State v. Rivera ( 2018 )

[Cite as State v. Rivera, 2018-Ohio-262.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104549
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
GERALDO RIVERA
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-598641-A
BEFORE: Celebrezze, J., E.T. Gallagher, P.J., and Jones, J.
RELEASED AND JOURNALIZED: January 25, 2018
ATTORNEY FOR APPELLANT
Britta M. Barthol
P.O. Box 670218
Northfield, Ohio 44067
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Mary McGrath
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶1} Defendant-appellant, Geraldo Rivera (“appellant”), brings this appeal
challenging the trial court’s sentence for rape. Specifically, appellant argues that the
trial court erred by imposing the maximum 11-year sentence on the rape count. After a
thorough review of the record and law, this court affirms.
I. Factual and Procedural History
{¶2} In Cuyahoga C.P. No. CR-15-598641-A, the Cuyahoga County Grand Jury
returned a three-count indictment on September 14, 2015, charging appellant with (1)
rape, a first-degree felony in violation of R.C. 2907.02(A)(2), (2) kidnapping, a
first-degree felony in violation of R.C. 2905.01(A)(4) with a sexual motivation
specification, and (3) unlawful sexual conduct with a minor, a third-degree felony in
violation of R.C. 2907.04(A) with a furthermore specification.1 Appellant was arraigned
on September 17, 2015. He pled not guilty to the indictment.
{¶3} The parties reached a plea agreement. On February 4, 2016, appellant pled
guilty to rape as charged in Count 1 of the indictment. Counts 2 and 3 were nolled.
The trial court ordered a presentence investigation report (“PSI”) and set the matter for
sentencing.
{¶4} On March 31, 2016, the trial court held a sentencing hearing. The trial court
1 The furthermore specification alleged that the offender is at least four years older than the
person with whom he engaged in sexual conduct and the offender is ten or more years older than the
victim.
sentenced appellant to a prison term of 11 years on the rape count. The trial court found
appellant to be a Tier III sex offender/child offender and reviewed appellant’s registration
and reporting requirements.
{¶5} On June 1, 2016, appellant filed a pro se notice of appeal and a motion for
leave to file a delayed appeal. On June 9, 2016, this court granted appellant’s pro se
motion for leave and appointed appellate counsel to represent appellant.
{¶6} The state filed a notice of conceded error pursuant to App.R. 16(B) on
February 13, 2017. On February 17, 2017, appellant filed a motion for voluntary
dismissal in which he asserted that although the state conceded that the trial court failed
to comply with Crim.R. 11, “[a]ppellant waives such error and wishes to dismiss this
appeal so that his negotiated plea in the [trial court] will not be vacated.” On February
22, 2017, this court granted appellant’s motion for voluntary dismissal and dismissed the
appeal.
{¶7} On July 13, 2017, appellant, pro se, filed a motion to reinstate the appeal and
a motion for appointment of counsel. The state opposed appellant’s motion. On July
25, 2017, this court granted appellant’s motion to reinstate the appeal and appointed
appellate counsel to represent appellant.
{¶8} In this appeal, appellant challenges the trial court’s 11-year prison sentence.
He assigns one error for review:
I. The trial court erred by imposing the maximum sentence and failing to
make the required findings under R.C. 2929.11 and R.C. 2929.12.
II. Law and Analysis
{¶9} In his sole assignment of error, appellant argues that the trial court erred by
imposing the maximum 11-year sentence for his rape conviction.
{¶10} This court reviews felony sentences under the standard set forth in
R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d
1231, ¶ 16. R.C. 2953.08(G)(2) provides that when reviewing felony sentences, a
reviewing court may increase, reduce, or modify a sentence, or it may vacate and remand
the matter for resentencing, only if we clearly and convincingly find that either the record
does not support the sentencing court’s statutory findings or the sentence is contrary to
law. State v. Martin, 8th Dist. Cuyahoga No. 104354, 2017-Ohio-99, ¶ 7. A sentence
is contrary to law if the sentence falls outside the statutory range for the particular degree
of offense or the trial court failed to consider the purposes and principles of felony
sentencing set forth in R.C. 2929.11 and the sentencing factors in R.C. 2929.12. State v.
Hinton, 8th Dist. Cuyahoga No. 102710, 2015-Ohio-4907, ¶ 10, citing State v. Smith, 8th
Dist. Cuyahoga No. 100206, 2014-Ohio-1520, ¶ 13.
{¶11} In the instant matter, appellant argues that the trial court failed to consider
the purposes and principles of felony sentencing set forth in R.C. 2929.11, and the
seriousness and recidivism factors set forth in R.C. 2929.12. Regarding R.C. 2929.11,
appellant argues that the trial court “did not specifically use the language from [R.C.
2929.11],” nor “specify why a lesser sentence would not adequately protect the public and
punish [him].” Appellant’s brief at 6. Regarding R.C. 2929.12, appellant argues that
the trial court “did not give a specific analysis as to its consideration of the statutory
factors in R.C. 2929.12.” Appellant’s brief at 6. Appellant’s arguments are misplaced.
{¶12} Although the trial court must consider the principles and purposes of
sentencing, as well as any mitigating factors, R.C. 2929.11 and 2929.12 are not
fact-finding statutes. State v. Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414,
2016-Ohio-5234, ¶ 11. The trial court is not required to use particular language nor
make specific findings on the record regarding its consideration of those factors. Id.;
State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31. In fact,
consideration of the factors in R.C. 2929.11 and 2929.12 is presumed unless the
defendant affirmatively shows otherwise. Keith at id. This court has held that a trial
court’s statement in its sentencing journal entry that it considered the required statutory
factors, without more, is sufficient to fulfill its obligations under R.C. 2929.11 and
2929.12. State v. Paulino, 8th Dist. Cuyahoga No. 104198, 2017-Ohio-15, ¶ 37.
{¶13} In the instant matter, the trial court’s sentencing journal entry provides, in
relevant part, “the court considered all required factors of the law. The court finds that
prison is consistent with the purpose of R.C. 2929.11.” Aside from this notation in the
sentencing entry, the record reflects that the trial court did, in fact, consider both R.C.
2929.11 and 2929.12 when sentencing appellant.
{¶14} During the sentencing hearing, the trial court indicated that it reviewed
appellant’s PSI. The trial court stated that it considered the information presented by
defense counsel, appellant’s sister, appellant, and the prosecution. Furthermore, the trial
court confirmed that it considered “the principles and purposes of felony sentencing,
[and] the appropriate recidivism and seriousness factors.” (Tr. 25.)
{¶15} The trial court considered the harm that appellant caused to the victim and
the entire family. The trial court emphasized that appellant’s conduct tore the family
apart. The trial court explained that “the harm is so great in this matter, it’s very
difficult for the [c]ourt to mitigate the potential sentence. It’s very difficult.” (Tr. 28.)
Regarding the relevant mitigating factors, the trial court acknowledged that appellant
accepted responsibility for his actions, and commended him for expressing more concern
about his child than his own situation.
{¶16} Accordingly, we find no merit to appellant’s assertion that the trial court
failed to consider the purposes and principles of felony sentencing set forth in R.C.
2929.11 and the seriousness and recidivism factors set forth in R.C. 2929.12.
{¶17} Appellant further contends that the trial court failed to “state the factors that
it considered when it decided to impose the maximum sentence.” Appellant’s brief at 6.
Appellant’s argument is misplaced.
{¶18} Contrary to appellant’s assertion, trial courts are no longer required to give
findings prior to imposing a maximum sentence. State v. Maddox, 8th Dist. Cuyahoga
No. 105140, 2017-Ohio-8061, ¶ 30. “That requirement was removed by State v. Foster,
109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, and not revived by the Ohio General
Assembly.” Maddox at id., citing State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912,
896 N.E.2d 124, ¶ 1. Accordingly, the trial court was not required to make any findings
nor specify the factors based upon which it imposed the maximum sentence.
{¶19} Finally, appellant contends that the maximum 11-year prison sentence is
clearly and convincingly contrary to law. We disagree.
{¶20} As noted above, a sentence is contrary to law if it falls outside of the
permissible statutory range or the trial court failed to consider the sentencing factors
under R.C. 2929.11 and 2929.12. Here, the 11-year prison sentence is within the
permissible statutory range under R.C. 2929.14(A)(1) for first-degree felonies, and the
record reflects that the trial court considered the R.C. 2929.11 and 2929.12 factors at
sentencing. Furthermore, after review, we find that the record supports the maximum
11-year prison sentence.
{¶21} During the sentencing hearing, the prosecution advised the trial court that
appellant and the victim were brother and sister, the victim was 13 years old at the time of
the incident, and that the victim indicated that appellant forcibly raped her. The victim
found out that she was pregnant and she was not allowed to get an abortion due to
religious beliefs. The victim gave birth to a child with down syndrome. The victim
advised the prosecutor that this incident has “ruined her life,” and she wanted appellant to
receive the maximum sentence. (Tr. 21-22.)
{¶22} For all of the foregoing reasons, appellant’s sole assignment of error is
overruled.
III. Conclusion
{¶23} After thoroughly reviewing the record, we affirm the maximum 11-year
prison sentence imposed on the rape count. The trial court’s sentence is not contrary to
law, and the court was not required to make any findings or state its reasons for imposing
the maximum sentence.
{¶24} 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
EILEEN T. GALLAGHER, P.J., and
LARRY A. JONES, SR., J., CONCUR