State v. PittsState v. Pitts
{¶ 1} The defendant-appellant, Bernard Pitts (“Pitts“), appeals the judgment of the Allen County Common Pleas Court sentencing him to an aggregate prison term of five years.
{¶ 2} On November 12, 2004, the Allen County Grand Jury indicted Pitts on four counts of trafficking in cocaine, violations of R.C.
{¶ 3} On April 11, 2005, the trial court held a sentencing hearing and filed its sentencing judgment entry. The trial court sentenced Pitts to serve a mandatory two year prison term on count one, a mandatory two year prison term on count two, and a twelve month prison term on count five. The trial court ordered the prison terms to be served consecutively for an aggregate sentence of five years. Pitts appealed his sentence, and pursuant to State v. Trubee, 3rd Dist. No. 09-03-65, 2005-Ohio-552, we affirmed in part and reversed in part the trial court‘s judgment entry. See State v. Pitts, 3rd Dist. No. 01-05-33, 2005-Ohio-5896. The cause was remanded to the trial court for further proceedings. Id.
{¶ 4} On December 15, 2005, the trial court conducted a re-sentencing hearing and filed its judgment entry of re-sentencing. At that time, the trial court imposed a two year prison term on count one, a two year prison term on count two, and a 12 month prison term on count five. The trial court ordered all prison terms to be served consecutively for an aggregate sentence of five years in prison. Pitts appeals and asserts the following assignment of error:
Sentencing in this case violated the Apprendi doctrine as explained in Blakely v. Washington and was therefore unconstitutional.
{¶ 5} In the sole assignment of error, Pitts contends the trial court erred by sentencing him to non-minimum and consecutive sentences. The basis of this argument is without specific findings made by the jury or admissions made by the defendant, imposing a sentence greater than the statutory minimum violates the holding in Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403. In this case, the trial court imposed a sentence greater than the lowest possible sentence under R.C.
{¶ 6} Because the Supreme Court found 2929.14(B)(2) and (E)(4) unconstitutional, it determined that the sentences imposed in pending cases and those cases on direct appeal are void and must be remanded to the trial courts. Id. at ¶¶ 103-104. Because Pitts’ case was on direct appeal at the time Foster was decided, we are required to vacate the sentence and remand this cause to the trial court for additional proceedings. The sole assignment of error is sustained.
{¶ 7} Pitts also argues that remanding the case to the trial court would violate his due process rights because the effect of Foster is to create an ex post facto law. Pitts argues, under Bouie v. Columbia (1964), 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894, the test is “whether the late action of the judiciary was unforeseeable at the time of the commission of the offense.” Pitts contends that the Foster decision did not create a new sentencing procedure, but merely erased a presumption that was beneficial to the defendant, which was a remedy not anticipated. However, these issues are not properly before us because Pitts has yet to be sentenced, so the argument is not well-taken.
{¶ 8} The sentence of the Allen County Common Pleas Court is vacated, and this cause is remanded for further proceedings.
Judgment vacated and cause remanded.
Shaw and Cupp, JJ., c