[Cite as State v. Pete, 2023-Ohio-4406.]

Atty. James L. Peters, Monroe County Prosecutor, for Plaintiff-Appellee and

Atty. Aaron M. Meikle, for Defendant-Appellant.

Dated: December 5, 2023

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT

MONROE COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

SAMUEL J. PETE,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY

Case No. 23 MO 0002

Criminal Appeal from the

Court of Common Pleas of Monroe County, Ohio

Case No. 2020-118

BEFORE:

David A. D’Apolito, Carol Ann Robb, Mark A. Hanni, Judges.

JUDGMENT:

Sentence Vacated.
– 2 –

Case No. 23 MO 0002

D’APOLITO, P.J.

{¶1} Appellant, Samuel J. Pete, appeals the judgment entry of the Monroe 

County Court of Common Pleas overruling his motion to vacate sentencing. Appellant 

alleges in the motion the trial court was without jurisdiction to sentence him as he entered 

his plea to one count of aggravated trafficking in drugs (methamphetamine) in violation of 

R.C. 2925.03, a felony of the third degree, on April 27, 2020, but the trial court had not 

sentenced him due to his incarceration in federal prison as of November 21, 2022, the 

date the motion was filed. For the following reasons, Appellant’s sentence is vacated.

FACTS AND PROCEDURAL HISTORY

{¶2} On February 20, 2020, the Grand Jury of Monroe County indicted Appellant 

on one count of aggravated possession of drugs in violation of R.C. 2925.11, a felony of 

the third degree, and one count of aggravated trafficking in drugs. Appellant was 

arraigned on February 26, 2020 and released on his own recognizance. A trial was 

scheduled for March 30, 2020.

{¶3} On March 27, 2020, in response to the COVID-19 state of emergency, the 

Ohio Supreme Court issued an order captioned “Tolling of Time Requirements Imposed 

by Rules Promulgated by the Supreme Court and Use of Technology.” In re Rules of 

Practice of Supreme Court of Ohio, 158 Ohio St.3d 1469, 2020-Ohio-1461, 142 N.E.3d 

706. The order “immediately tolled all time requirements imposed by rules promulgated 

by the Court set to expire between March 9, 2020, and the expiration of Executive Order 

2020-01D or July 30, 2020, whichever is sooner[.]” Id. Consequently, the trial was 

continued due to tolling order.

{¶4} On April 27, 2020, Appellant entered a plea of guilty to one count of 

aggravated drug trafficking. That same day, Appellant signed a waiver of extradition 

hearing, in the event he failed to appear and was apprehended outside the jurisdiction of 

the trial court. A bench warrant was issued on July 8, 2020, due to Appellant’s failure to 

appear at the probation office for the preparation of a pre-sentencing investigation.

{¶5} Twice in the ensuing months, Appellant sent correspondence to the trial 

court, which was copied to the prosecutor’s office. 
– 3 –

Case No. 23 MO 0002

{¶6} In a letter dated September 29, 2020, Appellant explained that he did not 

return to court because he was involved in a traffic stop immediately after leaving the 

courthouse following his plea. He alleged the officer who conducted the traffic stop was 

the same officer who testified against him in court. Appellant further alleged that the 

officer told him to leave the jurisdiction, because the officer would kill Appellant if he found 

him in Monroe County. Appellant feared for his life and the life of his children. Appellant 

explained that he was currently incarcerated and requested the imposition of a concurrent 

sentence in the above-captioned case. 

{¶7} Roughly one year later, in a letter dated September 27, 2021, Appellant 

requested the appointment of new counsel. Appellant explained he requested his current 

counsel file a number of motions, but she informed him that she made telephone calls 

instead. Further, Appellant explained the trial court’s warrant foreclosed him from serving 

the remainder of his federal sentence in a halfway house. Appellant expressed his desire 

to “get this show on the road.” In a journal entry dated September 30, 2021, the trial court 

held the pro se motion for new counsel in abeyance “pending sentencing.”

{¶8} On December 3, 2021, defense counsel filed a request to be sentenced via 

remote hearing, pursuant to Crim. R. 43(A)(2). The request indicated Appellant was 

willing to waive his right to be physically present at the sentencing hearing, either in writing 

or during the hearing. The request reiterated the fact that Appellant was incarcerated in 

Pennsylvania. The state joined in the request in its response brief filed on December 20, 

2021. 

{¶9} Nonetheless, the trial court overruled the request on December 28, 2021. 

The entry reads, in pertinent part, “[t]his Court will impose sentence upon [Appellant] after 

he is finished serving the current sentence on an unrelated offense from another 

jurisdiction.”

{¶10} The bench warrant was returned on September 2, 2022. On September 7, 

2022, the trial court conducted the sentencing hearing. However, no sentence was 

imposed as Appellant indicated his intent to file a motion to withdraw his plea. On 

September 12, 2022, defense counsel filed the motion to withdraw plea. 

{¶11} A hearing on the motion to withdraw plea was scheduled for October 14, 

2022, then continued to October 25, 2022. On October 19, 2022, Appellant filed another 
– 4 –

Case No. 23 MO 0002

pro se motion for new counsel. At the hearing on October 25, 2022, the trial court 

appointed new counsel for Appellant. The hearing on the motion to withdraw plea was 

continued to November 21, 2022. 

{¶12} On November 3, 2022, Appellant filed a pro se uncaptioned pleading. He 

advanced arguments invoking the Interstate Agreement on Detainers (“IAD”), codified as 

R.C. 2963.30. However, the IAD does not apply to detainers placed on prisoners who 

have already been convicted and need only to be sentenced. State v. Brown, 152 Ohio 

App.3d 8, 2003-Ohio-1218, 786 N.E.2d 492, ¶ 25 (7th Dist.).

{¶13} On November 21, 2022, newly-appointed defense counsel filed two 

motions: a motion to withdraw the motion to withdraw plea and the motion to vacate 

sentence, currently before us on appeal. The state responded to the motion to vacate 

sentence on November 29, 2022.

{¶14} In a judgment entry filed on December 13, 2022, the trial court overruled the 

motion to vacate sentence. The trial court explained it was notified in February of 2021 

that Appellant was incarcerated in federal prison on a probation violation for 33 months 

and “Monroe County was advised to place a holder on [Appellant].” (12/13/22 J.E., p. 2.) 

The trial court reasoned any sentence imposed in the above-captioned case would be 

served consecutively to Appellant’s federal sentence, pursuant to the recommendation of 

the probation department. 

{¶15} With respect to the motion to be sentenced remotely, the trial court opined, 

“[t]he motion was denied * * * for several reasons, mainly that [Appellant] fled the 

jurisdiction of the Court after his release and failed to report to the Probation Department 

for the pre-sentence investigation, which had not been completed at that time.” The trial 

court also cited technical problems with its remote or telecommunications system “making 

it difficult, if not impossible, to do remote pleas, let alone a sentencing.” (Id.)

{¶16} The trial court opined the delays in sentencing “are all attributable to one 

source – [Appellant] himself.” The trial court reasoned, “[i]n effect, [Appellant] was 

attempting, at his convenience and once in federal custody, to be sentenced by this Court 

on his terms and at times convenient to him in an attempt to have any prison sentence 

from this Court run concurrent to any federal time he was already serving.” (Id. at p. 7.) 

The judgment entry concludes, “seeing no need to sentence [Appellant] prior to his 
– 5 –

Case No. 23 MO 0002

release, the Court ordered [Appellant] to be returned to Monroe County from federal 

custody after his sentence was complete, which was nine (9) months from [Appellant’s] 

request to be sentenced remotely.” (Id. at p. 2.)

{¶17} On January 5, 2023, the trial court imposed a thirty-month prison sentence. 

This timely appeal followed. 

ANALYSIS

ASSIGNMENT OF ERROR

[APPELLANT’S] SENTENCE IS VOID BECAUSE THE TRIAL COURT 

LOST JURISDICTION TO IMPOSE A SENTENCE UPON HIM DUE TO AN 

UNREASONABLE AND UNJUSTIFIED DELAY BETWEEN HIS APRIL 

27, 2020 PLEA HEARING AND HIS JANUARY 5, 2023 SENTENCING 

HEARING.

{¶18} Crim.R 32(A) reads, in relevant part, a “[s]entence shall be imposed without 

unnecessary delay.” Crim.R. 32(A). The Ohio Supreme Court has held “the time of 

pronouncing sentence is within the discretion of the trial court and a delay for a reasonable 

time does not invalidate the sentence.” Neal v. Maxwell, 175 Ohio St. 201, 201, 192 

N.E.2d 782, 784 (1963). Based on the Supreme Court’s pronouncement in Neal, Ohio 

appellate courts have held that a delay in sentencing must be reasonable in order to be 

valid * * *.” State v. Miller, 3rd Dist. Henry No. 7-11-21, 2012-Ohio-2132, ¶ 7. See State 

v. Hruby, 6th Dist. Ottawa No. OT-10-036, 2011-Ohio-3848, ¶ 10; State v. Brown, 152 

Ohio App.3d 8, 2003-Ohio-1218, 86 N.E.2d 492, ¶ 20 (7th Dist.); State v. Johnson, 12th 

Dist. Madison No. CA2002-07-016, 2003-Ohio-6261, ¶ 13. As such, “[a]n unreasonable 

delay between a plea and a sentencing, which cannot be attributed to the defendant, will 

invalidate that sentence.” State v. Martinez, 6th Dist. Wood No. WD-09-068, 2010-Ohio2007, ¶ 6, citing Brown at ¶ 31. See State v. Owens, 181 Ohio App.3d 725, 2009-Ohio1508, 910 N.E.2d 1059, ¶ 27 (7th Dist.); State v. Hawkins, 8th Dist. Cuyahoga No. 94294, 

2011-Ohio-74, ¶ 4.

{¶19} In determining whether a delay was unreasonable, appellate courts are to 

consider the facts of each case. State v. Barklay, 2nd Dist. Greene No. 95 CA 70, 1996 
– 6 –

Case No. 23 MO 0002

WL 111804, *2 (Mar. 15, 1996). Courts have examined the reasons for the delay in this 

analysis. State v. Ventura, 2016-Ohio-5151, 61 N.E.3d 189, ¶ 27 (1st Dist.); Barklay at 

*2; Brown at ¶ 29; Johnson at ¶ 16. Further, “the remedy for an unreasonable delay in 

sentencing is not a resentencing hearing * * *.” Owens at ¶ 33. See Martinez at ¶ 6. 

Rather, “[t]he case law on this subject indicates that * * * the sentence must be reversed 

* * *.” Brown at ¶ 30.

{¶20} In Neal, supra, ten months elapsed between the finding of guilt and the 

imposition of sentence. During that interval, the defendant was tried on new charges 

under a separate indictment in the same court. In finding the ten-month delay was 

reasonable, the Ohio Supreme Court opined: 

The deferring of the pronouncement of sentence on a conviction until trial is 

had on other indictments pending against an accused does not constitute 

an unreasonable delay in the pronouncement of sentence, inasmuch as the 

trial court may reasonably defer such sentence pending the outcome of the 

other trials for the purpose of determining the severity of the sentences to 

be imposed. 

Neal, supra, at 202.

{¶21} In Brown, supra, the defendant pleaded guilty to charges in Columbiana 

County, but prior to his sentencing he was arrested and detained in Jefferson County 

pursuant to a request for extradition to Colorado. He was subsequently extradited to 

Colorado despite his request to be sentenced in Ohio prior to extradition. When Brown 

failed to appear in Columbiana County for his scheduled sentencing, the trial court 

ordered the County Sheriff to retrieve him from Colorado and issued a bench warrant for 

Brown’s arrest. However, Brown was not returned to Ohio, and for 20 months thereafter, 

neither the state nor the trial court made any efforts to facilitate a sentencing hearing. 

Finally, over three years after he had entered his guilty plea, Brown was sentenced via 

video conference. 

{¶22} On appeal, we vacated Brown’s sentence, holding that the 20-month delay 

was unreasonable and divested the trial court of jurisdiction to impose the sentence. 
– 7 –

Case No. 23 MO 0002

Brown at ¶ 31. We reasoned Brown’s extradition was involuntary, as there was no 

evidence that Brown signed a waiver of extradition. Moreover, Brown asked the trial court 

hearing the extradition request from Colorado to facilitate his sentencing in Ohio, which

never occurred. 

{¶23} We opined:

Obviously, if appellant had waived extradition so that the authorities in 

Jefferson County were forced to deliver him into the custody of officials from 

the state of Colorado, he would have been responsible for any subsequent 

effects of that decision, such as missing his sentencing hearing in 

Columbiana County. If appellee had evidence to support that appellant 

made a formal waiver of extradition and that Jefferson County had no choice 

but to release him into the custody of officials from Colorado, appellee

should have produced this evidence in response to appellant’s motion to 

dismiss. The record in fact reveals that appellant presented his dilemma to 

Judge Bruzzese in Jefferson County and asked the judge to resolve the 

possible sentencing problem. Clearly, then, appellant was not attempting to 

avoid being sentenced in Columbiana County by asking whether he could 

be extradited to Colorado. The evidence of record reflects that while 

appellant explained his situation to Judge Bruzzese, it was Judge Bruzzese 

who allowed appellant to be extradited without a written waiver of 

extradition. Therefore, the delay in sentencing caused by the extradition 

must be attributed to the state and cannot be attributed to appellant.

Id. at ¶ 23.

{¶24} In Johnson, supra, the defendant pled guilty to several felony charges, but 

failed to appear at his sentencing hearing. Id. at ¶ 2. The defendant was then arrested, 

charged, and convicted of unrelated offenses in Kentucky. Id. The defendant and his 

attorney wrote letters to the Ohio court notifying it of the defendant’s whereabouts and 

requesting disposition of the case. Id. at ¶ 4-9. Notwithstanding such notice, the trial court 

failed to sentence the defendant until he was released from prison in Kentucky six years 
– 8 –

Case No. 23 MO 0002

later. Id. at ¶ 9. On appeal, the Twelfth District, citing Brown, held the six-year delay was 

unreasonable. Id. at ¶ 17. 

{¶25} In Martinez, supra, the Sixth District analyzing Brown and Johnson noted in 

both cases, “the state and or the trial court were shown to have relevant, specific 

information of the defendants’ whereabouts yet they simply failed to act on said 

information in a timely manner. Furthermore, the records in those cases showed the state 

and or the trial court had no valid excuse for their inaction.” Id. at ¶ 16. Consequently, the 

Sixth District concluded the trial court’s two-year delay in sentencing Martinez was 

unreasonable and the trial court was divested of jurisdiction to sentence him. See also, 

State v. Edmead, 6th Dist. Wood No. WD-21-074, 2022-Ohio-2608, ¶ 17 (two-year delay).

{¶26} In State v. Owens, supra, we found the 13-month period between Owens’s 

guilty plea and the sentencing was unreasonable. The docket in that case indicated the 

Pennsylvania authorities refused to release Owens on June 12, 2006, and for over 13 

months thereafter, neither the trial court nor the state made any attempt to sentence 

Owens, despite the fact that Owens waived extradition with the Pennsylvania court.

{¶27} The Owens Court recognized several methods the state and/or the trial 

court could have employed to sentence Owens, including video conference, formal 

extradition proceedings pursuant to R.C. 2963.01, or the execution of a waiver from 

Owens of his right to be physically present at the sentencing hearing. Id. at ¶ 32.

{¶28} The dissenting judge predicated his conclusion that the sentence was valid 

on the fact that Owens’s location at the time of his originally scheduled sentencing hearing 

(in a Pennsylvania jail) was not attributable to the state. The dissent cited the rationale in 

Brown that Brown would have been responsible for the delay in his sentencing had he 

signed a waiver of extradition to Colorado, however no such waiver was in the record. 

Nonetheless, the majority held a defendant’s unavailability for sentencing caused by his 

out-of-state incarceration was simply one factor and did not necessarily translate to a 

reasonable delay. 

{¶29} Considering the totality of the circumstances, that is, (1) Ohio authorities 

knew Owens’s whereabouts; (2) Owens waived extradition; (3) no action was taken for 

thirteen months; (4) Owens was jailed not far from Mahoning County; and (5) other 
– 9 –

Case No. 23 MO 0002

methods were available to sentence Owens even absent extradition – the majority found 

the delay in Owens was unreasonable and Owens’s sentence was void.

{¶30} In this appeal, the trial court conceded in the judgment entry overruling the 

motion to vacate sentence that it was aware Appellant was in federal prison in February 

of 2021. Even accepting the trial court’s representation that it was first on notice of 

Appellant’s whereabouts as of February of 2021, a delay of at least eighteen months 

occurred between that date and Appellant’s originally-scheduled sentencing hearing in 

September of 2022. Of equal concern, we have previously rejected the trial court’s 

explanation for the delay, that is, Appellant was solely responsible for his unavailability 

due to his subsequent incarceration in Pennsylvania.

{¶31} Neither the trial court nor the state made any effort to sentence Appellant 

despite the fact that both entities were aware that he was in federal prison in 

Pennsylvania, he signed a waiver of extradition at the plea hearing, and he requested to 

be sentenced remotely. The trial court cites problems with its telecommunications 

system, however, those problems are not attributable to Appellant. Moreover, in February 

of 2021, trial courts had returned to full function following the COVID tolling period and 

Appellant could have been extradited from Pennsylvania for sentencing. 

{¶32} Based on the totality of the circumstances, we find Appellant’s sole 

assignment of error has merit. Accordingly, Appellant’s sentence is vacated based on 

the unreasonable delay between Appellant’s plea and his sentencing hearing, and he 

cannot be resentenced. It is important to note Appellant’s conviction remains valid, 

despite the invalidity of his sentence, Brown, supra, at ¶ 30.

Robb, J., concurs.

Hanni, J., concurs.
[Cite as State v. Pete, 2023-Ohio-4406.]

For the reasons stated in the Opinion rendered herein, the assignment of error 

is sustained. It is the final judgment and order of this Court that Appellant’s conviction 

remains valid, however, the sentence imposed by the Court of Common Pleas of 

Monroe County, Ohio, is vacated and Appellant cannot be resentenced. Costs to be 

taxed against Appellee.

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.