State v. FernandezState v. Fernandez
WHITMORE, Judge.
{¶1} Appellant, Mark Fernandez, appeals from the judgment of the Medina County Court of Common Pleas. This Court affirms.
I
{¶2} In July 2012, Fernandez was indicted on one count of robbery, in violation of
{¶3} In February 2013, Fernandez failed to report to the probation department and a warrant was issued for his arrest. He was arrested in June 2013 and charged with two separate community control violations. First, for absconding from supervision, and second, for being
II
Assignment of Error
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SENTENCED MR. FERNANDEZ TO A MAXIMUM SENTENCE OF 3 YEARS IN PRISON AFTER HE PLED GUILTY [TO] ONE COUNT OF ROBBERY 2911.02(A)(3) A FELONY OF THE THIRD DEGREE AND ADMITTED A PROBATION VIOLATION.
{¶4} In his sole assignment of error, Fernandez argues that the court erred in sentencing him to a maximum sentence without considering factors in
{¶5} When reviewing a trial court‘s sentence, we apply a two-step approach. State v. Roper, 9th Dist. Summit Nos. 26631 & 26632, 2013-Ohio-2176, ¶ 5. “First, [we] must examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 26. Second, if the sentence is not contrary to law, we review the trial court‘s decision in imposing the term of imprisonment for an abuse of discretion. Id. While Fernandez frames his argument as the court abused its discretion in sentencing, the substance of his argument is that the court‘s sentence is contrary to law because it did not consider the factors in
(A) A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. To achieve those purposes, the sentencing court shall 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.
(B) A sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing set forth in division (A) of this section, commensurate with and not demeaning to the seriousness of the offender‘s conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.
{¶7} In
{¶8} “[W]here the trial court does not put on the record its consideration of [Sections] 2929.11 and 2929.12 [of the Ohio Revised Code], it is presumed that the trial court gave proper consideration to those statutes.” (Alterations sic.) State v. Steidl, 9th Dist. Medina No. 10CA0025-M, 2011-Ohio-2320, ¶ 13, quoting Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, at ¶
{¶9} Fernandez argues that the record does not reflect that the court considered the purposes and principles of sentencing. However, under the facts of this case, we conclude Fernandez has not overcome the presumption that the court properly considered the statutory factors when imposing his sentence.
{¶10} In August 2012, Fernandez pleaded no contest to one count of robbery, a felony of the third degree, and waived a statement of the facts. The court found Fernandez guilty and ordered a pre-sentence investigation report. In September 2012, the court sentenced Fernandez to three years of community control. The court noted that it was “reaching” by ordering community control “because [the] probation department ha[d] determined [that Fernandez was] a high risk offender.” For that reason, the court ordered “intensive supervision.” The court warned Fernandez that if he violated the terms of his community control it “will order a five-year prison sentence.”
{¶11} In February 2013, the court issued a warrant for Fernandez‘s arrest based on the probation department reporting that he had “absconded from supervision.” Fernandez was not arrested until June, when he was charged with a felony theft in Cuyahoga County. On July 1, 2013, the court held a hearing on the two community control violation charges. The court noted that when it placed Fernandez on community control, it indicated that it would sentence him to a prison term of five years if he violated. Fernandez admitted the violations. When the court
{¶12} The court, therefore, was aware that Fernandez had: (1) prior convictions, (2) been classified as a high risk offender by the probation department, (3) admitted to two community control violations, (4) absconded from supervision and spent over three months on the run, (5) impermissibly left the State while on community control, (6) had five active warrants covering various counties, including one from out of state, and (7) appeared to show no remorse for his violations. See
{¶13} With the information that was before the court at sentencing, we cannot conclude that Fernandez has met his burden to rebut the presumption that the court properly considered the
{¶14} Fernandez‘s assignment of error is overruled.
III
{¶15} Fernandez‘s sole assignment of error is overruled. The judgment of the Medina County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
CONCURS.
BELFANCE, P. J.
CONCURRING IN JUDGMENT ONLY.
{¶16} I concur in the majority‘s judgment. A sentencing judge is required to consider the principles and purposes of sentencing when imposing a sentence; however, it is not necessary for the judge to make findings or give reasons before imposing a maximum sentence. State v. Brooks, 9th Dist. Summit Nos. 26437, 26352, 2013-Ohio-2169, ¶ 6. In this case, the record reflects that the trial court had before it and considered information relevant to the trial court‘s mandatory considerations under