State v. Cemino
2011 Ohio 5690
Ohio Ct. App.2011Background
- Cemino was indicted on August 6, 2010 for felonious assault, kidnapping, and rape of his wife, plus kidnapping of a child under thirteen; he pled guilty to felonious assault with other counts dismissed.
- The trial court sentenced Cemino to six years in prison within the statutory range for a second-degree felony.
- Cemino challenged the sentence on appeal, arguing the court failed to properly consider R.C. 2929.11 and 2929.12 and relied on non-record evidence about the victim’s injuries.
- Cemino contended the court’s finding that the victim had vision and hearing loss was unsupported by the medical records.
- The State argued ample record evidence supported the vision/hearing loss finding, including the pre-sentence investigation and the victim’s statements.
- The trial court provided an extensive explanation at sentencing, and Cemino did not object to the sentence on exact legal grounds beyond asking for reasons.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court properly considered sentencing factors | Cemino argues the court relied on non-record evidence and failed to weigh mitigating factors. | State contends the court properly considered the record, including PSI and victim statements, under Kalish and Mathis. | Not error; sentence within range and factors were considered. |
| Whether the sentence was affected by judicial bias | Cemino asserts bias due to court scolding and perceived prejudice. | State argues remarks do not show bias and do not overcome presumption of integrity. | Not proven; no compelling evidence of bias; due process not violated. |
Key Cases Cited
- State v. Kalish, 120 Ohio St.3d 23 (2008-Ohio-4912) (two-step review of felony sentences; within-range presumes consideration of factors)
- State v. Foster, -- (2006-Ohio-856) (no requirement for explicit findings within statutory range post-Foster)
- State v. Mathis, 109 Ohio St.3d 54 (2006–Ohio–855) (requires sentencing within statutory framework while considering goals of sentencing)
- State v. Adams, 37 Ohio St.3d 295 (1988) (presumption of consideration of mitigating factors when record silent)
- State v. Taylor, 76 Ohio App.3d 835 (1992) (presumption of consideration of mitigating factors in within-range sentences)
- State v. Crouse, 39 Ohio App.3d 18 (1987) (presumption of consideration of mitigating factors in within-range sentences)
- State v. Wiles, 59 Ohio St.3d 71 (1991) (use of prior convictions in assessing recidivism and sentencing)