State v. Russell
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[Cite as State v. Russell, 2006-Ohio-5193.] IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY STATE OF OHIO, Plaintiff-Appellee, : : CASE NO. CA2006-02-025 : OPINION 10/2/2006 - vs : GEORGE ASBERRY RUSSELL, Defendant-Appellant. : : CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2005-06-1096 Robin N. Piper, Butler County Prosecuting Attorney, Daniel G. Eichel, Government Services Center, 315 High Street, 11th Floor, Hamilton, OH 45011-6057, for plaintiff-appellee Brian K. Harrison, 240 East State Street, Trenton, OH 45067, for defendant-appellant POWELL, P.J. {¶1} Defendant-appellant, George Asberry Russell, was convicted on one count of domestic violence, a third-degree felony, in violation of R.C. 2919.25(A), following a jury trial. The trial court, citing R.C. 2929.14(B), sentenced appellant to a two-year prison term. Appellant appeals, presenting one assignment of error that claims the trial court erred by imposing a nonminimum prison term. {¶2} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, the Ohio Supreme Court held that portions of Ohio's statutory sentencing scheme are unconstitutional. Among the Butler CA2006-02-025 statutes found unconstitutional were R.C. 2929.14(B) and 2929.19(B)(2), concerning the imposition of more than a minimum prison term. Id. at ¶83, 97-99. The Foster court severed these sections from the sentencing code and instructed that all cases pending on direct review in which the unconstitutional sentencing provisions were utilized must be remanded for resentencing. Id. at ¶104. Because the trial court utilized R.C. 2929.14(B) to impose a nonminimum sentence, we must remand this case for resentencing consistent with Foster. {¶3} Appellant's sole assignment of error is sustained. {¶4} The judgment of the trial court is reversed as to sentencing only and the case is remanded for resentencing. WALSH and BRESSLER, JJ., concur. -2- [Cite as State v. Russell, 2006-Ohio-5193.]
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