State v. Perry, 2013 Ohio 5803

Perry was convicted of multiple burglary offenses and possessing weapons; the indictment charged engaging in a pattern of corrupt activity as a first-degree felony but the verdict forms did not specify degree or aggravating elements.
The jury verdict forms for the pattern-of-corrupt-activity charge were silent on degree and aggravating factors.
The trial court sentenced Perry for a first-degree felony, contrary to the verdict forms.
On reopening, the court reviewed whether the error required remand for a second-degree conviction.
The State conceded Perry was incorrectly convicted of a first-degree felony and asked remand for resentencing on a second-degree conviction.
The court remanded to enter a second-degree conviction for engaging in a pattern of corrupt activity and resentence accordingly, overruling the first-degree conviction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether conviction for first-degree engaging in a pattern of corrupt activity was improper	Perry’s first-degree conviction violated R.C. 2945.75(A)(2)	N/A	Remanded to correct degree to second degree
Whether appellate counsel's failure to raise the error was ineffective	Perry argues ineffective assistance for not raising the issue earlier	State contends moot after remand and is not necessary to decide	Moot in light of remand for second-degree conviction

State v. Pelfrey, 112 Ohio St.3d 422 (2007-Ohio-256) (limits on sentencing when verdicts do not specify degree or aggravating factors)
State v. Eafford, 132 Ohio St.3d 159 (2012-Ohio-2224) (verdict form referencing indictment can affect degree under certain conditions)
State v. Sowers, 2013-Ohio-3265 (4th Dist. Gallia No. 06CA13) ( Fourth District followed Eafford regarding indictment references and aggravating elements)
State v. Garduno, 11th Dist. Portage No. 2012-P-0139 (2013-Ohio-4300) (applies de novo review to sentencing/degree issues under Pelfrey)