[Cite as State v. Torres, 2012-Ohio-2932.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97749



                                       STATE OF OHIO
                                               PLAINTIFF-APPELLEE

                                                vs.


                                        ERVIN TORRES
                                               DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-526656

        BEFORE: Kilbane, J., Boyle, P.J., and Cooney, J.

        RELEASED AND JOURNALIZED:                     June 28, 2012
APPELLANT

Ervin Torres, pro se
Inmate #583-525
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901-0788

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
Mark J. Mahoney
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

      {¶1} In this pro se appeal, defendant-appellant, Ervin Torres a.k.a. Melvin

Torres, complains that the trial court erred in modifying a journal entry that imposed a

concurrent sentence and in refusing to order specific performance of a sentence

considered in plea proceedings. For the reasons set forth below, we affirm.

      {¶2} On June 15, 2009, Cleveland police officers arrested defendant in

connection with an alleged aggravated robbery, kidnapping, and felonious assault that

occurred that day and for an unrelated alleged failure to comply with the order of a police

officer on May 22, 2009. On July 1, 2009, he was charged in connection with an alleged

menacing by stalking on that same date, and was taken into custody on July 20, 2009.

      {¶3} On August 17, 2009, defendant was indicted for offenses from May 22,

2009 through July 11, 2009. In Count 1, he was charged with failure to comply with an

order of a police officer (and a furthermore clause alleging that he caused a substantial

risk of physical harm). In Counts 2 through 4, he was charged with aggravated robbery,

felonious assault, and kidnapping, all with one- and three-year firearm specifications.

In Counts 5 and 6, he was charged with menacing by stalking. Count 7 charged him with

attempted burglary, Count 8 charged him with theft, and Count 9 charged him with

having weapons while under disability.
       {¶4} In August 2009, defendant was indicted for various offenses in the United

States District Court for the Northern District of Ohio. Our record reveals that defendant

was subsequently sentenced to a term of 164 months.

       {¶5} On March 2, 2010, the United States District Court for the Northern District

of Ohio issued a “Detainer Based on Federal Judgment and Commitment to the Cuyahoga

County Sheriff and Cuyahoga County Jail” directing the following:

       Prior to the subject’s release from your custody, please notify this office at
       once so that we may assume custody of the subject for service of his
       Federal sentence of imprisonment.

       {¶6} Thereafter, on April 19, 2010, defendant entered into a plea agreement with

the state of Ohio in the instant matter.      Under the terms of the plea, the firearm

specifications were deleted from Counts 2 through 4, and the defendant pled guilty to the

indictment. At this time, defendant’s counsel stated:

       [O]ur agreement with the prosecutor — and the prosecutor has informed the
       court — is that they have no objection to concurrent time.

       As you know, he’s already doing federal time.

       I just want to state that, you know, that’s the nature of the bargain that I
       hope to enforce here.

       THE COURT: Okay. I mean, I can order it concurrent[.]

       {¶7} The trial court proceeded directly to sentencing, and defendant’s trial

counsel stated as follows:

       I’ve met several times — and I know the Court has also met — with Mr.
       Brian McGraw, who represents Mr.Torres in Federal Court. And
       throughout this thing, Judge, it was our understanding that Mr. Torres had
       faced some significant charges in Federal Court, and that the resolution of
       this matter would be dependent upon that.

       He has, in fact, resolved that matter, and he has been sentenced to 14 years
       in the federal penal system. Your Honor.

       We would ask the court to consider * * * imposing these sentences — the
       sentence here concurrently, Your Honor. And that was our whole strategy
       in pleading in Federal Court, also, Judge.

       {¶8} The trial court sentenced defendant to a total of 14 years of imprisonment

and stated in court that this sentence would be served concurrently with the 14-year term

imposed by the federal court. Defendant was then remanded into custody in the instant

matter. The record further reveals that the trial court’s journal entry failed to state that

the term was to be served concurrently with the federal sentence, and on September 20,

2010, the trial court issued a nunc pro tunc entry to correct that omission.

       {¶9} On October 6, 2010, defendant filed a pro se motion to withdraw his guilty

plea and vacate the sentence and argued that he understood that, according to the joint

federal and state plea bargain, his state sentence was to run concurrent to his federal

sentence and that he would be remanded to federal custody.

       {¶10} In support of this motion, defendant submitted an affidavit in which he

averred that he is presently incarcerated at the Mansfield Correctional Institution, and

prior to the start of that sentence, he “was already imprisoned in a federal facility[.]”

       {¶11} On October 25, 2010, the trial court denied defendant’s motion to withdraw

his guilty plea and to vacate the sentence. On April 4, 2011, defendant filed a pro se
motion for specific performance of the plea agreement announced on April 19, 2010. On

April 13, 2011, the trial court granted this motion and ordered:

       Torres has been in custody of the Ohio Department of Rehabilitation and
       Corrections since April 28, 2010. It does not appear that Torres was ever
       placed in the custody of the Federal Bureau of Prisons.

       The Court orders that if the Federal Bureau of Prisons wishes to incarcerate
       Torres, that is permissible and this case will run concurrently while Torres
       is incarcerated with the Federal Bureau of Prisons.

       Torres’s term of incarceration in this case does not expire until July 16,

       2023. If Torres completes his prison sentence in the Federal Bureau of

       Prisons for any reason prior to July 16, 2023, the Federal Bureau of Prisons

       is ordered to return Torres to the custody of the Ohio Department of

       Rehabilitation and Corrections to complete the remainder of this 14-year

       sentence.

       {¶12} Defendant remained in state custody following the trial court’s journal entry.

 On August 4, 2011, he filed a pro se motion to clarify his sentence. He maintained that

he had been remanded into federal custody on February 26, 2010, or prior to being

remanded herein. He also stated that the federal court did not order that the sentence be

served concurrently with the state court sentence. Therefore, according to defendant,

because he is serving the state time first, he has effectively been sentenced to 28 years, or

two consecutive 14- year terms, rather than concurrent 14-year terms. In support of this

claim, he included the detainer quoted above; however, this document indicates that the
defendant was in state custody as of March 2, 2010, and did not demonstrate defendant’s

claim that he was in federal custody as of February 26, 2010.

       {¶13} On November 29, 2011, the trial court issued the following order:

       [Defendant’s state sentence] was ordered to run concurrently with his
       federal sentence issued by Judge Sara Lioi in United States v. Benitez, et al.,
       United States District Court for the Northern District of Ohio, Case Number
       1:09-CR-00363.

       On November 18, 2011, the Court spoke with a representative from the
       Federal Bureau of Prisons (BOP), Designation Sentence Computation
       Center (DSCC). Since Torres was initially taken into custody in this case
       on July 20, 2009, prior to being taken into custody for the federal case * * *,
       the State of Ohio has primary custodial status over Torres.

       As a result, Torres must complete his sentence in Ohio as a result of his
       conviction in this case prior to being conveyed into federal custody to
       complete any time that may be remaining on his federal sentence.

       As a result, Torres’s motion for specific performance * * * and Motion to
       Clarify Sentence * * * are granted in part and denied in part. Torres’s
       sentence in this case is ordered to run concurrently with the sentence in case
       number jurisdiction 1:09-CR-00363, But Torres’s claim that he is entitled to
       serve his sentence as a result of his conviction in this case in a federal
       correctional facility is denied. This Court’s journal entry issued April 13,
       2011 is vacated.

       {¶14} In defendant’s two interrelated assignments of error, he complains that the

trial court erred when it modified the April 13, 2011 journal entry.

       {¶15} Generally, a plea bargain is a contract and subject to the principles of

contract law. State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, at ¶

50.   Where a violation of a plea agreement is found, the remedy may be specific

performance.    State v. Simpson, 158 Ohio App.3d 441, 443, 2004-Ohio-4690, 816
N.E.2d 609 (2d Dist.), citing Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30

L.Ed.2d 427 (1971).

       {¶16} Our review of the record indicates that the sentence imposed by the trial

court in this matter was ordered to be served concurrently with the time imposed by the

federal district court. The record clearly demonstrates that the trial court imposed the

sentence discussed by the parties at the plea hearing. The record is silent as to the

location of the actual incarceration, and there is nothing in the record to establish that the

defendant entered into his plea agreement solely to serve his state sentence concurrently

with his federal sentence in a federal prison.

       {¶17} As to whether the federal sentence was imposed concurrently with the

instant sentence, we note that when “a defendant is subject to an undischarged sentence of

imprisonment, the [federal] district court generally has authority to impose a term of

imprisonment on the current offense to run concurrently with or consecutively to the prior

undischarged term.” United States v. Stevenson, 435 Fed.Appx. 511, 517 (6th Cir.2011),

citing 18 U.S.C.      3584(a), applying United States Sentencing Guidelines section

5G1.3(c).

       {¶18} As to whether a concurrent sentence will be served under the federal or state

jurisdiction, the court in State v. Yee, 55 Ohio App.3d 88, 563 N.E.2d 54 (6th Dist.1989),

explained the issue as follows:

       The Supreme Court held in Ponzi v. Fessenden, [258 U.S. 254, 42 S.Ct.
       309, 66 L.Ed. 607 (1922)], that the first court to assume jurisdiction over a
       person or thing may exhaust its remedy without interference by another
       jurisdiction. Therefore, the federal court in this case has exclusive
        jurisdiction to prosecute appellee and the state court must wait to prosecute
        appellee after the federal sentence is served unless the federal government
        consents to concurrent jurisdiction.

Id. at 88, fn. 2.

        {¶19} In this matter, the trial court’s journal entry indicated that the court spoke

with a representative from the Federal Bureau of Prisons, Designation Sentence

Computation Center and learned that Torres was initially taken into state custody in this

case on July 20, 2009, prior to being taken into federal custody for the federal case, so “he

must complete his sentence in Ohio as a result of his conviction in this case prior to being

conveyed into federal custody to complete any time that may be remaining on his federal

sentence.” (Emphasis added.)

        {¶20} Based on all of the foregoing, the trial court determined that the federal

sentence was also a concurrent term and that the concurrent term was to be served in the

state facility.

        {¶21} The assignments of error are overruled.

        {¶22} Judgment affirmed.

        It is ordered that appellee recover from appellant costs herein taxed.

        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.
MARY EILEEN KILBANE, JUDGE

MARY J. BOYLE, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR
