State v. MastersState v. Masters
STATE OF OHIO, PLAINTIFF-APPELLEE vs. WILLIAM MASTERS, DEFENDANT-APPELLANT
JUDGMENT: REVERSED AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-527719
Michael E. Stepanik
Jack W. Bradley
520 Broadway, Third Floor
Lorain, Ohio 44052
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Marc D. Bullard
Katherine Mullin
Assistant County Prosecutors
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
COLLEEN CONWAY COONEY, P.J.:
{¶ 1} Defendant-appellant, William Masters (“Masters“), appeals his sentence after pleading guilty to all charges in a multi-count indictment. We find merit to the appeal and reverse.
{¶ 2} Masters pled guilty to all charges in an indictment that charged him with 12 counts of aggravated robbery, 12 counts of kidnapping, and one count each of disrupting
Postrelease Control
{¶ 3} In his first assignment of error, Masters contends the trial court erred in failing to adequately advise him of postrelease control as required by
{¶ 4} Therefore, we sustain this assignment of error.
Allied Offenses
{¶ 6} Masters failed to object to the court‘s imposition of multiple sentences and has therefore waived all but plain error. Under
{¶ 7}
“(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
“(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.”
{¶ 8} The Ohio Supreme Court recently redefined the test for determining whether two offenses are allied offenses of similar import subject to merger under
{¶ 9} The State concedes that “unless a separate animus exists, Masters‘s convictions for kidnapping and aggravated robbery are allied offenses.” However, there are insufficient facts in the record for this court to make such a determination in the instant case. In Underwood, the supreme court explained that the trial court‘s duty to merge allied offenses “is mandatory, not discretionary.” Underwood at ¶26. Although Masters‘s sentence was imposed prior to the Johnson decision, the trial court should have inquired into the facts when accepting Masters‘s plea to all charges in order to determine whether any of the offenses were allied. The trial court‘s failure to make the necessary inquiry constitutes plain error. As the
{¶ 10} Accordingly, we sustain the second assignment of error and remand the case to the trial court for an allied-offense hearing and, if appropriate, allow the State to elect which allied offenses to pursue at resentencing. State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, paragraph one of the syllabus. And pursuant to our discussion in the first assignment of error, the proper imposition of postrelease control should also be part of resentencing.
Judgment reversed, and case remanded for further proceedings consistent with this opinion.
It is ordered that appellant recover of said appellee 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.
COLLEEN CONWAY COONEY, PRESIDING JUDGE
KENNETH A. ROCCO, J., and KATHLEEN ANN KEOUGH, J., CONCUR