[Cite as State v. Jenkins, 2015-Ohio-4583.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 102462



                                       STATE OF OHIO
                                                       PLAINTIFF-APPELLANT

                                                 vs.

                                   MICHAEL JENKINS
                                                       DEFENDANT-APPELLEE




                                              JUDGMENT:
                                               AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-585521-B

        BEFORE:           Stewart, J., Jones, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: November 5, 2015
ATTORNEYS FOR APPELLANT

Timothy J. McGinty
Cuyahoga County Prosecutor

Daniel T. Van
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113


ATTORNEY FOR APPELLEE

Patrick S. Lavelle
Van Sweringen Arcade, Suite 250
123 West Prospect Street
Cleveland, OH 44115
MELODY J. STEWART, J.:

      {¶1} A jury found defendant-appellee Michael Jenkins guilty of rape, complicity to

commit rape, and kidnapping. Although the offenses occurred in 1994 (at a time when

the sentencing law provided for indefinite sentencing), the court imposed definite

sentences under the current sentencing regime, Am.H.B. No. 86, effective September 30,

2011. The court imposed a sentence consistent with a line of decisions from this court

holding that R.C. 1.58(B) allowed defendants like Jenkins, whose crimes were committed

before the effective date of H.B. 86, to be sentenced under that statute’s sentencing

provisions because the penalties for rape under H.B. 86 had been reduced from those

penalties in effect at the time he committed his crimes (in 1994, the maximum penalty for

rape was up to 25 years; under H.B. 86, the maximum penalty is 11 years). See State v.

Jackson, 8th Dist. Cuyahoga No. 100877, 2014-Ohio-5137; State v. Girts, 8th Dist.

Cuyahoga No. 101075, 2014-Ohio-5545; State v. Steele, 8th Dist. Cuyahoga Nos. 101139

and 101140, 2014-Ohio-5431.

      {¶2} The state of Ohio appeals, arguing that the court erred by ordering a definite

term of incarceration because Jenkins should have been subject to a indefinite sentence

under the sentencing law as it existed at the time Jenkins committed his offenses. The

state candidly acknowledges that it is arguing contrary to controlling authority from this

appellate district and that it offers this assignment of error solely to preserve further

appellate review. On that basis, we summarily overrule the state’s assignment of error.

See State v. Hill, 8th Dist. Cuyahoga No. 101633, 2015-Ohio-2389, ¶ 13; State v. Bryan,
8th Dist. Cuyahoga No. 101209, 2015-Ohio-1635, ¶ 5; State v. Irby, 8th Dist. Cuyahoga

No. 102263, 2015-Ohio-2705, ¶ 5.

       {¶3} Judgment affirmed.

       It is ordered that appellee recover of said 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.



______________________________________________
MELODY J. STEWART, JUDGE

LARRY A. JONES, SR., P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
