MOTION AND PROCEDURAL RULINGS
On review of order certifying a conflict. The court determines that a conflict exists. The parties are to brief the issue stated at page 3 of the court of appeals' Judgment Entry filed July 6, 2007:
"1. Whether a delayed appeal under Ohio Rule of Appellate Procedure 5(A) is identical to a direct appeal under Ohio Rule of Appellate Procedure 4(A) for purposes of appellate review as to whether a defendant was sentenced upon the basis of an unconstitutional statute under the guidelines of State v. Foster.
"2. Whether a defendant's sentence must be reversed on the basis of State v. Foster when: a) the defendant was sentenced prior to the announcement of State v. Foster, b) the defendant was sentenced under the statutes found to be unconstitutional in State v. Foster, c) the defendant does not pursue a direct appeal but rather files a delayed appeal; d) and raises the issues of unconstitutional sentencing on the basis of Foster for the first time on delayed appeal."
O'CONNOR, J., would certify only the second question.
O'DONNELL, J., dissents.
The conflict cases are State v. Jenkins, Clark App. No. 2006 CA 37, 2007-Ohio-1742, and State v. Corbin, Allen App. No. 1-06-23, 2006-Ohio-6092.