A)4. By virtue of defendant having a prior drug- 1The date of this offense was June 9, 1995. Defendant was indicted on September 11, 1995. Attorney Paul Mancino was retained as defense counsel in this case. 2Separate counts of Drug Trafficking (R.C. 2925.03) and Possession of Criminal Tools (R.C. 2923.24) were nolled as part of the plea bargain. 3The date of this offense was March 8, 1996. Defendant was indicted on May 8, 1996. The public defender was assigned at the arraignment to represent Mr. Penland in this matter, but the record indicates that the public defender never entered an appearance. In lieu of the Public Defender, attorney Mancino represented Mr. Penland. 4Separate counts of Drug Trafficking (R.C. 2925.03) and Possession of Criminal Tools (R.C. 2923.24) were nolled as part of the plea bargain. -3- abuse conviction, which was a specification in each of the offenses pled to, the offenses which he pled guilty to are elevated to third-degree felonies pursuant to former R.C. 2925.11(C)(1) (effective July 17, 1995). At the plea/sentencing hearing conducted on September 30, 1997, attorney Mancino, though retained, attempted to persuade the court to waive any fines by giving the court the defendant's affidavit (dated September 29, 1997) in which the affiant simply averred that I am indigent and unable to pay any mandatory fine pursuant to R.C. S2925.03(L). In each of these sentences, defendant was sentenced to terms of 2 to 10 years imprisonment in addition to fines of $5,000 per offense and loss of his driver's license for six months. The sentences were run concurrent to one another. Two assignments of error are presented for review. These assignments will be addressed out of the order presented. II DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS NOT SENTENCED IN ACCORDANCE WITH S1.58 OF THE OHIO REVISED CODE. In State v. Delgado (April 9, 1998), Cuyahoga App. No. 71497, unreported, this court, sitting en banc, determined that where a defendant's criminal case commenced prior to the effective date of Senate Bill 2, i.e., July 1, 1996, that defendant is entitled to be sentenced under the provisions of R.C. 1.58(B) as if that section had not been repealed. Delgado, at 12. In the case at bar, defendant gets the benefit of being sentenced under the new -4- sentencing structure as delineated in Am.Sub.S.B. No. 2, which did not occur. Accordingly, the sentence is vacated and defendant must be remanded to be resentenced by the trial court. The second assignment of error is affirmed. I DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS WHEN HE WAS FINED WHEN HE WAS INDIGENT. Having vacated the defendant's sentence in the previous assignment, this assignment is moot. App.R. 12(A)(1)(c). Judgment reversed and remanded. -5- This cause is reversed and remanded for further proceedings consistent with the opinion herein. It is ordered that appellant recover of appellee his costs herein taxed. It is ordered that a special mandate issue out of this Court directing said 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. ______________________________ ANN DYKE, P.J. ______________________________ TERRENCE O'DONNELL, J. ______________________________ JAMES D. SWEENEY, J. 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 .