State v. Mattoni

[Cite as State v. Mattoni, 

.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      WOOD COUNTY


State of Ohio                                     Court of Appeals No.    WD-21-014
                                                                          WD-21-015
        Appellee
                                                  Trial Court No. 2020CR0412
v.                                                                2020CR0269

Larry Mattoni, Jr.                                DECISION AND JUDGMENT

        Appellant                                 Decided: September 17, 2021

                                              …

        Paul A. Dobson, Wood County Prosecuting Attorney, and
        David T. Harold, Assistant Prosecuting Attorney, for appellee.

        Jeffrey P. Nunnari, for appellant.

                                              …

        PIETRYKOWSKI, J.

        {¶ 1} In this consolidated appeal defendant-appellant, Larry Mattoni, Jr., appeals

the February 5, 2021 judgments of the Wood County Court of Common Pleas which

following guilty pleas to domestic violence, a fourth-degree felony, and breaking and
entering, a fifth-degree felony, sentenced him to consecutive sentences totaling 30

months of imprisonment. Pursuant to 6th Dist.Loc.App.R. 10(H), the state concedes

error. Accordingly, we reverse and remand the matter for resentencing.

       {¶ 2} Relevant to this appeal, the sentencing judgment entries in each case

provided: “The Court found that pursuant to R.C. 2929.13(B) it is presumed that a prison

term is necessary in order to comply with the purposes and principles of sentencing under

R.C. 2929.11.”

       {¶ 3} On appeal, appellant raises two assignments of error for our review:

              Assignment of Error I: The trial court erred to the prejudice of

       appellant by imposing sentences under the false belief that a prison

       sentence was statutorily presumed.

              Assignment of Error II: The trial court made different findings in

       support of consecutive sentences at the sentencing hearing than it did in the

       judgment entries imposing sentence, thereby rendering appellant’s

       aggregate sentence contrary to law.

       {¶ 4} In appellant’s first assignment of error, he contends that in sentencing

appellant the trial court mistakenly believed that there was a presumption in favor of a

prison sentence. The state concedes this argument and agrees that the matter should be

remanded for resentencing.

       {¶ 5} This court had recently addressed similar cases where the trial court

erroneously noted the presumption of a prison term under R.C. 2929.13(B). State v.



2.
Wheeler, 6th Dist. Wood No. WD-20-053, 

; State v. Merer, 6th Dist.

Wood No. WD-20-015, 

. In Wheeler, we concluded:

               Because the error in this case involves a legal judgment as to

       whether a prison term is presumed, and because we cannot conclusively

       determine from the limited record before us whether the trial court

       sentenced appellant under the mistaken belief that a prison term was

       presumed, or whether the court simply inadvertently included that passage

       in its sentencing entry, we hold that appellant’s sentence must be vacated,

       and the matter must be remanded for a new sentencing hearing. Compare

       State v. Showalter, 7th Dist. Belmont No. 16 BE 0027, 

, ¶

       36 (trial court’s incorrect citation to a presumption of a prison term under

       R.C. 2929.13(F) could be corrected by a nunc pro tunc entry because the

       record demonstrated that the trial court “clearly considered the correct law

       but cited to the wrong revised code section in its sentencing entry”).

Id. at ¶ 12.

       {¶ 6} Accordingly, we find that appellant’s first assignment of error is well-taken.

       {¶ 7} Appellant’s second assignment of error challenges the court’s imposition of

consecutive prison terms. Based on our disposition of appellant’s first assignment of

error, we find the argument moot and not well-taken.




3.
         {¶ 8} On consideration whereof, we reverse the February 5, 2021 judgments of the

Wood County Court of Common pleas and remand the matter for resentencing. Pursuant

to App.R. 24, the state is ordered to pay the costs of this appeal.



                                                                       Judgment reversed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Mark L. Pietrykowski, J.                         ____________________________
                                                         JUDGE
Thomas J. Osowik, J.
                                                 ____________________________
Christine E. Mayle, J.                                   JUDGE
CONCUR.
                                                 ____________________________
                                                         JUDGE




          This decision is subject to further editing by the Supreme Court of
     Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
          version are advised to visit the Ohio Supreme Court’s web site at:
                   http://www.supremecourt.ohio.gov/ROD/docs/.




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