[Cite as State v. Brown, 2015-Ohio-4372.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 102377




                                      STATE OF OHIO

                                                      PLAINTIFF-APPELLANT

                                                vs.

                                       KEITH BROWN

                                                            DEFENDANT-APPELLEE




                                            JUDGMENT:
                                             AFFIRMED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-13-576531-C

        BEFORE:          Jones, P.J., E.A. Gallagher, J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: October 22 2015
ATTORNEYS FOR APPELLANT

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Daniel T. Van
          Brett Hammond
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEY FOR APPELLEE

Stephen L. Miles
20800 Center Ridge Road
Suite 405
Rocky River, Ohio 44116
LARRY A. JONES, SR., P.J.:

       {¶1} Plaintiff-appellant, the state of Ohio, appeals from the trial court’s judgment

sentencing defendant-appellee, Keith Brown, under the provisions of H.B. 86 for a rape

conviction.   In its sole assignment of error, the state contends that because Brown

committed his offenses prior to July 1, 1996, “the trial court erred when it sentenced

defendant-appellee under S.B. 2 sentencing provisions effective July 1, 1996 and H.B. 86

provisions effective September 30, 2011.”

       {¶2} The state acknowledges this court’s prior precedent on this issue, but appeals

“for purposes of further appellate review or potential intra-district conflict (should the

assigned panel reach a different outcome).”        We decline to depart from our prior

precedent, overrule the state’s sole assignment of error, and affirm the trial court’s

judgment.

       {¶3} In late July and early August 1993, a young girl was raped by multiple men

over the course of several days.     The case went unsolved.       In early 2013, the Ohio

Attorney General’s Bureau of Criminal Investigation tested the rape kit and found several

DNA matches. Seven men were identified, including Brown.

       {¶4} In July 2013, Brown was charged with one count each of rape and kidnapping

and six counts of complicity to commit rape. Brown pleaded guilty to an amended

indictment of one count of rape, a felony of the first degree.   The remaining counts were
nolled.1

         {¶5} At sentencing, the trial court sentenced Brown under H.B. 86, imposing four

years in prison, notifying him of postrelease control obligations, and finding him to be a

sexually oriented offender.

         {¶6} At the time of Brown’s offense in 1993, the penalty for a first degree felony

was an indefinite term in prison of a minimum of five, six, seven, eight, nine, or ten years,

to a maximum of 25 years.             See State v. Bryan, 8th Dist. Cuyahoga No. 101209,

2015-Ohio-1635, ¶ 3. In 1996, the legislature amended the sentencing statutes with S.B.

2, making the range for a first-degree felony a definite term of anywhere from three to ten

years.       Id.   In 2011, H.B. 86 again amended the range for a first degree felony; it is now

a definite term of 3 to 11 years. Id.

         {¶7} The issue presented in this appeal is whether the trial court correctly

sentenced Brown under H.B. 86, which was in effect at the time he was sentenced, or

whether it should have sentenced him under pre-S.B. 2 law that was in effect at the time

of his offenses.

         {¶8} As the state acknowledges, this court has already decided this issue, and has

concluded that a defendant in Brown’s position should be sentenced under H.B. 86,

which was in effect at the time of his sentencing. State v. Jackson, 8th Dist. Cuyahoga

No. 100877, 2014-Ohio-5137, ¶ 29-39, discretionary appeal not accepted, 142 Ohio


         Several of Brown’s codefendants also pleaded guilty to various charges. See State v. Frost,
         1

8th Dist. Cuyahoga No. 102376; State v. Burton, 8th Dist. Cuyahoga No. 102378; State v. Towns, 8th
Dist. Cuyahoga No. 102425; and State v. Turner, Cuyahoga C.P. No. CR-13-576531-G.
St.3d 1465, 2015-Ohio-1896, 30 N.E.3d 974.

       {¶9} Thus, in accordance with this court’s precedent, we affirm the trial court’s

judgment sentencing Brown under H.B. 86.

       {¶10} The state’s sole assignment of error is overruled.

       {¶11} Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




LARRY A. JONES, SR., PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and
ANITA LASTER MAYS, J., CONCUR
