State v. Vasquez

2019 Ohio 136

• Court: Ohio Court of Appeals
• Decided: January 17, 2019
• Docket: 18 CAA 08 0058
• Status: Published

Opinion

[Cite as State v. Vasquez, 2019-Ohio-136.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 18 CAA 08 0058 CAMERO L. VASQUEZ

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 13 CR I 10 0474

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: January 17, 2019

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CAROL HAMILTON O'BRIEN CAMERO VASQUEZ PROSECUTING ATTORNEY PRO SE JOEL C. WALKER Be.C.I. ASSISTANT PROSECUTOR P.O. Box 540 140 N. Sandusky Street, 3rd Floor St. Clairsville, Ohio 43950 Delaware, Ohio 43015 Delaware County, Case No. 18 CAA 08 0058 2

Wise, J.

{¶1} Defendant-Appellant Camero L. Vasquez appeals the July 24, 2018,

decision of the Delaware County Common Pleas Court denying his Motion to Vacate ad

Correct Void Sentence.

{¶2} Plaintiff-Appellee is the State of Ohio.

STATEMENT OF THE CASE

{¶3} The relevant facts and procedural history are as follows:

{¶4} On July 27, 2015, Appellant Camero L. Vasquez was sentenced following

a guilty plea to one count of Nonsupport of Dependents, in violation of R.C. §2919.21(B),

a felony of the fourth degree. The trial court imposed five (5) years of community control

and ordered Appellant, among several other conditions, to pay in full all delinquent child

support as well as to make all current child support payments. The trial court further

ordered a reserve prison sentence of eighteen (18) months, and ordered Appellant to

serve ninety (90) days in the Delaware County Jail to be served at a rate of three (3) days

each month beginning on the first Thursday of each month, unless Appellant had paid at

least $300.00 toward the arrearage the previous month

{¶5} On April 7, 2017, Appellant admitted to violating the conditions of his

community control, those being; 1) the defendant failed to verify any completed

community service; 2) the Defendant failed to pay delinquent child support; 3) the

Defendant failed to make all current child support payments; 4) the Defendant failed to

appear for jail as ordered; and, 5) the Defendant failed to report to his probation officer

on September 30, 2016. Delaware County, Case No. 18 CAA 08 0058 3

{¶6} On May 8, 2017, the matter came before the court on a disposition hearing

on the community control violations. The trial court imposed the previously reserved

eighteen (18) month prison sentence as a result of Appellant violating the terms of his

community control. Enforcement of the prison sentence was delayed until November 1,

2017, to allow Appellant additional time to pay the child support due.

{¶7} Appellant failed to make any payment and also failed to appear for the

enforcement of his prison sentence.

{¶8} On January 26, 2018, a warrant was issued for Appellant’s arrest.

{¶9} On May 7, 2018, Appellant was arrested on the warrant.

{¶10} On May 18, 218, Appellant was delivered to the Corrections Reception

Center.

{¶11} On June 7, 2018, Appellant filed a motion for judicial release, which was

denied by Court Entry filed June 14, 2018.

{¶12} On July 19, 2018, Appellant filed a Motion to Vacate and Correct Void

Sentence.

{¶13} On July 24, 2018, the Court denied this request.

{¶14} On August 0, 2018, Appellant filed a second motion for judicial release.

{¶15} The trial court denied this request by Entry dated August 17, 2018.

{¶16} Appellant now appeals, assigning the following error for review:

ASSIGNMENT OF ERROR

{¶17} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO

VACATE AND CORRECT A SENTENCE WHICH IS CONTRARY TO 2929.15(B)(c)(ii).” Delaware County, Case No. 18 CAA 08 0058 4

I.

{¶18} In his sole assignment of error, Appellant argues that the trial court erred in

denying his motion to vacate and correct sentence. We disagree.

{¶19} Specifically, Appellant argues that his sentence is contrary to R.C. §2929.15

(B)(1)(c)(ii).

{¶20} R.C. §2929.15(B) sets forth the penalties a trial court may impose upon an

offender for violating the terms of community control. The statute was amended, effective

September 29, 2017. As applicable here, R.C. §2929.15(B)(1)(c) allows a trial court to

impose a prison term if the conditions of a community control are violated, provided that:

(ii)If the prison term is imposed for any technical violation of the

conditions of a community control sanction imposed for a felony of the fourth

degree that is not an offense of violence and is not a sexually oriented

offense or for any violation of law committed while under a community

control sanction imposed for such a felony that consists of a new criminal

offense and that is not a felony, the prison term shall not exceed one

hundred eighty days.

{¶21} Appellant argues the trial court erred sentencing him to 18 months in prison

for the fourth-degree felony non-support of dependents community control violation.

{¶22} Upon review, we find that even though enforcement of the sentence was

delayed, Appellant’s sentence was imposed on May 8, 2017, prior to the enactment of

R.C. §2929.15(B)(1)(c)(ii), as amended. A statute is considered prospective in its

application unless expressly made retrospective. R.C. §1.48. We therefore find R.C.

§2929.15(B)(1)(c)(ii), as amended, to be inapplicable in the instant case. Delaware County, Case No. 18 CAA 08 0058 5

{¶23} We shall not address Appellant’s arguments as to whether his community

control violations were technical or non-technical as set forth in R.C. §2929.15(B)(1)(c)(ii)

as any ruling we would issue on this matter would amount to an advisory opinion, which

we refuse to render.

{¶24} Based on the foregoing, we find Appellant’s sole assignment of error not

well-taken and overrule same.

{¶25} For the foregoing reasons, the decision of the Court of Common Pleas of

Delaware County, Ohio, is affirmed.

By: Wise, John.

Hoffman, P. J., and

Wise, Earle, J., concur.

JWW/d 0108