State v. Cedeno-Guerrero

[Cite as State v. Cedeno-Guerrero, 2019-Ohio-4580.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108097
v. :
SANTOS CEDENO-GUERRERO, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 7, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-617546-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Fallon Radigan, Assistant Prosecuting
Attorney, for appellee.
Charles Ruiz-Bueno Co., L.P.A., and J. Charles Ruiz-
Bueno, for appellant.
KATHLEEN ANN KEOUGH, J.:
Defendant-appellant, Santos Cedeno-Guerrero, appeals his
convictions. For the reasons that follow, we affirm.
In June 2017, Cedeno-Guerrero was named in a four-count
indictment charging him with one count of rape with a furthermore clause that the
victim was less than ten years old; two counts of gross sexual imposition; and one
count of kidnapping with a sexual motivation specification.
On September 18, 2018, Cedeno-Guerrero pleaded guilty to one count
of gross sexual imposition, and an amended count of rape in violation of R.C.
2907.02(A)(2), which reduced the sentence from a life sentence to a definite
sentence of three to eleven years. All other counts were nolled by the state. The trial
court sentenced him to a total prison term of ten years — ten years for the rape
offense and 36 months for the gross sexual imposition charge; the sentences were
ordered to be served concurrently.
Cedeno-Guerrero now appeals, raising two assignments of error.
I. Interpreter Credentials
In his first assignment of error, Cedeno-Guerrero contends that the
trial court committed plain error by sentencing him without certifying on the record
the credentials of the interpreter.
First, where no objection is raised, it has been held that such failure
results in a waiver to challenge the qualifications of the interpreter and adequacy of
the translation. See, e.g., State v. Newcomb, 10th Dist. Franklin Nos. 03AP-404 and
03AP-961, 2004-Ohio-4099, ¶ 22. Notwithstanding any waiver argument, we
review for plain error, which must have been an “obvious” defect in the proceedings
that affected the defendant’s “substantial rights.” Crim.R. 52(B). We find no plain
error.
Cedeno-Guerrero’s primary language is Spanish; accordingly, a
Spanish-speaking interpreter was utilized in the case. Prior to Cedeno-Guerrero
entering into a plea of guilty pursuant to the plea agreement, the trial court pursuant
to Sup.R. 88, placed the interpreter under oath, inquired about her credentials, and
found that she was properly certified. No objection was raised by counsel.
Thereafter, Cedeno-Guerrero entered pleas of guilty pursuant to the plea agreement.
The matter was continued for sentencing for the preparation of a presentence-
investigation report.
In November 2018, at sentencing, a Spanish-speaking interpreter was
also utilized; however, the interpreter was not the same one that translated for
Cedeno-Guerrero during his plea. Although the interpreter was placed under oath,
the record does not reflect that the trial court inquired about the credentials. No
objection was raised by the parties.
During sentencing, the trial court noted that during Cedeno-
Guerrero’s interview in preparation of the presentencing report, he indicated
(through the use of an interpreter) that he did not commit the acts he pleaded to,
but only pleaded based on legal advice that “it is hard to beat the word of a child,”
and that he pleaded just “to get this case over with.” (Tr. 35-36.) As a result, the
trial court wanted to discuss this development with the parties. Cedeno-Guerrero
confirmed that he, in fact, made this statement. This caused concern for the court
and it specifically questioned him whether he wanted to withdraw his plea.
According to the record, Cedeno-Guerrero did “not want to withdraw [his] plea.”
(Tr. 36.) Both defense counsel and the state did not believe any further clarification
was needed. (Tr. at id.) However, defense counsel asked for time to confer with
Cedeno-Guerrero. Following this off-the-record discussion, the trial court stated
that the reason it asked if additional clarification was needed regarding Cedeno-
Guerrero’s statement was based on the legal differences in attempting to withdraw
a plea prior to or after sentencing. The trial court thoroughly explained to Cedeno-
Guerrero the difference and asked whether he understood that difference. Cedeno-
Guerrero stated he understood and still wished to proceed with sentencing. (Tr. 37-
38.)
On appeal, Cedeno-Guerrero does not challenge that he did not enter
a knowing, intelligent, and voluntary plea, but argues that the lack of verification or
certification of the interpreter somehow inhibited his ability to withdraw his plea
and caused him to not understand the sentence that would be imposed. We fail to
see the connection.
R.C. 2311.14, Evid.R. 604, and Sup.R. 88 govern the appointment of
and certification requirements for foreign language interpreters. They provide
under what circumstances a court should appoint a foreign language interpreter for
either a party or witness. R.C. 2311.14(A); Sup.R. 88(A). Subsection (D) of Sup.R.
88 “provides a hierarchy for preferred candidates: (1) a Supreme Court of Ohio
certified foreign language interpreter; (2) a provisionally-qualified foreign language
interpreter; (3) a language-skilled foreign language interpreter; and (4) telephonic
interpreter.” State v. Gaspareno, 2016-Ohio-990, 61 N.E.3d 550, ¶ 63 (3d Dist.),
citing Sup.R. 88(D)(1)-(4). The court shall administer an oath or affirmation to a
foreign language interpreter that the interpreter will make an accurate and true
interpretation. R.C. 2311.14(B); Sup.R. 88(I).
In this case, Cedeno-Guerrero has failed to establish how he was
prejudiced by the trial court’s failure to certify the interpreter’s credentials. He does
not contend that he was unable to communicate with or understand the interpreter’s
translation, or that this lack of certification prevented him from understanding the
sentence imposed. As recognized by the Tenth District, “the sentencing hearing is
procedurally distinct from the trial phase of the proceedings since concerns related
to the adversarial process are not present at sentencing.” State v. Barrie, 2016-
Ohio-5640, 70 N.E.3d 1092, ¶ 42 (10th Dist.), citing State v. Dunbar, 3d Dist. Allen
No. 1-92-12, 1992 Ohio App. LEXIS 5567 (Nov. 5, 1992). Although Cedeno-Guerrero
entered a plea rather than have a trial, the same procedural concerns are present,
and we note that during the plea stage, the trial court certified the qualifications and
credentials of the interpreter.
At sentencing when he was specifically asked, Cedeno-Guerrero
unequivocally stated he did not want to withdraw his plea, and wanted to proceed
with sentencing. Additionally, despite the assertions made during the presentence
interview, Cedeno-Guerrero did not file any formal request to withdraw his plea
prior to sentencing.
Moreover, Cedeno-Guerrero has presented no evidence or even made
any assertion that the interpreter at sentencing was in fact not qualified or lacked
the appropriate credentials or certifications. Additionally, Cedeno-Guerrero has not
presented any evidence that the interpreter did not adequately or properly translate
the proceedings or that he misunderstood the translations given by the interpreter.
Finally, the record reflects that at no time did Cedeno-Guerrero or his counsel
indicate that he did not understand the proceedings. Accordingly, Cedeno-Guerrero
has failed to overcome his burden of showing an obvious error in the proceedings.
See, e.g., Gaspareno, 2016-Ohio-990, 61 N.E.3d 550 (trial court’s failure to qualify
the credentials of the interpreter did not rise to the level of plain error because
defendant did not present evidence that the interpreter was not qualified). Any
error, if at all, does not rise to the level of plain error.
The first assignment of error is overruled.
II. Excessive Sentence
Cedeno-Guerrero contends in his second assignment of error that the
trial court committed prejudicial error by sentencing him to an excessive prison
term.
We review felony sentencing using the standard of review set forth in
R.C. 2953.08. State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, 59 N.E.3d
1231, ¶ 22. R.C. 2953.08(G)(2) provides we may either increase, reduce, modify, or
vacate a sentence and remand for resentencing where we clearly and convincingly
find that either the record does not support the sentencing court’s findings under
R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is
otherwise contrary to law.
As long as the sentence is within the statutory range for the offense,
and the court considers both 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, a trial court’s imposition of a any prison term, even a maximum prison
term, for a felony conviction is not contrary to law. State v. Woodard, 8th Dist.
Cuyahoga No. 106300, 2018-Ohio-2402, ¶ 35; State v. Keith, 8th Dist. Cuyahoga
Nos. 103413 and 103414, 2016-Ohio-5234, ¶ 10, 16.
R.C. 2929.11(A) provides that a sentence imposed for a felony shall be
reasonably calculated to achieve the two overriding purposes of felony sentencing:
(1) to protect the public from future crime by the offender and others, and (2) to
punish the offender using the minimum sanctions that the court determines will
accomplish those purposes. The sentence imposed shall be “commensurate with
and not demeaning to the seriousness of the offender’s conduct and its impact on
the victim, and consistent with sentences imposed for similar crimes by similar
offenders.” R.C. 2929.11(B).
The sentencing court must consider the seriousness and recidivism
factors set forth in R.C. 2929.12 in determining the most effective way to comply
with the purposes and principles of sentencing set forth in R.C. 2929.11. State v.
Hodges, 8th Dist. Cuyahoga No. 99511, 2013-Ohio-5025. R.C. 2929.12 provides a
nonexhaustive list of factors a trial court must consider when determining the
seriousness of the offense and the likelihood that the offender will commit future
offenses.
R.C. 2929.11 and 2929.12 are not fact-finding statutes and thus, the
trial court is not required to use particular language or make specific findings on the
record regarding its consideration of those factors. State v. Wilson, 129 Ohio St. 3d
214, 2011-Ohio-2669, 951 N.E.2d 381; State v. Jones, 8th Dist. Cuyahoga No. 99759,
2014-Ohio-29. Consideration of the appropriate factors can be presumed unless the
defendant affirmatively demonstrates otherwise. Jones at ¶ 13, citing State v.
Stevens, 1st Dist. Hamilton No. C-130278, 2013-Ohio-5218. “Moreover, a trial
court’s statement in its sentencing journal entry that it considered the required
statutory factors is sufficient to fulfill a trial court’s obligations under R.C. 2929.11
and 2929.12.” State v. Sutton, 8th Dist. Cuyahoga Nos. 102300 and 102302, 2015-
Ohio-4074, ¶ 72, citing State v. Clayton, 8th Dist. Cuyahoga No. 99700, 2014-Ohio-
112.
In this case, Cedeno-Guerrero’s ten-year prison sentence is not
contrary to law. A violation of R.C. 2907.02(A)(2), rape, is a felony of the first degree
that carries a possible punishment of three to eleven years, and a violation of R.C.
2907.05(A)(4), gross sexual imposition, is a felony of the third degree that carries a
possible punishment of twelve to sixty months in prison. R.C. 2929.14(A)(1) and
(3)(a). Accordingly, the trial court’s imposition of a 36-month sentence on the gross
sexual imposition charge, to run concurrently with a ten-year prison sentence on the
rape offense, is within the statutory range and thus, not contrary to law.
Cedeno-Guerrero contends on appeal that his sentence does not
comport with the purposes and principles of felony sentencing pursuant to R.C.
2929.11 because he lacks a criminal record and is now subject to deportation due to
his conviction. Accordingly, he contends that a minimum sanction would have been
appropriate to protect the public from any future crime he may commit.
Although the state requested that the trial court impose a maximum,
consecutive prison sentence, the trial court found that the R.C. 2929.14(C)(4) factors
were not met to satisfy the imposition of consecutive sentences. However, the
record clearly reflects that the trial court fully considered the purposes and
principles of sentencing pursuant to R.C. 2929.11 and the seriousness and recidivism
factors in R.C. 2929.12 in ordering Cedeno-Guerrero to serve a ten-year prison
sentence.
The trial court carefully explained its considerations, including why
the maximum sentence was not appropriate, by highlighting Cedeno-Guerrero’s
lack of criminal history and his immigration status, but also that the minimum
sentence was not appropriate due to the nature of the crime and Cedeno-Guerrero’s
position of trust with the nine-year-old victim and the victim’s family. The trial court
stated it considered all the statements made by the parties and noted Cedeno-
Guerrero’s “heartfelt” statement. Nothing in the record indicates that the sentence
was excessive. Accordingly, Cedeno-Guerrero has failed to demonstrate that his
sentence is clearly and convincingly not supported by the record. The second
assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from 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 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.
KATHLEEN ANN KEOUGH, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR