2006 Ohio 6092 | Ohio Ct. App. | 2006
Lead Opinion
{¶ 2} On June 16, 2005, Corbin was indicted by the Allen County Grand Jury on Counts 1, 3 and 5 — trafficking in crack cocaine, in violation of R.C.
{¶ 3} On December 13, 2005, Corbin entered into a negotiated plea arrangement and pled guilty to Counts 3, 4, and 5 of the indictment, in exchange for the dismissal of Counts 1 and 2. The trial court ordered a presentence investigation. On January 23, 2006, a sentencing hearing was held. Corbin was sentenced to two years in prison for Count 3, four years in prison for Count 4, and two years in prison for Count 5, with the sentences to be served consecutively.
{¶ 4} On February 28, 2006, Corbin filed a notice of appeal. On March 13, 2006, this Court dismissed the appeal for lack of jurisdiction because the appeal was untimely and filed outside the thirty days required by App.R. 4(A). On April 6, 2006, Corbin filed a Motion for Delayed Appeal and a Notice of Appeal. On May 30, 2006, this Court granted the Motion for Delayed Appeal.
{¶ 5} In Corbin's April 6, 2006 notice of appeal, he raised the following assignments of error:
{¶ 6} Corbin's first assignment of error poses an issue concerning his felony sentencing. He alleges that his sentence is void because it is based upon statutes which have recently been found unconstitutional by the Ohio Supreme Court.
{¶ 7} The Supreme Court of Ohio recently addressed constitutional issues concerning felony sentencing in State v.Foster,
{¶ 8} Corbin asserts in his second assignment of error that the application of Foster to his case and sentence violates the ex post facto clause of the United States Constitution.
{¶ 9} This Court has recently held that violations of the ex post facto clause were not properly before the Court because the defendant was yet to be resentenced in conformity with Foster
in State v. Pitts (2006), 3rd Dist. No. 1-06-02,
{¶ 10} In this case, the issues that Corbin raises regarding the ex post facto clause are not properly before us because Corbin has yet to be re-sentenced. Thus, the second assignment of error is deemed moot.
{¶ 11} Corbin argues in his third assignment of error that the "rule of lenity" requires that a defendant receive minimum and concurrent sentences because the rule cautions against increasing the penalty imposed on a particular offender where the increase is based on nothing more than a guess as to what criminal sanction the legislature intended.
{¶ 12} The "rule of lenity" was originally a common law rule of statutory construction that has been codified in R.C.
Except as otherwise provided in division (C) or (D) of thissection, sections of the Revised Code defining offenses orpenalties shall be strictly construed against the state, andliberally construed in favor of the accused.
{¶ 13} While courts are required to strictly construe statutes defining criminal penalties against the state, the rule of lenity applies only where there is ambiguity in a statute or conflict between multiple states. United States v. Johnson
(2000),
{¶ 14} Accordingly, Corbin's first assignment of error is sustained. His second assignment of error is deemed moot and his third assignment of error is overruled. Therefore, the January 24, 2006 Judgment of conviction and sentence entered in the Court of Common Pleas of Allen County, Ohio is affirmed in part, reversed in part and pursuant to the Foster decision, the matter is remanded for resentencing.
Judgment affirmed in part, reversed in part, and remanded forresentencing. Walters, J., concurs. Rogers, J., concurs separately.
Concurrence Opinion
I concur with the result reached by the majority in this case, and the majority's reasoning on the first and second assignments of error. However, I would find that our resolution of the first and second assignments of error renders the third assignment of error moot and I would decline to address it. App.R. 12(A)(1)(c).
Walters, J., sitting by assignment in the Third AppellateDistrict.)
