State v. Perez ( 2013 )

[Cite as State v. Perez, 2013-Ohio-1178.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98417
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RAFAEL PEREZ
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-555340
BEFORE: McCormack, J., Celebrezze, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: March 28, 2013
ATTORNEY FOR APPELLANT
Joseph F. Salzgeber
Foth & Foth Co. L.P.A.
11221 Pearl Road
Strongsville, OH 44136
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Andrew Rogalski
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:
{¶1} Defendant-appellant, Rafael Perez (“Perez”), appeals his conviction and
sentence, following a jury trial in the Cuyahoga County Court of Common Pleas. Perez
was convicted of burglary, theft, and vandalism. The trial court sentenced Perez to four
years in prison. For the reasons that follow, we affirm.
Substantive Facts and Procedural History
{¶2} This appeal is a companion case arising out of the same events contained in
State v. Calimeno, 8th Dist. No. 98376, where Perez’s codefendant, Angel Calimeno
(“Calimeno” or “codefendant”), appealed from his conviction. For a recitation of the
facts of this case, the reader is referred to the companion opinion rendered today. See
Calimeno at ¶ 1-13.
{¶3} At the conclusion of the joint trial, the jury found Perez and Calimeno
guilty on all counts. On May 11, 2012, the trial court held a sentencing hearing and
ordered Perez to pay restitution in the amount of $1,000 and serve an aggregate four-year
term of imprisonment.
{¶4} Perez now appeals, raising two assignments of error for review.
Assignments of Error
I. There was insufficient evidence to support the jury’s verdicts of
“Guilty’” as to the charged burglary, grand theft, and vandalism offenses,
and those convictions are against the manifest weight of the evidence.
II. The prison sentence imposed on defendant-appellant for the
second-degree felony burglary conviction was contrary to law where it was
inconsistent with, and greater than, the prison sentence imposed upon the
codefendant who was charged and convicted of the same offenses.
Law and Analysis
I. Manifest Weight and Sufficiency of the Evidence
{¶5} In his first assignment of error, Perez argues that his convictions are against
the manifest weight of the evidence and are not supported by sufficient evidence.
Specifically, Perez argues that there was no evidence that he was one of the persons
inside the Wee residence and who perpetrated the burglary, vandalism, and grand theft.
{¶6} Perez’s codefendant raises this argument in the companion case referenced
above. In Calimeno, we conclude that the state presented sufficient evidence to support
the jury’s conviction on all counts. We further conclude that, in reviewing all of the
evidence in the record and deferring to the jury’s assessment of the credibility of the
witnesses, we cannot say that the trier of fact lost its way and performed a miscarriage of
justice in convicting Calimeno of burglary, theft, and vandalism. Because Perez’s
conviction stemmed from the same incident that led to Calimeno’s conviction, we refer to
¶ 16-29 in Calimeno for our analysis on these claims, and similarly, we overrule Perez’s
first assignment of error. See Calimeno at ¶ 16-29.
II. Sentence
{¶7} In his second assignment of error, Perez argues that the trial court erred
when it sentenced him to four years of prison for the burglary conviction. Specifically,
Perez argues that the four-year prison sentence is inconsistent and contrary to law where
his codefendant received a three-year sentence for the same offense.
{¶8} Appellate courts must apply a two-step process in reviewing felony
sentences. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. First,
the reviewing court must examine the sentencing court’s compliance with all applicable
rules and statutes in imposing the sentence in order to determine whether the sentence is
clearly and convincingly contrary to law. Id. at ¶ 4. If this first prong is satisfied, and
the sentence is not “clearly and convincingly contrary to law,” then this court must
determine whether the trial court abused its discretion. Id. If, for example, the trial
court’s sentence is outside of the statutory range and, therefore, is clearly and
convincingly contrary to law, this court’s review has ended and the sentence cannot stand.
Id. at ¶ 15.
{¶9} According to R.C. 2929.11(A), in a felony sentencing, the court is guided by
certain overriding purposes and principles:
The overriding purposes of felony sentencing are to protect the public from
future crime by the offender and others and to punish the offender using the
minimum sanctions that the court determines accomplish those purposes
without imposing an unnecessary burden on state or local government
resources. To achieve those purposes, the sentencing court shall 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.
R.C. 2929.11(A).
{¶10} Moreover, R.C. 2929.14(A)(2) provides that a second-degree felony, such as
the burglary offense at issue in this case, is punishable by two, three, four, five, six,
seven, or eight years in prison.
{¶11} Additionally, a felony sentence shall be “commensurate with and not
demeaning to the seriousness of the offender’s conduct and its impact upon the victim,
and consistent with sentences imposed for similar crimes committed by similar
offenders.” R.C. 2929.11(B). The trial court has full discretion to determine whether
the sentence it imposes satisfies “the overriding purpose of Ohio’s sentencing structure.”
Kalish at ¶ 17.
{¶12} R.C. 2929.11(B) provides that a felony sentence must be “consistent with
sentences imposed for similar crimes committed by similar offenders,” however,
“consistent” does not mean identical. “The goal of felony sentencing is to achieve
‘consistency’ not ‘uniformity.’” State v. Pruitt, 8th Dist. No. 98080, 2012-Ohio-5418, ¶
26, citing State v. Marshall, 8th Dist. No. 89551, 2008-Ohio-1632; State v. Klepatzki, 8th
Dist. No. 81676, 2003-Ohio-1529. While the offense may be similar, distinguishing
factors may justify dissimilar treatment. See State v. Dawson, 8th Dist. No. 86417,
2006-Ohio-1083, ¶ 31. Moreover, there is no requirement that codefendants receive
equal sentences. Pruitt at ¶ 26, citing State v. Nelson, 11th Dist. No. 2008-L-072,
2008-Ohio-5535, ¶ 21.
{¶13} In this case, Perez argues that his sentence of four years on the burglary
conviction is contrary to law because the trial court failed to consider the principles of
R.C. 2929.11(B) in imposing a greater sentence on Perez than his codefendant for the
same offense.1 We disagree.
{¶14} Perez and Calimeno were sentenced on May 11, 2012, for burglary, a second
degree felony, among other charges. At the sentencing hearing, the trial court properly
considered the purposes and principles of felony sentencing under R.C. 2929.11 as well
as the seriousness and recidivism factors outlined in R.C. 2929.12, stating that the
criminal activity is a serious offense that necessitates a prison sentence, and a sentence
other than prison would seriously demean the offense and would not protect the public.
The court also stated that the amount of harm caused and the nature and extent of the
crime required a sentence greater than the minimum sentence. It referred to the victim
impact statement, noting that the crime caused the victim much trauma.
{¶15} The trial court also referred to the presentence investigation report (“PSI”)
and indicated that there was nothing substantial to report concerning the prior criminal
history of either defendant. With respect to Perez, however, the court noted some
differences. The PSI stated that Rafael Perez’s true identity is Farley Efron Garcia
Conseco. There is also information in the PSI that associates Perez, a.k.a. Farley Efron
Garcia Conseco, with criminal gangs from the country of Columbia. Furthermore, the
Perez and Calimeno received identical sentences for the remaining charges, and, therefore,
1
Perez does not assert any error by the trial court with respect to those charges.
trial court stated that it would consider Calimeno’s sincere expression of remorse in terms
of sentencing.2
{¶16} In light of the foregoing facts, we do not find that Perez’s sentence on the
burglary charge is clearly and convincingly contrary to law. In the first place, the
four-year sentence imposed upon Perez was within the statutory guidelines for a second
degree felony. Additionally, the trial court properly considered the relevant factors
outlined in R.C. 2929.11 and 2929.12. Although both Perez and Calimeno were
convicted of the same offense, the court took into account unique factors that
distinguished the codefendants, such as the PSI, which indicated Perez’s use of an alias
and his association with criminal gangs, and the fact that Calimeno expressed remorse for
his actions. The law does not require that identical sentences be imposed. Thus, Perez’s
four-year sentence, while greater than his codefendant’s sentence, is not clearly and
convincingly contrary to law.
{¶17} Because we find that Perez’s sentence was not clearly and convincingly
contrary to law, we must now determine whether the trial court abused its discretion in
imposing the four-year sentence. An abuse of discretion “implies that the court’s attitude
is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d
During the sentencing hearing, when given the opportunity to speak, Calimeno offered a
2
sincere expression of remorse for his part in the burglary. Perez chose not to speak on his own
behalf. The trial court indicated that it would not hold Perez’s decision not to speak against him.
Rather, it considered Calimeno’s remorse in imposing a lesser sentence upon Calimeno.
217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404
N.E.2d 144 (1980).
{¶18} As we stated above, the trial court properly considered the factors and
principles outlined in the statutes, the victim impact statement, the PSI, and the
codefendant’s expression of remorse as applied to his lesser sentence. Moreover, the
sentence imposed upon Perez was within the statutory guidelines for a second degree
felony. There is nothing in the record to suggest that the trial court’s decision in
sentencing Perez to four years for the burglary, rather than the three years imposed upon
his codefendant, was unreasonable, arbitrary, or unconscionable. Accordingly, Perez’s
second assignment of error is without merit.
{¶19} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
TIM McCORMACK, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
KENNETH A. ROCCO, J., CONCUR