Case Information
*1
[Cite as
State v. Galindo-Barjas
,
STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 12 MA 37
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
VICTOR M. GALINDO-BARJAS )
)
DEFENDANT-APPELLANT ) CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County, Ohio
Case No. 11 CR 833 JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney 21 West Boardman Street, 6 th Floor Youngstown, Ohio 44503 For Defendant-Appellant: Atty. Anthony Meranto
Atty. Louis Defabio 4822 Market Street, Suite 220 Youngstown, Ohio 44512 JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: February 5, 2013
*2
[Cite as
State v. Galindo-Barjas
,
WAITE, J. Appellant Victor M. Galindo-Barjas appeals his felony sentence of two
consecutive four-year prison terms after pleading guilty to two counts of aggravated vehicular assault, third degree felonies, and one count of operating a motor vehicle under the influence of alcohol (“OMVI”), a first degree misdemeanor. The trial court sentenced Appellant to less than the ten-year prison term recommended by the prosecutor. Appellant argues that the court abused its discretion by basing its sentence on the harm to victim when “serious physical harm” was already a part of the definition of aggravated vehicular assault. Appellant argues that the court cannot use an element of the crimes as a factor supporting conseсutive sentences. In this instance, we cannot agree. Even though “serious physical harm” is an element of aggravated vehicular assault, there is a range of harm possible within the concept of what constitutes “serious physical harm.” The court was permitted to consider the kind and extent of harm to the victim as a basis for the sentеnce even though it forms an element of the crime as well. Appellant's further assertion that the trial court failed to consider any other relevant factor is mere speculation that is not supported by the record. Appellant also contends that the imposition of consecutive sentences
was incorrect bеcause the court did not give reasons to support consecutive sentences. Appellant seems to be aware that, under the newly enacted sentencing statutes, the trial court must make certain findings before imposing consecutive sentences, but the law does not require the judge to articulate reasons in support of *3 the findings. The record reflects that the court made the necessary findings. The judgment of the trial court is affirmed. On July 25, 2011, Appellant was involved in a head-on car collision.
There were two people in the other vehicle, and they suffered severe injuries from the accident. Appellant was intoxicated at the time. He was indictеd on November 16, 2011. Appellant pleaded guilty to two counts of aggravated vehicular assault, R.C. 2903.08(A)(1)(a), a third degree felony, and one count of OMVI, R.C. 4511.19(A)(1)(a), a first degree misdemeanor. One of the terms of the plea was that the prosecutor would recommend a ten-year prison term, signifying maximum consecutive prison terms for the two felonies. On January 27, 2012, the trial court held a sentencing hearing. One of
the victims, Lauren Carissimi, testified at the hearing about the extent of her injuries. She sustained a broken humerus bone, torn neck ligaments, and suffered radial nerve palsy. (1/27/12 Tr., p. 4.) She testified that the accident “caused unspeakable, unthinkable, unimaginable despair, pain, suffering, deep grief emotionally and physically to me and everyone around me, and it is very difficult for me to put it into words.” (1/27/12 Tr., p. 5.) She thought she was going to die. She was hospitalized and endured surgery. She has had both physical and psychological therapy because of the accident. She also stated that her boyfriend's injuries “were far worse than mine.” (1/27/12 Tr., p. 4.) Shе requested imposition of the maximum possible punishment for the crime.
{¶5} The other victim, Bruce Alan Minnotti, Jr., testified that he has lasting physical scars from his injuries, which included a broken elbow, broken pelvis, dislocated ankle, broken bones in his foot, nerve and ligament damage, and “indescribable pain.” (1/27/12 Tr., pp. 7-8.) He has a permanent limp, can nо longer run, cannot work, and spends much of his life in bed because of the accident. His schooling has been set back at least one year due to the accident. He also described the emotional and financial toll he has endured from the accident. The court sentenced Appellant to two prison terms of four yеars each for the two felony counts, to be served consecutively, and 180 days in jail for OMVI, to be served concurrently. The court included the statutory findings required to impose consecutive prison terms as set forth in newly revised R.C. 2929.14(C)(4). The court's judgment entry was filed January 31, 2012, and this timely appeal followed.
ASSIGNMENT OF ERROR
THE TRIAL COURT’S SENTENCE OF TWO (2) CONSECUTIVE FOUR (4) YEAR TERMS OF IMPRISONMENT WAS CONTRARY TO LAW AND CONSTITUTED AN ABUSE OF DISCRETION. Appellant asserts two sentencing errors under this assignment. First,
he argues that the trial court abused its discretion by considering an element of the crime as an aggravating sentencing factor. Appellant states that the trial court imposed consecutive sentences based on the serious physical harm suffered by the victims, even though “serious physical harm” is one of the elements of aggravated *5 vehicular assault. Appellant contends that a court cannot use an essential element of a crime as a factor to enhance a sentence beyond the minimum sentence. Appellant also argues that the trial court failed to give reasons to support the consecutive sentences, hence, concurrent sentences should be imposed. Neither argument is persuasive. We review felony sentences using both the “clearly and convincingly
contrary to law” standard and the “abuse of discretion” standard. State v. Gratz , 7th
Dist. No. 08MA101,
consider in determining whether a defendant's conduct is more or less serious than conduct normally constituting the offense. The trial court is not confined only to the factors listed in the statute and may consider “any othеr relevant factors”. R.C. 2929.12(B). Appellant contends that the only factor the trial court relied on in sentencing is found in R.C. 2929.12(B)(2), namely, “[t]he victim of the offense *6 suffered serious physical, psychological, or economic harm as a result of the offense.” This assumption is not borne out by the record. The sentencing transcript indicates that the triаl judge considered the presentence investigation, the sentences handed out in other similar cases, and “the factors contained in Section 2929 of the Revised Code”. (1/27/12 Tr., p. 18.) Assuming for the sake of argument that the judge did consider only one
factor at sentencing, Appellant further contends that the court should not have relied on serious physical harm to enhance the sentence because it is part of the definition of the crime. Aggravated vehicular assault is defined in R.C. 2903.08(A) as:
No person, while operating or participating in the operation of a motor vehicle, motorcycle, snowmobile, locomotive, watercraft, or aircraft, shall сause serious physical harm to another person or another's unborn in any of the following ways:
(1)(a) As the proximate result of committing a violation of division (A) of section 4511.19 of the Revised Code or of a substantially equivalent municipal ordinance; (Emphasis added.) Appellant submits that to enhance a sentence, the court must loоk to
some fact beyond or besides one which comprises a basic element of the crime. In
some instances, Appellant would be correct. He cites State v. Stroud , 7th Dist. No.
07 MA 91,
crime discussed in Stroud . There are no varying degrees of “death,” whereas “serious physical harm” can take аn endless variety of forms. In this case, the victims almost died from their injuries, suffering multiple broken bones, nerve and ligament damage, and unendurable pain. The damage is permanent, according to the testimony of the victims. Any one injury to either of the victims could be treated as serious physical harm: one broken bone; one torn ligament; or оne cut requiring surgery. The record indicates that the victims suffered multiple serious injuries. In addition, the definition of the crime refers only to physical harm, whereas the sentencing statute refers to physical, psychological or economic harm. R.C. 2929.12(B)(2). Thus, the sentencing statute is broader than the definition of aggravated vehicular assault, and the court's review of the victim's psychological and economic harm can be used to enhance the sentence without overlapping with a basic element of the crime itself. For these reasons, we reject Appellant's argument. Moving on to the argument regarding whether the court properly explained its reasоns for imposing consecutive sentences, Appellant correctly posits *8 that the law has recently changed in this area. Both parties agree that the newly enacted version of R.C. 2929.14, effective September 30, 2011, applies to this case. R.C. 2929.14(C)(4) states:
(4) If multiple prison terms are imposed on an offender for convictions оf multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of thе offender's conduct and to the danger the offender poses to the public, and if the court also finds any of the following: (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 undеr post-release 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 аs 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. Prior to 2006, Ohio sentencing law creatеd presumptions that offenders
be given minimum, concurrent terms of incarceration. See former R.C. 2929.14(B),
2929.14(E)(4), 2919.19(B)(2), and 2929.41. These presumptions could be overcome
if the court made specific factual findings regarding the nature of the offense and the
need to protect the public. This judicial fact-finding was called into question by
Apprendi v. New Jеrsey ,
Ice ,
statute has reestablished the requirement that the sentencing judge make certain
findings before imposing consecutive sentences. See, e.g., State v. Wilson , 8th Dist.
No. 97657,
reasons in support of those findings in order for a consecutive sentence to be imposed. Foster eliminated both requirements. The recently enacted law is not simply a reenactment of the рre- Foster statute, but is an entirely new law, and the new law requires only that the court make certain findings. A court may impose consecutive sentences under R.C. 2929.14(C)(4) if
it makes the following findings: (1) consecutive service is necessary to protect the public from future crime or to punish the offender and (2) 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 (3) one of the following: (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 seсtion 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense, or (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, or (c) the offender's history of *12 criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. The trial court made the necessary findings in this case and stated
them at the sentencing hearing (1/27/12 Tr., p. 19) and in the judgment entry. An appellate court may only sustain an assignment of error challenging the imposition of consecutive sentences under R.C. 2929.14 if the appellant shows that the judgment was clearly and convincingly contrary to law. R.C. 2953.08(G). This record does not support such a showing. The trial court followed the requirements of the new sentencing law. Since the trial court need not explain its reasons for making its findings, the absence of such reasons is not error. Appellant's argument regarding consecutive sentences is unpersuasive. Because we have disposed of Appellant's two arguments in his sole
assignment of error, the assignment of error is overruled and the judgment of the trial court is affirmed.
Donofrio, J., concurs.
DeGenaro, P.J., concurs.