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State v. Barnwell6/16/2005
JUDGMENT: SENTENCE VACATED; CASE REMANDED FOR RESENTENCING
{ } Defendant-appellant, James Barnwell ("Barnwell"), appeals his sentence and sexual predator classification. Finding some merit to the appeal, we vacate his sentence and remand for resentencing consistent with this opinion.
{ } Barnwell was charged with importuning and possession of criminal tools. The charges stemmed from Barnwell's e-mail solicitation of an undercover FBI agent, whom he believed to be a 14-year-old male, with the screen name "sk8terbren13." In a written statement given to the Federal Bureau of Investigation ("FBI"), Barnwell admitted that he met "sk8terbren13" in a chat room on the Internet in the summer of 2003. He further stated that he arranged to meet with "sk8terbren13" on September 10, 2003, with the intent of engaging in sexual activity. He planned on their "touching" each other in his car, followed by showering together. Barnwell also instructed "sk8terbren13" what clothing to wear.
{ } In March 2004, Barnwell pled guilty to importuning and possession of criminal tools, both fifth degree felonies. At his sentencing and classification hearing, the trial court imposed the maximum sentence of one year in prison on each count, ordering the terms to run consecutively, and classified Barnwell as a sexual predator.
{ } Barnwell filed the instant delayed appeal, raising four assignments of error.
Nonminimum Sentence
{ } In his first assignment of error, Barnwell contends that the trial court erred in imposing more than a minimum sentence when he had never previously served a prison term. He contends that the trial court failed to make the required findings under R.C. 2929.14(B) to depart from a minimum sentence. In the alternative, he argues that, in light of the United States Supreme Court's recent decision in Blakely v. Washington (2004), ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403, the trial court was prohibited from imposing more than the minimum sentence without his express stipulation to the findings or his consent to the judicial fact finding. We disagree.
{ } R.C. 2929.14(B)(2) requires that the trial court impose the minimum sentence on an offender who has not previously served a prison term, unless the court finds one of the following on the record: (1) "that the shortest prison term will demean the seriousness of the offender's conduct" or (2) "will not adequately protect the public from future crime by the offender or others." R.C. 2929.14(B)(2).
{ } The Ohio Supreme Court has held that, "pursuant to R.C. 2929.14(B), when imposing a nonminimum sentence on a first offender, a trial court is required to make its statutorily sanctioned findings on the record at the sentencing hearing." State v. Comer, 99 Ohio St.3d 463, 469, 2003-Ohio-4165. However, the trial court is not required to give specific reasons for its finding pursuant to R.C. 2929.14(B)(2). Id., citing State v. Edmonson, 86 Ohio St.3d 324, 1999-Ohio-110.
{ } Contrary to Barnwell's assertion, the record reveals that the trial court expressly found that "the minimum sentence would demean the seriousness of the offense and would not adequately protect the public." Thus, we find no merit to his contention that the trial court failed to make the required finding for imposing a nonminimum sentence.
{ } Further, in accordance with this court's recent decision in State v. Atkins-Boozer, Cuyahoga App. No. 84151, 2005-Ohio-2666, we find that R.C. 2929.14(B) is constitutional and does not implicate the Sixth Amendment as construed in Blakely. As we noted in Atkins-Boozer, the subjective determination of whether a minimum sentence w
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