State v. Saracco-Rios , 2016 Ohio 7192 ( 2016 )

[Cite as State v. Saracco-Rios, 2016-Ohio-7192.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
MADISON COUNTY
STATE OF OHIO, :
CASE NOS. CA2016-02-011
Plaintiff-Appellee, : CA2016-03-014
: OPINION
- vs - 10/3/2016
:
ALDO SAUL SARACCO-RIOS, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS
Case No. CRI20150123
Stephen J. Pronai, Madison County Prosecuting Attorney, Rachel M. Price, 59 North Main
Street, London, Ohio 43140, for plaintiff-appellee
Shannon M. Treynor, 63 North Main Street, P.O. Box 735, London, Ohio 43140, for
defendant-appellant
S. POWELL, J.
{¶ 1} Defendant-appellant, Aldo Saul Saracco-Rios, appeals from his conviction in
the Madison County Court of Common Pleas after he pled guilty to one count of possession
of drugs. For the reasons outlined below, we affirm.
{¶ 2} On October 15, 2015, the Madison County Grand Jury returned an indictment
charging Saracco-Rios with one count of possession of drugs in violation of R.C. 2925.11(A),
a first-degree felony. The charge arose after Saracco-Rios attempted to sell 124 grams of
Madison CA2016-02-011
CA2016-03-014
heroin to an undercover officer at a gas station located in Madison County. It is undisputed
that at the time of his arrest, Saracco-Rios was a 24-year-old Mexican citizen who had
recently graduated from a Mexican university with a degree in law.
{¶ 3} On January 21, 2016, Saracco-Rios entered a guilty plea to the charged
offense of one count of possession of drugs. After accepting Saracco-Rios' plea, the trial
court referred the matter for a presentence investigation report ("PSI"). Thereafter, on
February 16, 2016, the trial court held a sentence hearing and sentenced Saracco-Rios to
serve a mandatory term of nine years in prison, ordered him to pay the mandatory minimum
fine of $10,000, and imposed a mandatory five-year postrelease control term. The trial court
also suspended Saracco-Rios' driver's license for a period of five years. Saracco-Rios then
moved the trial court to reconsider its sentencing decision, which the trial court denied.
{¶ 4} Saracco-Rios now appeals from his conviction, raising two assignments of error
for review.
{¶ 5} Assignment of Error No. 1:
{¶ 6} COUNSEL FOR THE DEFENDANT/APPELLANT WAS INEFFECTIVE FOR
FAILING TO REQUEST THE COURT FOR A COMPLETE OR PARTIAL WAIVER OF THE
MANDATORY FINE BASED UPON THE DEFENDANT'S INDIGENCE.
{¶ 7} In his first assignment of error, Saracco-Rios argues he received ineffective
assistance of counsel when his trial counsel did not "call the [trial court's] attention" to the
issue of whether he had the present or future ability to pay the mandatory minimum $10,000
fine that was imposed. We disagree.
{¶ 8} Pursuant to R.C. 2929.18(B)(1), the trial court is obligated to impose mandatory
fines when the offender commits certain drug-related felonies. State v. Johnson, 12th Dist.
Butler No. CA2011-11-212, 2014-Ohio-3776, ¶ 10. As relevant here, this includes a first-
degree felony offense of possession of drugs in violation of R.C. 2925.11(A). However, the
-2-
Madison CA2016-02-011
CA2016-03-014
statute further provides that (1) "if an offender alleges in an affidavit filed with the court prior
to sentencing that the offender is indigent and unable to pay the mandatory fine," and (2) "if
the court determines the offender is an indigent person and is unable to pay the mandatory
fine described in this division," the court shall not impose such a mandatory fine.
{¶ 9} Ohio courts, including this court, have held that the failure to file an affidavit
alleging an offender's indigency and inability to pay a mandatory fine constitutes ineffective
assistance of counsel only "'when the record shows a reasonable probability that the trial
court would have found the defendant indigent and unable to pay the fine had the affidavit
been filed.'" Johnson at ¶ 11, quoting State v. Gilmer, 6th Dist. Ottawa No. OT-01-015, 2002
WL 737060, *2 (Apr. 26, 2002). Yet, even then, the filing of an affidavit of indigency by an
offender does not automatically entitle the offender to a waiver of the mandatory fine. State
v. Bolden, 12th Dist. Preble No. CA2003-03-007, 2004-Ohio-184, ¶ 35. Rather, "[t]he burden
is upon the offender to affirmatively demonstrate that he or she is indigent and is unable to
pay the mandatory fine." (Emphasis sic.) State v. Gipson, 80 Ohio St. 3d 626, 635 (1998).
{¶ 10} According to R.C. 2929.19(B)(5), before imposing a financial sanction, including
a mandatory fine under R.C. 2929.18(B)(1), "the court shall consider the offender's present
and future ability to pay the amount of the sanction or fine." There are no express factors
that must be considered or specific findings that must be made regarding the offender's
ability to pay. State v. Dandridge, 12th Dist. Butler No. CA2003-12-330, 2005-Ohio-1077, ¶
6. However, there must be some evidence in the record to show that the trial court acted in
accordance with the legislative mandate that it consider the offender's present or future ability
to pay. State v. Lang, 12th Dist. Brown No. CA2011-03-007, 2011-Ohio-5742, ¶ 12, citing
State v. Adkins, 144 Ohio App. 3d 633, 647 (12th Dist.2001). This can be shown through the
trial court's use of a PSI, which often provides financial and personal information of the
offender, in order to aid the trial court in making its determination. Johnson, 2014-Ohio-3776
-3-
Madison CA2016-02-011
CA2016-03-014
at ¶ 12, citing State v. Simms, 12th Dist. Clermont No. CA2009-02-005, 2009-Ohio-5440, ¶ 9.
{¶ 11} After a thorough review of the record, we find the record contains ample
evidence indicating the trial court considered Saracco-Rios' present and future ability to pay
the mandatory minimum $10,000 fine that was imposed. As noted above, it is undisputed
that at the time of his arrest, Saracco-Rios was 24-year-old Mexican citizen who had recently
graduated from a Mexican university with a degree in law. Yet, despite being educated in the
law, the PSI indicates Saracco-Rios had instead started his own lawn care and painting
business that earned him between $2,000 to $3,000 a month, a portion of which he would
send to his mother and sister in Mexico. The PSI also indicated Saracco-Rios had never
been fired from any prior employment, had no prior criminal record, and that he had
considered himself in a good financial condition prior to his arrest.
{¶ 12} As part of the sentencing hearing, the trial court noted that it had reviewed and
considered the PSI in fashioning its sentence, specifically noting "that Mr. Saracco-Rios is a
well-educated man, and, in fact, was trained to be a lawyer." In addition, as part of its
sentencing entry, the trial court explicitly stated that it had "reviewed the [PSI] and heard
statements in mitigation presented by [Saracco-Rios] and his counsel." As can be seen,
there was ample evidence in the record to indicate the trial court properly considered
Saracco-Rios' present and future ability to pay the mandatory minimum $10,000 fine that was
imposed. Therefore, because Saracco-Rios has failed to demonstrate that the trial court
failed to consider his present and future ability to pay, it cannot be said that Saracco-Rios'
trial counsel provided ineffective assistance by not "call[ing] the [trial court's] attention" to that
issue. Accordingly, Saracco-Rios' first assignment of error lacks merit and is overruled.
{¶ 13} Assignment of Error No. 2:
{¶ 14} THE COURT ABUSED ITS DISCRETION IN SENTENCING THE
DEFENDANT, A FIRST TIME, NON-VIOLENT OFFENDER, TO A DETERMINATE TERM
-4-
Madison CA2016-02-011
CA2016-03-014
OF NINE YEARS IN THE PENITENTIARY.
{¶ 15} In his second assignment of error, Saracco-Rios argues the trial court abused
its discretion by sentencing him to serve a mandatory nine-year prison term. We disagree.
{¶ 16} Contrary to Saracco-Rios' claim, an appellate court does not review a trial
court's sentencing decision for an abuse of discretion. State v. Julious, 12th Dist. Butler No.
CA2015-12-224, 2016-Ohio-4822, ¶ 8, citing State v. Marcum, Slip Opinion No. 2016-Ohio-
1002, ¶ 10. Rather, as with all felony sentences, we review this sentence under the standard
of review set forth in R.C. 2953.08(G)(2). State v. Crawford, 12th Dist. Clermont No.
CA2012-12-088, 2013-Ohio-3315, ¶ 6. Pursuant to that statute, an appellate court may
modify or vacate a sentence only if the appellate court finds by clear and convincing evidence
that "the record does not support the trial court's findings under relevant statutes [addressed
within R.C. 2953.08(G)(2)] or that the sentence is otherwise contrary to law." Marcum at ¶ 1.
{¶ 17} Even in those cases where the sentence imposed does not require any of the
statutory findings specifically addressed within R.C. 2953.08(G)(2), an appellate court will
nevertheless review those sentences "under a standard that is equally deferential to the
sentencing court." Marcum at ¶ 23. "That is, an appellate court may vacate or modify any
sentence that is not clearly and convincingly contrary to law only if the appellate court finds
by clear and convincing evidence that the record does not support the sentence." Id. Thus,
this court may "increase, reduce, or otherwise modify a sentence only when it clearly and
convincingly finds that the sentence is (1) contrary to law or (2) unsupported by the record."
State v. Brandenburg, Slip Opinion No. 2016-Ohio-2970, ¶ 1, citing Id. at ¶ 7.
{¶ 18} We find no error in the trial court's decision to sentence Saracco-Rios to serve
a mandatory nine-year prison term. As the record reveals, Saracco-Rios' sentence is not
clearly and convincingly contrary to law because the trial court properly considered the
purposes and principles of R.C. 2929.11, as well as the factors listed in R.C. 2929.12,
-5-
Madison CA2016-02-011
CA2016-03-014
imposed the required mandatory five-year postrelease control term, and ordered him to serve
a sentence that fell within the permissible statutory range for a first-degree felony. See R.C.
2929.14(A)(1) ("[f]or a felony of the first degree, the prison term shall be three, four, five, six,
seven, eight, nine, ten, or eleven years"). As this court has stated previously, a sentence is
not clearly and convincingly contrary to law where the trial court "considers the principles and
purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly imposes
postrelease control, and sentences the defendant within the permissible statutory range."
State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-Ohio-2890, ¶ 8.
{¶ 19} The record also supports the trial court's sentencing decision. Specifically, the
record indicates Saracco-Rios attempted to sell 124 grams of heroin to an undercover officer
for hire or as part of an organized criminal activity. Saracco-Rios admitted as much in the
PSI, which indicated he "would make 300 for the risk." As the trial court properly noted,
pursuant to R.C. 2929.12(B)(7), this indicates Saracco-Rios' conduct was more serious than
the conduct normally constituting the offense. The record also indicates that Saracco-Rios
had a history of substance abuse and admitted use of marijuana, cocaine, and alcohol.
Therefore, because we find Saracco-Rios' sentence was not clearly and convincingly
contrary to law, and because the record fully supports the trial court's sentencing decision,
Saracco-Rios' second assignment of error is also without merit and overruled.
{¶ 20} Judgment affirmed.
M. POWELL, P.J., and HENDRICKSON, J., concur.
-6-