[Cite as State v. Castro,
2024-Ohio-2453.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, :
No. 113285
v. :
DAEQWAN CASTRO, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: VACATED AND REMANDED
RELEASED AND JOURNALIZED: June 27, 2024
Criminal Appeal from the Cuyahoga County Common Pleas Court
Case No. CR-23-680351-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney and Alan Dowling, Assistant Prosecuting
Attorney, for appellant.
Cullen Sweeney, Cuyahoga County Public Defender, and
John T. Martin, Assistant Public Defender, for appellee.
ANITA LASTER MAYS, J.:
{¶1} Plaintiff-appellant, State of Ohio, appeals the trial court’s sentence
imposed upon defendant-appellee, Daeqwan Castro (“Castro”). We vacate the trial
court’s sentence and remand the matter for resentencing.
I. Facts and Procedural History
{¶2} On September 28, 2023, Castro pleaded guilty to identity fraud in CR-
23-679636-A and failure to comply, attempted having weapons while under
disability, attempted receiving stolen property, and obstructing official business in
CR-23-680351-A. At the hearing, the trial court stated: “Now, you do have a
separate matter that’s currently pending in federal court; is that right?” Tr. 6.
Castro’s attorney informed the trial court that Castro was currently serving a four-
year sentence in that matter and that the federal case was resolved. Tr. 7. The trial
court then stated: “I’ll indicate for the record that your counsel approached the
Court along with the prosecutor to discuss the prospects of me sentencing you
concurrently in these matters to that federal sentence.” Id.
{¶3} After the trial court fully complied with Crim.R. 11, it sentenced
Castro stating:
I’m going to sentence you in 680351 to nine months on Count 1. That
has to be served prior to and consecutive with the one-year firearm
specification for a year and nine months. Counts 3, 6, and 7, it’s going
to be nine months in all of those counts. They’ll run concurrent with
each other, but by operation of law they have to run consecutive with
the failure to comply, but not consecutive with the firearm
specification. So those counts can run while the firearm specification
is being run. So the total sentence there is a year and nine months.
. . . I’ll order the class one driver license suspension also in 680351.
But in 679363, I’m going to sentence you to five years of community
control, and I’m doing that because when you get out of the system, if
you have needs, you need help adjusting, I’m telling you now that I’d
be willing to help you. Failure to comply is reckless, to be sure, but
there are no crimes here that you pled to that are violent, and so to
that end I’m willing to work with you.
And also, I’ll tell you more fully that’s really the only way that we can
ensure that restitution gets paid, because I place you on probation, the
condition is going to be that you make this restitution. So there may
come a time when you get out of the federal system that you want to
be free of any supervision of any kind, you’ll have to make this
restitution in order for me to consider terminating you early from that
probation.
Tr. 27 - 29.
{¶4} The trial court ordered the entire sentence to run concurrently with
Castro’s federal prison time. Id. The State questioned the trial court’s sentence in
680351, stating: “Well, a failure to comply is nine plus the year firearm spec, we’re
at a year and nine months, plus another nine months for the remainder of the
indictment.” Tr. 30. To which the trial court replied:
Why does the remainder of the indictment have to be consecutive to
the firearm specification? So the firearm specification has to be
served prior to and consecutive with the failure to comply, but the
firearm specification is not attached to Counts 3, 6, and 7. So Counts
3, 6, and 7, based on my understanding of Ohio sentencing law, can
be served concurrently with that firearm specification. So while he’s
doing that one-year firearm specification, the nine months in 3, 6, and
7 will run, but they have to be consecutive to the failure to comply. So
that nine months won’t begin to run until after he finishes his one-year firearm specification.
Id.
[Cite as State v. Castro,
2024-Ohio-2453.]
{¶5} The State replied that the firearm specification must be consecutive to
the base charge. Id. The trial court agreed but disagreed that the specification had
to be consecutive to the other charges. The trial court also stated:
If I need to correct it, I’d be willing to, because the fact of the matter
is it’s all going to be ordered concurrent with the federal court
sentence. So if I hear from the Bureau of Prisons that there needs to
be some change, I’d be willing to make it, but even if it ended up being
that it had to be consecutive to the firearm specification, which I don’t
think it does, it would have the result in adding nine months, which
would still be less than the four years. The reason why I’m ordering it
the way I am, however, I’ll indicate, is that I know four years in federal
prison doesn’t really mean four years; it typically means about 85
percent of that, but then you also have halfway house eligibility for
that last six months. So in an ideal world, by the time he gets finished
with federal court or federal prison, all of this will be done, since that
was the goal when you all approached me about a concurrent
sentence.
Tr. 31 - 32.
{¶6} For the purposes of appeal, the State made a formal objection to the
trial court’s sentence, filed this appeal, and assigned one error for our review:
1. The trial court erred by ordering appellee’s firearm
specification sentence to run concurrently to other sentences
from the same indictment, contrary to law.
II. Standard of Review
{¶7} We review felony sentences under the standard set forth in
R.C. 2953.08(G)(2). State v. Marcum, 2016-Ohio-1002 ¶ 1, 21. Under
R.C. 2953.08(G)(2), an appellate court may increase, reduce, modify, or vacate and
remand a challenged felony sentence if the court clearly and convincingly finds
either that the record does not support the sentencing court’s findings as required
by relevant sentencing statutes or the sentence is otherwise contrary to law. A
sentence is contrary to law if it falls outside the statutory range for the offense or if
the sentencing court failed to consider the purposes and principles of sentencing
set forth in R.C. 2929.11 and the sentencing factors in R.C. 2929.12. State v.
Pawlak,
2016-Ohio-5926, ¶ 58 (8th Dist.). Conversely, if the sentence is within
the statutory range for the offense and the trial court considered both the purposes
and principles of felony sentencing in R.C. 2929.11 and the seriousness and
recidivism factors in R.C. 2929.12, the court’s imposition of any prison term for a
felony conviction is not contrary to law. State v. Woodard,
2018-Ohio-2402, ¶ 35
(8th Dist.). See also State v. Clay,
2020-Ohio-1499, ¶ 26, citing
Pawlak at ¶ 58.
III. Law and Analysis
{¶8} In the State’s sole assignment of error, it argues that the trial court
erred when it ordered Castro’s one-year firearm specification sentence to run
concurrently to other sentences from the same indictment in CR-23-680351-A.
The State is not appealing the sentence in the CR-23-679636-A. Castro concedes
the error but does not agree with the State’s requested relief. The State contends
that the firearm specification and the failure to comply sentence must run prior to
and consecutive to all other prison terms in the case and asks this court to remand
to the trial court for resentencing. Castro, however, argues that a prison term does
not need to be imposed on a failure to comply offense or any of the offenses charged
in the other three counts.
[Cite as State v. Castro, 2024-Ohio-2453.]
{¶9} In CR-23-680351-A, the trial court sentenced Castro to nine-months
imprisonment to be served consecutively and prior to the mandatory one-year
sentence on the firearm specification. The trial court then sentenced Castro to
nine-months imprisonment for the remaining three counts to run concurrent with
each other and the firearm specification sentence but consecutive to the failure to
comply sentence. Both the State and Castro agree that the trial court must run the
firearm specification sentence consecutively to all four of the counts on the
indictment; however, the State requests a remand to the trial court to specifically
run the firearm specification to the other sentences, which would significantly
increase Castro’s time in prison.
{¶10} Castro, however, requests that this court remand to the trial court for
a complete resentencing since, per the record, the trial court’s intentions were to
have Castro’s sentence run concurrently to his federal sentence. It should be noted
that “‘[n]o court has the authority to impose a sentence that is contrary to law.’”
State v. Houston, 2019-Ohio-355, ¶ 5 (8th Dist.), quoting State v. Fischer, 2010-
Ohio-6238, ¶ 23. “A trial court is only authorized to impose a sentence that is
prescribed by statute.” Id. at ¶ 5, citing id. at ¶ 22. “Therefore, ‘[a]ny attempt by a
court to disregard statutory requirements when imposing a sentence renders the
attempted sentence a nullity or void.’” Id. at id., quoting State v. Williams, 2016-
Ohio-7658, ¶ 20.
{¶11} “The sentence is, therefore, contrary to law and void because the trial
court imposed a sentence that was not authorized by law.” Id. at ¶ 7. We cannot
modify Castro’s sentence by simply remanding the case to impose a longer
sentence; instead, this court must remand this case to the trial court for de novo
resentencing. See id. at ¶ 9. ‘“[A] void sentence is a nullity.’” Id., quoting State v.
Studgions, 2016-Ohio-5236, ¶ 10 (8th Dist.). “We cannot modify a void sentence
because ‘[i]t is as though such proceedings had never occurred . . . and the parties
are in the same position as if there had been no judgment.’”
Id., quoting State v.
Billiter,
2012-Ohio-5144, ¶ 10, quoting State v. Bezak,
2007-Ohio-3250, ¶ 12.
{¶12} Therefore, the State’s assignment of error is sustained, and this
matter is remanded to the trial court for the limited purposed of resentencing.
{¶13} Judgment vacated, and case remanded to the trial court for further
proceedings consistent with this opinion.
It is ordered that appellant recover from appellee 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
ANITA LASTER MAYS, JUDGE
EMANUELLA D. GROVES, P.J., and
FRANK DANIEL CELEBREZZE, III, J., CONCUR
