State v. MastersonState v. Masterson
Gregory T. Stralka, 600-30 Crown Centre, 5005 Rockside Road, Cleveland, OH 44131 (For Defendant-Appellant).
O P I N I O N
TIMOTHY P. CANNON, J.
{¶1} Appellant, Daniel T. Masterson, appeals the judgment entered by the Portage County Court of Common Pleas. Masterson received an aggregate prison sentence of five years for his convictions for aggravated vehicular assault and operating a vehicle while intoxicated (“OVI”).
{¶2} On July 12, 2008, Masterson was operating an SUV on State Route 5 in Portage County, Ohio. Masterson went left of the centerline and into the path of several oncoming motorcycles. Masterson’s SUV struck two of the oncoming motorcycles. A
{¶3} An 11-count indictment was issued against Masterson, charging him with five counts of aggravated vehicular assault, in violation of
{¶4} A change of plea hearing was held, and Masterson pled guilty to five counts of aggravated vehicular assault and one count of OVI. Upon request of the state, the remaining charges were dismissed.
{¶5} The trial court referred the matter for a presentence investigation (“PSI”). The PSI report and letters in support of mitigation of sentence were submitted for the trial court’s consideration.
{¶6} The trial court sentenced Masterson to five-year prison terms for his convictions for aggravated vehicular assault and a three-day term for his OVI conviction. The trial court ordered these prison terms to be served concurrently, resulting in an aggregate five-year prison sentence. In addition, the trial court indicated that Masterson would be subject to a five-year period of postrelease control following his release from prison.
{¶7} Masterson timely appealed the trial court’s judgment entry of sentence and advances the following assignment of error for our consideration:
{¶9} Masterson challenges the trial court’s imposition of five-year prison terms for his third-degree felony, aggravated vehicular homicide convictions. He does not challenge the sentence he received for his OVI conviction.
{¶10} The Supreme Court of Ohio, in a plurality opinion, has held that felony sentences are to be reviewed under a two-step process. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, at ¶26. The Kalish Court held:
{¶11} “First, [appellate courts] must examine the sentencing court’s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court’s decision in imposing the term of imprisonment is reviewed under the abuse-of-discretion standard.” Id.
{¶12}
{¶13} The record supports the inference that the trial court properly considered the factors in
{¶14} In this matter, the trial court stated, “five people were seriously hurt in this case, the Court has to take that into consideration.” Pursuant to
{¶15} In addition, in regard to the recidivism factors, we note that
{¶17} Masterson argues, pursuant to
{¶18} Masterson contends he showed remorse for his conduct. We note that while remorse is a relevant factor pursuant to
{¶19} We conclude Masterson’s sentence is not contrary to law.
{¶20} Masterson claims the trial court abused its discretion for imposing the maximum prison term.
{¶21} After the State v. Foster decision, “[t]rial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences.” State v. Foster, 2006-Ohio-856, at paragraph seven of the syllabus.
{¶22} We have concluded that the trial court’s imposition of sentence was not contrary to law; now we review this assigned error under the abuse of discretion
{¶23} Masterson’s five-year sentences are within the statutory range for a third-degree felony, pursuant to
{¶24} We note the trial court could have ordered the prison terms to be served consecutively, for an aggregate prison term of 25 years. Thus, while Masterson objects to the trial court’s imposition of maximum, concurrent sentences of five years, the trial court could have imposed a much longer aggregate sentence.
{¶25} For the reasons set forth above, including the trial court’s specific finding relating to the victim’s injuries, we conclude the trial court did not abuse its discretion by imposing an aggregate five-year prison term.
{¶26} Masterson’s assignment of error is without merit.
{¶27} In its brief, the state notes that the trial court improperly imposed postrelease control. The trial court imposed a five-year term of postrelease control. Pursuant to
{¶28} The Supreme Court of Ohio has held, “[f]or criminal sentences imposed on and after July 11, 2006, in which a trial court failed to properly impose postrelease
{¶29} Accordingly, pursuant to the directive from the Supreme Court of Ohio, we remand this matter to the trial court to correct its imposition of postrelease control.
{¶30} The judgment of the trial court in relation to Masterson’s underlying prison sentence is affirmed. The trial court’s judgment entry pertaining to postrelease control is reversed. Pursuant to
CYNTHIA WESTCOTT RICE, J., concurs,
COLLEEN MARY O’TOOLE, J., concurs in part, and dissents in part, with Concurring/Dissenting Opinion.
COLLEEN MARY O’TOOLE, J., concurs in part, and dissents in part, with Concurring/ Dissenting Opinion.
{¶31} I concur with the majority’s disposition of Masterson’s assignment of error. I disagree with its disposition of the error noted by the state: i.e., that the trial court improperly imposed mandatory postrelease control. As a result, Masterson’s sentence is incorrect. We should simply vacate it, and remand to the trial court for resentencing.
{¶32} Consequently, I concur in part, and dissent in part.