State v. Agosto

[Cite as State v. Agosto , 2012-Ohio-4606.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98303
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JOSE AGOSTO, JR.
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-455886
BEFORE: Sweeney, J., Boyle, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: October 4, 2012
APPELLANT
Jose Agosto, Jr., Pro Se
No. 493-626
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Mary H. McGrath
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
JAMES J. SWEENEY, J.:
{¶1} Defendant-appellant Jose Agosto, Jr. appeals from the trial court’s decision
that denied his motion to correct void sentence. For the reasons that follow, we affirm.
{¶2} On August 25, 2004, defendant was charged with aggravated murder (R.C.
2903.01); murder (R.C. 2903.02); and felonious assault (R.C. 2903.11) stemming from
the death of Joseph Gerenday on or about August 12, 2004.
{¶3} Following a jury trial, defendant was found guilty of murder and felonious
assault as charged in counts two and three of the indictment. The aggravated murder
charge in count 1 of the indictment was nolled.
{¶4} On November 3, 2005, the trial court ordered defendant to serve a prison
sentence of 15 years to life with eligibility for parole after 15 full years. The other
aspects of defendant’s sentence are not relevant to this appeal.
{¶5} On November 14, 2005, defendant filed an appeal and the judgment was
affirmed by this court in State v. Agosto, 8th Dist. No. 87283, 2006-Ohio-5011.
Defendant’s motion to reopen the appeal was denied. The Ohio Supreme Court denied
defendant leave to appeal. Defendant then filed motions to be re-sentenced and “to
impose a lawful sentence” and both were denied.
{¶6} On February 27, 2012, defendant filed a motion to correct void sentence;
the trial court’s denial of which is the subject of the present appeal.
Assignment of Error I:
The trial court’s failure to adhere to the mandatory provisions of former
R.C. 2929.02(B) renders the attempted sentence void and has deprived the
Appellant of his State created liberty interest in being subject to no sentence
other than an indefinite term of fifteen years to life in violation of
Appellant’s right to due process as guaranteed by the 14th Amendment to
the United States Constitution, thus the trial court erred to the prejudice of
Appellant by denying his motion to correct void sentence.
{¶7} Appellant alleges that he received a void sentence because the trial court
ordered him to serve 15 “full years” before parole eligibility. He primarily relies on two
cases in support: State v. Harding, 10th Dist. No. 10AP-370, 2011-Ohio-557 and State v.
Berry, 10th Dist. No. 08AP-762, 2009-Ohio-1557. In both cases the Tenth District
found that the trial court imposed a void sentence when it failed to indicate that the
defendants had to serve “full years” before parole eligibility. In Harding’s case, he had
to serve a minimum term of 20 full years, while Berry’s indefinite sentence required him
to serve a minimum of 30 full years before parole eligibility. Stated differently, the
defendants in each case were not entitled to receive good time credit that would allow
them to be considered for parole prior to completion of the full minimum terms of their
indefinite life sentences for aggravated murder. Berry, 2011-Ohio-1557, ¶ 23 (“The state
correctly points out that the failure to include a mandatory term rendered the sentence
void.”); Harding, 2011-Ohio-557, ¶ 8 (“Appellant concedes that his original sentencing
entry was contrary to law because it failed to specify that he was eligible for parole only
after serving a full 20 years of imprisonment.”)
{¶8} Unlike the circumstances in Harding and Berry, the trial court here imposed
a valid sentence with regard to parole eligibility by sentencing defendant “to a prison term
of 15 years to life * * * with eligibility for parole after 15 full years.”
{¶9} The statutory penalties applicable at the time of defendant’s offense and
conviction for murder provided as follows:
(B) Whoever is convicted of or pleads guilty to murder in violation of
section 2903.02 of the Revised Code shall be imprisoned for an indefinite
term of fifteen years to life, except that, if the offender also is convicted of
or pleads guilty to a sexual motivation specification and a sexually violent
predator specification that were included in the indictment, count in the
indictment, or information that charged the murder, the court shall impose
upon the offender a term of life imprisonment without parole that shall be
served pursuant to section 2971.03 of the Revised Code. In addition, the
offender may be fined an amount fixed by the court, but not more than
fifteen thousand dollars.
R.C. 2929.02(B).
{¶10} The law precludes defendant, who received an indefinite sentence of 15
years to life for the offense of murder, from earning good time credit for purposes of
parole eligibility. R.C. 2967.13 provides:
(A) Except as provided in division (G) of this section, a prisoner serving a
sentence of imprisonment for life for an offense committed on or after July
1, 1996, is not entitled to any earned credit under section 2967.193
[2967.19.3] of the Revised Code and becomes eligible for parole as follows:
(1) If a sentence of imprisonment for life was imposed for the offense of
murder, at the expiration of the prisoner’s minimum term * * *;
The minimum term of defendant’s sentence is fifteen years. Because he is not entitled to
good time credit as a matter of law, he must therefore serve fifteen full years before he
will be eligible for parole. The cases defendant submits for our review support, rather
than contradict, this conclusion. Accordingly, the trial court did not err by denying his
motion to correct void sentence.
{¶11} Judgment affirmed.
It is ordered that appellee recover of appellant its 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. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
JAMES J. SWEENEY, JUDGE
MARY J. BOYLE, P.J., and
KENNETH A. ROCCO, J., CONCUR