State v. Novoa

[Cite as State v. Novoa, 2023-Ohio-3595.]

IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

ARTURO NOVOA,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY
Case No. 22 MA 0020

Criminal Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 18 CR 850

BEFORE:
Cheryl L. Waite, Carol Ann Robb, David A. D’Apolito, Judges.

JUDGMENT:
Affirmed.

Atty. Dave Yost, Ohio Attorney General and Atty. Andrea K. Boyd, Special Prosecuting
Attorney, Asst. Attorney General, 30 East Broad Street, 23rd Floor, Columbus, Ohio
43215, for Plaintiff-Appellee

Atty. Brian A. Smith, Brian A. Smith Law Firm, LLC, 123 South Miller Road, Suite 250,
Fairlawn, Ohio 44333, for Defendant-Appellant

Dated: September 29, 2023
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WAITE, J.

{¶1} On February 24, 2017, Appellant Arturo Novoa murdered and then

dismembered his girlfriend Shannon Graves. He attempted to dissolve some of the body

parts with sulfuric acid; others were hidden and moved to various locations over the

course of the next months. He pleaded guilty to 43 criminal charges related to the murder

and subsequent cover up, and he was sentenced to 48 years and one month to life in

prison. When sentencing, some counts merged but the trial court pronounced sentence

on each merged count despite the merger. The case was appealed to this Court. State

v. Novoa, 7th Dist. Mahoning No. 19 MA 0073, 2021-Ohio-3585. Appellant’s convictions

were affirmed, but the matter was remanded for the limited purposes of resentencing due

to the errors related to sentencing on the merged counts. On remand, Appellant made

an oral motion to withdraw his plea at resentencing, which was denied. The trial court

addressed the merger error and Appellant was once again sentenced to 48 years and

one month to life in prison.

{¶2} Appellant argues that the trial court should have granted the motion to

withdraw his plea made at the beginning of his resentencing hearing. Appellant also

alleges error in imposing consecutive sentences, denial of his right of allocution, and

failure to sentence him on certain counts. Finally, Appellant alleges error in the trial

court's jail-time credit calculation. A review of this record reveals none of Appellant's six

assignments of error have merit and the judgment of the trial court after the limited

resentencing is affirmed.

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Case History and Facts

{¶3} The history of this case is well documented in our prior opinion, State v.

Novoa, 7th Dist. Mahoning No. 19 MA 0073, 2021-Ohio-3585. Appellant and the victim,

Shannon Graves, were in a violent and tumultuous relationship during portions of 2016

and 2017. Appellant bludgeoned Graves to death in her home on Mahoning Avenue in

Youngstown, Ohio, on February 24, 2017. At the time, Appellant was also involved with

another woman, Katrina Layton, who became his accomplice in the crimes against

Graves. After murdering Graves, Appellant and Layton attempted in various ways to

cover up the crime. Appellant shaved the victim's head, wrapped the body in garbage

bags, and he and Layton put the body in the trunk of Graves' car. They took the body to

Layton's home and together with another accomplice, Andrew Herrmann, dismembered

the body. They placed Graves’ arms and legs in one storage bin and her head and torso

in another, took the bins back to the Mahoning Avenue home, and placed the body parts

in a freezer. They used sulfuric acid to try to dissolve the head and body. They also

burned Graves’ personal belongings and her hair in a bonfire at a friend's house on

Sherwood Avenue in Youngstown.

{¶4} During this time period Appellant and Layton used Graves' car, and also

used her WIC food stamp card to purchase groceries. They told Graves' family and

friends that she had moved to Cleveland with one man, and then later said she moved to

Columbus with another.

{¶5} On June 22, 2017, Graves' sister, Debbie DePaul, filed a missing person's

report. DePaul and Graves' former fiancé began looking for her. At this point, Appellant

and Layton became concerned that the police would search the Mahoning Avenue home.

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They purchased a second freezer and took it to an apartment on Ravenwood Avenue in

Youngstown. They moved Graves' body parts to the second freezer, but again became

concerned about detection and moved the freezer containing Graves’ body to a third

location on Devitt Avenue in Campbell, Ohio. A friend of Appellant opened the freezer

thinking it contained frozen food. Instead, he found a bag containing what was left of

Graves' remains.

{¶6} On September 21, 2017, Appellant and his co-defendants were indicted in

Mahoning County on five felonies in Case No. 17 CR 856. This case was eventually

dismissed because Appellant and his co-defendants were reindicted in Case No. 18 CR

850 on August 29, 2018. The second indictment contained 48 counts, including

aggravated murder, murder, tampering with evidence, abuse of a corpse, possession of

criminal tools, theft of food stamp benefits, grand theft of a motor vehicle, drug trafficking,

and engaging in a pattern of corrupt activity. Appellant was implicated in 44 of these

counts.

{¶7} On May 31, 2019, Appellant entered into a Crim.R. 11 plea agreement. He

pleaded guilty to all charges except aggravated murder, which was dismissed as part of

the plea agreement. On June 24, 2019, he was sentenced to fifteen years to life in prison

for murder, 36 months for each count of tampering with evidence, 11 months for each

count of abuse of a corpse, 11 months on each count of possession of criminal tools, 11

months on each count of theft of benefits, 17 months for grand theft of an automobile, 11

months on each count of drug trafficking, and 10 years for engaging in a pattern of corrupt

activity.

{¶8} The court merged various counts as follows:

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Count 3 (tampering with evidence) and 32 (abuse of a corpse)

Counts 4, 5, 6, 7 (tampering with evidence)

Count 5 (tampering with evidence) and 30 (abuse of a corpse)

Counts 8, 9, 10, 11, 12, 13, 14, and 15 (tampering with evidence)

Count 9 (tampering with evidence) and 27 (abuse of a corpse)

Count 10 (tampering with evidence) and 28 (abuse of a corpse)

Count 16 (tampering with evidence) and 29 (abuse of a corpse)

Counts 21, 22, 23, 24, 25, and 26 (tampering with evidence)

{¶9} The court ordered some counts to be served concurrently and some

consecutively, for a total of 48 years to life in prison. By actual count of the individual

sentences, the sentence amounted to 48 years and one month to life in prison.

{¶10} Appellant appealed his conviction and sentence to this Court. This Court

held that Appellant’s guilty plea was made knowingly, voluntarily, and intelligently; that

the trial court was not required to notify Appellant during the plea process of the aggregate

maximum sentence he faced; and that his conviction and sentence did not violate double

jeopardy. This Court did find the trial court erred when it merged certain counts at

sentencing but also entered specific prison terms for each sentence, rather than

sentencing once on each group of merged counts. Id. at ¶ 48. The case was remanded

to the trial court for the limited purposes of resentencing on only the merged counts by

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allowing the state to elect the charge in each set of merged counts on which the court

should sentence, and then for the court to issue a sentence only on those specifically

elected counts.

{¶11} The resentencing hearing took place on February 9, 2022. At the beginning

of this resentencing hearing, Appellant made an oral motion to withdraw his guilty plea,

which was denied. The resentencing entry was issued on February 17, 2022. The court

recited which counts had been merged at the previous sentencing, and then stated which

merged counts the state had elected for conviction and sentencing purposes: counts 3,

4, 8, 16, and 21. The court resentenced accordingly and sentenced Appellant to 48 years

and one month to life in prison as follows:

Count 2, murder (R.C. 2929.13(F), 2929.14(D)(3)), 15 years to life;

Count 3, tampering with evidence (R.C. 2921.12(A)(1), third degree felony),

36 months;

Count 4, tampering with evidence (R.C. 2921.12(A)(1), third degree felony),

36 months;

Count 16, tampering with evidence (R.C. 2921.12(A)(1), third degree

felony), 36 months;

Count 17, tampering with evidence (R.C. 2921.12(A)(1), third degree

felony), which is not an allied offense, 36 months;

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Counts 18, 19, and 20, tampering with evidence (R.C. 2921.12(A)(1), third

degree felony), which are not allied offenses, 36 months for each count;

Count 21, tampering with evidence (R.C. 2921.12(A)(1), third degree

felony), 36 months;

Count 31, abuse of a corpse (R.C. 2927.01(B), fifth degree felony), 11

months;

Counts 33, 34, and 35, possession of criminal tools (R.C. 2923.24, fifth

degree felony), which are not allied offenses, 11 months for each count;

Counts 36, 37, and 38 (R.C. 2913.46, fifth degree felony), theft of WIC

benefits, which are not allied offenses, 11 months for each count;

Count 42, grand theft of a motor vehicle (R.C. 2913.02, fourth degree

felony), 17 months;

Count 43, 44, 45, and 46, trafficking drugs (R.C. 2925.03(A)(1), fifth degree

felony), which are not allied offenses, 11 months for each count.

{¶12} Appellant filed a timely appeal of his resentencing on March 9, 2022, and

raises six assignments of error.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING

APPELLANT'S MOTION TO WITHDRAW GUILTY PLEA.

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{¶13} Appellant contends that he made a valid oral presentence motion to

withdraw his guilty plea at the beginning of his resentencing hearing on June 14, 2019.

Appellant cites nine factors a trial court is to use in evaluating a presentence motion to

withdraw a plea. State v. Jones, 7th Dist. Columbiana No. 18 CO 0023, 2020-Ohio-3578,

¶ 12. He argues that a presentence motion to withdraw a plea should be freely and

liberally granted and a trial court is reviewed on appeal for abuse of discretion. Id. at ¶ 11.

Based on this, Appellant contends that his motion to withdraw should have been granted,

or at least the trial court should have held a hearing on the matter.

{¶14} Appellee responds that since Appellant's conviction had already been

affirmed on appeal, the oral motion to withdraw Appellant’s plea made at the beginning

of the limited resentencing hearing could not be granted. Appellee is correct. “A motion

to withdraw a plea cannot be sustained by the trial court after the case has been appealed

and the conviction affirmed.” State v. Smith, 7th Dist. Mahoning No. 14 MA 65, 2015-

Ohio-4809, ¶ 5, citing State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, ¶ 61. “If

the case is reviewed and partially remanded for some aspect of resentencing, the

appellate court has nevertheless affirmed the underlying conviction and the lower court

no longer has jurisdiction to reconsider matters dealing with that conviction, such as

whether the plea should be vacated.” Id. “Crim.R. 32.1 does not vest jurisdiction in the

trial court to maintain and determine a motion to withdraw the guilty plea subsequent to

an appeal and an affirmance by the appellate court.” State ex rel. Special Prosecutors v.

Judges, Court of Common Pleas, 55 Ohio St.2d 94, 97, 378 N.E.2d 162 (1978).

"According to the Supreme Court, it is inappropriate for a trial court to consider a motion

to withdraw a guilty plea after a defendant's conviction has been affirmed because

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permitting the withdrawal would be inconsistent with the judgment of the appellate court."

State v. Gibson, 9th Dist. Summit No. 25085, 2011-Ohio-566, ¶ 5. Once a conviction

based on a guilty plea is affirmed on appeal, all matters regarding the guilty plea are res

judicata and the trial court has no jurisdiction to revisit or vacate the plea as part of a

limited remand for resentencing. Ketterer at ¶ 61.

{¶15} Based on the established law, Appellant's first assignment of error is without

merit and is overruled.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT'S IMPOSITION OF CONSECUTIVE SENTENCES

WAS NOT SUPPORTED BY THE RECORD.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT'S IMPOSITION OF CONSECUTIVE SENTENCES

WAS CONTRARY TO LAW.

{¶16} Appellant argues that the consecutive sentences imposed with respect to

counts 2, 3, 4, 8, 16, 17, 18, 21, 31, 33, 36, 42, 43, and 48 are not supported by the record

and are contrary to law. We note the law regarding appellate review of consecutive

sentences has recently changed. When a person is sentenced after committing multiple

offenses, the presumption is that those sentences will be imposed concurrently, not

consecutively. R.C. 2929.41(A). However, a court may impose consecutive sentences

by following the requirements of R.C. 2929.41(C)(4). The court must find that “the

consecutive service is necessary to protect the public from future crime or to punish the

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offender.” Id. It must further find that “consecutive sentences are not disproportionate to

the seriousness of the offender's conduct and to the danger the offender poses to the

public.” Id. The court must also find at least one of the following:

(a) The offender committed one or more of the multiple offenses while the

offender was awaiting trial or sentencing, was under a sanction imposed

pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or

was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or

more courses of conduct, and the harm caused by two or more of the

multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender.

{¶17} The appellate standard of review is found in R.C. 2953.08(G)(2), which

states:

(2) The court hearing an appeal under division (A), (B), or (C) of this section

shall review the record, including the findings underlying the sentence or

modification given by the sentencing court.

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The appellate court may increase, reduce, or otherwise modify a sentence

that is appealed under this section or may vacate the sentence and remand

the matter to the sentencing court for resentencing. The appellate court's

standard for review is not whether the sentencing court abused its

discretion. The appellate court may take any action authorized by this

division if it clearly and convincingly finds either of the following:

(a) That the record does not support the sentencing court's findings under

division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section

2929.14, or division (I) of section 2929.20 of the Revised Code, whichever,

if any, is relevant;

(b) That the sentence is otherwise contrary to law.

{¶18} The Ohio Supreme Court has recently addressed the standard of review

when consecutive sentences are being reviewed in State v. Gwynne, -- Ohio St. 3d --,

2022-Ohio-4607, -- N.E.3d --, which held:

The evidentiary standard for changing the trial court's order of consecutive

sentences is not deference to the trial court; the evidentiary standard is that

the appellate court, upon a de novo review of the record and the findings,

has a 'firm belief' or 'conviction' that the findings—the criteria mandated by

the legislature to be met before the exception to concurrent sentences can

apply—are not supported by the evidence in the record.

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Id. at ¶ 23, citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,

¶ 22.

{¶19} “[T]he plain language of the statute requires appellate courts to review the

record de novo and decide whether the record clearly and convincingly does not support

the consecutive-sentence findings.” Gwynne at ¶ 1.

{¶20} Two steps are necessary in reviewing consecutive sentence findings. The

first is whether the appropriate findings have been made. The second is whether the

record clearly and convincingly supports those findings. Id. at ¶ 26. An appellate court

may modify or vacate the consecutive sentences if it has “a firm conviction or belief, after

reviewing the entire record, that the evidence does not support the specific findings made

by the trial court to impose consecutive sentences, which includes the number of

consecutive terms and the aggregate sentence that results.” Id. at ¶ 29.

{¶21} Turning to this record, the trial court made the required R.C. 2929.14(C)

findings. The court found that consecutive sentences were necessary to protect the

public from future crime and to punish the offender, that they were not disproportionate

to the seriousness of Appellant's conduct and the danger he posed, and that at least two

of the multiple offenses were committed as part of one or more courses of conduct with

a harm so great or unusual that a single term would not adequately reflect the seriousness

of the conduct. (2/9/22 Tr., pp. 22-23.) The findings were incorporated into its sentencing

entry.

{¶22} Appellant contends that the court failed to accurately make a finding at the

sentencing hearing which is required by R.C. 2929.14(C)(4), and states: “that the

consecutive * * * sentences are not disproportionate to the seriousness of the offender's

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conduct and to the danger the offender poses to the public * * *.” Appellant complains

the court actually said: “consecutive sentences are not disproportionate to the

seriousness of the offender's conduct, the callous disregard for human life and danger

imposed by the defendant * * *.” (2/9/22 Tr., p. 23.) Thus, he argues that as the trial court

was required to make the exact finding set out in R.C. 2929.14(C)(4), the way the court

phrased the finding at resentencing did not conform to the statute and was ineffective to

support consecutive sentencing.

{¶23} As this Court and many others have repeatedly held: “The court is not

required to state reasons in support nor is it required to use any 'magic' or 'talismanic'

words, so long as it is apparent that the court conducted the proper analysis.” State v.

Williams, 2015-Ohio-4100, 43 N.E.3d 797, 806, ¶ 34 (7th Dist.), citing State v. Bonnell,

140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. It is clear the trial court

conducted the appropriate consecutive sentence analysis and clearly followed the

statutory language. The slight variation cited by Appellant is a distinction without a

difference.

{¶24} Apart from the murder conviction, and taking into account the merged

counts, Appellant could have received over 66 years to life in prison if all the convictions

were ordered to run consecutively. The murder conviction alone warranted a sentence

of 15 years to life in prison. Thus, an aggregate sentence of 48 years to life is below the

maximum sentence Appellant could have received. Further, the aggravated murder

charge dismissed as a result of his Crim.R. 11 plea agreement was punishable by life in

prison. Charges that have been dismissed through a plea agreement may be considered

at sentencing. State v. Wilson, 7th Dist. Mahoning No. 14 MA 43, 2015-Ohio-838, ¶ 13.

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{¶25} Appellant contends the record does not contain facts that could possibly

justify a sentence of 48 years to life. Appellant concedes that he has several prior

convictions. He concedes that the acts forming the basis of his tampering with evidence

charges are violent and gruesome, and are completely unlike most tampering charges.

Appellant argues, though, that his abuse of a corpse charges are not based on any

unusual behavior requiring consecutive sentences because the abuse of any corpse is

by its very nature abhorrent. He also argues that his theft of food stamp benefits is no

different than any other similar theft and could not possibly warrant consecutive

sentences.

{¶26} The record reveals that Appellant committed one of the most horrendous

crimes committed in Ohio in recent memory. The facts of the case are well-established

in the record and in our prior opinion. He bludgeoned the victim to death, dismembered

her body, and then he and his new girlfriend went on a months-long spree trying to

conceal or destroy the victim's body while telling others that she had simply moved away.

They used sulfuric acid to try to dissolve some of the body. They gathered up and moved

the body parts from place to place as they began to worry that their crimes would be

discovered. All the while they used the victim's own vehicle during the commission of

these crimes, and even used the victim's WIC food stamp card. These facts alone provide

overwhelming support of the trial court's decision to impose consecutive sentences on

some of Appellant’s convictions.

{¶27} In addition, Appellant's prior record contains convictions for arson,

vandalism, and escape. The trial court also noted that Appellant had been released on

bond in another criminal case when some of the offenses were committed. Appellant was

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arrested on April 29, 2017, after committing a traffic offense in Youngstown. He fled in

his vehicle and then on foot, and was eventually tased and caught. He had been released

on bond in that case while many of the crimes under review in this appeal occurred. In

light of the potential sentence that could have been imposed, Appellant's prior criminal

history, the fact that he was on bond when some of the crimes occurred, and in light of

the facts surrounding the crimes that were committed, this record fully supports the

sentence imposed. Appellant's second and third assignments of error are overruled.

ASSIGNMENT OF ERROR NO. 4

THE TRIAL COURT'S SENTENCE OF APPELLANT WAS CONTRARY TO

LAW FOR FAILING TO AFFORD APPELLANT HIS RIGHT OF

ALLOCUTION.

{¶28} Appellant argues that the trial court denied him his right of allocution found

in Crim.R. 32(A)(1), which requires the sentencing judge to ask the defendant personally

if he or she wishes to make a statement or present information in mitigation of

punishment. The right of allocution applies, in part, to a resentencing hearing: “[The]

right of allocution is confined to the matters remanded to the court for resentencing.” State

v. King, 8th Dist. Cuyahoga No. 95972, 2011-Ohio-3985, ¶ 9, citing State v. Saxon, 109

Ohio St .3d 176, 2006-Ohio-1245, 846 N.E.2d 824. However, a violation of the right of

allocution is subject to a harmless error analysis. State v. Turjoniz, 7th Dist. Mahoning

No. 11 MA 28, 2012-Ohio-4215, ¶ 10. For example, in State v. Arroyo, Cuyahoga App.

No. 90369, 2008-Ohio-3808, the Eighth District held that the trial court's failure to provide

opportunity for allocution at resentencing was harmless error where imposition of

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postrelease control was statutorily mandated, the defendant had addressed the court on

previous occasions, and nothing defendant said would have affected the sentence.

{¶29} We have held that failure to directly address the defendant to give a final

statement at sentencing is harmless where “defense counsel is given the opportunity to

make a statement on behalf of the defendant.” Turjoniz, supra, at ¶ 10. In the instant

appeal, the trial court asked Appellant's counsel immediately before pronouncing

sentence: “Does your client have anything to say prior to the imposition of sentence?”

(2/9/22 Tr., p. 13.) Counsel replied: “No, Your Honor.” (2/9/22 Tr., p. 13.) Because no

error was raised regarding Appellant's right to allocution in the prior appeal of this case,

and because the trial court asked Appellant's counsel if Appellant wished to make a final

statement on resentencing, the record here reveals no prejudicial error. Appellant’s fourth

assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 5

THE TRIAL COURT'S SENTENCE OF APPELLANT WAS CONTRARY TO

LAW BECAUSE THE TRIAL COURT DID NOT IMPOSE APPELLANT'S

SENTENCE ON COUNTS NINETEEN AND TWENTY OF THE

INDICTMENT AT THE SENTENCING HEARING.

{¶30} Appellant argues that his resentencing was contrary to law under R.C.

2953.08(G)(2) because the trial court failed to pronounce sentence on counts 19 and 20

at the sentencing hearing. Appellant acknowledges that counts 19 and 20 are mentioned

in the sentencing judgment entry. He contends that they should have been discussed at

the resentencing hearing. Appellant cites only Crim.R. 32(A)(4) in support, which

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provides: “At the time of imposing sentence, the court shall do all of the following: * * *

(4) In serious offenses, state its statutory findings and give reasons supporting those

findings, if appropriate.”

{¶31} The Ohio Supreme Court has held that Crim.R. 32(A)(4) “requires only that

courts state findings and give reasons as mandated by the sentencing statutes; the rule

does not create any new or additional duties for judges at the time of sentencing * * *.”

State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 25. Appellant

has not cited any statute that requires the trial court to make any findings or give reasons

for findings regarding counts 19 and 20, and therefore, his argument is unpersuasive.

{¶32} More to the point, Appellee correctly reiterates that the February 9, 2022

hearing was a limited one, restricted to resentencing only on the counts that were merged

at the original sentencing hearing of June 24, 2019. The case was remanded pursuant

to the order set forth in our prior opinion: “We remand this matter in order to allow the

state to determine on which of the merged offenses it wishes the court to enter a

conviction and sentence. All other aspects of the trial court's judgment is affirmed.”

Novoa, 7th Dist. Mahoning No. 19 MA 0073, 2021-Ohio-3585, at ¶ 50. Neither counts 19

nor 20 were merged with any other counts in the previous sentence. Counts 19 and 20

were affirmed in the prior appeal and were not subject to the resentencing order. “[O]nly

the sentences for the offenses that were affected by the appealed error are reviewed de

novo; the sentences for any offenses that were not affected by the appealed error are not

vacated and are not subject to review.” State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-

2669, 951 N.E.2d 381, ¶ 15. Appellant’s fifth assignment of error is overruled.

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ASSIGNMENT OF ERROR NO. 6

THE TRIAL COURT ERRED WHEN IT FAILED TO PROPERLY AWARD

APPELLANT JAIL TIME CREDIT, IN VIOLATION OF APPELLANT'S

RIGHT TO EQUAL PROTECTION UNDER THE FOURTEENTH

AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE

I, SECTION 2 OF THE OHIO CONSTITUTION.

{¶33} Appellant argues that the trial court forgot to include jail-time credit for the

amount of time he spent in prison from his initial sentencing in June of 2019 until his

resentencing on February 9, 2022. He argues that jail-time credit is a constitutional right

and that “[a] defendant who is unable to afford bail must be credited for the time they are

confined while awaiting trial in order to avoid unequal treatment based on economic

position.” State v. Dyer, 7th Dist. Mahoning No. 21 MA 0072, 2022-Ohio-1519, ¶ 7. He

complains that the trial court stated at the resentencing hearing that he was due to receive

1,656 days of jail-time credit, but that the February 17, 2022 sentencing entry only gives

him credit for 686 days. He believes he should receive the full 1,656 days.

{¶34} Appellee replies that the trial court correctly recited the same jail-time credit

in the February 17, 2022 sentencing entry that was pronounced in the original sentencing

entry of June 24, 2019, which was 686 days. This amount was not challenged in

Appellant’s first appeal. Appellee contends that what Appellant is asking is that the time

he has spent in prison under the auspices of the Ohio Department of Rehabilitation and

Corrections (ODRC) since June 24, 2019, be treated as jail-time credit, but points out

there is a “distinction between jail-time credit and time served in prison[.]” State v.

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Simpson, 10th Dist. Franklin No. 21AP-52, 2021-Ohio-4066, ¶ 17. A trial court is

precluded from including prison time served as part of a sentence in its pretrial jail-time

credit calculation. R.C. 2929.19(B)(2)(g)(i) states: “the [sentencing] court shall do all of

the following: * * * Determine, notify the offender of, and include in the sentencing entry

the total number of days, including the sentencing date but excluding conveyance time,

that the offender has been confined for any reason arising out of the offense for which

the offender is being sentenced[.] * * * The court's calculation shall not include the number

of days, if any, that the offender served in the custody of the department of rehabilitation

and correction arising out of any prior offense for which the prisoner was convicted and

sentenced.”

{¶35} R.C. 2967.191 requires the ODRC to deduct from a prisoner's sentence any

jail-time credit determined by the trial court, and any additional time served while under

the jurisdiction of the ODRC: "The department of rehabilitation and correction also shall

reduce the stated prison term of a prisoner * * * that the prisoner previously served in the

custody of the department of rehabilitation and correction arising out of the offense for

which the prisoner was convicted and sentenced."

{¶36} The Fourth District Court of Appeals was confronted with an argument

similar to Appellant’s, and held: "[T]he plain language of the applicable versions of R.C.

2929.19(B)(2)(g)(i) and R.C. 2967.191 suggests that trial courts must calculate the days

a prisoner actually spends in jail, while ODRC must reduce the prisoner's prison term by

those days, plus any additional days of confinement pending transport, as well as any

related time the prisoner has spent in the custody of ODRC." State v. Price, 4th Dist.

Athens No. 19CA14, 2020-Ohio-6702, ¶ 24. The court also stated: “[W]e find that here,

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the trial court did not err or abuse its discretion in failing to specifically include Price's days

served in the custody of ODRC in its jail-time credit calculation. Rather, it is the duty of

ODRC to determine that figure and reduce Price's prison sentence in accordance with

R.C. 2967.191.” Id. at ¶ 33.

{¶37} The trial court in this matter mentioned at his resentencing hearing that

Appellant would be given credit for 1,656 days of time served. (2/9/22 Tr., p. 25.) The

trial court did not specify that this was jail-time credit, but simply said “credit.” The trial

court was correct. Appellant will be given credit for 686 days of jail-time credit, as stated

in both sentencing entries. The rest will be credited as prison time by the Ohio

Department of Rehabilitation and Correction. Perhaps the trial court could more clearly

have explained this at the sentencing hearing, but by law the trial court could not give

Appellant any more jail-time credit than 686 days, and that was the amount provided in

the resentencing entry. Appellant is aware that jail-time credit is credit given while

awaiting trial, as is shown by the Dyer case cited in Appellant's brief. Once Appellant was

sentenced on June 24, 2019, he was no longer awaiting trial. Any time spent in prison

after that was prison time, not pretrial jail-time. Appellant has not provided any evidence

that ODRC is refusing to accurately credit him with prison time served based on his

conviction. Assuming there was error made by the trial court, any error made at

resentencing is harmless at best and it would be unlawful to grant Appellant the relief he

requests. Appellant's sixth assignment of error is overruled.

Conclusion

{¶38} Appellant was convicted of murder and 42 other counts, including the

attempted cover up of the murder, mutilating and hiding the corpse, theft of the victim's

Case No. 22 MA 0020
 – 21 –

car, drug trafficking, and engaging in a pattern of corrupt activity. His convictions were

affirmed on appeal, but the case was remanded for limited resentencing solely due to

sentencing errors regarding merged counts. Any appeal is likewise limited. Appellant

argues that the trial court should have granted the motion to withdraw his plea made prior

to resentencing. His guilty plea and conviction had been affirmed in his prior appeal.

Therefore, the trial court did not have jurisdiction to grant a motion to withdraw his plea.

Appellant challenges his consecutive sentences; an alleged denial of his right of

allocution; and an alleged failure of the trial court to resentence him on counts 19 and 20.

None of these arguments are supported by the record. Finally, Appellant argues that the

trial court should have given him jail-time credit at resentencing for the time spent during

this appeal, but any credit for time spent incarcerated in prison is calculated by the ODRC

and is not appropriately part of the trial judge's jail-time credit calculation. None of

Appellant's six assignments of error have merit, and the resentencing judgment entry of

the trial court is affirmed.

Robb, J. concurs.

D’Apolito, P.J. concurs.

Case No. 22 MA 0020
[Cite as State v. Novoa, 2023-Ohio-3595.]

For the reasons stated in the Opinion rendered herein, Appellant’s assignments of

error are overruled and it is the final judgment and order of this Court that the judgment

of the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs waived.

A certified copy of this opinion and judgment entry shall constitute the mandate in

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.