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State v. Gonzales

Court of Appeals of Ohio, Eleventh District, Ashtabula

May 8, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
ROBERTO LUIS GONZALES, JR., Defendant-Appellant.

         Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2016 CR 280.

         Judgment: Reversed and remanded.

          Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, (For Plaintiff-Appellee).

          Marie Lane, Ashtabula County Public Defender, Inc., (For Defendant-Appellant).

          OPINION

          THOMAS R. WRIGHT, J.

         {¶1} Appellant, Roberto Luis Gonzalez, Jr., appeals his presentence jail-time credit. He asserts that the trial court erred in not including pre-indictment confinement. We reverse and remand.

         {¶2} As of January 2016, appellant lived in a residence in the City of Ashtabula, Ohio. Over a two-week period, he was involved in a series of illegal drug sales to a confidential informant. Thereafter, on February 5, 2016, local law enforcement executed a search warrant and found other illegal drugs in appellant's home. Appellant was immediately placed under arrest and incarcerated in the county jail.

         {¶3} In 2013, appellant was convicted of drug trafficking and was placed on probation. Upon arrest, a probation violation holder was immediately issued for the 2013 case. Although the state did not file any new charges against appellant over the ensuing three months, he remained confined that entire time. In June 2016, appellant was found guilty of a probation violation in the 2013 case, and was sentenced to a thirty-month prison term.

         {¶4} In relation to the 2016 events, the county grand jury ultimately issued a nine-count indictment on May 4, 2016. These charges included five counts of trafficking in illegal drugs or counterfeit controlled substances and four counts of possession of drugs. He ultimately pleaded guilty to three counts of aggravated trafficking in drugs and one count of aggravated possession of drugs. The remaining five counts were dismissed.

         {¶5} On July 7, 2016, the trial court held a combined plea and sentencing hearing. After accepting appellant's guilty plea and finding him guilty of the four offenses, the trial court accepted the parties' joint recommendation, and sentenced appellant to an aggregate term of five years. During sentencing, defense counsel moved the court to award appellant jail-time credit for the entire eighty-nine days between the date of his arrest and the date he was indicted. Counsel argued that although no charges in the current case were pending against appellant during that time, he was nevertheless entitled to credit because the pending probation violation stemmed from the same facts that ultimately formed the basis of the indictment.

         {¶6} The trial court did not render a decision on counsel's credit motion during the hearing. Moreover, the trial court did not address the motion in its final sentencing judgment. Instead, the judgment sets forth an order awarding appellant fifty-nine days of jail-time credit, covering the limited period he was held in jail following service of the indictment. Thus, the court implicitly overruled the motion for additional credit.

         {¶7} Consistent with the trial court's statement at the sentencing hearing, the final judgment ordered appellant to serve consecutive terms of thirty-six months and twenty-four months on two of the aggravated trafficking counts. As to the third count of aggravated trafficking and the sole count of aggravated possession, the court imposed sentences of twenty-four months and nine months, respectively, concurrent with each other and concurrent with the thirty-six month term on the first aggravated trafficking count. Finally, the trial court also ordered that the five-year term run concurrent with the sentence in appellant's 2013 case.

         {¶8} In appealing his sentencing, appellant assigns the following as error:

         {¶9} "The trial court erroneously calculated appellant's ...


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