[Cite as State v. Saldana, 2013-Ohio-1122.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

PUTNAM COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 12-12-09 

 v. 

JOSEPH S. SALDANA, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Putnam County Common Pleas Court 

Trial Court No. 2012CR00008 

Judgment Affirmed 

Date of Decision: March 25, 2013 

 

APPEARANCES: 

 

Esteban R. Callejas for Appellant 

Todd C. Schroeder for Appellee 
Case No. 12-12-09 

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WILLAMOWSKI, J. 

{¶1} Defendant-Appellant, Joseph Saldana (“Saldana”), appeals the 

judgment of the Putnam County Court of Common Pleas, finding him guilty and 

sentencing him to eighteen months in prison after Saldana pled guilty to one count 

of aggravated assault. On appeal, Saldana contends that his guilty plea was not 

knowingly, intelligently, and voluntarily given, and that the trial court erred when 

it sentenced him to the maximum sentence. For the reasons set forth below, the 

judgment is affirmed. 

{¶2} On January 18, 2012, the Putnam County Grand Jury filed a single 

count indictment charging Saldana with felonious assault in violation of R.C. 

2903.11(A)(1) and/or (2), a felony of the second degree. The charges stem from 

an altercation that occurred on January 1, 2012, when Saldana, his brother, and 

another man went to the home of the victim, and a fight ensued. The indictment 

stated that Saldana caused and/or attempted to cause serious physical harm to 

another by means of a deadly weapon by using a handgun as a weapon and 

striking the victim while at his house in Ottawa, Putnam County, Ohio. 

{¶3} Saldana originally entered a plea of not guilty. (Jan. 19, 2012 

Arraignment Hearing Tr.) A jury trial was set for April 10, 2012. 

{¶4} Subsequently, a plea agreement was reached and a change of plea 

hearing was held on March 20, 2012. Saldana, who appeared along with his court-
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appointed attorney, elected to waive indictment and to proceed by bill of 

information upon the agreement that Saldana would plead guilty to a reduced 

charge of aggravated assault in the bill of information, which was a felony of the 

fourth degree. The plea agreement did not make a sentencing recommendation but 

stated that the State would remain silent as to sentencing. 

{¶5} The trial court conducted a full and detailed Crim.R. 11 plea colloquy 

before accepting Saldana’s pleas and finding him guilty. The trial court 

questioned Saldana in detail to determine whether he understood everything that 

he was agreeing to, whether he could read and write, how far he went in school, if 

he was satisfied that he knew what the charges were about, whether he was under 

the influence of drugs or alcohol, whether he knew what he was doing, and 

whether he was changing his plea and waiving indictment freely and voluntarily of 

his own free will. The trial court informed Saldana that the offense carried with it 

a potential sentence of up to eighteen months in prison. Saldana was given several 

opportunities to ask questions. 

{¶6} Before the trial court would accept the plea, it explained in detail all of 

the rights that Saldana was giving up by entering his pleas rather than going to 

trial. Saldana acknowledged that he understood and agreed to waive each and 

every right read to him by the trial court. 
Case No. 12-12-09 

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{¶7} The trial court then asked the prosecutor to state the factual basis of 

the plea. When Saldana disputed the accuracy of the facts, the trial court asked 

him why he was entering a plea if he did not acknowledge what had occurred. 

However, after further discussion, Saldana admitted that the victim was assaulted, 

and understood that he could be held equally culpable of assault if he was found to 

be aiding or abetting, or complicit with another in the assault. He affirmatively 

indicated that he wished to enter a guilty plea. 

{¶8} The trial court was given a copy of the plea agreement signed by 

Saldana, his attorney, and the prosecutor. The plea agreement also set forth the 

rights that Saldana was waiving, and the maximum penalties and other 

ramifications of a guilty plea. The trial court then accepted Saldana’s guilty plea. 

It ordered a presentence investigation report and continued the matter for 

sentencing. 

{¶9} A sentencing hearing was held on April 30, 2012. The trial court 

sentenced Saldana to the maximum sentence, eighteen months in prison, with 

credit for the 121 days served. 

{¶10} It is from this judgment that Saldana now appeals, raising the 

following assignments of error for our review. 

First Assignment of Error 

The trial court erred when it imposed the maximum sentence 

upon [Saldana]. 
Case No. 12-12-09 

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Second Assignment of Error 

The trial court erred when it accepted [Saldana’s] guilty plea as 

that plea was not knowingly, intelligently, and voluntarily given. 

{¶11} In order to facilitate our review, we elect to address the assignments 

of error out of order. In the second assignment of error, Saldana claims that his 

plea was not knowingly, intelligently, and voluntarily given for several reasons, 

including, Saldana had suffered a head injury “a mere several months before the 

plea”; the court failed to give him a competency examination; the court failed to 

advise him of his presumption of innocence; the trial court did not inform him that 

“the state’s recommendation and [Appellant’s] plea did not bind the court nor 

guarantee a less than maximum sentence”; and, that the State failed to allege at the 

plea hearing that the offense occurred within the State of Ohio. 

{¶12} However, the record reflects that Saldana never filed a motion to 

withdraw his guilty plea with the trial court pursuant to Crim.R. 32.1, either prior 

to or after sentencing. A failure to assert an alleged error in the trial court waives 

that error on appeal. State v. Awan, 22 Ohio St.3d 120, 122 (1986). Therefore, 

his failure to raise these arguments in the court below ordinarily precludes us from 

reviewing these issues on appeal. See State v. Draper, 3d Dist. No. 12-10-07, 

2011-Ohio-773, ¶ 9; State v. Rodeback, 8th Dist. No. 80151, 2002-Ohio-2739, ¶ 
Case No. 12-12-09 

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21; State v. Stokes, 8th Dist. No. 69032 (Mar. 7, 1996), 1996 WL 100955; State v. 

Tisdale, 8th Dist. 74331 (Dec. 17, 1998), 1998 WL No. 895279. 

{¶13} Notwithstanding this omission, we find that the trial court’s colloquy 

with Saldana demonstrated that he entered his plea knowingly, voluntarily, and 

intelligently. The trial court covered all of the areas required by Crim.R. 11(C) 

and Saldana indicated that he understood everything. The trial court even stopped 

and further explained one or two areas in more detail when Saldana raised a 

question. Saldana was represented by an attorney, and indicated that he was 

satisfied with his representation. 

{¶14} There is no merit to the arguments raised by Saldana. Even if he 

would have raised the matter in the trial court, Saldana has not pointed to any 

issues that would have constituted a manifest injustice to allow for the withdrawal 

of his guilty plea. 

{¶15} Although Saldana did suffer an injury to his head during the 

altercation, several month prior, he was treated and released that same evening. 

There was no evidence anywhere in the record that he suffered any lingering 

effects from his injury that would impair his understanding in any way. Without 

any factual assertions that support that this injury had a lasting and detrimental 

effect, there was no reason for a competency examination. 
Case No. 12-12-09 

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{¶16} There was also no need to inform Saldana that the State’s 

recommendation for less than the maximum sentence wasn’t binding, because the 

State made no such recommendation; the plea agreement only stated that the State 

would remain silent as to sentencing. There was never any representation that 

Saldana would get any lesser sentence, other than the fact that his original second 

degree felony was reduced to a fourth degree felony because of the plea 

agreement, thereby resulting in a considerable reduction in the maximum possible 

sentence. 

{¶17} Although the State did not mention that the offense had occurred in 

Ohio when it reviewed the underlying facts, that element was clearly specified in 

the bill of information, which Saldana acknowledged. “[F]or a trial court to 

determine that a defendant in a criminal case understands the nature of the charge 

to which he was entering a guilty plea, it is not always necessary that the trial 

court advise the defendant of the elements of the crime, or to specifically ask the 

defendant if he understands the charge, so long as the totality of the circumstances 

are such that the trial court is warranted in making a determination that the 

defendant understands the charge.” State v. Cantrell, 10th Dist. No. 01-AP-818, 

2002-Ohio-1353, quoting State v. Rainey, 3 Ohio App.3d 441 (10th Dist.1982). 
Case No. 12-12-09 

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{¶18} The trial court complied with all aspects of the law to ensure that 

Saldana’s guilty plea was entered knowingly, voluntarily, and intelligently. The 

second assignment of error is overruled. 

{¶19} The first assignment of error raised by Saldana complains that the 

trial court abused its discretion when it sentenced him to the maximum sentence. 

Saldana claims that the trial court failed to consider the required statutory 

sentencing factors. Although he acknowledges that the trial court “adequately 

found at least one factor under R.C. 2929.13(B)(1) to justify a possible prison term 

for a fourth degree felony,” he claims that the court failed to consider the factors 

with the proper weight and proportionality. And, he argues that the trial court 

failed to consider the mitigating factors. 

{¶20} Ever since the Ohio Supreme Court’s ruling in State v. Foster, 109 

Ohio St.3d 1, 2006–Ohio–856, “trial courts have full discretion to impose a prison 

sentence within the statutory range and are no longer required to make findings or 

give their reasons for imposing maximum, consecutive, or more than the minimum 

sentences.” State v. Mathis, 109 Ohio St .3d 54, 2006–Ohio–855, 846 N.E.2d 1, ¶ 

37. Courts, nevertheless, are still required to comply with the sentencing laws 

unaffected by Foster, such as R.C. 2929.11 and 2929.12, which require 

consideration of the purposes and principles of felony sentencing and the 

seriousness and recidivism factors. Mathis at ¶ 38. 
Case No. 12-12-09 

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{¶21} R.C. 2929.11 provides, in pertinent part, that the “overriding 

purposes of felony sentencing are to protect the public from future crime and to 

punish the offender.” R.C. 2929.11(A). In advancing these purposes, sentencing 

courts are instructed to “consider the need for incapacitating the offender, 

deterring the offender and others from future crime, rehabilitating the offender, 

and making restitution to the victim of the offense, the public, or both.” Id. 

Meanwhile, R.C. 2929.11(B) states that felony sentences must be both 

“commensurate with and not demeaning to the seriousness of the offender’s 

conduct and its impact upon the victim” and consistent with sentences imposed in 

similar cases. 

{¶22} Pursuant to App.R. 9(C), a “Statement of the Evidence or 

Proceeding” (“Statement”) was submitted because a transcript of the sentencing 

hearing was not available. There was no objection by the State, and the Statement 

was approved by the trial court. The Statement indicated that the sentencing 

judgment entry accurately reflected the sentencing as ordered by the trial court, 

and included the affidavit of Saldana’s trial council who stated that she had 

highlighted the following in mitigation: that Saldana suffered the brunt of the 

injuries in the altercation; his intent in going to the victim’s residence was to speak 

with him about a personal matter, not to cause an altercation; and that he regretted 
Case No. 12-12-09 

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that the matter turned into a physical altercation and he accepted responsibility for 

his actions. 

{¶23} In the Judgment Entry of Sentence, the trial court stated: 

The Court has considered the record, oral statements, any victim 

impact statements, and the pre-sentence investigation report 

prepared, as well as the principles and purposes of sentencing under 

[R.C.] 2929.11 and 2929.12. The Court finds that [Saldana] did 

cause serious physical harm to the victim, that the offense involved 

an actual threat of harm, and that [Saldana] has a prior offense of 

violence, and that [Saldana] has served a prison term. 

(May 14, 2012 J.E.) 

{¶24} Saldana’s sentence was within the statutory range for the offense, 

and he had been informed repeatedly that he could be subject to the maximum 

eighteen-month sentence. Additionally, the trial court considered the purposes and 

principals for felony sentencing set forth in R.C. 2929.11 and the factors relating 

to the seriousness of the offense and the recidivism of the offender pursuant to 

R.C. 2929.12. See State v. Pence, 3d Dist. No. 2–11–18, 2012–Ohio–1794, ¶ 7. 

{¶25} Saldana selects the wording in the judgment entry of sentencing 

stating that “the Defendant has a prior offense of violence, and that the Defendant 

has served a prior prison term,” upon which to base his argument that “one prior 

violent offense” may be a justification for imposing “any” prison term, but it 

cannot be a justification for a maximum term. (Emphasis added.) (Appellant’s 

Brief, p. 8) He also cited to an Ohio Supreme Court case for the proposition that 
Case No. 12-12-09 

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merely because a person has been convicted of one offense, that is not necessarily 

a clear predictor of whether that person is likely to engage in similar offenses in 

the future. (Appellant’s Br., p. 14, citing to State v. Eppinger, 90 Ohio St.3d 153, 

162, 2001-Ohio-247).1

 

{¶26} However, the record contradicts Appellant’s assertion that he has 

been convicted of only one offense and served only one term of incarceration. 

Although the trial court did not proffer a long list of Santana’s prior offenses in the 

judgment entry itself, the court stated that it considered the pre-sentence 

investigation report (“PSI”), which indicated that Santana had a long history of 

criminal activity, including multiple prior offenses of violence and a history of 

recidivism. Saldana, who was 26 years old at the time he committed the offense, 

had numerous, repeated juvenile offenses, beginning when he was thirteen years 

old. Shortly after he turned eighteen, he was convicted as an adult of aggravated 

menacing, followed by convictions for criminal trespassing and disorderly 

conduct; assault in 2004; criminal mischief; multiple counts of violation of 

protection orders; felony trafficking in drugs; and additional menacing charges, 

(amended to persistent disorderly conduct). He was incarcerated several times, 

and the PSI further indicated that Saldana’s compliance with conditions of 

probation was “extremely poor.” 

 

1

 We note that the issue in Eppinger is not exactly on point, pertaining to sexual predator classification 

hearings. 
Case No. 12-12-09 

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{¶27} Based on the above, we find that the trial court properly considered 

all of the appropriate statutory factors, and that the record supports the trial court’s 

findings and the imposition of the maximum sentence in order to punish the 

defendant and to protect the public. Therefore, Saldana’s first assignment of error 

is overruled. 

{¶28} Having found no error prejudicial to the Appellant herein in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

ROGERS and SHAW, J.J., concur. 

/jlr