STATE OF OHIO, Plaintiff-Appellee, v. SANTOS CEDENO-GUERRERO, Defendant-Appellant.
No. 108097
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
November 7, 2019
2019-Ohio-4580
KATHLEEN ANN KEOUGH, J.
JOURNAL ENTRY AND OPINION; JUDGMENT: AFFIRMED; Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-617546-A
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Fallon Radigan, Assistant Prosecuting Attorney, for appellee.
Charles Ruiz-Bueno Co., L.P.A., and J. Charles Ruiz Bueno, for appellant.
JOURNAL ENTRY AND OPINION
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Defendant-appellant, Santos Cedeno-Guerrero, appeals his convictions. For the reasons that follow, we affirm.
{¶ 3} On September 18, 2018, Cedeno-Guerrero pleaded guilty to one count of gross sexual imposition, and an amended count of rape in violation of
{¶ 4} Cedeno-Guerrero now appeals, raising two assignments of error.
I. Interpreter Credentials
{¶ 5} In his first assignment of error, Cedeno-Guerrero contends that the trial court committed plain error by sentencing him without certifying on the record the credentials of the interpreter.
{¶ 6} First, where no objection is raised, it has been held that such failure results in a waiver to challenge the qualifications of the interpreter and adequacy of the translation. See, e.g., State v. Newcomb, 10th Dist. Franklin Nos. 03AP-404 and 03AP-961, 2004-Ohio-4099, ¶ 22. Notwithstanding any waiver argument, we review for plain error, which must have been an “obvious” defect in the proceedings
{¶ 7} Cedeno-Guerrero‘s primary language is Spanish; accordingly, a Spanish-speaking interpreter was utilized in the case. Prior to Cedeno-Guerrero entering into a plea of guilty pursuant to the plea agreement, the trial court pursuant to
{¶ 8} In November 2018, at sentencing, a Spanish-speaking interpreter was also utilized; however, the interpreter was not the same one that translated for Cedeno-Guerrero during his plea. Although the interpreter was placed under oath, the record does not reflect that the trial court inquired about the credentials. No objection was raised by the parties.
{¶ 9} During sentencing, the trial court noted that during Cedeno-Guerrero‘s interview in preparation of the presentencing report, he indicated (through the use of an interpreter) that he did not commit the acts he pleaded to, but only pleaded based on legal advice that “it is hard to beat the word of a child,” and that he pleaded just “to get this case over with.” (Tr. 35-36.) As a result, the trial court wanted to discuss this development with the parties. Cedeno-Guerrero confirmed that he, in fact, made this statement. This caused concern for the court
{¶ 10} On appeal, Cedeno-Guerrero does not challenge that he did not enter a knowing, intelligent, and voluntary plea, but argues that the lack of verification or certification of the interpreter somehow inhibited his ability to withdraw his plea and caused him to not understand the sentence that would be imposed. We fail to see the connection.
{¶ 11}
{¶ 12} In this case, Cedeno-Guerrero has failed to establish how he was prejudiced by the trial court‘s failure to certify the interpreter‘s credentials. He does not contend that he was unable to communicate with or understand the interpreter‘s translation, or that this lack of certification prevented him from understanding the sentence imposed. As recognized by the Tenth District, “the sentencing hearing is procedurally distinct from the trial phase of the proceedings since concerns related to the adversarial process are not present at sentencing.” State v. Barrie, 2016-Ohio-5640, 70 N.E.3d 1092, ¶ 42 (10th Dist.), citing State v. Dunbar, 3d Dist. Allen No. 1-92-12, 1992 Ohio App. LEXIS 5567 (Nov. 5, 1992). Although Cedeno-Guerrero entered a plea rather than have a trial, the same procedural concerns are present, and we note that during the plea stage, the trial court certified the qualifications and credentials of the interpreter.
{¶ 13} At sentencing when he was specifically asked, Cedeno-Guerrero unequivocally stated he did not want to withdraw his plea, and wanted to proceed with sentencing. Additionally, despite the assertions made during the presentence interview, Cedeno-Guerrero did not file any formal request to withdraw his plea prior to sentencing.
{¶ 15} The first assignment of error is overruled.
II. Excessive Sentence
{¶ 16} Cedeno-Guerrero contends in his second assignment of error that the trial court committed prejudicial error by sentencing him to an excessive prison term.
{¶ 17} We review felony sentencing using the standard of review set forth in
{¶ 18} As long as the sentence is within the statutory range for the offense, and the court considers both the purposes and principles of felony sentencing set forth in
{¶ 19}
{¶ 20} The sentencing court must consider the seriousness and recidivism factors set forth in
{¶ 21}
{¶ 22} In this case, Cedeno-Guerrero‘s ten-year prison sentence is not contrary to law. A violation of
{¶ 24} Although the state requested that the trial court impose a maximum, consecutive prison sentence, the trial court found that the
{¶ 25} The trial court carefully explained its considerations, including why the maximum sentence was not appropriate, by highlighting Cedeno-Guerrero‘s lack of criminal history and his immigration status, but also that the minimum sentence was not appropriate due to the nature of the crime and Cedeno-Guerrero‘s position of trust with the nine-year-old victim and the victim‘s family. The trial court stated it considered all the statements made by the parties and noted Cedeno-Guerrero‘s “heartfelt” statement. Nothing in the record indicates that the sentence was excessive. Accordingly, Cedeno-Guerrero has failed to demonstrate that his sentence is clearly and convincingly not supported by the record. The second assignment of error is overruled.
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. The defendant‘s conviction having been affirmed, any bail pending is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and EILEEN A. GALLAGHER, J., CONCUR