COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 74796, 74797 STATE OF OHIO, Plaintiff-appellee JOURNAL ENTRY vs. AND RAYMOND R. ABELT, OPINION Defendant-appellant DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 16, 1999 CHARACTER OF PROCEEDING: Civil appeals from Common Pleas Court, Case Nos. CR-261997 and CR-261228. JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: WILLIAM D. MASON Cuyahoga County Prosecutor L. CHRISTOPHER FREY Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: RAYMOND R. ABELT, pro se No. A234-628 G.C.I. 2500 South Avon-Belden Road Grafton, Ohio 44044-9803 -2- KARPINSKI, P.J.: On June 12, 1991, defendant-appellant Raymond Abelt entered guilty pleas to two counts of rape, R.C. 2907.02. Abelt was sentenced on July 5, 1991 to a term of five years to twenty-five years on each count, with the sentences ordered to run concurrently. On or about September 18, 1996, Abelt filed a petition to vacate and/or set aside his sentence pursuant to R.C. 2953.21(A). After further pleading, the court denied Abelt's petition on June 2, 1998 with findings of fact and conclusions of law. Abelt's appeal presents two assignments of error1 and contends that the trial court wrongly denied him post-conviction relief by refusing to apply Am.Sub.S.B. 2 to his case. We disagree. Section 5 of Am.Sub.S.B. No. 2 states: The provisions of the Revised Code in existence prior to July 1, 1996, shall apply to a person upon whom a court imposed a term of imprisonment prior to that date ***. By its express terms, Am.Sub.S.B. No. 2 does not apply to persons convicted and sentenced prior to July 1, 1996. State ex rel. Smith v. Sage (1998), 83 Ohio St.3d 209; State ex rel. Maynard v. Corrigan (1998), 81 Ohio St.3d 332. The refusal of the General Assembly to retroactively apply the sentencing provisions of Am.Sub.S.B. No. 2 to persons, like Abelt, who were convicted and sentenced before July 1, 1996 does not violate the rights to equal protection or due process of law under 1Abelt's assignments of error are reproduced in the Appendix. -3- the Fourteenth Amendment to the United States Constitution. State ex rel. Maynard v. Corrigan, supra; State ex rel. Lemmon v. Ohio Adult Parole Auth. (1997), 78 Ohio St.3d 186. Declining to apply this new sentencing scheme to relieve Abelt from the lawful sentence previously imposed on him under the former sentencing law likewise does not offend the constitutional proscriptions against cruel and unusual punishment, bills of attainder, or ex post facto legislation. See State v. Woodman (1997), 122 Ohio App.3d 774. Abelt refers to other statutory amendments, but they do not affect his conviction or sentence, so his reliance on State v. Wilson(1997), 77 Ohio St.3d 334, is misplaced. Moreover, he would not benefit from subsequent legislative changes because R.C. 1.58(B) provides: If the penalty, forfeiture, or punishment for any offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture, or punishment, if not already imposed, shall be imposed according to the statute as amended. (Emphasis added.) Because Abelt's sentence was imposed prior to July 1, 1996, R.C. 1.58(B) does not benefit him. See State ex rel. Maynard v. Corrigan, supra. The trial court correctly denied Abelt's petition to vacate and/or set aside his sentence pursuant to R.C. 2953.21(A). See State v. Reeder (July 9, 1998), Cuyahoga App. No. 73024, unreported; State v. Klostermeyer (Apr. 23, 1998), Cuyahoga App. Nos. 72385/72386, unreported; State v. Abelt (Feb. 27, 1997), Cuyahoga App. No. 71361, unreported. Abelt's assignments of error are overruled, and the judgment is 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 Common Pleas 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. JOHN T. PATTON, J., and MICHAEL J. CORRIGAN, J., CONCUR. DIANE KARPINSKI PRESIDING 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. 22. 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). -5- Appendix I. IT WAS ERROR FOR THE CUYAHOGA COURT OF COMMON PLEAS NOT TO VACATE OR SET ASIDE SENTENCE PURSUANT TO O.R.C. S 2953.21(A), CONTRARY OHIO CONSTITUTION, ARTICLE I, SECTIONS, 2, 5, 6, 9, 10, 11, 12, 14, 16, 19, 20, ARTICLE II, SECTIONS, 15(D), S26, S28, CONTRARY TO THE UNITED STATES CONSTITUTION, ARTICLE I, SECTIONS, 9, CL. 3, 10, CL. 1, AMENDS. 1, 4, 5, 6, 7, 8, 9, 2, 10, 11, 13, 14, 21, ART. VI, CL. 2, ART. VI, CL. 3. II. IT WAS ERROR FOR THE CUYAHOGA COURT OF COMMON PLEAS NOT TO VACATE CONVICTION AND SENTENCE PURSUANT TO O.R.C. S 2953.21(A), CONTRARY OHIO CONSTITUTION, ARTICLE I, SECTIONS 2, 5, 6, 9, 10, 11, 12, 14, 16, 19, 20, ARTICLE II, SECTIONS 15(D), S26, 28, CONTRARY TO THE UNITED STATES CONSTITUTION, ARTICLE I, SECTIONS 9, CL. 3, 10, CL. 1, AMENDS. 1, 4, 5, .