State v. Fuentes ( 2019 )

[Cite as State v. Fuentes, 2019-Ohio-4122.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-18-41
v.
JORGE L. FUENTES, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 18-CR-364
Judgment Affirmed
Date of Decision: October 7, 2019
APPEARANCES:
Todd A. Workman for Appellant
Nathan Heiser for Appellee
Case No. 9-18-41
ZIMMERMAN, P.J.
{¶1} Defendant-appellant, Jorge L. Fuentes (“Fuentes”), appeals the October
30, 2018 judgment entry of sentence of the Marion County Court of Common Pleas.
We affirm.
{¶2} On July 25, 2018, the Marion County Grand Jury indicted Fuentes on:
Count One, of trafficking in heroin in violation of R.C. 2925.03(A)(2), (C)(6), a
second-degree felony; Count Two, of possession of heroin in violation of R.C.
2925.11(A), (C)(6), a second-degree felony; and Count Three, of having weapons
while under disability in violation of R.C. 2923.13(A)(3), a third-degree felony.
(Doc. No. 1). On July 30, 2018, Fuentes appeared for arraignment and entered pleas
of not guilty. (Doc. No. 6).
{¶3} On October 3, 2018, Fuentes withdrew his pleas of not guilty and
entered guilty pleas, under a written plea agreement, to an amended indictment.
(Doc. No. 21). Specifically, in exchange for his guilty pleas, the State agreed to
amend Count One to trafficking in heroin in violation of R.C. 2925.03(A)(2), (C)(6),
a third-degree felony, and Count Three to having weapons while under disability in
violation of R.C. 2923.13(A)(3), a third-degree felony, and to dismiss Count Two.1
1
Further and in exchange for Fuentes guilty pleas to Count One as amended and Count Three, the State
agreed under the negotiated plea agreement to dismiss another case which was not made a part of the record
before us. (See Doc. No. 21).
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(Id.). The trial court accepted Fuentes’s guilty pleas and dismissed Count Two.
(Id.).
{¶4} On October 3, 2018, the trial court sentenced Fuentes to 36 months in
prison on Count One, 30 months in prison on Count Three, and ordered the terms
be served consecutively for an aggregate sentence of 66 months.2 (Doc. No. 23).
The trial court filed its judgment entry of sentence on October 30, 2018. (Id.).
{¶5} Fuentes filed a notice of appeal on November 9, 2018, and raises one
assignment of error for our review. (Doc. No. 27).
Assignment of Error
The trial court erred when it sentenced Appellant to two lengthy
prison sentences for non-violent third degree felonies to be served
consecutively inconsistent with the purposes and principles of
sentencing given in the Ohio Revised Code.
{¶6} In his assignment of error, Fuentes argues that the trial court erred by
imposing the maximum term of imprisonment. In particular, Fuentes argues that
his sentence is inconsistent with the purposes and principles of sentencing under
R.C. 2929.11.
Standard of Review
{¶7} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
“only if it determines by clear and convincing evidence that the record does not
2
The trial court imposed a mandatory $2,500.00 fine as to Count One. (Doc. No. 23).
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support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,
¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.
at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus.
Analysis
{¶8} “It is well-established that the statutes governing felony sentencing no
longer require the trial court to make certain findings before imposing a maximum
sentence.” State v. Maggette, 3d Dist. Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 29,
citing State v. Dixon, 2d Dist. Clark No. 2015-CA-67, 2016-Ohio-2882, ¶ 14
(“Unlike consecutive sentences, the trial court was not required to make any
particular ‘findings’ to justify maximum prison sentences.”) and State v. Hinton, 8th
Dist. Cuyahoga No. 102710, 2015-Ohio-4907, ¶ 9 (“The law no longer requires the
trial court to make certain findings before imposing a maximum sentence.”).
Rather, “‘trial courts have full discretion to impose any sentence within the statutory
range.’” State v. Smith, 3d Dist. Seneca No. 13-15-17, 2015-Ohio-4225, ¶ 9,
quoting State v. Noble, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶ 9, citing
State v. Saldana, 3d Dist. Putnam No. 12-12-09, 2013-Ohio-1122, ¶ 20. In this case,
as third-degree felonies, trafficking in heroin and having weapons while under
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disability, each carry a non-mandatory sanction of 9-months to 36-months
imprisonment. R.C. 2925.03(A)(2), (C)(6) (2016) (current version at R.C.
2925.03(A)(2), (C)(6) (2019)); R.C. 2923.13(A)(3), (B); 2929.13(C) (2017)
(current version at R.C. 2929.13(C) (2019)); 2929.14(A)(3)(b) (2017) (current
version at R.C. 2929.14(A)(3)(b) (2019)). Because the trial court sentenced Fuentes
to 36 months in prison on Count One and 30 months in prison on Count Three, the
trial court’s sentences fall within the statutory range. “[A] sentence imposed within
the statutory range is ‘presumptively valid’ if the [trial] court considered applicable
sentencing factors.” Maggette at ¶ 31, quoting State v. Collier, 8th Dist. Cuyahoga
No. 95572, 2011-Ohio-2791, ¶ 15.
{¶9} “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.’” Smith at ¶ 10, quoting 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., quoting
R.C. 2929.11(A). “Meanwhile, R.C. 2929.11(B) states that felony sentences must
be ‘commensurate with and not demeaning to the seriousness of the offender’s
conduct and its impact upon the victim’ and also be consistent with sentences
imposed in similar cases.” Id., quoting R.C. 2929.11(B). “In accordance with these
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principles, the trial court must consider the factors set forth in R.C. 2929.12(B)-(E)
relating to the seriousness of the offender’s conduct and the likelihood of the
offender’s recidivism.” Id., citing R.C. 2929.12(A). “‘A sentencing court has broad
discretion to determine the relative weight to assign the sentencing factors in R.C.
2929.12.” Id. at ¶ 15, quoting State v. Brimacombe, 195 Ohio App.3d 524, 2011-
Ohio-5032, ¶ 18 (6th Dist.), citing State v. Arnett, 88 Ohio St.3d 208, 215 (2000).
{¶10} “Although the trial court must consider the purposes and principles of
felony sentencing set forth in R.C. 2929.11 and the sentencing factors listed in R.C.
2929.12, the sentencing court is not required to ‘state on the record that it considered
the statutory criteria or discuss[ed] them.’” Maggette at ¶ 32, quoting State v.
Polick, 101 Ohio App.3d 428, 431 (4th Dist.1995). “A trial court’s statement that
it considered the required statutory factors, without more, is sufficient to fulfill its
obligations under the sentencing statutes.” Id., citing State v. Abrams, 8th Dist.
Cuyahoga No. 103786, 2016-Ohio-4570, ¶ 14, citing State v. Payne, 114 Ohio St.3d
502, 2007-Ohio-4642, ¶ 18. In Fuentes’s sentencing entry, the trial court considered
the R.C. 2929.11 and 2929.12 factors. (Doc. No. 23). In order to determine if the
trial court considered the statutory factors, we normally look to the sentencing entry
and the sentencing hearing.
{¶11} In his appeal, Fuentes failed to provide a transcript of the proceeding
or a suitable alternative. “App.R. 9 requires an appellant to provide the appellate
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court with transcripts of the proceedings that are necessary to review the merits of
[his] appeal.” State v. Brown, 3d Dist. Marion No. 9-10-12, 2010-Ohio-4546, ¶ 8,
citing App.R. 9(B). In the absence of a complete transcript of the proceedings, a
statement of the evidence pursuant to App.R. 9(C), or an agreed statement pursuant
to App.R. 9(D), we have no alternative but to indulge the presumption of the
regularity of the proceedings and the validity of the judgment in the trial court.
Brown at ¶ 19, citing App.R. 9(B) and Knapp v. Edwards Laboratories, 61 Ohio
Std.2d 197, 199 (1980) (concluding that Brown had not provided the reviewing
court with a “transcript of the hearing necessary to resolve the assignments of
error”). See State v. Ames, 3d Dist. Allen No. 1-19-02, 2019-Ohio-2632, ¶ 12, citing
State v. Lucas, 3d Dist. Marion No. 9-90-81, 1991 WL 259043, *2, citing Ostrander
v. Parker-Fallis, 29 Ohio St.2d 72, 74 (1972). Thus, because we do not have the
ability to review a transcript or a suitable alternative, we must presume regularity in
the proceeding and the validity of the trial court’s consideration of the purposes and
principles of sentencing. See Ames at ¶ 12, citing Lucas at *2, citing Ostrander at
74. More importantly, without a transcript, we must presume that the trial court had
adequate evidence before it to support its findings. Id., citing State v. Brewer, 48
Ohio St.3d 50, 61 (1990), citing United States v. Gallo, 763 F.2d 1504 (6th
Cir.1985).
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{¶12} Therefore, we are not able to conclude that Fuentes’s sentence is
unsupported by the record or contrary to law. Accordingly, Fuentes’s assignment
of error is overruled.
{¶13} 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
SHAW and WILLAMOWSKI, J.J., concur.
/jlr
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