COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74693 STATE OF OHIO : : ACCELERATED DOCKET Plaintiff-Appellant : : JOURNAL ENTRY vs. : : AND RONALD L. JOHNSON : : OPINION Defendant-Appellee : : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 17, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-358440 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: STEPHANIE TUBBS-JONES, ESQ. Cuyahoga County Prosecutor RALPH A. KOLASINSKI, ESQ. Assistant Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellee: RALPH T. DEFRANCO, ESQ. 55 Public Square Suite 1450 Cleveland, Ohio 44113 PER CURIAM: This is an accelerated appeal under App.R. 11.1, which allows for our decisions to be in brief, conclusory form. Consequently, -2- this opinion will not contain a "comprehensive exposition of our reasons" for reversing the trial court's decision. See Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App.3d 158. The State of Ohio appeals the sentence imposed upon defendant- appellee Ronald Johnson after his guilty plea to three counts of rape. The State assigns the following error for our review. I. THE TRIAL COURT ERRED WHEN IT APPLIED S.B. 2, RETROACTIVELY, TO THE CRIMES OF RAPE, COMMITTED WITHIN THE TIME FRAME OF JUNE 19, 1993 TO DECEMBER 31, 1996. After reviewing the evidence and the arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. On January 21, 1998, Ronald Johnson was indicted on eighteen counts of rape. Counts one through fifteen listed the date of the offenses as June 19, 1993 to December 31, 1996. The other three counts listed the date of the offenses as June 15, 1997 to November 1, 1997 and included a sexually violent predator specification under R.C. 2971.01(I). After originally pleading not guilty to the charges, Johnson later pleaded guilty to three counts of rape after the state deleted the language regarding force and deleted the sexually violent predator specifications. In its sentencing brief filed in the trial court, the state urged the trial court to sentence Johnson under the old sentencing scheme. However, the court sentenced Johnson under Senate Bill 2 to six years in prison on each count. The court ordered the sentences to run concurrently. -3- Johnson was also found to be a sexual predator. This appeal followed. The issue raised by this appeal is whether the trial court erred in sentencing Johnson under the provisions of Senate Bill 2 for his conviction on count one of the indictment which lists the date of the offense as June 19, 1993 to December 31, 1996." In State v. Rush (1998), 83 Ohio St.3d 53, 58, the Ohio Supreme Court held that the amended sentencing provisions of Senate Bill 2 apply only to those crimes committed on or after July 1, 1996. The indictment's designation of the date of offense in count one includes dates prior to and after July 1, 1996. Though the state argues that Senate Bill 2 should not have been applied to Johnson, the state failed to produce any evidence to establish that the offense charged in count one occurred prior to July 1, 1996. Instead, the state left it to the discretion of the trial court to make a determination as to the date of the offense. Because the date of offense designation in count one included dates prior to and after July 1, 1996, the determination that the offense occurred prior to or after July 1, 1996 was within the discretion of the trial court. The trial court, in its discretion, held that the offense in count one occurred after July 1, 1996. During oral argument before this court, the state argued that its intention was to obtain an indeterminate sentence on count one of the indictment. The state did not provide this Court with a transcript of the plea hearing in this case; consequently, we are unable to ascertain whether Johnson was informed that he faced an -4- indeterminate sentence on count one. During oral argument, the state conceded that, in the future, it would be more diligent in clarifying the date of the offense when seeking to apply the old sentencing law in cases of this nature. In any event, the state's failure to demonstrate that the offense occurred prior to July 1, 1996 precludes us from finding an abuse of discretion on the part of the trial court. Judgment affirmed. -5- It is ordered that appellee recover of appellant its 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 Common Pleas Court 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. ______________________________ PATRICIA ANN BLACKMON ADMINISTRATIVE JUDGE ______________________________ DIANE KARPINSKI, JUDGE ______________________________ TIMOTHY E. McMONAGLE, 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 .