Opinion
Nos. L-08-1258, L-08-1259.
Decided: December 31, 2009.
Trial Court Nos. CR05-1209, CR04-3093.
Julia R. Bates, Lucas County Prosecuting Attorney, and Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.
Dan M. Weiss, for appellant.
DECISION AND JUDGMENT
{¶ 1} This case is before the court on appeal from the judgment of the Lucas County Court of Common Pleas which resentenced appellant, Verdell Starks, on November 30, 2007, in conformity with State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, following a remand from this court issued on September 21, 2007, State v. Starks, 6th Dist. No. L-05-1419, 2007-Ohio-4897. Appellant presents the following sole assignment of error on appeal:
The judgment entry of sentence was journalized on December 4, 2007.
{¶ 2} "The trial court's sentence violated the ex post facto clause of the United States Constitution and thereby appellant's Sixth Amendment rights."
{¶ 3} Appellant failed to raise his arguments at sentencing. As such, all the issues raised on appeal are waived, absent plain error. State v. Boles, 6th Dist. No. L-07-1064, 2007-Ohio-6880, ¶ 8, citing State v. Ferreira, 6th Dist. No. L-06-1282, 2007-Ohio-4902, ¶ 10. In State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, paragraph one of the syllabus, the Ohio Supreme Court held that "Resentencing pursuant to State v. Foster * * * for offenses that occurred prior to February 27, 2006, does not violate the Sixth Amendment right to a jury trial or the Ex Post Facto or Due Process Clauses of the United States Constitution." Accordingly, we find appellant's sole assignment of error not well-taken.
{¶ 4} Having found that the trial court did not commit error prejudicial to appellant, the judgment of the Lucas Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App. R. 24.
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to App. R. 27. See, also, 6th Dist. Loc. App. R. 4.
Peter M. Handwork, P.J., Mark L. Pietrykowski, J., Charles D. Abood, J., CONCUR.