2007 Ohio 589 | Ohio Ct. App. | 2007
{¶ 2} In 1999, appellant was sentenced to an aggregate term of 22 years in prison on charges of aggravated burglary, rape, and attempted burglary. The Ohio Supreme Court subsequently affirmed this court's denial of a motion for leave to file a delayed appeal. See State v.Schroyer,
{¶ 3} In June 2006, appellant filed a motion to correct an unlawful sentence, claiming he was entitled to be resentenced pursuant toState v. Foster,
{¶ 4} Assignment of Error No. 1:
{¶ 5} "THE TRIAL COURT ERRED AS A MATTER OF LAW BY CONSTRUING THE DIRECT ATTACK MADE BY APPELLANT IN HIS MOTION AS A POST-CONVICTION PETITION."
{¶ 6} Assignment of Error No. 2:
{¶ 7} "THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO GRANT THE MOTION TO CORRECT THE UNLAWFUL SENTENCE."
{¶ 8} In his first assignment of error, appellant claims the trial court erred by construing his motion as a petition for postconviction relief.
{¶ 9} Appellant's motion, filed seven years after he was sentenced, sought resentencing under Blakely v. Washington (2004),
{¶ 10} Appellant's first assignment of error is overruled.
{¶ 11} In his second assignment of error, appellant claims the trial court erred when it refused to resentence him under the provisions ofFoster. According to appellant, his sentence is unconstitutional since the trial court imposed a 22-year sentence based upon unconstitutional judicial findings of fact.
{¶ 12} Appellant was sentenced in 1999 and his direct appeal remedies were long exhausted by the time he filed his most recent motion. InFoster, the Ohio Supreme Court held that its ruling was to be applied to all cases pending on direct review and not yet final. SeeFoster,
{¶ 13} For these reasons, appellant's second assignment of error is overruled.
{¶ 14} Judgment affirmed.
YOUNG, P.J., and POWELL, J., concur.