State v. Salazar ( 2023 )

[Cite as State v. Salazar, 2023-Ohio-567.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-22-09
v.
JAMES SALAZAR, O P I N I ON
DEFENDANT-APPELLANT.
Appeal from Seneca County Common Pleas Court
Trial Court No. 18-CR-0242
Judgment Affirmed
Date of Decision: February 27, 2023
APPEARANCES:
Brian A. Smith for Appellant
Rebeka Beresh for Appellee
Case No. 13-22-09
WILLAMOWSKI, J.
{¶1} Defendant-appellant James D. Salazar (“Salazar”) brings this appeal
from the judgment of the Court of Common Pleas of Seneca County revoking his
community control and sentencing him to twelve months to be served in the Seneca
County Jail. On appeal, Salazar claims that the trial court erred by sentencing him
to serve his sentence in the county jail rather than in prison in violation of R.C.
2929.16(A). For the reasons set forth below, the judgment is affirmed.
{¶2} On November 7, 2018, the Seneca County Grand Jury indicted Salazar
on two counts of aggravated possession of drugs in violation of R.C. 2925.11(A)(1),
(C)(1)(a), both felonies of the fifth degree. Doc. 1. Salazar entered pleas of not
guilty to the charges. Doc. 9. On February 24, 2021, Salazar changed his plea to
guilty pursuant to a plea agreement that resulted in a recommended sentence of
community control. Doc. 20. The trial court accepted the guilty pleas and ordered
a presentence investigation. Doc. 21. On April 7, 2021, the trial court sentenced
Salazar to three years of community control. Doc. 22. The trial court notified
Salazar that a violation of any of his community control conditions could lead to a
prison term of twelve months as to each case with the sentences to be served
concurrently. Doc. 22. No appeal was taken from this judgment.
{¶3} On April 21, 2021, a request to issue a bench warrant for Salazar was
filed because Salazar had not reported for supervision. Doc. 26. A notice of
violation of community control was filed on June 1, 2021, alleging that Salazar had
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failed to report to Drug Intensive Probation as ordered by the trial court. Doc. 31.
A revocation hearing was held on August 11, 2021, at which Salazar waived his
right to the hearing and admitted to violating the terms of his community control.
Doc. 40. The trial court chose to continue Salazar’s community control at that time.
Doc. 40.
{¶4} On May 3, 2022, a second notice of violation of community control was
filed. Doc. 55. This complaint alleged that Salazar had failed to follow through
with treatment requirements in violation of Condition 5 and failed to report as
required in violation of Condition 12. Doc. 55. On May 31, 2022, Salazar waived
his right to a revocation hearing and admitted to violating the terms of his
community control. Doc. 57. The trial court then ordered Salazar to serve the
twelve month sentence in the Seneca County Jail. Doc. 57. On Jun 8, 2022, the
trial court granted jail time credit of 166 days to Salazar. Doc. 59. Salazar appealed
from the judgment and raises the following assignments of error on appeal.
First Assignment of Error
Whether the trial court’s sentence of [Salazar], which sentenced
[Salazar] to a jail term of longer than six months, was contrary to
law, where the sentence violated R.C. 2929.16(A)(2) and was not
subject to the exceptions set forth in R.C. 2929.16(A)(3) or (A)(6),
and where [Salazar] was prejudiced as a result of the trial court’s
sentence.
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Second Assignment of Error
Whether the trial court’s sentence of [Salazar], which credited
[Salazar] with 166 days served, was contrary to law, where
[Salazar] had additional days of credit from his incarceration at
the Seneca County Jail that were not included in the trial court’s
calculation, and where the State failed to properly award jail time
credit to [Salazar].
Third Assignment of Error
Whether the trial court violated [Salazar’s] right to Equal
Protection of the laws as guaranteed by the Fourteenth
Amendment to the United States Constitution and Article I,
Section 2 of the Ohio Constitution, where the trial court sentenced
[Salazar] to a term of local incarceration rather than
incarceration at the Ohio Department of Rehabilitation and
Corrections, where [Salazar] would have been eligible for earned
prison credit pursuant to R.C. 2967.193(A).
Sentencing Issues
{¶5} In both the first and third assignment of error, Salazar challenges the
imposition of a twelve month term of incarceration in the local jail for violation of
his community control. If a defendant violates the terms of a community control
sanction imposed for a felony, a sentencing court may impose a prison term. R.C.
2929.15(B)(1)(c). The violation in this case was not a technical one as Salazar
violated the terms by demonstrating a refusal to comply with the community control
sanctions by failing to report to his supervising probation officer. R.C. 2929.15(E).
The trial court in this case originally reserved a prison term of twelve months at the
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initial sentencing, which was within the statutory guidelines. Doc. 22, R.C.
2929.15(B)(3), and R.C. 2929.14(A)(5).
{¶6} Salazar does not challenge the imposition of a twelve month sentence,
but rather challenges the part of the order requiring it to be served in a county facility
rather than a state prison. The places of imprisonment are controlled by R.C.
2929.34. That statute provides that a defendant may be ordered to serve a prison
term in a county facility if there is an agreement between the Department of
Rehabilitation and Correction and the local authority that operates the jail. R.C.
2929.34(B)(2). In a voluntary county,
no person sentenced by the court of common pleas of a voluntary
county to a prison term for a felony of the fifth degree shall serve
the term in an institution under the control of the [D]epartment
of [R]ehabilitation and [C]orrection. The person shall instead
serve the sentence as a term of confinement in a facility of a type
described in division (C) or (D) of this section.
R.C. 2929.34(B)(3)(c)(i). No one disputes that Seneca County is a voluntary county
pursuant to the statutory definition. As a result, the statute provides that the prison
term imposed shall be served in the local facility, not the state prison. The trial court
complied with this statutory mandate and the sentence was within the statutory
range. Thus, the trial court correctly ordered Salazar to serve the sentence in the
county facility rather than a state prison.
{¶7} Salazar also argues that having him serve his sentence in a county
facility rather than a state prison prejudices him because he is denied the ability to
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earn prison credit pursuant to R.C. 2967.193(A). However, that is not the case. An
offender is imprisoned in the local facility pursuant to an agreement under R.C.
5120.161. R.C. 2929.34(B)(2). R.C. 5120.161 provides in pertinent part as follows.
Each [person designated by the department to be housed] in the
jail or workhouse shall be under the direct supervision and
control of the keeper, superintendent, or other person in charge
of the jail or workhouse, but shall be considered for all other
purposes to be within the custody of the department of
rehabilitation and correction. Section 2967.193 of the Revised
Code and all other provisions of the Revised Code that pertain to
persons within the custody of the department that would not by
their nature clearly be inapplicable apply to persons housed
pursuant to this section.
R.C. 5120.161(B) (emphasis added). Thus, the statute requires that the same
deductions from the sentence that would apply in a prison be applied to those housed
in a local facility unless they are clearly inapplicable. Since the same deductions to
the sentence apply, Salazar suffers no prejudice by being ordered to serve his prison
term in the county facility rather than a state facility. The first and third assignments
of error are overruled.
Calculation of Time Served
{¶8} Salazar claims in the second assignment of error that the trial court erred
in calculating his time served. A trial court is required to determine the specific
number of days that a defendant was confined arising out of the offense for which
the person was convicted and sentenced. R.C. 2949.08. “If an alleged error
regarding jail-time credit is ‘raised on direct appeal, a reviewing court must check
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the trial court's calculation of jail-time credit to see if the calculation is supported
by competent, credible evidence.’” State v. Crisp, 4th Dist. Scioto No. 21CA3949,
2022-Ohio-1221, ¶ 13.
{¶9} A review of the record shows that at the revocation hearing on May 31,
2022, the parties argued the amount of jail time credit that was due. Doc. 57. The
trial court gave the parties until June 6, 2022, to provide support for their arguments
regarding time served. Doc. 57. The State filed its argument on June 6, 2022, and
claimed that Salazar was entitled to jail time credit of 166 days. Doc. 58. The
State’s argument set forth calculations and referred to documents contained in the
record. Salazar filed a motion for jail time credit and good days credit while
working in the kitchen on June 6, 2022, as well.1 Salazar’s motion did not contain
any documentation to support the argument and did not explain how the number of
credit days was determined.
{¶10} Salazar claims in his brief that the trial court erred by not crediting him
with the time between June 24 and August 15, 2021, which is 52 days. Salazar’s
argument is that the trial court erred by accepting the State’s claim that the time was
due to other charges when the record does not support that claim. However, a
review of the record in this case does not support that Salazar was in custody during
that time. The record indicates that bond in this case was paid on June 24, 2021.
1
Although the motion was filed by fax and is listed on the docket sheet, no docket number was provided for
it.
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Doc. 34. Salazar has not provided this court with a transcript of the arguments
regarding credit for time served at the May 31, 2022 hearing. Thus, the only
information we have before us is what was filed in the docket. Salazar’s motion
alleges that a representative of the Seneca County Sheriff’s Office had calculated
Salazar’s jail time credit as 307 days as of May 31, 2022. However, no evidence
was presented to the trial court to support this claim and no basis for the calculation
was provided. The record before this court does not support a credit of 307 days.
{¶11} In contrast to the claims made by Salazar, the State filed an argument
showing that as of August 11, 2021, the calculated time served was 124 days.2 Doc.
58. Salazar returned to custody on April 26, 2022, which provided for an additional
42 days as of June 6, 2022. Doc. 53. Adding the additional 42 days to the prior
calculation of 124 days results in a total of 166 days. This is what the trial court
determined the credit should be. Based upon the record before us, the trial court’s
calculation was supported by competent, credible evidence. The second assignment
of error is overruled.
2
The State claims that this time calculation gave an additional 24 days of credit, but since the State previously
had stated on the record that the time served as of August 11, 2021, was 124 days, the State chose not to
contest its prior mistake. Without a transcript of that hearing, this Court has no way of determining what was
said at that time and will accept the State’s claim as the trial court did. State v. Murray, 6th Dist. Lucas No.
L-10-1059, 2012-Ohio-4996, 979 N.E.2d 831 (if no transcript is provided, an appellate court must presume
the propriety of a hearing).
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{¶12} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Court of Common Pleas of Seneca County
is affirmed.
Judgment Affirmed
MILLER, P.J. and ZIMMERMAN, J., concur.
/hls
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