State v. Vasquez , 2011 Ohio 1319 ( 2011 )

[Cite as State v. Vasquez, 2011-Ohio-1319.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : William B. Hoffman, P.J.
: Julie A. Edwards, J.
Plaintiff-Appellee : Patricia A. Delaney, J.
:
-vs- : Case No. 10-COA-022
:
:
JOSEPH VASQUEZ : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Ashland County
Court of Common Pleas Case No.
10-CRI-004
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 18, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RAMONA ROGERS DOUGLAS A. MILHOAN
Ashland County Prosecutor P.O. Box 347
307 Orange Tree Square Middlebranch, Ohio 44805
Ashland, Ohio 44805
PAUL T. LANGE
Assistant Prosecuting Attorney
307 Orange Street
Ashland, Ohio 44805
[Cite as State v. Vasquez, 2011-Ohio-1319.]
Edwards, J.
{¶1} Defendant-appellant Joseph Vasquez appeals his sentence from the
Ashland County Court of Common Pleas on three counts of theft. Plaintiff-appellee is
the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} In December of 2009, appellant opened up a business account at the
Farmers Savings Bank1 in Ashland, Ohio. He then deposited into the account a forged
check from a checking account from Key Bank that had been closed since May of 2008.
Appellant received a large sum of money for the check and asked that the remainder of
the check be deposited into the business account. Appellant deposited two more
checks into the account at Farmers Savings Bank from this Key Bank account and
received large amounts of cash for each check. In late December of 2009, Farmers
Savings Bank employees discovered that the Key Bank account was not a valid account
and contacted appellant to notify him that there was an issue with his account.
Appellant never returned to Farmers Savings Bank.
{¶3} On February 1, 2010, the Ashland County Grand Jury indicted appellant
on three counts of theft in violation of R.C. 2913.02(A)(3), felonies of the fifth degree,
and two counts of forgery in violation of R.C. 3913.31(A)(3), also felonies of the fifth
degree. At his arraignment on February 2, 2010, appellant entered a plea of not guilty to
the charges contained in the indictment.
{¶4} On April 19, 2010, appellant withdrew his former not guilty plea and
pleaded guilty to three counts of theft. The remaining counts were dismissed upon
appellee’s motion. As memorialized in a Judgment Entry filed on June 9, 2010,
1
Farmers Savings Bank is also referred to as Farmers & Savings throughout the record.
Ashland County App. Case No. 10-COA-022 3
appellant was sentenced to an aggregate sentence of ten (10) months in prison.
Appellant also was ordered to pay restitution in the amount of $3,833.42 to Farmers
Savings Bank.
{¶5} Appellant now raises the following assignment of error on appeal:
{¶6} “THE IMPOSITION OF A PRISON SENTENCE IN THIS CASE IMPOSES
AN UNNECESSARY BURDEN ON STATE RESOURCES.”
I
{¶7} Appellant, in his sole assignment of error, argues that his sentence
imposes an unnecessary burden on state resources in contravention of R.C.
2929.13(A). We disagree.
{¶8} R.C. 2929.13 governs sentencing guidelines for various specific offenses
and degrees of offenses. Subsection (A) states as follows in pertinent part:
{¶9} “Except as provided in division (E), (F), or (G) of this section and unless a
specific sanction is required to be imposed or is precluded from being imposed pursuant
to law, a court that imposes a sentence upon an offender for a felony may impose any
sanction or combination of sanctions on the offender that are provided in sections
2929.14 to 2929.18 of the Revised Code. The sentence shall not impose an
unnecessary burden on state or local government resources.”
{¶10} As we noted in State v. Ferenbaugh, Ashland App. No. 03COA038, 2004-
Ohio-977 at paragraph 7, “[t]he very language of the cited statute grants trial courts
discretion to impose sentences. Nowhere within the statute is there any guideline for
what an ‘unnecessary burden’ is.” Moreover, in State v. Shull, Ashland App. No. 2008-
COA-036, 2009-Ohio-3105, this Court reviewed a similar claim. We found that, although
Ashland County App. Case No. 10-COA-022 4
burdens on State resources may be a relevant sentencing criteria as set forth in R.C.
2929.13, state law does not require trial courts to elevate resource conservation above
seriousness and recidivism factors, Shull, at paragraph 22, citing State v. Ober (October
10, 1997), Greene App. No. 97CA0019, 1997 WL 624811.
{¶11} Appellant argues that imposition of a sentence on him imposes an
unnecessary burden on state resources because he accepted responsibility for his
actions by pleading guilty, he expressed remorse and a desire to make restitution to the
victims and because he has completed community control in the past and paid his
restitution in full.
{¶12} Appellant has a previous felony conviction out of Cuyahoga County.
Appellant, in such case, was originally placed on community control, but according to
his counsel, was slow to make restitution and a community control violation was filed
against him. Appellant did finally make full restitution in the Cuyahoga County case.
Appellant, at the time he committed the offenses in the case sub judice, was under the
supervision of two other courts.
{¶13} The trial court, in sentencing appellant, stated, in relevant part, as follows:
{¶14} “You sent me a letter that said a lot of things have happened to you while
you have been incarcerated. You’ve been taking the time to think about all these
things, and you said, I deeply regret and is (sic) very remorseful for this situation I put
myself into due to the lack of understanding of the banking system.
{¶15} “Mr. Vasquez, I don’t believe that for one second. When I look at your
history I look at things you’ve been doing with checks over the years in terms of your - -
just criminal convictions, I’m not talking about uncharged conduct, just with regard to
Ashland County App. Case No. 10-COA-022 5
your criminal convictions. You are very familiar with checks, and you are very familiar
with how banks work, and that’s precisely how you came to commit this offense
because you knew what you could get away with in terms of using checks at different
facilities and committing this sort of criminal behavior.
{¶16} “You’ve been on supervision before. Your performance on supervision
has been unsatisfactory, at least in my view, whether or not you successfully completed
it. You had violations. You didn’t comply. You didn’t do the things you were supposed
to do. You were on supervision with two other courts at the time you committed this
offense. That shows a complete disregard for the authority of any Court when you go
out and commit further offenses when you’re on probation, especially felony offense.”
Transcript at 21-22
{¶17} Based on the foregoing, we find that the trial court’s imposition of a prison
sentence on appellant did not impose an unnecessary burden on state resources.
Ashland County App. Case No. 10-COA-022 6
{¶18} Appellant’s sole assignment of error is, therefore, overruled.
{¶19} Accordingly, the judgment of the Ashland County Court of Common Pleas
is affirmed.
By: Edwards, J.
Hoffman, P.J. and
Delaney, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/d0113
[Cite as State v. Vasquez, 2011-Ohio-1319.]
IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
JOSEPH VASQUEZ :
:
Defendant-Appellant : CASE NO. 10-COA-022
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Ashland County Court of Common Pleas is affirmed. Costs assessed
to appellant.
_________________________________
_________________________________
_________________________________
JUDGES