State v. Smith, Unpublished Decision (9-15-2006)

DECISION AND JUDGMENT ENTRY ¶ 1 This is an appeal from a sentencing judgment issued in the Huron County Court of Common Pleas. ¶ 2 Appellant, Michael E. Smith, pled guilty to two counts of inducing panic at a school and a single count of attempted voyeurism following incidents wherein he called an elementary school, threatening to kidnap and rape a student. ¶ 3 Following a pre-sentence investigation, the trial court imposed maximum, consecutive sentences on the inducing panic counts (18 months each) and a concurrent 30 day sentence for attempted voyeurism. ¶ 4 From this sentence, appellant now brings this appeal, setting forth in two assignments of error assertions that the sentence was statutorily unwarranted by the facts and that the statutory scheme under which appellant was sentenced violated his Sixth Amendment right to a trial by jury. ¶ 5 Pursuant to 6th Dist.Loc.App.R. 12(C), we sua sponte transfer this matter to our accelerated docket and, hereby, render our decision. ¶ 6 On authority of State v. Foster, 109 Ohio St.3d 1,2006-Ohio-865, at paragraphs one and three of the syllabus, appellant's second assignment of error is found well-taken. Pursuant to Foster, id. at ¶ 103 et seq., appellant's sentence is vacated and the matter remanded to the trial court for resentencing. ¶ 7 Appellant's first assignment of error is moot. ¶ 8 On consideration whereof, the sentencing judgment of the Huron County Court of Common Pleas is vacated and this matter is remanded to said court for resentencing. Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Huron County. JUDGMENT VACATED. Singer, P.J., Skow, J., Parish, J., concur.