State v. Hernandez

[Cite as State v. Hernandez, 2020-Ohio-5335.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109288
v. :
JOSE HERNANDEZ, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 19, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-629737-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Brandon A. Piteo, Assistant Prosecuting
Attorney, for appellee.
Paul Mancino, Jr., for appellant.
MARY J. BOYLE, P.J.:
Defendant-appellant, Jose Hernandez, appeals his sentence. He
raises one assignment of error for our review:
Defendant was denied due process of law [when] the court failed to
consider the purposes and principles of a felony sentencing when it
sentenced defendant to a maximum term of imprisonment.
Because Hernandez and the state jointly proposed a sentencing
range, and the trial court sentenced Hernandez within that jointly recommended
range, we cannot review his assignment of error challenging his sentence. We
therefore affirm the trial court’s judgment.
In July 2019, Hernandez and the state negotiated a plea and sentence,
and Hernandez pleaded guilty to four counts of drug trafficking (cocaine) in
violation of R.C. 2925.03(A)(1), first-degree felonies, each with a schoolyard
specification. Pursuant to the negotiated plea, Hernandez agreed to a sentence of
no less than six years and no more than nine years. In October 2019, the trial court
sentenced Hernandez within the jointly recommended range: nine years on each
count, to run concurrently to each other, for an aggregate prison term of nine years.
The trial court also imposed a $10,000 fine, a mandatory five years of postrelease
control, and assessed court costs against Hernandez. In December 2019, Hernandez
filed a motion in this court for leave to file a delayed appeal of the trial court’s
sentencing entry, which this court granted.
In his sole assignment of error, Hernandez argues that the trial court
failed to consider the factors in R.C. 2929.11 and 2929.12 when it imposed the
maximum possible sentence within the jointly recommended sentencing range.
R.C. 2953.08(D)(1) limits our review of agreed sentences:
A sentence imposed upon a defendant is not subject to review under
this section if the sentence is authorized by law, has been recommended
jointly by the defendant and the prosecution in the case, and is imposed
by a sentencing judge.
R.C. 2953.08(D)(1). “If a jointly recommended sentence imposed by a court is
‘authorized by law,’ then the sentence ‘is not subject to review.’” State v. Sergent,
148 Ohio St.3d 94, 2016-Ohio-2696, 69 N.E.3d 627, ¶ 15. A jointly recommended
sentencing range, as opposed to a specific term of incarceration, is a jointly
recommended sentence within the meaning of R.C. 2953.08(D)(1). State v.
Williams, 8th Dist. Cuyahoga No. 109091, 2020-Ohio-4467, ¶ 32; State v. Smith,
8th Dist. Cuyahoga No. 108708, 2020-Ohio-3454, ¶ 22; State v. Lindsay, 8th Dist.
Cuyahoga No. 108276, 2020-Ohio-105, ¶ 25; State v. Grant, 2018-Ohio-1759, 111
N.E.3d 791, ¶ 20 (8th Dist.).
The Ohio Supreme Court has held that a sentence is “authorized by
law” pursuant to R.C. 2953.08(D)(1) “only if it comports with all mandatory
sentencing provisions.” State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922
N.E.2d 923, ¶ 20. The court distinguished between mandatory sentencing
provisions and provisions that call for the court’s discretion:
Our holding does not prevent R.C. 2953.08(D)(1) from barring appeals
that would otherwise challenge the court’s discretion in imposing a
sentence, such as whether the trial court complied with statutory
provisions like R.C. 2929.11 (the overriding purposes of felony
sentencing), 2929.12 (the seriousness and recidivism factors), and/or
2929.13(A) through (D) (the sanctions relevant to the felony degree) or
whether consecutive or maximum sentences were appropriate under
certain circumstances.
Id. at ¶ 22.
Therefore, pursuant to R.C. 2953.08(D)(1), if a jointly recommended
sentence imposed by a sentencing judge complies with all mandatory sentencing
provisions, we cannot review whether the trial court properly considered the factors
in R.C. 2929.11 and 2929.12. See State v. Ortiz, 9th Dist. Lorain No. 19CA011498,
2020-Ohio-4013, ¶ 11 (appellant “is barred from challenging the [jointly
recommended] sentence on the basis that it failed to comply with R.C. 2929.11”);
State v. Hooks, 6th Dist. Lucas No. L-19-1105, 2020-Ohio-1652, ¶ 6-11 (declining to
address whether the trial court properly considered the factors in R.C. 2929.11 and
2929.12 because the sentence was jointly recommended, authorized by law, and
imposed by a sentencing judge); State v. Riggs, 5th Dist. Tuscarawas No. 2018 AP
02 0011, 2018-Ohio-3552, ¶ 18 (appellant’s argument that the trial court erred in
applying R.C. 2929.11 was not reviewable pursuant to R.C. 2953.08(D)(1)).
Here, our review of the record shows that the trial court properly
imposed a prison term within the jointly recommended sentencing range and
fulfilled the mandatory sentencing provisions. Hernandez agreed to a sentencing
range of six to nine years, and the trial court sentenced him within this range to an
aggregate of nine years. His sentences of nine years per count to run concurrently
to one another are also consistent with the statutory sentencing range of three to
eleven years for a first-degree felony. R.C. 2929.14(A)(1)(a). Without the agreed
sentence, Hernandez would have been exposed to a potential 11 years in prison if all
counts were to run concurrently, and a potential 44 years in prison if the trial court
decided to impose consecutive sentences. R.C. 2953.08(D)(1) prohibits us from
reviewing Hernandez’s sentence, and his appeal that the trial court erred in applying
R.C. 2929.11 and 2929.12 is not properly before us to review.
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.
MARY J. BOYLE, PRESIDING JUDGE
SEAN C. GALLAGHER, J., CONCURS;
KATHLEEN ANN KEOUGH, J., CONCURS IN JUDGMENT ONLY WITH
SEPARATE OPINION
KATHLEEN ANN KEOUGH, J., CONCURRING IN JUDGMENT ONLY:
I respectfully concur in judgment only. I agree with the majority’s
statement that a jointly recommended sentencing range, as opposed to a specific
term of incarceration, is a jointly recommended sentence within the meaning of R.C.
2953.08(D)(1). (Majority Opinion, ¶ 5.) However, the cases cited by the majority
for this proposition — State v. Williams, 8th Dist. Cuyahoga No. 109091, 2020-
Ohio-4467; State v. Smith, 8th Dist. Cuyahoga No. 108708, 2020-Ohio-3454; State
v. Lindsay, 8th Dist. Cuyahoga No. 108276, 2020-Ohio-105; and State v. Grant,
2018-Ohio-1759, 111 N.E.3d 791 (8th Dist.) (Keough, J., dissenting) — also find that
where a defendant agrees to a jointly recommended sentencing range, the trial court
is permitted to impose nonmandatory consecutive sentences, even where the
defendant did not agree to consecutive sentences, and any review of the consecutive
sentences is prohibited by R.C. 2953.08(D)(1). Williams, Smith, and Lindsay cite
Grant as support for this proposition of law, where it was first announced.
My dissent in Grant sets forth my reasons for disagreeing with this
proposition of law. Grant at ¶ 49-62. I find that where a defendant agrees to a
sentencing range but does not expressly agree to the imposition of nonmandatory
consecutive sentences, and the trial court imposes nonmandatory consecutive
sentences, the sentence is not an agreed-upon sentence and review of the sentence
is not prohibited by R.C. 2953.08(D)(1).
This case does not involve consecutive sentences. The trial court
sentenced Hernandez to concurrent sentences within the jointly agreed sentencing
range, and accordingly, appellate review is precluded by R.C. 2953.08(D)(1). I
concur in judgment only, however, because of the majority’s reliance on Williams,
Smith, Lindsay, and Grant.