478 N.E.2d 1014 | Ohio Ct. App. | 1984
On July 5, 1983, defendant-appellant Richard Ragland pleaded guilty in the Clark County Court of Common Pleas to aggravated murder in violation of R.C.
At sentencing, the trial court first addressed the murder charge and sentenced defendant to life in prison with eligibility for parole after twenty years, in addition to three years' actual incarceration for the firearm specification. On the fourth degree felony of aggravated assault, the court neglected to inform defendant of his right to choose to be sentenced under the law in effect at the time the offense was committed, or the law in effect at the time of sentencing, per R.C.
"* * * Persons convicted or sentenced on or after July 1, 1983, for an offense that is a felony of the third or fourth degree and that was committed on or after January 1, 1974, and before July 1, 1983, shall be notified by the court sufficiently in advanceof sentencing that they may choose to be sentenced pursuant toeither the law in effect at the time of the commission of theoffense or the law in effect at the time of sentencing. Thisnotice shall be written and shall include the differences betweenand possible effects of the alternative sentence forms and theeffect on the person's refusal to choose. The person to be sentenced shall then inform the court in writing of his choice, and shall be sentenced accordingly. Any person choosing to be sentenced pursuant to the law in effect at the time of the commission of an offense that is a felony of the third or fourth degree shall then be eligible for parole, and this person cannot at a later date have his sentence converted to a definite sentence. If the person refuses to choose between the two possible sentences, the person shall be sentenced pursuant to the law in effect at the time of the commission of the offense." (Emphasis added.) (Effective July 1, 1983.)
The court sentenced defendant under the law in effect at the time of the *222
offense, and imposed the maximum penalty allowed, an indefinite term of two to five years. Further, the court specified that the term be served consecutively with the sentence imposed for aggravated murder. The maximum penalty permissible under the law in effect at the time of sentencing was a definite term of eighteen months on the aggravated assault charge. See R.C.
After the sentence was imposed, the record discloses that no objection was made by counsel or the defendant to the failure of the court to follow the mandatory requirements of R.C.
Appellant contends the trial court committed prejudicial error by sentencing the appellant to an indeterminate term of imprisonment of two to five years on the aggravated assault charge without first providing the defendant the opportunity to elect between a definite or indeterminate form of sentencing for that charge.
The state contends the appellant waived his right to object to the trial court's failure to permit him to make an election under R.C.
The Supreme Court of Ohio in Silsby v. State (1928),
We believe R.C.
The judgment and sentence are reversed and remanded to the trial court for resentencing in compliance with law.
Judgment reversed and cause remanded.
BROGAN, P.J., WILSON and WEBER, JJ., concur. *223