State v. Figuero

[Cite as State v. Figuero, 2020-Ohio-2829.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 108738
v. :
FRANCISCO FIGUERO, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 7, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-620306-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Jennifer M. Meyer, Assistant Prosecuting
Attorney, for appellee.
Susan J. Moran, for appellant.
LARRY A. JONES, SR., P.J.:
Defendant-appellant Francisco Figuero (“appellant”), appeals from
his eight-year prison sentence that included consecutive terms and was imposed
after his case was remanded to the trial court by this court in State v. F.F., 8th Dist.
Cuyahoga No. 107013, 2019-Ohio-455. For the reasons that follow, we affirm.
Procedural and Factual History
In 2017, appellant was charged in a 17-count indictment. The
charges consisted of ten counts of gross sexual imposition (“GSI”), six counts of
kidnapping, and one misdemeanor count of importuning. With the exception of
the importuning count, the charges included sexually violent predator
specifications and sexually motivated specifications. Id. at ¶ 2.
There were two victims in this case. The first victim was appellant’s
daughter, whose date of birth is December 5, 1985. The crimes committed against
his daughter ranged from 1997 through 1998. The second victim was appellant’s
granddaughter, whose date of birth is April 20, 2005. The crimes committed
against his granddaughter ranged from 2011 through 2017. Id. at ¶ 3.
In 2018, appellant entered into a plea agreement with the state of
Ohio, under which he pled guilty to the ten counts of GSI and the single
misdemeanor count of importuning. In exchange, the state dismissed the six
counts of kidnapping and the attached specifications. Id., F.F., 8th Dist. Cuyahoga
No. 107013, 2019-Ohio-455, ¶ 4.
The trial court imposed a prison term of four years on the two GSI
counts and six months on the importuning count that related to appellant’s
daughter; those sentences were ordered to be served concurrently. The remaining
eight GSI counts pertained to appellant’s granddaughter, and the trial court
imposed a four-year sentence on each count, to be served concurrently. The four-
year terms for each victim were ordered to be served consecutively, for a total of an
eight-year prison sentence. Id. at ¶ 5. Appellant appealed and challenged the
imposition of consecutive terms.
This court found that the trial court did not make all the required
findings under R.C. 2929.14(C) prior to imposing consecutive sentences.
Specifically, the trial court did not find that consecutive sentences are not
disproportionate to the seriousness of appellant’s conduct and to the danger he
poses to the public. Id. at ¶ 14. Thus, this court found that the imposition of
consecutive sentences was contrary to law and, therefore, reversed the imposition
of consecutive sentences and remanded the case to the trial court for the limited
purpose of considering whether consecutive sentences are appropriate under R.C.
2929.14(C), and if so, to make the necessary findings. Id. at ¶ 14, ¶ 16.
On remand, the trial court held a resentencing hearing, at which it
imposed the same eight-year prison sentence, with the consecutive terms.
Appellant now appeals and raises the following sole assignment of error for our
review: “The trial court erred in imposing consecutive sentences which were not
supported by the record.”
Law and Analysis
Appellate courts review consecutive sentences using the standard set
forth in R.C. 2953.08. State v. Perry, 2018-Ohio-1760, 111 N.E.3d 746, ¶ 19 (8th
Dist.), citing State v. Wells, 8th Dist. Cuyahoga Nos. 99305, 99306, and 99307,
2013-Ohio-3809, ¶ 11, citing State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 10
(8th Dist.). R.C. 2953.08(G)(2) provides two grounds for an appellate court to
overturn the imposition of consecutive sentences: (1) the appellate court, upon its
review, clearly and convincingly finds that “the record does not support the
sentencing court’s findings” under R.C. 2929.14(C)(4); or (2) the sentence is
“otherwise contrary to law.” Venes at ¶ 11; State v. Gwynne, 158 Ohio St.3d 279,
2019-Ohio-4761, 141 N.E.3d 169, ¶ 16.
R.C. 2929.14(C)(4) provides that in order to impose consecutive
sentences, the trial court must find that consecutive sentences are necessary to
protect the public from future crime or to punish the offender, that consecutive
sentences are not disproportionate to the seriousness of the offender’s conduct and
to the danger the offender poses to the public, and that at least one of the following
also applies:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under postrelease control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more of
the multiple offenses so committed was so great or unusual that no
single prison term for any of the offenses committed as part of any of
the courses of conduct adequately reflects the seriousness of the
offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
R.C. 2929.14(C)(4).
The court must make the required statutory findings at the
sentencing hearing and incorporate those findings into its sentencing entry. State
v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus.
As mentioned, at the appellant’s first sentencing hearing, the trial
court made all the statutorily required findings except it failed to find that
consecutive sentences are not disproportionate to the seriousness of the
defendant’s conduct and to the danger he poses to the public. State v. F.F., 8th
Dist. Cuyahoga No. 107013, 2019-Ohio-455 at ¶ 14.
On remand, in sentencing appellant again to consecutive terms, the
trial court stated the following:
This court finds that consecutive sentences [are] necessary to protect
the public, punish you, this sentence is not disproportionate to the
seriousness of your conduct and the danger you pose to the public,
and that the harm was so great or unusual, seeing that they were two
individuals who were related to you, your daughter and your
granddaughter, that a single prison term would demean the
seriousness of your conduct.
(Tr. 82.)
The trial court incorporated the findings into its judgment of
conviction.
Appellant concedes that the trial court made the statutorily required
findings, but contends that “the record does not support a finding that consecutive
sentences were proportionate to the seriousness of his conduct and the danger he
posed to the public pursuant to R.C. 2929.14 and R.C. 2953.08(G)(2).”
Specifically, appellant contends that the trial court did not take into account that
he did not have a prior record, “which speaks directly to his future dangerousness
to the public[, and] * * * there is nothing egregiously serious about the facts in the
case; [he] did not display cruelty to his victims, did not physically harm the
victims, and did not threaten the victims.”
We note that it is well established that where there is more than one
victim, the imposition of consecutive sentences is reasonable to hold the defendant
accountable for crimes committed against each victim. State v. Thome, 8th Dist.
Cuyahoga No. 104445, 2017-Ohio-963, ¶ 16, citing State v. Sexton, 10th Dist.
Franklin No. 01AP-398, 2002-Ohio-3617, ¶ 67. Representation for both victims
factored into the trial court’s decision here to impose consecutive sentences.
Appellant was convicted of multiple counts related to his daughter, which the trial
court ran concurrently. Appellant was convicted of multiple counts related to his
granddaughter, and the trial court ran those convictions concurrently. It was the
total sentence for each victim that the trial court ordered to be served
consecutively, so that the crimes against both victims would be represented.
Moreover, these crimes occurred over a significant period of time.
We recognize that appellant’s conduct was not continuous over the 20-year period
at issue, but his offenses were more than one-time occurrences and, as they relate
to his granddaughter, continued for an approximate six-year period. Further, most
of the crimes appellant committed against his daughter occurred when she was
under the age of 13, and all the crimes he committed against his granddaughter
occurred when she was under the age of 13.
In light of the above, the trial court complied with this court’s
mandate after appellant’s first appeal, and appellant has failed to show that the
record does not clearly and convincingly support the trial court’s sentencing
findings or that his sentence was contrary to law. The sole assignment of error is
therefore 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
PATRICIA ANN BLACKMON, P.J., and
MARY EILEEN KILBANE, J., CONCUR