Ohio Appellate Reports

Unpublished

STATE v. WATKINS, Unpublished Decision (11-27-2006)
2006-Ohio-6199 State of Ohio Plaintiff-Appellee v. Demos M.
Watkins Defendant-Appellant. No. 1-06-54. Court of Appeals
of Ohio, Third District, Allen County. DATE OF JUDGMENT
ENTRY: November 27, 2006.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Criminal Appeal from Common Pleas Court.

Judgment affirmed.

Kenneth J. Rexford, Attorney at Law, Reg. #0064500, 112
North West Street, Lima, OH 45801, For Appellant.

Jana E. Emerick, Assistant Prosecuting Attorney, Reg.
#0059550, 204 North Main Street, Lima, OH 45801, For
Appellee.

OPINION

WALTERS, J.

{¶ 1} Appellant, Demos M. Watkins, appeals a
judgment of the Allen County Common Pleas Court sentencing
him to six years in prison. Watkins asserts that his
resentencing, pursuant to the mandate in State v. Foster,
109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, was
improper because it retroactively applied sentencing laws
in violation of his right to be free from ex post facto
laws. For the reasons articulated by this court in State v.
McGhee, 3rd Dist. No. 17-06-05, 2006-Ohio-5162, we affirm
the judgment of the trial court.

{¶ 2} On November 26, 2003, Watkins entered a plea
of guilty to two counts of trafficking in cocaine, felonies
of the second degree, in violation of R.C. 2925.03(A),
(C)(4)(e). On January 20, 2004, a sentencing hearing was
conducted, at which time, Watkins was sentenced to three
years in prison on each count, to be served consecutively.

{¶ 3} Thereafter, Watkins filed a direct appeal of
his sentence. Ultimately the Supreme Court of Ohio reversed
his sentence and remanded the matter to the trial court
for resentencing pursuant to its decision in Foster.

{¶ 4} On June 26, 2006, a new sentencing hearing was
held whereat the trial court sentenced Watkins to the
identical six-year sentence as previously imposed. From
this sentence, Watkins takes the instant appeal, setting
forth a single assignment of error:

The sentence imposed on remand was imposed pursuant to a
judicially created version of Ohio sentencing laws that,
applied retroactively to Mr. Watkins, violated his right to
freedom from ex post facto laws.

{¶ 5} Watkins argues that the application of Foster
to his sentence violates the ex post facto clause of the
United States Constitution and that his due process rights
are violated because the effect of Foster is to create an
ex post facto law. He contends that the retroactive
application of Foster increases the penalty for his offense
that was committed prior to the decision in Foster. Watkins
also argues that pursuant to Bouie v. Columbia (1964), 378
U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894, the application of
Foster has unconstitutionally deprived him of his right to
fair warning of a criminal prohibition.

{¶ 6} However, for the reasons articulated by this
court in McGhee, we find no merit in Watkins’ arguments
that his sentence violates due process rights. Watkins
entered his plea of guilty on November 26, 2003. He was
sentenced to a six-year term of incarceration on January
20, 2004. He filed an appeal with this court, and we
affirmed the trial court’s judgment and sentence. Watkins
then filed an appeal with the Supreme Court of Ohio. The
Supreme Court announced its decision in Foster on February
27, 2006, and thereafter reversed the judgment of this
court and remanded the case to the trial court for
resentencing.

{¶ 7} On June 26, 2006, the trial court resentenced
Watkins to the same six years imprisonment as before. We
note as to this case, that the offense occurred subsequent
to the United States Supreme Court’s holding in Apprendi v.
New Jersey (2000), 530 U.S. 466, 490, 120 S.Ct. 2348, 147
L.Ed.2d 435, which provided notice that a major shift in
sentencing was likely to occur. This supports our
conclusion in McGhee that the remedy announced in Foster
does not violate due process. Likewise, the sentencing
range for Watkins’ felonies has remained unchanged, so he
had notice of the potential sentence for his offenses.
Therefore, we find Watkins’ assignment of error without
merit and overrule the same.

{¶ 8} For the foregoing reasons, the judgment of the
Allen County Common Pleas Court is hereby affirmed.

Judgment Affirmed

ROGERS and SHAW, JJ., concur.

(Walters, J., sitting by assignment in the Third Appellate
District.)