State v. Garcia

[Cite as State v. Garcia, 2021-Ohio-4480.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY
STATE OF OHIO, CASE NOS. 2020-A-0034
2020-A-0035
Plaintiff-Appellee,
-v- Criminal Appeals from the
Court of Common Pleas
PHILLIP GARCIA,
Defendant-Appellant. Trial Court Nos. 2018 CR 00765
2018 CR 00560
OPINION
Decided: December 20, 2021
Judgment: Affirmed in part, reversed in part, and remanded
Dave Yost, Ohio Attorney General, Ohio Attorney General’s Office, State Office Tower,
30 East Broad Street, 16th Floor, Columbus, OH 43215, and Andrea K. Boyd, Assistant
Attorney General, Ohio Attorney General’s Office, State Office Tower, 30 East Broad
Street, 23rd Floor, Columbus, OH 43215 (For Plaintiff-Appellee).
Joseph R. Klammer, The Klammer Law Office, Ltd., 7482 Center Street, Unit 6, Mentor,
OH 44060; J. Reid Yoder and Benjamin R. Sorber, Dicaudo, Pitchford & Yoder, LLC,
209 South Main Street, Third Floor, Akron, OH 44308 (For Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, Phillip Garcia, appeals his convictions and sentence
following the entry of guilty pleas to multiple counts of Compelling Prostitution and Sexual
Imposition. For the following reasons, we affirm Garcia’s convictions in whole and his
sentence in part. We reverse the sentences imposed for Compelling Prostitution and
remand for further proceedings consistent with this opinion.
{¶2} On August 28, 2018, the Ashtabula County Grand Jury in Case No. 2018
CR 00560 indicted Garcia for five counts of Rape, felonies of the first degree in violation
of R.C. 2907.02(A)(2); seven counts of Compelling Prostitution, felonies of the second
degree in violation of R.C. 2907.21(A)(1); eight counts of Compelling Prostitution, felonies
of the third degree in violation of R.C. 2907.21(A)(3); four counts of Corruption of a Minor,
felonies of the fourth degree in violation of R.C. 2907.04(A); and two counts of Unlawful
Sexual Conduct with a Minor, felonies of the third degree in violation of R.C. 2907.04(A).
{¶3} On August 30, 2018, Garcia was arraigned and entered a plea of not guilty.
{¶4} On November 28, 2018, the Ashtabula County Grand Jury in Case No. 2018
CR 00765 indicted Garcia for Rape, a felony of the first degree in violation of R.C.
2907.02(A); Compelling Prostitution, a felony of the second degree in violation of R.C.
2907.21(A)(1); four counts of Compelling Prostitution, felonies of the third degree in
violation of R.C. 2907.21(A)(2); Compelling Prostitution, a felony of the third degree in
violation of R.C. 2907.21(A)(3); Unlawful Sexual Conduct with a Minor, a felony of the
third degree in violation of R.C. 2907.04(A); and Bribery, a felony of the third degree in
violation of R.C. 2921.02(C).
{¶5} On December 17, 2018, Garcia was arraigned and entered a plea of not
guilty.
{¶6} On March 7, 2019, the trial court denied Garcia’s Motion to Sever Trial as
to each alleged victim in both Indictments and ordered that the two Indictments be tried
together as if one prosecution were under a single Indictment, as provided for in Criminal
Rule 13.
{¶7} On the same date, the trial court denied Garcia’s Motion to Obtain Inmates’
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Recorded Telephone Calls, requesting all recorded prison calls (except those with their
attorneys) for four prison inmates who were either victims or witnesses in the cases.
{¶8} On March 25, 2019, the trial court consolidated both cases under Case No.
2018 CR 00765.
{¶9} On May 13, 2020, Garcia pled guilty to four counts of third-degree felony
Compelling Prostitution in violation of R.C. 2907.21(A)(3) and seven amended counts of
Sexual Imposition, misdemeanors of the third degree in violation of R.C. 2907.06(A)(4)
and (C), in exchange for the dismissal of the remaining charges.
{¶10} On July 27, 2020, Garcia filed a Motion to Withdraw Guilty Pleas which was
denied by the trial court in a written entry dated July 31.
{¶11} On July 28, 2020, Garcia filed Objections to the Presentencing Investigation
Report and a Request for New, Independent Unbiased Report which was denied by the
trial court in a written entry dated July 30.
{¶12} On the same date, Garcia filed a Motion for Continuance of the Sentencing
Hearing, scheduled for July 29, 2020, which the trial court denied in a written entry dated
July 31.
{¶13} On July 29, 2020, the trial court heard argument on Garcia’s three pending
motions and denied them. Thereafter, the sentencing hearing was held. For three counts
of Compelling Prostitution (Counts 7, 12, and 29), the trial court sentenced Garcia to five
years of incarceration. For the fourth count of Compelling Prostitution (Count 20), the
court sentenced Garcia to three years of incarceration. For each count of Sexual
Imposition (Counts 3, 22, 25, 31, 32, 33, and 34), the court sentenced Garcia to sixty days
of incarceration. The court ordered the sentences for Compelling Prostitution to be
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served consecutively with each other and concurrently with the sentences for Sexual
Imposition for an aggregate sentence of eighteen years.
{¶14} On July 31, 2020, Garcia’s sentence was memorialized in a written
Judgment Entry.
{¶15} On August 5, 2020, Garcia filed a Notice of Appeal. On appeal, he raises
the following assignments of error:
[1.] The trial court erred in overruling Mr. Garcia’s Motion to Withdraw
his Guilty Plea.
[2.] The trial court’s sentence of five years on Counts seven (7),
twelve (12), and twenty-nine (29) exceeded the maximum allowable
sentence, rendering Mr. Garcia’s sentence void ab initio.
[3.] The trial court erred by imposing a maximum and consecutive
sentence on Mr. Garcia when it failed to consider mitigating factors
pursuant to R.C. § 2929.11, R.C. § 2929.12, and R.C. § 2929.14.
[4.] The trial court erred in its failure to grant Mr. Garcia’s Motion to
Continue Sentencing.
[5.] The trial court erred in its failure to disqualify the probation officer
from this case in the interest of justice and fairness.
[6.] The trial court violated Mr. Garcia’s due process rights by
precluding him from discussing the alleged ages of the victims and
statements of the victims, but allowing the State to introduce victim
statements and evidence that the victims were younger than the
ages as stated in the parties’ plea agreement.
[7.] The trial court erred when it failed to substantially comply with
Crim.R. 11 during Mr. Garcia’s guilty plea.
[8.] The trial court erred in denying Mr. Garcia’s motion to sever his
charges and order separate trials.
[9.] The trial court erred in allowing the State to preclude certain
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audio recordings of jail calls from discovery.
{¶16} The assignments of error will be addressed out of order for clarity.
{¶17} In the seventh assignment of error, Garcia argues that the trial court did not
substantially comply with Criminal Rule 11 by failing to inform him that a guilty plea waives
his right to appeal pretrial rulings.
{¶18} In order to enter a valid plea in a criminal case under the United States and
Ohio Constitutions, “the plea must be made knowingly, intelligently, and voluntarily.”
State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). “[I]n order to facilitate a
more accurate determination of the voluntariness of a defendant’s plea by ensuring an
adequate record for review,” Ohio Criminal Rule 11(C) was adopted. State v. Nero, 56
Ohio St.3d 106, 107, 564 N.E.2d 474 (1990); State v. Veney, 120 Ohio St.3d 176, 2008-
Ohio-5200, 897 N.E.2d 621, ¶ 8 (“Crim.R. 11(C) governs the process that a trial court
must use before accepting a felony plea of guilty”). The Rule “requires the trial judge to
personally inform the defendant of the constitutional guarantees he waives by entering a
guilty plea” in addition to “certain other matters,” such as “that the defendant understands
the effect of the plea of guilty.” Nero at 107; Crim.R. 11(C)(2)(b).
{¶19} “The plea of guilty is a complete admission of the defendant’s guilt.” Crim.R.
11(B)(1). “The information that a guilty plea is a complete admission of guilt, along with
the other information required by Crim.R. 11, ensures that defendants enter pleas with
knowledge of rights that they would forgo and creates a record by which appellate courts
can determine whether pleas are entered voluntarily.” State v. Griggs, 103 Ohio St.3d
85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 11.
{¶20} The written Plea of Guilty and Waiver of Rights signed by Garcia contained
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the following provision:
I further understand that, if I was convicted after a trial, I would have
the right to appeal pretrial matters, and sentencing matters. But I
also understand that, by pleading guilty, I waive my right to challenge
any issues on appeal other than: ineffective assistance of counsel,
prosecutorial misconduct, the manner in which the plea proceeding
is conducted, and the sentence ultimately imposed by this Court.
Similarly, I understand that by pleading guilty, I will not be able to
appeal pretrial issues, such as: discovery disputes, pretrial court
proceedings, and this Court’s pretrial orders and rulings.
{¶21} During the plea colloquy, the trial court inquired of Garcia as follows
regarding his appellate rights:
The Court: First. I’m going to ask you, you do understand your plea
to [be] one of guilt pursuant to the plea agreement that you entered
in this case, correct?
Garcia: Yes, Your Honor.
***
The Court: Do you understand that you’re admitting that you
committed the crimes stated in the plea agreement?
Garcia: Yes, Your Honor.
The Court: And you understand that you’re giving up any defenses
that you have to those crimes?
Garcia: Yes, Your Honor.
***
The Court: You do have appeal rights. And do you understand
you have the right to appeal a maximum sentence? You understand
that?
Garcia: Yes, Your Honor.
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***
The Court: Do you understand you waive the right to appeal a
finding of guilty as a result of your guilty plea today?
Garcia: Yes, Your Honor.
The Court: Do you understand that while you waive and give up
your right to appeal a finding of guilty as a result of your guilty plea
today, you don’t necessarily lose your right to appeal with respect to
other matters connected with your case. Do you understand that?
Garcia: Yes, Your Honor.
The Court: Do you understand that as a result of your guilty plea,
you might waive and give up your right to appeal any errors you do
by your guilty plea today [sic], you give up your right to appeal any
errors that might have occurred at trial, because you’re waiving your
right to a trial. Do you understand that?
Garcia: Yes, Your Honor.
The Court: Do you understand that depending upon the outcome
of your case, you may possess the right to appeal this Court’s
decision with respect to other matters, such as your sentence. Do
you understand?
Garcia: Yes, Your Honor.
{¶22} It is asserted that the trial court “made no mention that Mr. Garcia would be
waiving his right to appeal any pretrial rulings” and, therefore, he did not subjectively
understand the nature of the guilty pleas. Moreover, he would not have entered the guilty
pleas “had he been aware of the [pretrial] issues surrounding” discovery and joinder.
Appellant’s brief at 29.
{¶23} We find no error. It is well-established that Criminal Rule 11 does not
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require a trial court to advise a defendant that he is waiving the right to appeal pretrial
issues by entering a guilty plea. State v. Smith, 2d Dist. Montgomery No. 28339, 2020-
Ohio-3901, ¶ 12 (“the defendant * * * does not have to be informed that by pleading guilty
he is waiving his right to appeal any pretrial rulings”) (citation omitted); In re M.A., 12th
Dist. Brown No. CA2018-07-005, 2019-Ohio-829, ¶ 41; State v. Jordan, 9th Dist. Summit
No. 27690, 2015-Ohio-4354, ¶ 6; State v. Cumberland, 4th Dist. Highland No. 04CA14,
2005-Ohio-1229, ¶ 17. Unless a defendant has been affirmatively misinformed or misled
about the consequences of pleading guilty, this court is aware of no authority for the
proposition that a guilty plea is invalid despite compliance with the requirements of
Criminal Rule 11(C).
{¶24} At the very least, Garcia is required to demonstrate that, as the result of
some error or defect in the conduct of the taking of his plea, he suffered prejudice, i.e.,
that but for the error or defect he would not have entered the plea. State v. Dangler, 162
Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, ¶ 16. Moreover, such prejudice must
appear “on the face of the record.” It is insufficient for demonstrating prejudice that a
defendant merely challenges the plea on appeal. Id. at ¶ 24. Nothing on the face of the
record before this court suggests prejudice. The trial court orally advised Garcia that by
pleading guilty he would be waiving the right to appeal certain issues. These issues were
expressly stated in the written plea agreement to include discovery and other pretrial
issues. Nowhere does Garcia indicate the ability to appeal pretrial issues played any role
in his decision to plead guilty. State v. Brusiter, 8th Dist. Cuyahoga No. 98614, 2013-
Ohio-1445, ¶ 7 (“where a trial court carries out the mandates of Crim.R. 11(C)(2), no
prejudice accrues to the appellant where the court fails to inform him of the effect of his
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plea on pretrial motions”).
{¶25} Lastly, we note that, at the time Garcia entered his guilty pleas to
significantly reduced charges, he was advised that he faced a maximum potential
sentence of five years for each felony charge of Compelling Prostitution and sixty days
for each misdemeanor charge of Sexual Imposition – a potential aggregate prison term
of 21 years and two months. For reasons stated below, the maximum potential sentence
for each felony charge was only three years. The courts which have considered this issue
have held that the overstatement of the maximum penalty does not constitute grounds for
vacating a plea in the absence of demonstrable prejudice. No such showing has been
made in the present case. State v. Tutt, 12th Dist. Preble No. CA2020-02-002, 2021-
Ohio-96, ¶ 16 (“a trial court’s mention of a component of the maximum penalty during a
plea colloquy, albeit incomplete or perhaps inaccurate, does not constitute a complete
failure to comply with Crim.R. 11(C)(2)(a)”) (citation omitted); State v. Betts, 4th Dist.
Vinton No. 17CA706, 2017-Ohio-8595, ¶ 28-29; State v. Calvin, 8th Dist. Cuyahoga No.
100296, 2015-Ohio-2759, ¶ 24 (“[i]t is hard to demonstrate prejudice when an
overstatement of the maximum penalty was given”).
{¶26} The seventh assignment of error is without merit.
{¶27} As a result of pleading guilty, Garcia waived the right to challenge the trial
court’s denial of his Motion to Sever Trial and Motion to Obtain Inmate’s Recorded
Telephone Calls, raised in the eighth and ninth assignments of error respectively. It is
well-established that “[a] defendant who enters a voluntary plea of guilty while
represented by competent counsel waives all nonjurisdictional defects in prior stages of
the proceedings.” (Citation omitted.) State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-
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2459, 38 N.E.3d 860, ¶ 19; State v. Wachter, 11th Dist. Geauga No. 2019-G-0187, 2019-
Ohio-4318, ¶ 15 (“[b]y entering his guilty plea, appellant waived his right to challenge
rulings on pretrial motions”). Among these nonjurisdictional defects are issues regarding
joinder and discovery. State v. Wilson, 8th Dist. Cuyahoga No. 105876, 2018-Ohio-3666,
¶ 6 (“[t]his waiver includes the right to challenge the denial of a Crim.R. 14 motion to sever
or motion for relief from joinder”); State v. Dugas, 2d Dist. Montgomery No. 28770, 2021-
Ohio-731, ¶ 5 (“Dugas’s guilty plea * * * waived any error for appeal regarding the trial
court’s handling of discovery issues”).
{¶28} The eighth and ninth assignments of error are without merit.
{¶29} In the first assignment of error, Garcia argues that the trial court abused its
discretion by denying his Motion to Withdraw Guilty Pleas where the Motion was made
prior to sentencing, he maintained his innocence, and he was suffering from depression
and severe anxiety at the time he entered his pleas.
{¶30} “A motion to withdraw a plea of guilty or no contest may be made only before
sentence is imposed * * *.” Crim.R. 32.1. As a general rule, “a presentence motion to
withdraw a guilty plea should be freely and liberally granted.” State v. Xie, 62 Ohio St.3d
521, 527, 584 N.E.2d 715 (1992). However, “[a] defendant does not have an absolute
right to withdraw a guilty plea prior to sentencing.” Id. at paragraph one of the syllabus.
“A trial court must conduct a hearing to determine whether there is a reasonable and
legitimate basis for the withdrawal of the plea.” Id. “The decision to grant or deny a
presentence motion to withdraw a guilty plea is within the sound discretion of the trial
court.” Id. at paragraph two of the syllaus. Thus, it is for the trial court “to determine what
circumstances justify granting such a motion,” and for the reviewing court to affirm that
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decision unless it is unreasonable, arbitrary, or unconscionable. (Citation omitted.) Id. at
526-527.
{¶31} This court has often held that a trial court does not abuse its discretion when
denying a presentence motion to withdraw a guilty plea: “(1) where the accused is
represented by highly competent counsel, (2) where the accused was afforded a full
hearing, pursuant to Crim.R. 11, before he entered the plea, (3) when, after the motion to
withdraw is filed, the accused is given a complete and impartial hearing on the motion,
and (4) where the record reveals that the court gave full and fair consideration to the plea
withdrawal request.” State v. Taylor, 2015-Ohio-2080, 33 N.E.3d 123, ¶ 32 (11th Dist.),
quoting State v. Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863 (8th Dist.), paragraph
three of the syllabus. These conditions are certainly satisfied in the present case.
{¶32} In support of the Motion to Withdraw Guilty Pleas, an affidavit from Garcia
was submitted in which he claimed:
4. I only pled guilty out of fear and panic that I could be sentenced to
a lengthy and severe prison term if I proceeded to jury trial and lost.
Following my plea I met with a counselor and was diagnosed with
severe anxiety and depression. These untreated mental conditions
caused me to enter the plea because at the time I felt I had no other
options. This fear and panic clouded my judgment and prohibited
me from truly understanding my trial rights and the consequences of
my plea.
5. I was also afraid that I would not be able to get a fair trial due to
the significant media attention given to my case, in addition to the
national media’s treatment of other cases with similar charges.
Seeing the county judges recuse themselves from my case also
caused fear that I would not receive a fair trial.
6. I was worried about the prospect of catching the coronavirus in
prison if I lost at trial and believe that, due to my serious health
conditions (high blood pressure, gallbladder removal, multiple hernia
surgeries) that I would die in prison from COVID-19.
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7. After further contemplation I realize that these fears were
misplaced and I now, for the first time, have a better understanding
of the consequences of my plea and my rights to trial.
{¶33} We find no abuse of discretion in the denial of the Motion to Withdraw Guilty
Pleas. The trial court construed Garcia’s reasons for wanting to withdraw his guilty pleas
as a “change of heart,” and “it is well-established that a change of heart regarding a
decision to enter a plea is insufficient to serve as a bases for withdrawing one’s plea.”
State v. Shaibi, 11th Dist. Lake No. 2020-L-096, 2021-Ohio-660, ¶ 6 (cases cited); State
v. Hopkins, 7th Dist. Mahoning No. 07 MA 31, 2008-Ohio-2926, ¶ 13 (“[n]ormally, courts
will not allow pleas to be withdrawn because of mere regret about the decision to enter
the plea in the first place”). Garcia claims that his plea was the product of fear and panic
regarding the prospect of a lengthy prison sentence (according to the maximum penalties
under the two Indictments, Garcia faced a potential aggregate prison term of 184 years),
doubts about receiving a fair trial, and the possibility of contracting COVID if incarcerated.
To some extent, such fears are justifiable and may have induced Garcia entering pleas
that, upon further reflection, he wished he had not made. They do not render his pleas
involuntary. It is never explained in Garcia’s affidavit what aspects of the charges or the
consequences of pleading he was unable to comprehend as a result of his mental
distress. Nor was it explained how the diagnoses of depression and anxiety prevented
Garcia from understanding what he was doing by pleading guilty. Compare State v.
Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶ 56 (“[t]he
constitutional standard for assessing a defendant’s competency to enter a guilty plea is
the same as that for determining his competency to stand trial”).
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{¶34} Although the particular circumstances may vary widely, there is abundant
precedent of appellate courts affirming the denial of motions to withdraw pleas based on
claims that they were induced by fear and panic. State v. Risner, 3d Dist. Wyandot No.
16-20-05, 2021-Ohio-342, ¶ 19; State v. Delaney, 4th Dist. Jackson No. 19CA9, 2020-
Ohio-7036, ¶ 28; State v. Grabe, 7th Dist. Mahoning No. 19 MA 0115, 2020-Ohio-4435,
¶ 22; State v. Bronaka, 11th Dist. Lake No. 2007-L-095, 2008-Ohio-1334, ¶ 22
(“[d]efendant’s subjective belief that he could not get a fair trial * * * is not sufficient to
invalidate a guilty plea”) (citation omitted).
{¶35} The trial court identified other factors commonly cited as relevant in
determining a motion to withdraw a guilty plea: The motion was made two days before
sentencing and over two months after the pleas were entered. Risner at ¶ 19 (the trial
court found “[i]t took almost two months for Defendant to discover that she had pled guilty
to something she claims not to have done because of fear and panic”). Garcia received
a “full” Criminal Rule 11 colloquy to which defense counsel did not take exception during
the hearing on the Motion to Withdraw Guilty Pleas. Garcia appeared to the trial court
judge “composed and in full command of his faculties” at the time he entered his plea.
Garcia counters that, because the plea colloquy was conducted via Zoom, his hands,
legs, and feet would not have been visible to the trial judge. However, Garcia was in his
attorney’s presence when the pleas were given and nothing in the record, either the
affidavit or the psychological report, indicates that Garcia’s depression and anxiety
manifested itself corporally. Grabe at ¶ 22 (defense counsel “saw no indication” that fear
and panic caused the defendant to plead).
{¶36} The first assignment of error is without merit.
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{¶37} In the fourth assigment of error, Garcia argues the trial court abused its
discretion by denying his Motion for Continuance of the Sentencing Hearing where the
COVID-19 pandemic posed unique dangers to Garcia in a prison setting.
{¶38} “The grant or denial of a continuance is a matter that is entrusted to the
broad, sound discretion of the trial judge.” State v. Unger, 67 Ohio St.2d 65, 423 N.E.2d
1078 (1981), syllabus. “Weighed against any potential prejudice to a defendant are
concerns such as a court’s right to control its own docket and the public’s interest in the
prompt and efficient dispatch of justice.” Id. at 67. Additional factors to consider include:
“the length of the delay requested, prior continuances, inconvenience, the reasons for the
delay, whether the defendant contributed to the delay, and other relevant factors.” State
v. Landrum, 53 Ohio St.3d 107, 115, 559 N.E.2d 710 (1990). “There are no mechanical
tests for deciding when a denial of a continuance is so arbitrary as to violate due process,”
rather the “answer must be found * * * particularly in the reasons presented to the trial
judge at the time the request is denied.” Unger at 67, citing Ungar v. Sarafite, 376 U.S.
575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964).
{¶39} The basis for Garcia’s Motion for Continuance of Sentencing Hearing was
not, as argued on appeal, concerns for Garcia’s health in a prison environment during a
time of pandemic. Rather, the written Motion sought “to continue sentencing to a future
date after the Court rules on the Motion to Withdraw the Plea[s]” because the “sentencing
brief contains information which is not proper for the State to have if the Motion to
Withdraw the Plea is granted.”
{¶40} Prior to sentencing, the trial court denied the Motion to Withdraw Guilty
Pleas and heard argument on the Motion for Continuance. Garcia argued for a
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postponement of sentencing “for a very short period of time” to allow the defense to submit
its sentencing memorandum which included a psychological evaluation which the defense
did not wish to make available to the prosecution until the Motion to Withdraw had been
ruled upon. When the court refused to continue the sentencing hearing, the defense
moved for a recess to allow the court to review the memorandum and evaluation which
the court granted.
{¶41} On appeal, Garcia claims the trial court committed a “clear abuse of
discretion” by not continuing sentencing given that “the dangers the novel corona virus
and global pandemic in a prison setting place Mr. Garcia’s life, safety, and well-being in
jeopardy.” Appellant’s brief at 22. We find no abuse of discretion. The court appropriately
accommodated Garcia’s concerns, the ones actually raised in the Motion for
Continuance, by recessing to consider the defense’s sentencing memorandum. The
COVID pandemic was not put forward as a reason to continue sentencing and, even if it
had been so argued, would not have constituted valid grounds for delaying sentencing.
See State v. Horner, 5th Dist. Licking No. 2020 CA 00080, 2021-Ohio-1312, ¶ 15-16
(discussing, within the context of the risks posed by COVID-19, the appropriate remedies
“[w]hen a prisoner seeks immediate or speedier release from incarceration” and when he
“challenges the conditions of his confinement”).
{¶42} The fourth assignment of error is without merit.
{¶43} In the fifth assignment of error, Garcia argues that the trial court erred in
denying his Objections to the Presentencing Investigation Report and a Request for New,
Independent Unbiased Report on the grounds that the probation officer producing the
report should have been disqualified.
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{¶44} When a presentence investigation report is prepared following a felony
conviction, “the court, at a reasonable time before imposing sentence, shall permit the
defendant or the defendant’s counsel to read the report * * *.” R.C. 2951.03(B)(1). “Prior
to sentencing, the court shall permit the defendant and the defendant’s counsel to
comment on the presentence investigation report and, in its discretion, may permit the
defendant and the defendant’s counsel to introduce testimony or other information that
relates to any alleged factual inaccuracy contained in the report.” R.C. 2951.03(B)(2). “If
the comments of the defendant or the defendant’s counsel, the testimony they introduce,
or any of the other information they introduce alleges any factual inaccuracy in the
presentence investigation report * * *, the court shall do either of the following with respect
to each alleged factual inaccuracy: (a) Make a finding as to the allegation; (b) Make a
determination that no finding is necessary with respect to the allegation, because the
factual matter will not be taken into account in the sentencing of the defendant.” R.C.
2951.03(B)(5).
{¶45} Garcia’s Objections to the report raised two claims. The first was that the
Ashtabula County Probation Office had a conflict of interest in this case which required
“a new Presentence Investigation Report to be completed by an independent probation
office outside of Ashtabula County.” Garcia reasoned that “the three initial judges in
Ashtabula County recused themselves due to conflict as did the Ashtabula County
Prosecutor’s Office.” Since the probation department is a department of the court, it had
“just as strong a potential for improper bias in this case as did the judges and prosecutor
who saw fit to recuse themselves.” R.C. 2301.27(A)(1)(a) (“[t]he court of common pleas
may establish a county department of probation”).
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{¶46} Second, Garcia argued that there were factual inaccuracies in the report
inasmuch as the probation officer based his sentencing recommendation1 “not on the
crimes to which Mr. Garcia pleaded guilty, but on the totality of the allegations brought
initially by the State in this matter – the vast majority of which the State was unable to
prove and subsequently dismissed.” The probation officer’s sentencing recommendation
also demonstrated actual bias as he failed to consider Garcia’s age, likelihood of
recidivism, and the time period when the alleged incidents occurred.
{¶47} The trial court denied Garcia’s request for a new report finding no evidence
of bias. The court noted that the report accurately identified which charges resulted in
convictions and which were dismissed and duly noted Garcia’s ORAS (Ohio Risk
Assessment System) score, lack of criminal record, age, health, and background.
Further, the court rejected “the notion that a court’s probation department should be
disqualified from rendering services to a visiting judge if the regular judge recuses himself
or herself.”
{¶48} On appeal, Garcia argues that the probation officer assigned to his
presentence investigation should have been disqualified based on the “appearance of
impropriety * * * since Mr. Garcia served years in public service in the Conneaut City
Council and was well known in the community.” Appellant’s brief at 24. We disagree.
{¶49} Preliminarily, we note that Garcia has failed to establish that an
“appearance of impropriety” exists. There is no obvious conflict or connection between
Garcia’s membership in the Conneaut City Council and the county probation department.
1. Pursuant to R.C. 2951.03(B)(1)(a), “the court shall not permit the defendant or the defendant’s counsel
to read * * * [a]ny recommendation as to sentence.” As noted by the trial court, in this case “the defense
was inadvertently provided [the sentencing recommendation] when it should not have been.”
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Garcia suggests that whatever conflict compelled the common pleas court judges to
recuse themselves should apply to the probation department. The county judges,
however, did not recuse themselves to avoid the appearance of impropriety or conflict.
Rather, they recused themselves pursuant to Ohio Code of Judicial Conduct 2.11(A)(1)
which provides that a judge shall disqualify himself or herself when “[t]he judge has a
personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge
of facts that are in dispute in the proceeding.” There is little reason to impute the trial
judges’ personal bias, prejudice or knowledge to the probation department.
{¶50} The State argues that there is “no basis in Ohio law for the remedy Garcia
seeks.” Appellee’s brief at 23. But such a remedy is not without precedent in the
appropriate circumstances. See, e.g., State v. Griffeth, 5th Dist. Richland No. 10-CA-
115, 2011-Ohio-4426, ¶ 5 (“[s]ubsequent to this confrontation [between appellant and a
chief probation officer for the APA], Appellant’s supervision was transferred to the
Richland County Probation Office to avoid any conflict of interest with the APA supervision
of Appellant”). There are no established criteria for disqualification applicable to a
probation officer or department of which this court is aware. One issue to consider is
whether the mere appearance of impropriety or conflict is grounds for disqualification or
whether a party must demonstrate an actual conflict with resulting prejudice. Compare
In re Disqualification of Lewis, 117 Ohio St.3d 1227, 2004-Ohio-7359, 884 N.E.2d 1082,
¶ 8 (“[a] judge should step aside or be removed if a reasonable and objective observer
would harbor serious doubts about the judge’s impartiality”) and Jud.Cond.R. 1.2 (“[a]
judge * * * shall avoid impropriety and the appearance of impropriety”) with State v. Hill,
2018-Ohio-4800, 125 N.E.3d 158, ¶ 94 (11th Dist.) (“the mere appearance of impropriety
18
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in a government office is not sufficient, in and of itself, to warrant disqualification of the
entire office”) (citation omitted). The issue is one we need not resolve in the present case,
inasmuch as we find that the recusal of the common pleas court judges and prosecutor’s
office does not create an appearance of impropriety with respect to the probation
department.
{¶51} As evidence of actual bias, Garcia claims “the probation officer who
interviewed [him] refused to allow counsel for Mr. Garcia to be present during the
interview.” Appellant’s brief at 24. This claim is wholly unsubstantiated. It was not an
argument raised in the Objections to the Presentencing Investigation Report and is not
evidenced in the record before this court. Accordingly, it will not be considered on appeal.
State v. Wintermeyer, 158 Ohio St.3d 513, 2019-Ohio-5156, 145 N.E.3d 278, ¶ 10 (“[a]
first principle of appellate jurisdiction is that a party ordinarily may not present an
argument on appeal that it failed to raise below”).
{¶52} As further evidence of bias, Garcia asserts that the probation officer
“completely declined to apply felony sentencing factors and instead * * * requested the
Court to impose a maximum sentence” despite “finding an ORAS score of 6, which
indicates low probability of recidivism.” Appellant’s brief at 24. We agree with the trial
court that there is no evidence of bias in the report. Contrary to Garcia’s assertion, there
is no requirement that the probation officer compiling the report apply the sentencing
factors that the sentencing court must consider when imposing a sentence. Rather, “the
officer making the report shall inquire into the circumstances of the offense and the
criminal record, social history, and present condition of the defendant, all information
available regarding any prior adjudications of the defendant as a delinquent child and
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regarding the dispositions made relative to those adjudications * * *.” R.C. 2951.03(A)(1).
Nor can it be said that the sentencing recommendation in the report is evidence of bias.
The report simply recommends the “max term” for the crimes to which Garcia pled and
the stated reasons for the recommendation in the report do not reflect any personal
animus toward Garcia. It should also be noted that the sentencing recommendation is
not a factual finding and not binding on the sentencing court. State v. Bray, 2d Dist. Clark
No. 2016-CA-22, 2017-Ohio-118, ¶ 33; State v. Roberson, 141 Ohio App.3d 626, 632,
752 N.E.2d 984 (6th Dist.2001). Likewise, as argued by the State, a defendant’s ORAS
score is only a factor, one of limited applicability to sexual offenders, for the court to
consider in fashioning a sentence. State v. Snider, 4th Dist. Washington No. 20CA5,
2021-Ohio-348, ¶ 24-25.
{¶53} The fifth assignment of error is without merit.
{¶54} In the sixth assignment of error, Garcia argues that the trial court abused its
discretion “[b]y prohibiting Mr. Garcia from presenting mitigating evidence in response to
the State’s claims that the victims were under the age of sixteen (16) at the time of the
offense.” Appellant’s brief at 27.
{¶55} Before imposing a sentence on an offender who pleaded guilty to a felony,
the court shall hold a sentencing hearing at which “the offender, the prosecuting attorney,
the victim or the victim’s representative * * * and, with the approval of the court, any other
person may present information relevant to the imposition of sentence in the case.” R.C.
2929.19(A). “An appellate court which reviews the trial court’s admission or exclusion of
evidence must limit its review to whether the lower court abused its discretion.” Rigby v.
Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d 1056 (1991).
20
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{¶56} Garcia pled guilty to third-degree Compelling Prostitution, i.e., that he did
“[p]ay or agree to pay a minor * * * so that the minor will engage in sexual activity, whether
or not [he knew] the age of the minor.” R.C. 2907.21(A)(3)(a). A minor is defined as “a
person under the age of eighteen.” R.C. 2907.01(M). For a violation of division (A)(3),
Compelling Prostitution is a felony of the third degree. R.C. 2907.21(C).
{¶57} In a written statement contained in the presentence investigation report,
Garcia wrote: “I would like to impress upon the Court that all of these relationships took
place with individuals over the age of 18 years old.” According to the victims’ statements
contained in the official reports, the sexual activity occurred when they were as young as
thirteen or fourteen years old.
{¶58} At the sentencing hearing, these positions were reiterated by the parties.
Garcia’s brother addressed the court and asserted that “there is no crime when two adults
have consensual relationships.” Garcia’s attorney addressed the court as follows:
But over the past two years, Judge, we have been able to boil this
case down to what it really is. What you have, Your Honor, is you
have got an individual who had a relationship with a couple of guys,
I say guys, I should say men, over the age of eighteen. He had a
relationship with them and some of these relationships were sexual.
And again, Garcia’s attorney addressed the court as follows:
I’m not here to stand in front of you, Judge, and blame a victim. I
know that’s not what this Court wants me to do. But there was also
responsibility. These were grown men. They were over the age of
eighteen and they were receiving money.
{¶59} At another point in the sentencing hearing, the following exchange occurred
between the sentencing judge and defense counsel:
Counsel: What I can tell you is that we, through the discovery
process, have been able to find that all of these allegations that these
people were thirteen or fourteen years old are, in fact, false. * * *
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The Court: Mr. Yoder, I’m going to redirect you here, because all
I’m looking at in terms of age, is four felonies wherein the defendant
pled guilty of paying sex for hire of minors, over the age of sixteen.
That’s all I’m looking at. That’s what the crimes I’m sentencing your
client for. I’m not sentencing him for anything under that or in the
cases of the felonies or anything over that [sic], because over that
it’s legal, unless of course it’s prostitution.
Counsel: The concern I have, Your Honor is not only in the
presentence investigation report, but then also I believe in arguments
that the State [is] going to make is that these individuals were under
the age of sixteen and if the Court’s telling me –
The Court: And I’ll remind them the same thing I just told you.
Counsel: So the Court would not consider that relevant when it
comes to sentencing?
The Court: No.
{¶60} In its presentation at the sentencing hearing, the State recounted the details
of the offenses as reported by the victims and contained in the presentence investigation
report. According to the first victim’s version of events, he was thirteen at the time of the
incident. Defense counsel interjected as follows:
Counsel: Judge * * *, I was not permitted to get into any of the
specific facts that were not included in what Mr. Garcia pled guilty to,
which is four counts of compelling prostitution. And the Court had
indicated that you have to follow that they were over the age of
sixteen at the time. I tried to provide a defense that they were over
the age of eighteen and this Court indicated that we’re not getting
into that.
The Court: Because your client pled guilty to that, that they were
minors.
Counsel: Judge, you’re missing the point. What the State’s
trying to do right now is argue that they were thirteen at the time. I
had evidence that I was going to present and you said that’s not
relevant. It’s not important to me, because I follow the fact that he
pled guilty to four counts of compelling prostitution, felonies of the
third degree.
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The Court: I’m going to give the State some leeway in the sense
that your client is now claiming that everybody was over eighteen. *
* * [Addressing the prosecutor:] The primary thrust of this is not going
to be an effort to show that these people are less than sixteen years
of age?
Prosecutor: No, Your Honor. It’s to give circumstantial background
as to what took place.
{¶61} We find the trial court’s rulings neither erroneous nor prejudicial. The court
allowed Garcia to argue the position taken in the presentence investigation report, that
the victims were not minors, but did not allow him to introduce evidence contrary to the
offenses to which he pled guilty. Likewise, the State was allowed to repeat the victims’
version of events, but not to argue for a sentence based on ages beyond the offenses to
which Garcia pled. Stated otherwise, the parties were allowed to make arguments based
on information contained in the presentence investigation report, but the court did not
allow the sentencing hearing to become an evidentiary hearing where the parties
attempted to relitigate the charges. There was nothing improper about the manner of the
court’s conduct of the sentencing hearing. This court has expressly recognized that a
sentencing “court is entitled to consider the victim’s version of events as reported in a
presentence report despite the offender’s plea to a lesser charge.” State v. Kittelson,
2016-Ohio-8430, 78 N.E.3d 355, ¶ 45 (11th Dist.); State v. Wilson, 11th Dist. Ashtabula
No. 2020-A-0003, 2020-Ohio-3857, ¶ 20.
{¶62} In this regard, it is worth noting the counts of Compelling Prostitution to
which Garcia pled, division (A)(3) of R.C. 2907.21, are only predicated on the victims
being minors, i.e., under the age of eighteen. A violation of division (A)(3) is a third-
degree misdemeanor regardless of the specific age of the victim. In contrast, for a
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violation of division (A)(1) which requires the element of compulsion, Compelling
Prostitution is a second-degree felony if the victim is “sixteen years of age or older but
less than eighteen years of age” but a first-degree felony if the victim is “less than sixteen
years of age.” R.C. 2907.21(C). For the purposes of division (A)(3), however, the victim’s
age is not relevant beyond the fact of minority. It was not relevant whether the victims
were above or below the age of sixteen. Moreover, Garcia pled guilty to seven counts of
Sexual Imposition in violation of R.C. 2907.06(A)(4), whereby he admitted having had
sexual contact with another, causing another to have sexual contact with him, or causing
two or more persons to have sexual contact when “[t]he other person, or one of the other
persons, is thirteen years of age or older but less than sixteen years of age.” If some of
the victims claimed to have been thirteen or fourteen at the time they were prostituted,
Garcia cannot claim prejudice inasmuch as he admitted to engaging in sexual contact
with persons of that age.
{¶63} Above all, the trial court expressly stated that it would not consider the
victims’ ages below the age of sixteen. Absent evidence to the contrary, we presume the
court followed its own advisement. Accordingly, the court did not abuse its discretion by
prohibiting Garcia from presenting mitigating evidence that the victims were adults and/or
over the age of consent.
{¶64} The sixth assignment of error is without merit.
{¶65} In the second assignment of error, Garcia contends that the trial court erred
by sentencing him to five years in prison on three of the Compelling Prostitution counts,
beyond the statutory maximum of three years or thirty-six months. R.C. 2929.14(A)(3)(b).
The State concedes the error.
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{¶66} “The court hearing an appeal [of a felony sentence] shall review the record,
including the findings underlying the sentence or modification given by the sentencing
court.” R.C. 2953.08(G)(2). “The appellate court may increase, reduce, or otherwise
modify a sentence that is appealed under this section or may vacate the sentence and
remand the matter to the sentencing court for resentencing * * * if it clearly and
convincingly finds * * * [t]hat the sentence is * * * contrary to law.” R.C. 2953.08(G)(2)(b).
A sentence that is outside the prescribed range for a particular offense is contrary to law.
State v. Brown, 11th Dist. Lake No. 2020-L-052, 2020-Ohio-4642, ¶ 4.
{¶67} As Garcia explains in his brief, at the time he committed the acts constituting
Compelling Prostitution, the maximum sentence for a third-degree felony was five years.
Former R.C. 2929.14(A)(3). At the time Garcia was sentenced for these crimes, the
maximum prison term for a violation of R.C. 2907.21 had been reduced to thirty-six
months by the enactment of H.B. 86, effective September 30, 2011. R.C.
2929.14(A)(3)(b). “If the penalty, forfeiture, or punishment for any offense is reduced by
a reenactment or amendment of a statute, the penalty, forfeiture, or punishment, if not
already imposed, shall be imposed according to the statute as amended.” R.C. 1.58(B).
Accordingly, thirty-six months was the maximum prison term that could be imposed for
Compelling Prostitution. State v. Thomas, 148 Ohio St.3d 248, 2016-Ohio-5567, 70
N.E.3d 496, ¶ 14 (“if the provisions of H.B. 86 reduced the potential sentence for an
offense, then R.C. 1.58(B) gives offenders not yet sentenced the benefit of the reduced
sentence”).
{¶68} Contrary to the position taken by Garcia in his brief, sentences imposed for
these counts of Compelling Prostitution are voidable rather than void ab initio. The Ohio
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Supreme Court has restored the traditional understanding of what constitutes a void
sentence: “A judgment or sentence is void only if it is rendered by a court that lacks
subject-matter jurisdiction over the case or personal jurisdiction over the defendant. If the
court has jurisdiction over the case and the person, any sentence based on an error in
the court’s exercise of that jurisdiction is voidable.” State v. Henderson, 161 Ohio St.3d
285, 2020-Ohio-8784, 162 N.E.3d 776, ¶ 43. “If the court pronouncing the sentence had
jurisdiction to do so, a sentence imposed in excess of that permitted by law was
‘erroneous and voidable, but not absolutely void.’” Id. at ¶ 16, citing Ex parte Van Hagan,
25 Ohio St. 426, 432 (1874).
{¶69} The second assignment of error is with merit.
{¶70} In the third assignment of error, Garcia maintains the trial court failed to
comply with the pertinent sentencing statutes when imposing maximum and consecutive
sentences. Garcia first argues that the trial court failed to comply with R.C. 2929.11(B)
by imposing a sentence that is inconsistent with sentences given to other similar
offenders, and that the evidence in the record did not support the court’s finding with
respect to the seriousness and recidivism factors in R.C. 2929.12. Appellant’s brief at
16-17.
{¶71} “A court that sentences an offender for a felony shall be guided by the
overriding purposes of felony sentencing.” R.C. 2929.11(A). “The overriding purposes
of felony sentencing are to protect the public from future crime by the offender and others,
to punish the offender, and to promote the effective rehabilitation of the offender using
the minimum sanctions that the court determines accomplish those purposes without
imposing an unnecessary burden on state or local government resources.” Id. “A
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Case Nos. 2020-A-0034, 2020-A-0035
sentence imposed for a felony shall be reasonably calculated to achieve the three
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.” R.C. 2929.11(B).
{¶72} When imposing a sentence for a felony, the trial court “has discretion to
determine the most effective way to comply with the purposes and principles of [felony]
sentencing” and “shall consider the factors * * * relating to the seriousness of the conduct”
and “the factors * * * relating to the likelihood of the offender’s recidivism.” R.C.
2929.12(A). A non-exhaustive list of factors relating to the seriousness of the conduct
and the likelihood of recidivism is set forth in divisions (B), (C), (D), and (E) of R.C.
2929.12.
{¶73} The Ohio Supreme Court has described these two statutory sections “as a
general judicial guide for every sentencing” in which “there is no mandate for judicial fact-
finding.” State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 36 and 42;
State v. Jones 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 20 (“neither R.C.
2929.11 nor 2929.12 requires a trial court to make any specific factual findings on the
record”). The appellate review of felony sentences established by R.C. 2953.08(G)(2)(b)
“therefore does not provide a basis for an appellate court to modify or vacate a sentence
based on its view that the sentence is not supported by the record under R.C. 2929.11
and 2929.12.” Jones at ¶ 39; State v. Stanley, 11th Dist. Lake No. 2020-L-065, 2021-
Ohio-108, ¶ 35 (“a sentencing court’s compliance with R.C. 2929.11 and 2929.12 does
not provide grounds for a reviewing court to vacate or otherwise modify a sentence
27
Case Nos. 2020-A-0034, 2020-A-0035
pursuant to R.C. 2953.08(G)(2)”).
{¶74} Accordingly, Garcia’s claim that the record does not support the trial court’s
findings under R.C. 2929.12 is without foundation. Similarly, the claim that Garcia’s
sentence is inconsistent with that of similarly situated offenders is unavailing. This court
has long held that “sentencing consistency is not derived from the trial court’s comparison
of the current case to prior sentences for similar offenders and similar offenses,” but,
rather, it is the “proper application of the statutory sentencing guidelines that ensures
consistency.” (Citations omitted.) State v. Phifer, 11th Dist. Trumbull No. 2020-T-0010,
2020-Ohio-4694, ¶ 35. In the present case, there is no dispute that the court considered
the purposes of felony sentencing, including proportionality, as well as the seriousness
and recidivism factors. While Garcia may disagree with the court’s weighing or
application of these sentencing considerations, that is not a valid basis for vacating his
sentences.
{¶75} Garcia raises arguments regarding the imposition of consecutive
sentences. He claims that the court abused its discretion by imposing consecutive
sentences “based on its belief that Mr. Garcia had committed rape offenses against
persons under the age of 16, instead of basing its sentence upon the (less serious)
charges before the court.” Appellant’s brief at 19. We find nothing in the record to support
Garcia’s position that the court based its sentence on the belief that he committed rape
against persons under the age of sixteen. In sentencing him, the court never referred to
his crimes as rapes nor specifically to the ages of the victims. Rather, the court describes
them as “minors” and “under eighteen.” And, as noted above, the court expressly stated
that, with respect to the felony counts, it would base its decision on the charges to which
28
Case Nos. 2020-A-0034, 2020-A-0035
he pled.
{¶76} We further note “that appellate courts may not apply the abuse-of-discretion
standard in sentencing-term challenges.” State v. Marcum, 146 Ohio St.3d 516, 2016-
Ohio-1002, 59 N.E.3d 1231, ¶ 10. With respect to consecutive sentences, a reviewing
court “may vacate the sentence and remand the matter to the sentencing court for
resentencing * * * if it clearly and convincingly finds * * * [t]hat the record does not support
the sentencing court’s findings under division * * * (C)(4) of section 2929.14.” R.C.
2953.08(G)(2); Marcum at ¶ 22; State v. Maple, 11th Dist. Ashtabula No. 2018-A-0091,
2019-Ohio-2091, ¶ 9 (“[o]n appeals involving the imposition of consecutive sentences,
R.C. 2953.08(G)(2)(a) directs the appellate court to review the record, including the
findings underlying the sentence, and to modify or vacate the sentence if it clearly and
convincingly finds that the record does not support the sentencing court’s findings under
R.C. 2929.14(C)(4)”).
{¶77} Under R.C. 2929.14(C)(4), a sentencing court is required to make three
distinct findings in order to require an offender to serve consecutive prison terms: (1) that
consecutive sentences are “necessary to protect the public from future crime or to punish
the offender”; (2) that consecutive sentences are “not disproportionate to the seriousness
of the offender’s conduct and to the danger the offender poses to the public”; (3) “and * *
* also” that one of the circumstances described in subdivision (a) to (c) is present. State
v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 252. Moreover, “a
trial court is required to make the findings mandated by R.C. 2929.14(C)(4) at the
sentencing hearing and incorporate its findings into its sentencing entry, but it has no
obligation to state reasons to support its findings.” State v. Bonnell, 140 Ohio St.3d 209,
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Case Nos. 2020-A-0034, 2020-A-0035
2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.
{¶78} Garcia does not contend that the trial court failed to make the necessary
statutory findings mandated by R.C. 2929.14(C)(4). Rather, he claims the record does
not support the court’s finding 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.” R.C. 2929.14(C)(4). Garcia emphasizes that he was sixty-
five at the time of sentencing, he had no criminal record, there were no issues with
substance abuse, and ten years had passed since the events giving rise to the charges
to which he pled during which he lived a law-abiding life.
{¶79} We acknowledge that there have been cases in which consecutive
sentences have been vacated in circumstances similar to those in the present case. See
State v. Polizzi, 11th Dist. Lake Nos. 2018-L-063 and 2018-L-064, 2019-Ohio-2505, ¶ 34
(“[a]ll of the factors * * * suggest little to no likelihood of appellant committing future crime,
with the exception of the lack of remorse”); State v. Regalo, 8th Dist. Cuyahoga No.
108430, 2020-Ohio-917, ¶ 19 (“at the time of his sentencing, Regalo was 52 years of
age[,] * * * had no alcohol or drug problems[,] * * * had no criminal record[,] * * * is not
alleged to have engaged in any criminal conduct after he committed the offenses at
issue,” and was rated as “LOW Risk Level” for recidivism).
{¶80} In the present case, however, we do not conclude that the trial court’s
findings that “the consecutive service is necessary to protect the public from future crime
or to punish the offender” were not clearly and convincingly supported by the record. The
court explained its justification for Garcia’s sentence as follows:
30
Case Nos. 2020-A-0034, 2020-A-0035
The court finds that the defendant committed these offenses
not as part of a brief criminal episode in his life. Instead Mr. Garcia’s
was a criminal saga of sorts, that encompassed many victims and a
* * * multitude of offenses. And this went on for a decade or more.
These crimes were perpetuated not as a foolish or impetuous or
brash or impulsive young man, but as a middle-aged adult, preying
on those twenty-five to thirty years younger than the defendant.
These crimes were not inspired by anger or jealousy or rage
or greed. They were not impulsive outbursts. These crimes were
sex crimes planned and meticulously executed on Mr. Garcia’s part,
designed to avoid detection. And that was successful. Detection
was avoided, despite the multiple crimes and victims for years. And
the Court finds these facts significant.
The Court finds the defendant used his positions, ones of
power and authority and influence to attempt and manipulate and
intimidate these minors with respect to others, into submitting to [the]
criminal intentions of the defendant.
Mr. Garcia, your community standing as a referee, a
basketball referee, a business owner, and employer of many of your
victims, * * * and councilman, served as a back drop for your actions.
Now, many of these activities they were good. They’re legal. You
did some good things but it was the use of this position that led to the
victimization of those in your employment, together with gifts. And
gifts is in quotes, in order to buy the silence of the victims and pave
the way for future criminal sexual encounters.
Now, not all the sexual encounters were illegal. Once the
minor victims reached the age of eighteen and it was consensual –
really consensual sex, that’s no crime. Other than possibly some
minor prostitution crimes, but nothing in the league of what we have
here. Now, these relationships you do refer to in that written
statement in the presentence investigation. And in it you recite that
the individuals with whom you were intimate, that receive money, you
would like to impress on the Court that all of these relationships took
place with individuals over the age of eighteen years old. “If my
actions hurt any of these individuals, I’m truly sorry.” But this
statement with respect to over [age] eighteen individuals, it misses
the mark, because your crimes were with those under eighteen, not
over eighteen.
And the illegal sexual impositions upon the other seven, they
aren’t addressed in your statement. In passing, you mention that if
your actions caused any harm, I’m truly sorry. Well, * * * these kinds
31
Case Nos. 2020-A-0034, 2020-A-0035
of actions with young men and minors, there’s no “if” about causing
it, it’s presumed. Especially when * * * there’s a forty-five-year-old
man. Some of these people are the employees of the forty-five-year-
old man. He has been posing and paying them for sex.
This attitude exhibits a gross insensitivity and a lack of true
remorse. Lack of a genuine profound remorse prompts the Court to
find that the defendant still poses a threat of recidivism and a danger
to the public. This despite the defendant’s age. I don’t need to
remind those who studies cases [sic] relating to sex offenders, that
many, many sex offenders commit sex crimes well into their senior
years.
{¶81} While the trial court’s concerns for recidivism were based on a lack of
remorse and the nature of the offenses, i.e., sexual offenses, the court presented a
compelling argument, based on the record before it, that to punish Garcia in a manner
proportionate to the seriousness of his conduct consecutive sentences were necessary.
It should be emphasized that the necessary findings for imposing consecutive sentences
are written disjunctively – they must be necessary to protect the public from future crime
or to punish the offender. Given the “extremely deferential” standard of review to be
applied in reviewing the imposition of consecutive sentences, we find no error in the
present case. State v. Guth, 11th Dist. Portage No. 2015-P-0083, 2016-Ohio-8221, ¶ 23
(R.C. 2953.08(G)(2) “does not say that the trial judge must have clear and convincing
evidence to support its findings,” but “it is the court of appeals that must clearly and
convincingly find that the record does not support the court’s findings”); State v. Smith,
2d Dist. Montgomery No. 28417, 2020-Ohio-304, ¶ 13.
{¶82} Finally, Garcia argues that the three-year sentence imposed for the fourth
count of Compelling Prostitution (Count 20) should be reversed because it was imposed
under the mistaken belief that the maximum sentence was five years: “the court noted the
conduct underlying count 20 was less severe than that of the other similar counts and
32
Case Nos. 2020-A-0034, 2020-A-0035
further only involved one alleged encounter with that victim.” Appellant’s reply brief at 4.
We agree.
{¶83} In contrast to the other three counts of Compelling Prostitution for which the
trial court imposed (what it mistakenly believed to be) the maximum sentence of five
years, the court imposed a three-year sentence for Count 20 on the grounds that “that
was the one encounter, which while it’s claimed caused great distress and no doubt it
caused some it was yet one encounter, for that there is a three-year term of
imprisonment.” Inasmuch as a three-year sentence is the maximum sentence that could
be imposed for Compelling Prostitution, the record fails to support the court’s reasoning
for imposing that sentence.
{¶84} The third assignment of error is with merit to the extent indicated above.
{¶85} For the foregoing reasons, Garcia’s sentences for Compelling Prostitution
are reversed and this matter is remanded for resentencing on those counts only. In all
other respects, the judgment of the Ashtabula County Court of Common Pleas is affirmed.
Costs to be taxed against the parties equally.
MARY JANE TRAPP, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
33
Case Nos. 2020-A-0034, 2020-A-0035