COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO.73541 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-appellee : JOURNAL ENTRY : AND -vs- : OPINION : DARIAN WOODSON : PER CURIAM : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: JULY 16, 1998 CHARACTER OF PROCEEDING: Criminal appeal from the Court of Common Pleas Case No. CR-329137 JUDGMENT: Remanded for Re-Sentencing DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES, ESQ. CUYAHOGA COUNTY PROSECUTOR BY: MICHAEL BEDNAR, ESQ. ASST. COUNTY PROSECUTOR 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: DARIAN WOODSON, PRO SE No. A333-293 Belmont Correctional Inst. P.O. Box 540 St. Clairsville, Ohio 43950 -2- PER CURIAM: Defendant Darian Woods appeals from his sentence for theft and asserts that the trial court erred in refusing to permit him to elect to be sentenced pursuant to Am. Sub. Senate Bill No. 2. For the reasons set forth below, we remand for re-sentencing. On October 23, 1995, defendant was indicted for one count of robbery with two furthermore clauses and a violence specification and one count of possessing criminal tools with a violence specification. The indictment further charged that the offenses occurred on September 5, 1995. Defendant pleaded not guilty. Thereafter, on February 14, 1996, count one was amended to charge defendant with theft. Defendant pleaded guilty to this charge, count two was dismissed, and a sentencing hearing was scheduled for March 5, 1996. The record further reveals that defendant failed to appear for the sentencing hearing and a capias was issued for his arrest. By February 1997, defendant was once again in custody and the trial court sentenced him to a term of two to ten years incarceration, in accordance with the version of R.C. 2929.12 in effect at the time the offenses occurred. On October 14, 1997, defendant filed a pro se motion in which he requested that the trial court sentence him in accordance with the provisions of Am. Sub. S. Bill 2 which became effective on July 1, 1996. The trial court denied the motion and defendant now appeals pro se, and assigns a single error for our review. Defendant's assignment of error states: -3- THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FAILED TO SENTENCE DARIAN WOODSON PURSUANT TO SENATE BILL 2. Defendant complains that the trial court erred in failing to permit him to elect to be sentenced under the provisions of Am. Sub. Senate Bill 2 which became effective on July 1, 1996. Defendant relies upon R.C. 1.58(B) which provides that if a penalty for an offense is reduced in a subsequent enactment, and the penalty has not yet been imposed, then the reduced penalty shall be imposed. The state contends that Am. Sub. Senate Bill 2 is not applicable to persons who committed crimes before July 1, 1996, regardless of when the sentence is ultimately imposed. The state further notes that the legislature enacted Am. Sub. Senate Bill 269 to preclude retrospective application of Am. Sub. Senate Bill 2. This court considered this identical issue in State v. Delgado (April 9, 1998), Cuyahoga App. No. 71497, unreported. We stated: Simply stated, Am. Sub.S.B. 269 establishes the date of the commission of an offense as determinative of which penalty to impose, while R.C. 1.58(B) establishes the date on which sentence is imposed as the determinative date. * * * Even assuming that the legislature did implicitly repeal R.C. 1.58(B), we must then consider the provisions of R.C. 1.58(A) which state in pertinent part: (A) The reenactment, amendment, or repeal of a statute does not, except as provided in division (B) of this section: *** (4) Affect any *** proceeding *** in respect of any *** penalty, forfeiture, or punishment; and the *** proceeding *** may be *** continued, *** and the penalty, forfeiture, or punishment imposed, as if the statute had not -4- been repealed or amended. (Emphasis added). * * * Clearly, the legislature has neither repealed nor attempted to repeal R.C. 1.58(A)(4). Therefore, since Delgado's case had commenced prior to the purported repeal of R.C. 1.58(B), he is entitled to its protec- tions, `as if it had not been repealed.' This reasoning has been the subject of comment in State ex rel. Maynard v. Corrigan (1998), 81 Ohio St.3d 322, where the court in its per curiam opinion considered the application of Senate Bill 2 to litigants who had been sentenced prior to July 1, 1996. There, the court noted at 333: Appellants did not specifically allege that they were sentenced after July 1, 1996. Cf. State v. Rush (July 7, 1997), Stark App. No. 96CA419, unreported. (Neither Am. Sub. S.B. No. 2 nor Am. Sub. S.B. No. 269 repealed R.C. 1.58, so R.C. 1.58 applies to persons sen- tenced after July 1, 1996 despite the language of Am. Sub.S.B.No. 269.); *** (Emphasis added). Accordingly, our conclusion is that since the legislature did not repeal R.C. 1.58(B) as mandated by the Ohio Constitution, we are required to apply it; but assuming arguendo, it has been implicitly repealed by the not- withstanding clause contained in Am. Sub. S.B. 269, by operation of R.C. 1.58 (A)(4), Delgado is entitled to be sentenced under the provisions of R.C. 1.58(B) as if that section had not been repealed. Id., unreported at 9-12. In accordance with the foregoing, the trial court erred in failing to permit defendant to elect to be sentenced pursuant to the provisions of Am. Sub. Senate Bill 2, because defendant had not yet been sentenced when Am. Sub. Senate Bill 2 went into effect. The state objects and contends that defendant invited the erroneous sentence and is now precluded from challenging it because he refused to appear for the sentencing hearing scheduled for March 5, 1996, or four months prior to the effective date of Am. Sub. -5- Senate Bill 2. Thus, according to the state, to permit defendant to be sentenced pursuant to Am. Sub. Senate Bill 2 is to reward him for failing to appear for the sentencing hearing originally scheduled in this matter. In evaluating this claim we note that the invited error doctrine prohibits a party who induces error in the trial court from taking advantage of such error on appeal. State ex rel. Fowler v. Smith (1994), 68 Ohio St.3d 357, 359; State v. Woodruff (1983), 10 Ohio App.3d 326, 327. In this matter, however, defendant's failure to appear for sentencing as originally scheduled, while condemnable, did not invite an error. To be precise, this failure resulted in a delay in the sentencing, during which Am. Sub. Senate Bill 2 became effective. In any event, we are reminded that pursuant to R.C. 1.58(B) the penalty *** if not already imposed, shall be imposed according to the statute as amended. (Emphasis added). This mandatory language precludes us from applying the invited error doctrine in a manner which would bar application of Am. Sub. Senate Bill 2 herein. The state additionally complains that defendant should not be permitted to challenge his sentence since it was entered in connection with the plea agreement in which count one was reduced and count two was dismissed. Because we have not been provided with a record exemplifying this claim, we are unable to consider it herein. State v. Roberts (1991), 66 Ohio App.3d 654, 657 (claim must be exemplified in the record). Accord Bates & Springer, Inc. v. Stallworth (1978), 56 Ohio App. 2d 223, 229. -6- In accordance with the foregoing, defendant's assignment of error is well-taken and the matter is remanded for re-sentencing in accordance with the provisions of Am. Sub. Senate Bill 2. -7- It is therefore considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to 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, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE JAMES D. SWEENEY, 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 .