[Cite as State v. Novoa, 2023-Ohio-3595.]

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT

MAHONING COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

ARTURO NOVOA,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY

Case No. 22 MA 0020

Criminal Appeal from the

Court of Common Pleas of Mahoning County, Ohio

Case No. 18 CR 850

BEFORE:

Cheryl L. Waite, Carol Ann Robb, David A. D’Apolito, Judges.

JUDGMENT:

Affirmed.

Atty. Dave Yost, Ohio Attorney General and Atty. Andrea K. Boyd, Special Prosecuting 

Attorney, Asst. Attorney General, 30 East Broad Street, 23rd Floor, Columbus, Ohio 

43215, for Plaintiff-Appellee

Atty. Brian A. Smith, Brian A. Smith Law Firm, LLC, 123 South Miller Road, Suite 250, 

Fairlawn, Ohio 44333, for Defendant-Appellant

Dated: September 29, 2023
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Case No. 22 MA 0020

WAITE, J.

{¶1} On February 24, 2017, Appellant Arturo Novoa murdered and then 

dismembered his girlfriend Shannon Graves. He attempted to dissolve some of the body 

parts with sulfuric acid; others were hidden and moved to various locations over the

course of the next months. He pleaded guilty to 43 criminal charges related to the murder 

and subsequent cover up, and he was sentenced to 48 years and one month to life in 

prison. When sentencing, some counts merged but the trial court pronounced sentence 

on each merged count despite the merger. The case was appealed to this Court. State 

v. Novoa, 7th Dist. Mahoning No. 19 MA 0073, 2021-Ohio-3585. Appellant’s convictions 

were affirmed, but the matter was remanded for the limited purposes of resentencing due 

to the errors related to sentencing on the merged counts. On remand, Appellant made 

an oral motion to withdraw his plea at resentencing, which was denied. The trial court 

addressed the merger error and Appellant was once again sentenced to 48 years and 

one month to life in prison.

{¶2} Appellant argues that the trial court should have granted the motion to 

withdraw his plea made at the beginning of his resentencing hearing. Appellant also 

alleges error in imposing consecutive sentences, denial of his right of allocution, and 

failure to sentence him on certain counts. Finally, Appellant alleges error in the trial 

court's jail-time credit calculation. A review of this record reveals none of Appellant's six 

assignments of error have merit and the judgment of the trial court after the limited 

resentencing is affirmed.
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Case History and Facts

{¶3} The history of this case is well documented in our prior opinion, State v. 

Novoa, 7th Dist. Mahoning No. 19 MA 0073, 2021-Ohio-3585. Appellant and the victim, 

Shannon Graves, were in a violent and tumultuous relationship during portions of 2016 

and 2017. Appellant bludgeoned Graves to death in her home on Mahoning Avenue in 

Youngstown, Ohio, on February 24, 2017. At the time, Appellant was also involved with 

another woman, Katrina Layton, who became his accomplice in the crimes against 

Graves. After murdering Graves, Appellant and Layton attempted in various ways to 

cover up the crime. Appellant shaved the victim's head, wrapped the body in garbage 

bags, and he and Layton put the body in the trunk of Graves' car. They took the body to 

Layton's home and together with another accomplice, Andrew Herrmann, dismembered 

the body. They placed Graves’ arms and legs in one storage bin and her head and torso 

in another, took the bins back to the Mahoning Avenue home, and placed the body parts 

in a freezer. They used sulfuric acid to try to dissolve the head and body. They also 

burned Graves’ personal belongings and her hair in a bonfire at a friend's house on 

Sherwood Avenue in Youngstown.

{¶4} During this time period Appellant and Layton used Graves' car, and also 

used her WIC food stamp card to purchase groceries. They told Graves' family and 

friends that she had moved to Cleveland with one man, and then later said she moved to 

Columbus with another. 

{¶5} On June 22, 2017, Graves' sister, Debbie DePaul, filed a missing person's 

report. DePaul and Graves' former fiancé began looking for her. At this point, Appellant 

and Layton became concerned that the police would search the Mahoning Avenue home. 
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They purchased a second freezer and took it to an apartment on Ravenwood Avenue in 

Youngstown. They moved Graves' body parts to the second freezer, but again became 

concerned about detection and moved the freezer containing Graves’ body to a third 

location on Devitt Avenue in Campbell, Ohio. A friend of Appellant opened the freezer 

thinking it contained frozen food. Instead, he found a bag containing what was left of 

Graves' remains.

{¶6} On September 21, 2017, Appellant and his co-defendants were indicted in 

Mahoning County on five felonies in Case No. 17 CR 856. This case was eventually 

dismissed because Appellant and his co-defendants were reindicted in Case No. 18 CR 

850 on August 29, 2018. The second indictment contained 48 counts, including 

aggravated murder, murder, tampering with evidence, abuse of a corpse, possession of 

criminal tools, theft of food stamp benefits, grand theft of a motor vehicle, drug trafficking, 

and engaging in a pattern of corrupt activity. Appellant was implicated in 44 of these 

counts.

{¶7} On May 31, 2019, Appellant entered into a Crim.R. 11 plea agreement. He 

pleaded guilty to all charges except aggravated murder, which was dismissed as part of 

the plea agreement. On June 24, 2019, he was sentenced to fifteen years to life in prison 

for murder, 36 months for each count of tampering with evidence, 11 months for each 

count of abuse of a corpse, 11 months on each count of possession of criminal tools, 11 

months on each count of theft of benefits, 17 months for grand theft of an automobile, 11 

months on each count of drug trafficking, and 10 years for engaging in a pattern of corrupt 

activity. 

{¶8} The court merged various counts as follows:
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Count 3 (tampering with evidence) and 32 (abuse of a corpse)

Counts 4, 5, 6, 7 (tampering with evidence)

Count 5 (tampering with evidence) and 30 (abuse of a corpse)

Counts 8, 9, 10, 11, 12, 13, 14, and 15 (tampering with evidence)

Count 9 (tampering with evidence) and 27 (abuse of a corpse)

Count 10 (tampering with evidence) and 28 (abuse of a corpse)

Count 16 (tampering with evidence) and 29 (abuse of a corpse)

Counts 21, 22, 23, 24, 25, and 26 (tampering with evidence)

{¶9} The court ordered some counts to be served concurrently and some 

consecutively, for a total of 48 years to life in prison. By actual count of the individual 

sentences, the sentence amounted to 48 years and one month to life in prison.

{¶10} Appellant appealed his conviction and sentence to this Court. This Court 

held that Appellant’s guilty plea was made knowingly, voluntarily, and intelligently; that 

the trial court was not required to notify Appellant during the plea process of the aggregate 

maximum sentence he faced; and that his conviction and sentence did not violate double 

jeopardy. This Court did find the trial court erred when it merged certain counts at 

sentencing but also entered specific prison terms for each sentence, rather than 

sentencing once on each group of merged counts. Id. at ¶ 48. The case was remanded 

to the trial court for the limited purposes of resentencing on only the merged counts by 
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allowing the state to elect the charge in each set of merged counts on which the court 

should sentence, and then for the court to issue a sentence only on those specifically 

elected counts. 

{¶11} The resentencing hearing took place on February 9, 2022. At the beginning 

of this resentencing hearing, Appellant made an oral motion to withdraw his guilty plea, 

which was denied. The resentencing entry was issued on February 17, 2022. The court 

recited which counts had been merged at the previous sentencing, and then stated which 

merged counts the state had elected for conviction and sentencing purposes: counts 3, 

4, 8, 16, and 21. The court resentenced accordingly and sentenced Appellant to 48 years 

and one month to life in prison as follows:

Count 2, murder (R.C. 2929.13(F), 2929.14(D)(3)), 15 years to life;

Count 3, tampering with evidence (R.C. 2921.12(A)(1), third degree felony), 

36 months;

Count 4, tampering with evidence (R.C. 2921.12(A)(1), third degree felony), 

36 months;

Count 16, tampering with evidence (R.C. 2921.12(A)(1), third degree 

felony), 36 months;

Count 17, tampering with evidence (R.C. 2921.12(A)(1), third degree 

felony), which is not an allied offense, 36 months;
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Counts 18, 19, and 20, tampering with evidence (R.C. 2921.12(A)(1), third 

degree felony), which are not allied offenses, 36 months for each count;

Count 21, tampering with evidence (R.C. 2921.12(A)(1), third degree 

felony), 36 months;

Count 31, abuse of a corpse (R.C. 2927.01(B), fifth degree felony), 11 

months;

Counts 33, 34, and 35, possession of criminal tools (R.C. 2923.24, fifth 

degree felony), which are not allied offenses, 11 months for each count;

Counts 36, 37, and 38 (R.C. 2913.46, fifth degree felony), theft of WIC 

benefits, which are not allied offenses, 11 months for each count;

Count 42, grand theft of a motor vehicle (R.C. 2913.02, fourth degree 

felony), 17 months;

Count 43, 44, 45, and 46, trafficking drugs (R.C. 2925.03(A)(1), fifth degree 

felony), which are not allied offenses, 11 months for each count.

{¶12} Appellant filed a timely appeal of his resentencing on March 9, 2022, and 

raises six assignments of error.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING 

APPELLANT'S MOTION TO WITHDRAW GUILTY PLEA. 
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{¶13} Appellant contends that he made a valid oral presentence motion to 

withdraw his guilty plea at the beginning of his resentencing hearing on June 14, 2019. 

Appellant cites nine factors a trial court is to use in evaluating a presentence motion to 

withdraw a plea. State v. Jones, 7th Dist. Columbiana No. 18 CO 0023, 2020-Ohio-3578, 

¶ 12. He argues that a presentence motion to withdraw a plea should be freely and 

liberally granted and a trial court is reviewed on appeal for abuse of discretion. Id. at ¶ 11. 

Based on this, Appellant contends that his motion to withdraw should have been granted, 

or at least the trial court should have held a hearing on the matter.

{¶14} Appellee responds that since Appellant's conviction had already been 

affirmed on appeal, the oral motion to withdraw Appellant’s plea made at the beginning 

of the limited resentencing hearing could not be granted. Appellee is correct. “A motion 

to withdraw a plea cannot be sustained by the trial court after the case has been appealed 

and the conviction affirmed.” State v. Smith, 7th Dist. Mahoning No. 14 MA 65, 2015-

Ohio-4809, ¶ 5, citing State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, ¶ 61. “If 

the case is reviewed and partially remanded for some aspect of resentencing, the 

appellate court has nevertheless affirmed the underlying conviction and the lower court 

no longer has jurisdiction to reconsider matters dealing with that conviction, such as 

whether the plea should be vacated.” Id. “Crim.R. 32.1 does not vest jurisdiction in the 

trial court to maintain and determine a motion to withdraw the guilty plea subsequent to 

an appeal and an affirmance by the appellate court.” State ex rel. Special Prosecutors v. 

Judges, Court of Common Pleas, 55 Ohio St.2d 94, 97, 378 N.E.2d 162 (1978). 

"According to the Supreme Court, it is inappropriate for a trial court to consider a motion 

to withdraw a guilty plea after a defendant's conviction has been affirmed because 
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Case No. 22 MA 0020

permitting the withdrawal would be inconsistent with the judgment of the appellate court." 

State v. Gibson, 9th Dist. Summit No. 25085, 2011-Ohio-566, ¶ 5. Once a conviction 

based on a guilty plea is affirmed on appeal, all matters regarding the guilty plea are res 

judicata and the trial court has no jurisdiction to revisit or vacate the plea as part of a 

limited remand for resentencing. Ketterer at ¶ 61. 

{¶15} Based on the established law, Appellant's first assignment of error is without 

merit and is overruled.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT'S IMPOSITION OF CONSECUTIVE SENTENCES 

WAS NOT SUPPORTED BY THE RECORD.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT'S IMPOSITION OF CONSECUTIVE SENTENCES 

WAS CONTRARY TO LAW. 

{¶16} Appellant argues that the consecutive sentences imposed with respect to 

counts 2, 3, 4, 8, 16, 17, 18, 21, 31, 33, 36, 42, 43, and 48 are not supported by the record 

and are contrary to law. We note the law regarding appellate review of consecutive 

sentences has recently changed. When a person is sentenced after committing multiple 

offenses, the presumption is that those sentences will be imposed concurrently, not 

consecutively. R.C. 2929.41(A). However, a court may impose consecutive sentences 

by following the requirements of R.C. 2929.41(C)(4). The court must find that “the 

consecutive service is necessary to protect the public from future crime or to punish the 
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Case No. 22 MA 0020

offender.” Id. It must further find that “consecutive sentences are not disproportionate to 

the seriousness of the offender's conduct and to the danger the offender poses to the 

public.” Id. The court must also find at least one of the following:

(a) The offender committed one or more of the multiple offenses while the 

offender was awaiting trial or sentencing, was under a sanction imposed 

pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or 

was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or 

more courses of conduct, and the harm caused by two or more of the 

multiple offenses so committed was so great or unusual that no single 

prison term for any of the offenses committed as part of any of the courses 

of conduct adequately reflects the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates that 

consecutive sentences are necessary to protect the public from future crime 

by the offender.

{¶17} The appellate standard of review is found in R.C. 2953.08(G)(2), which 

states:

(2) The court hearing an appeal under division (A), (B), or (C) of this section 

shall review the record, including the findings underlying the sentence or 

modification given by the sentencing court.
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Case No. 22 MA 0020

The appellate court may increase, reduce, or otherwise modify a sentence 

that is appealed under this section or may vacate the sentence and remand 

the matter to the sentencing court for resentencing. The appellate court's 

standard for review is not whether the sentencing court abused its 

discretion. The appellate court may take any action authorized by this 

division if it clearly and convincingly finds either of the following:

(a) That the record does not support the sentencing court's findings under 

division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 

2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, 

if any, is relevant;

(b) That the sentence is otherwise contrary to law.

{¶18} The Ohio Supreme Court has recently addressed the standard of review 

when consecutive sentences are being reviewed in State v. Gwynne, -- Ohio St. 3d --, 

2022-Ohio-4607, -- N.E.3d --, which held: 

The evidentiary standard for changing the trial court's order of consecutive 

sentences is not deference to the trial court; the evidentiary standard is that 

the appellate court, upon a de novo review of the record and the findings, 

has a 'firm belief' or 'conviction' that the findings—the criteria mandated by 

the legislature to be met before the exception to concurrent sentences can 

apply—are not supported by the evidence in the record. 
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Id. at ¶ 23, citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, 

¶ 22.

{¶19} “[T]he plain language of the statute requires appellate courts to review the 

record de novo and decide whether the record clearly and convincingly does not support 

the consecutive-sentence findings.” Gwynne at ¶ 1.

{¶20} Two steps are necessary in reviewing consecutive sentence findings. The 

first is whether the appropriate findings have been made. The second is whether the 

record clearly and convincingly supports those findings. Id. at ¶ 26. An appellate court 

may modify or vacate the consecutive sentences if it has “a firm conviction or belief, after 

reviewing the entire record, that the evidence does not support the specific findings made 

by the trial court to impose consecutive sentences, which includes the number of 

consecutive terms and the aggregate sentence that results.” Id. at ¶ 29.

{¶21} Turning to this record, the trial court made the required R.C. 2929.14(C)

findings. The court found that consecutive sentences were necessary to protect the 

public from future crime and to punish the offender, that they were not disproportionate 

to the seriousness of Appellant's conduct and the danger he posed, and that at least two 

of the multiple offenses were committed as part of one or more courses of conduct with 

a harm so great or unusual that a single term would not adequately reflect the seriousness 

of the conduct. (2/9/22 Tr., pp. 22-23.) The findings were incorporated into its sentencing 

entry.

{¶22} Appellant contends that the court failed to accurately make a finding at the 

sentencing hearing which is required by R.C. 2929.14(C)(4), and states: “that the 

consecutive * * * sentences are not disproportionate to the seriousness of the offender's 
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conduct and to the danger the offender poses to the public * * *.” Appellant complains

the court actually said: “consecutive sentences are not disproportionate to the 

seriousness of the offender's conduct, the callous disregard for human life and danger 

imposed by the defendant * * *.” (2/9/22 Tr., p. 23.) Thus, he argues that as the trial court 

was required to make the exact finding set out in R.C. 2929.14(C)(4), the way the court 

phrased the finding at resentencing did not conform to the statute and was ineffective to 

support consecutive sentencing. 

{¶23} As this Court and many others have repeatedly held: “The court is not 

required to state reasons in support nor is it required to use any 'magic' or 'talismanic'

words, so long as it is apparent that the court conducted the proper analysis.” State v. 

Williams, 2015-Ohio-4100, 43 N.E.3d 797, 806, ¶ 34 (7th Dist.), citing State v. Bonnell, 

140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. It is clear the trial court 

conducted the appropriate consecutive sentence analysis and clearly followed the 

statutory language. The slight variation cited by Appellant is a distinction without a 

difference. 

{¶24} Apart from the murder conviction, and taking into account the merged 

counts, Appellant could have received over 66 years to life in prison if all the convictions 

were ordered to run consecutively. The murder conviction alone warranted a sentence 

of 15 years to life in prison. Thus, an aggregate sentence of 48 years to life is below the 

maximum sentence Appellant could have received. Further, the aggravated murder 

charge dismissed as a result of his Crim.R. 11 plea agreement was punishable by life in 

prison. Charges that have been dismissed through a plea agreement may be considered 

at sentencing. State v. Wilson, 7th Dist. Mahoning No. 14 MA 43, 2015-Ohio-838, ¶ 13. 
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{¶25} Appellant contends the record does not contain facts that could possibly 

justify a sentence of 48 years to life. Appellant concedes that he has several prior 

convictions. He concedes that the acts forming the basis of his tampering with evidence 

charges are violent and gruesome, and are completely unlike most tampering charges. 

Appellant argues, though, that his abuse of a corpse charges are not based on any 

unusual behavior requiring consecutive sentences because the abuse of any corpse is 

by its very nature abhorrent. He also argues that his theft of food stamp benefits is no 

different than any other similar theft and could not possibly warrant consecutive 

sentences. 

{¶26} The record reveals that Appellant committed one of the most horrendous 

crimes committed in Ohio in recent memory. The facts of the case are well-established 

in the record and in our prior opinion. He bludgeoned the victim to death, dismembered 

her body, and then he and his new girlfriend went on a months-long spree trying to 

conceal or destroy the victim's body while telling others that she had simply moved away. 

They used sulfuric acid to try to dissolve some of the body. They gathered up and moved 

the body parts from place to place as they began to worry that their crimes would be

discovered. All the while they used the victim's own vehicle during the commission of 

these crimes, and even used the victim's WIC food stamp card. These facts alone provide 

overwhelming support of the trial court's decision to impose consecutive sentences on 

some of Appellant’s convictions. 

{¶27} In addition, Appellant's prior record contains convictions for arson, 

vandalism, and escape. The trial court also noted that Appellant had been released on 

bond in another criminal case when some of the offenses were committed. Appellant was 
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arrested on April 29, 2017, after committing a traffic offense in Youngstown. He fled in 

his vehicle and then on foot, and was eventually tased and caught. He had been released 

on bond in that case while many of the crimes under review in this appeal occurred. In 

light of the potential sentence that could have been imposed, Appellant's prior criminal 

history, the fact that he was on bond when some of the crimes occurred, and in light of 

the facts surrounding the crimes that were committed, this record fully supports the 

sentence imposed. Appellant's second and third assignments of error are overruled.

ASSIGNMENT OF ERROR NO. 4

THE TRIAL COURT'S SENTENCE OF APPELLANT WAS CONTRARY TO 

LAW FOR FAILING TO AFFORD APPELLANT HIS RIGHT OF 

ALLOCUTION. 

{¶28} Appellant argues that the trial court denied him his right of allocution found 

in Crim.R. 32(A)(1), which requires the sentencing judge to ask the defendant personally 

if he or she wishes to make a statement or present information in mitigation of 

punishment. The right of allocution applies, in part, to a resentencing hearing: “[The]

right of allocution is confined to the matters remanded to the court for resentencing.” State 

v. King, 8th Dist. Cuyahoga No. 95972, 2011-Ohio-3985, ¶ 9, citing State v. Saxon, 109 

Ohio St .3d 176, 2006-Ohio-1245, 846 N.E.2d 824. However, a violation of the right of 

allocution is subject to a harmless error analysis. State v. Turjoniz, 7th Dist. Mahoning 

No. 11 MA 28, 2012-Ohio-4215, ¶ 10. For example, in State v. Arroyo, Cuyahoga App. 

No. 90369, 2008-Ohio-3808, the Eighth District held that the trial court's failure to provide 

opportunity for allocution at resentencing was harmless error where imposition of 
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postrelease control was statutorily mandated, the defendant had addressed the court on 

previous occasions, and nothing defendant said would have affected the sentence.

{¶29} We have held that failure to directly address the defendant to give a final 

statement at sentencing is harmless where “defense counsel is given the opportunity to 

make a statement on behalf of the defendant.” Turjoniz, supra, at ¶ 10. In the instant 

appeal, the trial court asked Appellant's counsel immediately before pronouncing 

sentence: “Does your client have anything to say prior to the imposition of sentence?” 

(2/9/22 Tr., p. 13.) Counsel replied: “No, Your Honor.” (2/9/22 Tr., p. 13.) Because no 

error was raised regarding Appellant's right to allocution in the prior appeal of this case, 

and because the trial court asked Appellant's counsel if Appellant wished to make a final 

statement on resentencing, the record here reveals no prejudicial error. Appellant’s fourth 

assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 5

THE TRIAL COURT'S SENTENCE OF APPELLANT WAS CONTRARY TO 

LAW BECAUSE THE TRIAL COURT DID NOT IMPOSE APPELLANT'S 

SENTENCE ON COUNTS NINETEEN AND TWENTY OF THE 

INDICTMENT AT THE SENTENCING HEARING. 

{¶30} Appellant argues that his resentencing was contrary to law under R.C. 

2953.08(G)(2) because the trial court failed to pronounce sentence on counts 19 and 20 

at the sentencing hearing. Appellant acknowledges that counts 19 and 20 are mentioned 

in the sentencing judgment entry. He contends that they should have been discussed at 

the resentencing hearing. Appellant cites only Crim.R. 32(A)(4) in support, which 
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provides: “At the time of imposing sentence, the court shall do all of the following: * * * 

(4) In serious offenses, state its statutory findings and give reasons supporting those 

findings, if appropriate.”

{¶31} The Ohio Supreme Court has held that Crim.R. 32(A)(4) “requires only that 

courts state findings and give reasons as mandated by the sentencing statutes; the rule 

does not create any new or additional duties for judges at the time of sentencing * * *.” 

State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 25. Appellant 

has not cited any statute that requires the trial court to make any findings or give reasons 

for findings regarding counts 19 and 20, and therefore, his argument is unpersuasive.

{¶32} More to the point, Appellee correctly reiterates that the February 9, 2022 

hearing was a limited one, restricted to resentencing only on the counts that were merged

at the original sentencing hearing of June 24, 2019. The case was remanded pursuant 

to the order set forth in our prior opinion: “We remand this matter in order to allow the 

state to determine on which of the merged offenses it wishes the court to enter a 

conviction and sentence. All other aspects of the trial court's judgment is affirmed.” 

Novoa, 7th Dist. Mahoning No. 19 MA 0073, 2021-Ohio-3585, at ¶ 50. Neither counts 19 

nor 20 were merged with any other counts in the previous sentence. Counts 19 and 20 

were affirmed in the prior appeal and were not subject to the resentencing order. “[O]nly 

the sentences for the offenses that were affected by the appealed error are reviewed de 

novo; the sentences for any offenses that were not affected by the appealed error are not 

vacated and are not subject to review.” State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio2669, 951 N.E.2d 381, ¶ 15. Appellant’s fifth assignment of error is overruled.
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ASSIGNMENT OF ERROR NO. 6

THE TRIAL COURT ERRED WHEN IT FAILED TO PROPERLY AWARD 

APPELLANT JAIL TIME CREDIT, IN VIOLATION OF APPELLANT'S 

RIGHT TO EQUAL PROTECTION UNDER THE FOURTEENTH 

AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 

I, SECTION 2 OF THE OHIO CONSTITUTION. 

{¶33} Appellant argues that the trial court forgot to include jail-time credit for the 

amount of time he spent in prison from his initial sentencing in June of 2019 until his 

resentencing on February 9, 2022. He argues that jail-time credit is a constitutional right 

and that “[a] defendant who is unable to afford bail must be credited for the time they are 

confined while awaiting trial in order to avoid unequal treatment based on economic 

position.” State v. Dyer, 7th Dist. Mahoning No. 21 MA 0072, 2022-Ohio-1519, ¶ 7. He 

complains that the trial court stated at the resentencing hearing that he was due to receive 

1,656 days of jail-time credit, but that the February 17, 2022 sentencing entry only gives 

him credit for 686 days. He believes he should receive the full 1,656 days.

{¶34} Appellee replies that the trial court correctly recited the same jail-time credit 

in the February 17, 2022 sentencing entry that was pronounced in the original sentencing 

entry of June 24, 2019, which was 686 days. This amount was not challenged in 

Appellant’s first appeal. Appellee contends that what Appellant is asking is that the time 

he has spent in prison under the auspices of the Ohio Department of Rehabilitation and 

Corrections (ODRC) since June 24, 2019, be treated as jail-time credit, but points out 

there is a “distinction between jail-time credit and time served in prison[.]” State v. 
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Simpson, 10th Dist. Franklin No. 21AP-52, 2021-Ohio-4066, ¶ 17. A trial court is 

precluded from including prison time served as part of a sentence in its pretrial jail-time 

credit calculation. R.C. 2929.19(B)(2)(g)(i) states: “the [sentencing] court shall do all of 

the following: * * * Determine, notify the offender of, and include in the sentencing entry 

the total number of days, including the sentencing date but excluding conveyance time, 

that the offender has been confined for any reason arising out of the offense for which 

the offender is being sentenced[.] * * * The court's calculation shall not include the number 

of days, if any, that the offender served in the custody of the department of rehabilitation 

and correction arising out of any prior offense for which the prisoner was convicted and 

sentenced.”

{¶35} R.C. 2967.191 requires the ODRC to deduct from a prisoner's sentence any 

jail-time credit determined by the trial court, and any additional time served while under 

the jurisdiction of the ODRC: "The department of rehabilitation and correction also shall 

reduce the stated prison term of a prisoner * * * that the prisoner previously served in the 

custody of the department of rehabilitation and correction arising out of the offense for 

which the prisoner was convicted and sentenced."

{¶36} The Fourth District Court of Appeals was confronted with an argument 

similar to Appellant’s, and held: "[T]he plain language of the applicable versions of R.C. 

2929.19(B)(2)(g)(i) and R.C. 2967.191 suggests that trial courts must calculate the days 

a prisoner actually spends in jail, while ODRC must reduce the prisoner's prison term by 

those days, plus any additional days of confinement pending transport, as well as any 

related time the prisoner has spent in the custody of ODRC." State v. Price, 4th Dist. 

Athens No. 19CA14, 2020-Ohio-6702, ¶ 24. The court also stated: “[W]e find that here, 
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the trial court did not err or abuse its discretion in failing to specifically include Price's days 

served in the custody of ODRC in its jail-time credit calculation. Rather, it is the duty of 

ODRC to determine that figure and reduce Price's prison sentence in accordance with 

R.C. 2967.191.” Id. at ¶ 33.

{¶37} The trial court in this matter mentioned at his resentencing hearing that 

Appellant would be given credit for 1,656 days of time served. (2/9/22 Tr., p. 25.) The 

trial court did not specify that this was jail-time credit, but simply said “credit.” The trial 

court was correct. Appellant will be given credit for 686 days of jail-time credit, as stated 

in both sentencing entries. The rest will be credited as prison time by the Ohio 

Department of Rehabilitation and Correction. Perhaps the trial court could more clearly 

have explained this at the sentencing hearing, but by law the trial court could not give 

Appellant any more jail-time credit than 686 days, and that was the amount provided in 

the resentencing entry. Appellant is aware that jail-time credit is credit given while 

awaiting trial, as is shown by the Dyer case cited in Appellant's brief. Once Appellant was 

sentenced on June 24, 2019, he was no longer awaiting trial. Any time spent in prison 

after that was prison time, not pretrial jail-time. Appellant has not provided any evidence 

that ODRC is refusing to accurately credit him with prison time served based on his 

conviction. Assuming there was error made by the trial court, any error made at 

resentencing is harmless at best and it would be unlawful to grant Appellant the relief he 

requests. Appellant's sixth assignment of error is overruled.

Conclusion

{¶38} Appellant was convicted of murder and 42 other counts, including the 

attempted cover up of the murder, mutilating and hiding the corpse, theft of the victim's 
– 21 –

Case No. 22 MA 0020

car, drug trafficking, and engaging in a pattern of corrupt activity. His convictions were 

affirmed on appeal, but the case was remanded for limited resentencing solely due to 

sentencing errors regarding merged counts. Any appeal is likewise limited. Appellant 

argues that the trial court should have granted the motion to withdraw his plea made prior 

to resentencing. His guilty plea and conviction had been affirmed in his prior appeal. 

Therefore, the trial court did not have jurisdiction to grant a motion to withdraw his plea. 

Appellant challenges his consecutive sentences; an alleged denial of his right of 

allocution; and an alleged failure of the trial court to resentence him on counts 19 and 20. 

None of these arguments are supported by the record. Finally, Appellant argues that the 

trial court should have given him jail-time credit at resentencing for the time spent during 

this appeal, but any credit for time spent incarcerated in prison is calculated by the ODRC 

and is not appropriately part of the trial judge's jail-time credit calculation. None of 

Appellant's six assignments of error have merit, and the resentencing judgment entry of 

the trial court is affirmed.

Robb, J. concurs. 

D’Apolito, P.J. concurs. 
[Cite as State v. Novoa, 2023-Ohio-3595.]

For the reasons stated in the Opinion rendered herein, Appellant’s assignments of 

error are overruled and it is the final judgment and order of this Court that the judgment 

of the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs waived.

A certified copy of this opinion and judgment entry shall constitute the mandate in 

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a 

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.