{¶ 2} February 11, 2005, Mr. Nicholson was involved in an automobile accident. By an indictment filed June 22, 2005, the Lake County Grand Jury indicted Mr. Nicholson for operating a vehicle while under the influence of alcohol or drugs, a third *Page 2 degree felony in violation of R.C. 4511.19(A)(1)(a), with a DWI specification pursuant to R.C. 2941.1413. August 3, 2005, Mr. Nicholson withdrew a former "not guilty" plea, and entered a written plea of guilty to both the count and the specification. Following hearing, the trial court sentenced him to consecutive terms totaling six years.
{¶ 3} Mr. Nicholson timely noticed an appeal of his sentences. Cf.State v. Nicholson, 11th Dist. No. 2005-L-199, 2006-Ohio-3889, at ¶ 1. Pursuant to the mandate of the Supreme Court of Ohio in State v.Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, we vacated Mr. Nicholson's sentences, and remanded for resentencing. Id. at ¶ 4-8.
{¶ 4} The trial court held resentencing hearing October 28, 2006. By a judgment entry filed September 1, 2006, it re-imposed its prior sentences: three years (less time served) for the violation of R.C.4511.19(A)(1)(a); and three years for the DWI specification, to be served prior to and consecutive to the felony sentence. Mr. Nicholson again timely appealed, making five assignments of error:
{¶ 5} "[1.] The trial court erred when it sentenced the defendant-appellant to more-than-the-minimum prison terms in violation of the due process and ex post facto clauses of the Ohio and United States Constitutions.
{¶ 6} "[2.] The trial court erred when it sentenced the defendant-appellant to more-than-the-minimum prison terms in violation of defendant-appellant's right to due process.
{¶ 7} "[3.] The trial court erred when it sentenced the defendant-appellant to more-than-the-minimum prison terms based on the Ohio Supreme Court's severance of the offending provisions underFoster, which was an act in violation of the principle of separation of powers. *Page 3
{¶ 8} "[4.] The trial court erred when it sentenced the defendant-appellant to more-than-the-minimum prison terms contrary to the Rule of Lenity.
{¶ 9} "[5.] The trial court erred when it sentenced the defendant-appellant to more-than-the-minimum prison terms contrary to the intent of the Ohio legislators."
{¶ 10} Mr. Nicholson's assignments of error substantially track those presented by the appellant in our recent decision in State v.Elswick, 11th Dist. No. 2006-L-075, 2006-Ohio-7011, and fail for the same reasons. Id. at ¶ 10-56. See, also, State v. Ashley, 11th Dist. No. 2006-L-134, 2007-Ohio-690, at ¶ 20, 26.
{¶ 11} The assignments of error are without merit. The judgment of the Lake County Court of Common Pleas is affirmed.
WILLIAM M. O'NEILL, J., concurs,
*Page 1DIANE V. GRENDELL, J., concurs in judgment only.