State v. Velazquez , 2020 Ohio 4009 ( 2020 )

[Cite as State v. Velazquez, 2020-Ohio-4009.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLINTON COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2020-02-002
: OPINION
- vs - 8/10/2020
:
CHRISTY A. VELAZQUEZ, :
Appellant. :
CRIMINAL APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS
Case No. CRI 19-500-042
Richard W. Moyer, Clinton County Prosecuting Attorney, Katie Wilkin, 103 E. Main Street,
Wilmington, Ohio 45177, for appellee
Timonere Law Offices, LLC, Jane Timonere, 4 Lawyers Row, Jefferson, Ohio 44047, for
appellant
PIPER, J.
{¶1} Appellant, Christy Velazquez, appeals her sentence after pleading guilty in
the Clinton County Court of Common Pleas to five counts of aggravated trafficking in drugs.1
{¶2} The United States Postal Service became aware that a box addressed to
Velazquez contained various drugs. As part of a joint investigation, Clinton County Sheriff's
Office detectives and Postal Service investigators executed a search warrant at
1. Pursuant to Loc.R. 6(A), we have sua sponte removed this case from the accelerated calendar for purposes
of issuing this opinion.
Clinton CA2020-02-002
Velazquez's home. There, they found hundreds of pills for which Velazquez did not have a
valid prescription, as well as over $3,000 in cash. Investigators also searched Velazquez's
cell phone, which contained multiple text messages indicating her drug trafficking.
{¶3} Velazquez was indicted on six counts of aggravated trafficking in
hydrocodone, oxycodone, and fentanyl. Velazquez asserted that the drugs were for her
personal use and that she had multiple medical conditions that necessitated their use.
However, she and the state ultimately negotiated a plea in which Velazquez would plead
guilty to five trafficking counts. The parties did not reach any agreement regarding
sentencing.
{¶4} The trial court merged some of the convictions as allied offenses. The court
then imposed consecutive sentences upon Velazquez for the remaining convictions for an
aggregate prison sentence of 21 months. Velazquez now appeals her sentence, raising
the following assignment of error:
{¶5} THE RECORD CLEARLY AND CONVINCINGLY DOES NOT SUPPORT
THE SENTENCING COURT'S FINDINGS UNDER (C)(4) OF SECTION 2929.14 OF THE
REVISED CODE. AS A RESULT, THE COURT DID NOT LAWFULLY IMPOSE
CONSECUTIVE SENTENCES OF INCARCERATION.
{¶6} Velazquez argues in her assignment of error that the trial court erred in
imposing consecutive sentences. Velazquez acknowledges that the trial court properly
made the requisite consecutive sentence findings before imposing the consecutive
sentence. However, she argues that the trial court's findings are not clearly and
convincingly supported by the record.2
2. Inexplicably, the state cites State v. Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912, and argues that the trial
court's decision was not an abuse of discretion. This court has long-ago abandoned the Kalish standard given
the direct edict from the Ohio Legislature that reviewing courts should not review a trial court's sentencing
decision for an abuse of discretion. R.C. 2953.08(G)(2).
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Clinton CA2020-02-002
{¶7} According to R.C. 2953.08(G)(2)(a), a court of appeals may increase, reduce,
or otherwise modify a sentence if it clearly and convincingly finds "[t]hat the record does not
support the sentencing court's findings under division (B) or (D) of section 2929.13, division
(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant."
{¶8} As recently noted by the Ohio Supreme Court, "because R.C.
2953.08(G)(2)(a) specifically mentions a sentencing judge's findings made under R.C.
2929.14(C)(4) as falling within a court of appeals' review, the General Assembly plainly
intended R.C. 2953.08(G)(2)(a) to be the exclusive means of appellate review of
consecutive sentences." State v. Gwynne, 158 Ohio St. 3d 279, 2019-Ohio-4761, ¶ 16.
Thus, this court can only modify the imposition of the trial court's sentence if we were to
clearly and convincingly find that the record does not support the trial court's findings made
according to R.C. 2929.14(C)(4).
{¶9} R.C. 2929.14(C)(4) essentially requires three findings.
If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court finds
that the consecutive service is necessary to protect the public
from future crime or to punish the offender and that consecutive
sentences are not disproportionate to the seriousness of the
offender’s conduct and to the danger the offender poses to the
public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or
2929.18 of the Revised Code, or was under post-release control
for a prior offense.
(b) At least two of the multiple offenses were committed as part
of one or more courses of conduct, and the harm caused by two
or more of the multiple offenses so committed was so great or
unusual that no single prison term for any of the offenses
committed as part of any of the courses of conduct adequately
reflects the seriousness of the offender’s conduct.
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Clinton CA2020-02-002
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
{¶10} The trial court found that the consecutive nature of the sentence was (1)
necessary to protect the public from Velazquez's future crime, and (2) was not
disproportionate to the seriousness of her misconduct and the danger Velazquez posed to
the public. The trial court also found that (3) at least two of the multiple offenses were
committed as part of a course of conduct and that the harm caused by the offenses was so
great or unusual that a single prison term could not adequately reflect the seriousness of
her conduct. After reviewing the record, we find that the trial court's findings are supported
by the record.
{¶11} Velazquez pled guilty to trafficking in three different drugs, hydrocodone,
oxycodone, and fentanyl, which are highly addictive and potentially deadly. Velazquez had
in her possession 278 oxycodone, 10 hydrocodone, and 100 fentanyl pills. She admitted
to selling the drugs, and also that she would have others sell the drugs on her behalf. Text
messages located in Velazquez's cell phone show that she worked with her sellers to price
the pills based on their milligram weight, and that she offered one person discounted prices
if that person sold enough pills.
{¶12} The trial court found, and we agree, that Velazquez "minimized" her actions
by claiming to have sold to only a few friends and by claiming her possession was for
personal use due to her medical issues. While Velazquez may have been addicted herself
and suffered from medical issues, the quantity she possessed demonstrates that she
actively sold to others for profit and possessed the drugs for more than just her personal
use. The investigation revealed that Velazquez had more than $28,000 in deposit receipts,
as well as more than $3,000 cash in her home.
{¶13} The community as a whole suffered from Velazquez's trafficking, and the trial
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Clinton CA2020-02-002
court specifically noted the widespread drug problem in the county and the prevalence of
overdose deaths. As noted above, the pills Velazquez pled guilty to trafficking, including
oxycodone and fentanyl, are highly addictive and potentially deadly.
{¶14} We find that the trial court's consecutive sentence findings were supported by
the record. As such, Velazquez's assignment of error is overruled.
{¶15} Judgment affirmed.
M. POWELL, P.J., and S. POWELL, J., concur.
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