State v. Saldana

[Cite as State v. Saldana, 2013-Ohio-1122.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PUTNAM COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 12-12-09
v.
JOSEPH S. SALDANA, OPINION
DEFENDANT-APPELLANT.
Appeal from Putnam County Common Pleas Court
Trial Court No. 2012CR00008
Judgment Affirmed
Date of Decision: March 25, 2013
APPEARANCES:
Esteban R. Callejas for Appellant
Todd C. Schroeder for Appellee
Case No. 12-12-09
WILLAMOWSKI, J.
{¶1} Defendant-Appellant, Joseph Saldana (“Saldana”), appeals the
judgment of the Putnam County Court of Common Pleas, finding him guilty and
sentencing him to eighteen months in prison after Saldana pled guilty to one count
of aggravated assault. On appeal, Saldana contends that his guilty plea was not
knowingly, intelligently, and voluntarily given, and that the trial court erred when
it sentenced him to the maximum sentence. For the reasons set forth below, the
judgment is affirmed.
{¶2} On January 18, 2012, the Putnam County Grand Jury filed a single
count indictment charging Saldana with felonious assault in violation of R.C.
2903.11(A)(1) and/or (2), a felony of the second degree. The charges stem from
an altercation that occurred on January 1, 2012, when Saldana, his brother, and
another man went to the home of the victim, and a fight ensued. The indictment
stated that Saldana caused and/or attempted to cause serious physical harm to
another by means of a deadly weapon by using a handgun as a weapon and
striking the victim while at his house in Ottawa, Putnam County, Ohio.
{¶3} Saldana originally entered a plea of not guilty. (Jan. 19, 2012
Arraignment Hearing Tr.) A jury trial was set for April 10, 2012.
{¶4} Subsequently, a plea agreement was reached and a change of plea
hearing was held on March 20, 2012. Saldana, who appeared along with his court-
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appointed attorney, elected to waive indictment and to proceed by bill of
information upon the agreement that Saldana would plead guilty to a reduced
charge of aggravated assault in the bill of information, which was a felony of the
fourth degree. The plea agreement did not make a sentencing recommendation but
stated that the State would remain silent as to sentencing.
{¶5} The trial court conducted a full and detailed Crim.R. 11 plea colloquy
before accepting Saldana’s pleas and finding him guilty. The trial court
questioned Saldana in detail to determine whether he understood everything that
he was agreeing to, whether he could read and write, how far he went in school, if
he was satisfied that he knew what the charges were about, whether he was under
the influence of drugs or alcohol, whether he knew what he was doing, and
whether he was changing his plea and waiving indictment freely and voluntarily of
his own free will. The trial court informed Saldana that the offense carried with it
a potential sentence of up to eighteen months in prison. Saldana was given several
opportunities to ask questions.
{¶6} Before the trial court would accept the plea, it explained in detail all of
the rights that Saldana was giving up by entering his pleas rather than going to
trial. Saldana acknowledged that he understood and agreed to waive each and
every right read to him by the trial court.
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{¶7} The trial court then asked the prosecutor to state the factual basis of
the plea. When Saldana disputed the accuracy of the facts, the trial court asked
him why he was entering a plea if he did not acknowledge what had occurred.
However, after further discussion, Saldana admitted that the victim was assaulted,
and understood that he could be held equally culpable of assault if he was found to
be aiding or abetting, or complicit with another in the assault. He affirmatively
indicated that he wished to enter a guilty plea.
{¶8} The trial court was given a copy of the plea agreement signed by
Saldana, his attorney, and the prosecutor. The plea agreement also set forth the
rights that Saldana was waiving, and the maximum penalties and other
ramifications of a guilty plea. The trial court then accepted Saldana’s guilty plea.
It ordered a presentence investigation report and continued the matter for
sentencing.
{¶9} A sentencing hearing was held on April 30, 2012. The trial court
sentenced Saldana to the maximum sentence, eighteen months in prison, with
credit for the 121 days served.
{¶10} It is from this judgment that Saldana now appeals, raising the
following assignments of error for our review.
First Assignment of Error
The trial court erred when it imposed the maximum sentence
upon [Saldana].
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Second Assignment of Error
The trial court erred when it accepted [Saldana’s] guilty plea as
that plea was not knowingly, intelligently, and voluntarily given.
{¶11} In order to facilitate our review, we elect to address the assignments
of error out of order. In the second assignment of error, Saldana claims that his
plea was not knowingly, intelligently, and voluntarily given for several reasons,
including, Saldana had suffered a head injury “a mere several months before the
plea”; the court failed to give him a competency examination; the court failed to
advise him of his presumption of innocence; the trial court did not inform him that
“the state’s recommendation and [Appellant’s] plea did not bind the court nor
guarantee a less than maximum sentence”; and, that the State failed to allege at the
plea hearing that the offense occurred within the State of Ohio.
{¶12} However, the record reflects that Saldana never filed a motion to
withdraw his guilty plea with the trial court pursuant to Crim.R. 32.1, either prior
to or after sentencing. A failure to assert an alleged error in the trial court waives
that error on appeal. State v. Awan, 22 Ohio St.3d 120, 122 (1986). Therefore,
his failure to raise these arguments in the court below ordinarily precludes us from
reviewing these issues on appeal. See State v. Draper, 3d Dist. No. 12-10-07,
2011-Ohio-773, ¶ 9; State v. Rodeback, 8th Dist. No. 80151, 2002-Ohio-2739, ¶
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21; State v. Stokes, 8th Dist. No. 69032 (Mar. 7, 1996), 1996 WL 100955; State v.
Tisdale, 8th Dist. 74331 (Dec. 17, 1998), 1998 WL No. 895279.
{¶13} Notwithstanding this omission, we find that the trial court’s colloquy
with Saldana demonstrated that he entered his plea knowingly, voluntarily, and
intelligently. The trial court covered all of the areas required by Crim.R. 11(C)
and Saldana indicated that he understood everything. The trial court even stopped
and further explained one or two areas in more detail when Saldana raised a
question. Saldana was represented by an attorney, and indicated that he was
satisfied with his representation.
{¶14} There is no merit to the arguments raised by Saldana. Even if he
would have raised the matter in the trial court, Saldana has not pointed to any
issues that would have constituted a manifest injustice to allow for the withdrawal
of his guilty plea.
{¶15} Although Saldana did suffer an injury to his head during the
altercation, several month prior, he was treated and released that same evening.
There was no evidence anywhere in the record that he suffered any lingering
effects from his injury that would impair his understanding in any way. Without
any factual assertions that support that this injury had a lasting and detrimental
effect, there was no reason for a competency examination.
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{¶16} There was also no need to inform Saldana that the State’s
recommendation for less than the maximum sentence wasn’t binding, because the
State made no such recommendation; the plea agreement only stated that the State
would remain silent as to sentencing. There was never any representation that
Saldana would get any lesser sentence, other than the fact that his original second
degree felony was reduced to a fourth degree felony because of the plea
agreement, thereby resulting in a considerable reduction in the maximum possible
sentence.
{¶17} Although the State did not mention that the offense had occurred in
Ohio when it reviewed the underlying facts, that element was clearly specified in
the bill of information, which Saldana acknowledged. “[F]or a trial court to
determine that a defendant in a criminal case understands the nature of the charge
to which he was entering a guilty plea, it is not always necessary that the trial
court advise the defendant of the elements of the crime, or to specifically ask the
defendant if he understands the charge, so long as the totality of the circumstances
are such that the trial court is warranted in making a determination that the
defendant understands the charge.” State v. Cantrell, 10th Dist. No. 01-AP-818,
2002-Ohio-1353, quoting State v. Rainey, 3 Ohio App.3d 441 (10th Dist.1982).
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{¶18} The trial court complied with all aspects of the law to ensure that
Saldana’s guilty plea was entered knowingly, voluntarily, and intelligently. The
second assignment of error is overruled.
{¶19} The first assignment of error raised by Saldana complains that the
trial court abused its discretion when it sentenced him to the maximum sentence.
Saldana claims that the trial court failed to consider the required statutory
sentencing factors. Although he acknowledges that the trial court “adequately
found at least one factor under R.C. 2929.13(B)(1) to justify a possible prison term
for a fourth degree felony,” he claims that the court failed to consider the factors
with the proper weight and proportionality. And, he argues that the trial court
failed to consider the mitigating factors.
{¶20} Ever since the Ohio Supreme Court’s ruling in State v. Foster, 109
Ohio St.3d 1, 2006–Ohio–856, “trial courts have full discretion to impose a prison
sentence within the statutory range and are no longer required to make findings or
give their reasons for imposing maximum, consecutive, or more than the minimum
sentences.” State v. Mathis, 109 Ohio St .3d 54, 2006–Ohio–855, 846 N.E.2d 1, ¶
37. Courts, nevertheless, are still required to comply with the sentencing laws
unaffected by Foster, such as R.C. 2929.11 and 2929.12, which require
consideration of the purposes and principles of felony sentencing and the
seriousness and recidivism factors. Mathis at ¶ 38.
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{¶21} R.C. 2929.11 provides, in pertinent part, that the “overriding
purposes of felony sentencing are to protect the public from future crime and to
punish the offender.” R.C. 2929.11(A). In advancing these purposes, sentencing
courts are instructed to “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.” Id.Meanwhile, R.C. 2929.11(B) states that felony sentences must be both
“commensurate with and not demeaning to the seriousness of the offender’s
conduct and its impact upon the victim” and consistent with sentences imposed in
similar cases.
{¶22} Pursuant to App.R. 9(C), a “Statement of the Evidence or
Proceeding” (“Statement”) was submitted because a transcript of the sentencing
hearing was not available. There was no objection by the State, and the Statement
was approved by the trial court. The Statement indicated that the sentencing
judgment entry accurately reflected the sentencing as ordered by the trial court,
and included the affidavit of Saldana’s trial council who stated that she had
highlighted the following in mitigation: that Saldana suffered the brunt of the
injuries in the altercation; his intent in going to the victim’s residence was to speak
with him about a personal matter, not to cause an altercation; and that he regretted
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that the matter turned into a physical altercation and he accepted responsibility for
his actions.
{¶23} In the Judgment Entry of Sentence, the trial court stated:
The Court has considered the record, oral statements, any victim
impact statements, and the pre-sentence investigation report
prepared, as well as the principles and purposes of sentencing under
[R.C.] 2929.11 and 2929.12. The Court finds that [Saldana] did
cause serious physical harm to the victim, that the offense involved
an actual threat of harm, and that [Saldana] has a prior offense of
violence, and that [Saldana] has served a prison term.
(May 14, 2012 J.E.)
{¶24} Saldana’s sentence was within the statutory range for the offense,
and he had been informed repeatedly that he could be subject to the maximum
eighteen-month sentence. Additionally, the trial court considered the purposes and
principals for felony sentencing set forth in R.C. 2929.11 and the factors relating
to the seriousness of the offense and the recidivism of the offender pursuant to
R.C. 2929.12. See State v. Pence, 3d Dist. No. 2–11–18, 2012–Ohio–1794, ¶ 7.
{¶25} Saldana selects the wording in the judgment entry of sentencing
stating that “the Defendant has a prior offense of violence, and that the Defendant
has served a prior prison term,” upon which to base his argument that “one prior
violent offense” may be a justification for imposing “any” prison term, but it
cannot be a justification for a maximum term. (Emphasis added.) (Appellant’s
Brief, p. 8) He also cited to an Ohio Supreme Court case for the proposition that
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merely because a person has been convicted of one offense, that is not necessarily
a clear predictor of whether that person is likely to engage in similar offenses in
the future. (Appellant’s Br., p. 14, citing to State v. Eppinger, 90 Ohio St.3d 153,
162, 2001-Ohio-247).1
{¶26} However, the record contradicts Appellant’s assertion that he has
been convicted of only one offense and served only one term of incarceration.
Although the trial court did not proffer a long list of Santana’s prior offenses in the
judgment entry itself, the court stated that it considered the pre-sentence
investigation report (“PSI”), which indicated that Santana had a long history of
criminal activity, including multiple prior offenses of violence and a history of
recidivism. Saldana, who was 26 years old at the time he committed the offense,
had numerous, repeated juvenile offenses, beginning when he was thirteen years
old. Shortly after he turned eighteen, he was convicted as an adult of aggravated
menacing, followed by convictions for criminal trespassing and disorderly
conduct; assault in 2004; criminal mischief; multiple counts of violation of
protection orders; felony trafficking in drugs; and additional menacing charges,
(amended to persistent disorderly conduct). He was incarcerated several times,
and the PSI further indicated that Saldana’s compliance with conditions of
probation was “extremely poor.”
1
We note that the issue in Eppinger is not exactly on point, pertaining to sexual predator classification
hearings.
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{¶27} Based on the above, we find that the trial court properly considered
all of the appropriate statutory factors, and that the record supports the trial court’s
findings and the imposition of the maximum sentence in order to punish the
defendant and to protect the public. Therefore, Saldana’s first assignment of error
is overruled.
{¶28} Having found no error prejudicial to the Appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ROGERS and SHAW, J.J., concur.
/jlr
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