COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74760 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-Appellee : JOURNAL ENTRY : -VS- : AND : JOHN FOSTER : OPINION : Defendant-Appellant : PER CURIAM Date of Announcement of Decision: DECEMBER 10, 1998 Character of Proceeding: Criminal appeal from Court of Common Pleas Case No. CR-214747 Judgment: AFFIRMED Date of Journalization: Appearances: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor LISA REITZ WILLIAMSON, Asst. Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JOHN FOSTER, PRO SE Inmate No. 195-993 Lima Correctional Institute P.O. Box 4571 Lima, Ohio 45802 -2- PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 25. Defendant-appellant John Foster, appearing Pro Se, appeals from the trial court's denial of his request for termination of imprisonment (R.C. 5145.02) arising from his convictions and sentencing on two counts of rape in 1987. Defendant contends that he has served eleven years of a ten to twenty-five year sentence and the trial court abused its discretion in denying his request. We find no merit to the appeal and affirm. Defendant Foster was charged in a two-count indictment for rape (R.C. 2907.02) with violence specifications. After a trial by jury, he was convicted and sentenced to ten to twenty-five years on each count, to run concurrently. His convictions were affirmed on appeal by this Court. See State v. Foster (Aug. 4, 1988), Cuyahoga App. No. 53711, unreported. Defendant filed a motion with the trial court on May 28, 1998, requesting that he be released from prison under R.C. 5145.01 et seq. The trial court denied the motion and this appeal ensued. Defendant's sole assignment of error states as follows: -3- I. THE COURT OF COMMON PLEA [SIC] ABUSED ITS DISCRETION, WHEN ERR [ORED] AND DENIED THE APPELLANT REQUEST FOR TERMINATION OF IMPRISONMENT. According to defendant's brief herein, he based his motion on R.C. 5145.01 and R.C. 5145.02. R.C. 5145.02 addresses the TERMINATION OF SENTENCE. R.C. 5145.02 was repealed as of July 1, 1996, according to Senate Bill 2. Defendant filed his motion pursuant to the statute on May 28, 1998. This was well after the statute was repealed. Even if the statute applied, the Ohio Supreme Court has held that R.C. 5145.01 and R.C. 5145.02 create no legal duty on the part of the parole authority to release a prisoner before he has served the maximum term provided in his sentence. State ex rel. Lanham v. Ohio Adult Parole Auth. (1997), 80 Ohio St.3d 425, 427. The newly enacted R.C. 5145.01, Duration of Sentences, provides in pertinent part: All prison terms may be ended in the manner provided by law, but no prison term shall exceed the maximum term provided for the felony of which the prisoner was convicted ***. Defendant has served a little more than eleven years of two concurrent sentences of from ten to twenty-five years. He has not been held beyond the maximum term of his sentence. We find that the trial court did not abuse its discretion in denying defendant's motion. The appeal is without merit and is denied. Defendant's sole assignment of error is overruled. Judgment affirmed. -4- 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 Court of Common Pleas 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. JAMES M. PORTER, PRESIDING JUDGE ANN DYKE, JUDGE LEO M. SPELLACY, 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 .