State v. Cruz

[Cite as State v. Cruz, 2015-Ohio-3519.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-14-085
Appellee Trial Court No. 13 CR 493
v.
Anthony Cruz DECISION AND JUDGMENT
Appellant Decided: August 28, 2015
*****
Paul A. Dobson, Wood County Prosecuting Attorney,
Gwen Howe-Gebers, Chief Assistant Prosecuting Attorney,
and David T. Harold, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
*****
YARBROUGH, P.J.
I. Introduction
{¶ 1} Appellant, Anthony Cruz, appeals the judgment of the Wood County Court
of Common Pleas, sentencing him to five years in prison following the acceptance of his
guilty plea to one count of illegal use of a minor in nudity-oriented material or
performance. We affirm.
II. Facts and Procedural Background
{¶ 2} On September 19, 2013, appellant was indicted on two counts of illegal use
of a minor in nudity-oriented material or performance in violation of R.C.
2907.323(A)(1), felonies of the second degree. Appellant initially appeared at his
arraignment and entered pleas of not guilty to the charges. However, following extensive
plea negotiations with the state, appellant appeared before the court for a change of plea
hearing on September 29, 2014, and entered a plea of guilty to one count of illegal use of
a minor in nudity-oriented material or performance. At this time, the state offered the
following factual basis to support appellant’s guilty plea:
[H]ad this case proceeded to trial, the State of Ohio would have
called the necessary witnesses from the Perrysburg Police Department who
would have testified that as a result of information that they received a
forensic analysis of the defendant’s numerous mobile items, that being cell
phones, iPhone, and other items were extracted from the defendant. As a
result of that, there were items located on the phone wherein there were
nude juvenile females who were located on the defendant’s phone where
they were either sent to him or he photographed and made those
photographs and videos of those victims. That both victims being
identified, both juvenile victims being identified, as being less than 18
years of age, all occurring in Perrysburg, Wood County, Ohio.
2.
{¶ 3} The trial court accepted appellant’s guilty plea, ordered the preparation of a
presentence investigation report, and continued the matter for sentencing.
{¶ 4} Appellant’s sentencing hearing was held on November 17, 2014. At the
outset, the court held a sex offender classification hearing and appellant was classified as
a tier II sex offender. The court then proceeded to sentencing. According to the
sentencing entry, the court “carefully reviewed” the record, oral statements, the
presentence report, appellant’s relevant financial information, the purposes and principles
of sentencing, and the relevant seriousness and recidivism factors. Additionally, the
photographs for which appellant was convicted of the charged offense were presented at
the sentencing hearing. Regarding the trial court’s consideration of the relevant statutory
sentencing guidelines, the sentencing entry states the following:
The court noted that the overriding purposes of felony sentencing are
to protect the public from future crime by the offender 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. The court further noted that in achieving 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. The court further noted that a sentence must be
commensurate with and not demeaning to the seriousness of the offender’s
3.
conduct and its impact upon the victim, and consistent with sentences
imposed for similar crimes committed by similar offenders.
The court reviewed the seriousness and recidivism factors and
considered that the victim suffered serious psychological injury as a result
of the offense and the offender had a history of criminal convictions.
{¶ 5} Upon consideration of the foregoing, the court imposed a five-year prison
sentence and ordered appellant to pay a $5,000 fine, along with all costs associated with
the case. It is from this order that appellant now appeals, asserting the following
assignment of error:
APPELLANT’S SENTENCE SHOULD BE VACATED DUE TO
THE TRIAL COURT’S FAILURE TO COMPLY WITH THE SPECIFIC
DIRECTIVES OF R.C. 2929.11 AND 2929.12.
III. Analysis
{¶ 6} In appellant’s sole assignment of error, he argues that his sentence is
contrary to law in that the trial court failed to comply with the statutory sentencing
guidelines set forth in R.C. 2929.11 and 2929.12.
{¶ 7} We review felony sentences under the two-prong approach set forth in R.C.
2953.08(G)(2). R.C. 2953.08(G)(2) provides that an appellate court may increase,
reduce, modify, or vacate and remand a disputed sentence if it clearly and convincingly
finds either of the following:
4.
(a) That 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;
(b) That the sentence is otherwise contrary to law.
{¶ 8} Here, appellant’s argument is limited to the second prong of R.C.
2953.08(G)(2), namely that the sentence is contrary to law. Appellant concedes that his
five-year sentence was within the permissible range for a felony of the second degree.
However, he contends that the trial court failed to properly consider R.C. 2929.11 and
2929.12 in fashioning his sentence. More particularly, appellant argues that the
presentation of the offending photographs at the sentencing hearing was unduly
inflammatory. We disagree.
{¶ 9} In his appellate brief, appellant acknowledges that the photographs would
have been admissible had the matter proceeded to trial. Further, reference to the
photographs is conspicuously absent from the trial court’s sentencing entry, in which it
stated that it considered the relevant statutory factors in fashioning appellant’s sentence.
Moreover, the trial court’s entry demonstrates compliance with the mandates of R.C.
2929.11 and 2929.12.
{¶ 10} R.C. 2929.11 states, in relevant part:
(A) A court that sentences an offender for a felony shall be guided
by the overriding purposes of felony sentencing. The overriding purposes
5.
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.
(B) A sentence imposed for a felony shall be reasonably calculated
to achieve the two overriding purposes of felony sentencing set forth in
division (A) of this section, 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.
{¶ 11} R.C. 2929.12 further requires a court to consider whether any aggravating
or mitigating factors are present that would warrant a greater or lesser sentence. Relevant
here, R.C. 2929.12 lists the following as an aggravating factor: “The victim of the
offense suffered serious physical, psychological, or economic harm as a result of the
offense.”
{¶ 12} As noted above, the trial court expressly indicated its consideration of the
overriding purposes of felony sentencing under R.C. 2929.11, as well as the seriousness
6.
and recidivism factors under R.C. 2929.12. Regarding the seriousness and recidivism
factors, the court found that appellant’s conduct caused serious psychological harm to the
minor victims. Thus, we conclude that the trial court complied with the mandates of R.C.
2929.11 and 2929.12. We further find no evidence to support appellant’s assertion that
the trial court was unduly influenced by the presentation of the photographs at the
sentencing hearing. Therefore, we find that appellant’s sentence was not contrary to law.
{¶ 13} Accordingly, appellant’s sole assignment of error is not well-taken.
IV. Conclusion
{¶ 14} Based on the foregoing, the judgment of the Wood County Court of
Common Pleas is affirmed. Costs are hereby assessed to appellant in accordance with
App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Stephen A. Yarbrough, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
7.