State of Ohio v. Matthew Gonzalez
Court of Appeals Nos. L-13-1206, L-13-1207
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Decided: July 25, 2014
[Cite as State v. Gonzalez, 2014-Ohio-3272.]
Trial Court No. CR0201301203, CR0201301124
Neil S. McElroy, for appellant.
DECISION AND JUDGMENT
PIETRYKOWSKI, J.
{¶ 1} This matter is before the court on appeal from the August 21, 2013 judgment of the Lucas County Court of Common Pleas which, following a guilty plea to three counts of illegal use of a minor in nudity-oriented material under
{¶ 2} The history of this case will be set forth as concisely as possible. On January 22, 2013, appellant was indicted on four counts of illegal use of a minor in nudity-oriented material,
{¶ 3} Pursuant to an agreement with the state, on July 31, 2013, appellant withdrew his not guilty pleas and entered guilty pleas to three counts of illegal use of a minor in nudity-oriented material. The state agreed to enter a nolle prosequi to the remaining two counts. At the plea hearing, appellant admitted that between June 30 and July 19, 2012, he surreptitiously planted his cell-phone in an air conditioning vent in a tanning salon that he owned in order to video record three minor females while they changed and tanned. The three minors were all filmed in various states of nudity and undress.
{¶ 4} At the August 21, 2013 sentencing hearing, it was disclosed that appellant had two adult misdemeanors. Arguing for a community control sentence, appellant‘s counsel alerted the court to the case of State v. Duvall, Lucas County case No. CR0201202821, a recent case in the same courthouse, where a defendant with a similar criminal history was charged with five counts of pandering sexually oriented material and five counts of use of a minor in nudity-oriented material. Duvall ultimately pled guilty to
{¶ 5} The court stated that in sentencing appellant it considered the presentence investigation report, the numerous letters written on behalf of appellant, and the letters from the victims and their families. The court then sentenced appellant to five years for each of the three counts, to be served consecutively, for a total of 15 years of imprisonment. Appellant was also classified as a Tier II sexual offender. This appeal followed.
{¶ 6} Appellant raises one assignment of error for our review:
The trial court abused its discretion when it sentenced Mr. Gonzalez to three consecutive, 5-year terms of imprisonment, for an aggregate term of 15 years in prison.
{¶ 7} Appellant‘s sole assignment of error is that the trial court abused its discretion in sentencing him to 15 years of imprisonment. Appellant contends that, despite the sentence being within the statutory limitations, it does not comply with
{¶ 8} The court reviews felony sentences based on the standard of review delineated in
(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section
2929.13 , division (B)(2)(e) or (C)(4) of section2929.14 , or division (I) of section2929.20 of the Revised Code, whichever, if any, is relevant;(b) That the sentence is otherwise contrary to law.
R.C. 2953.08(G)(2) .
{¶ 9} A trial court‘s sentence is not clearly and convincingly contrary to law where the court considered the
{¶ 10}
A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing * * * to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that court determines accomplishes those purposes * * *.” (Emphasis added.)
{¶ 11}
{¶ 12} There is a presumption that the trial court gave proper consideration to
{¶ 13} “Consistency does not necessarily mean uniformity; rather, consistency has a goal of similar sentences for similar offenses * * * [a]n offender cannot simply present other cases in which an individual convicted of the same offense received a lesser sentence to demonstrate that his sentence is disproportionate.” State v. Dahms, 6th Dist. Sandusky No. S-11-028, 2012-Ohio-3181, ¶ 21-22, citing State v. Battle, 10th Dist. Franklin No. 06AP-863, 2007-Ohio-1845; State v. Hayes, 10th Dist. Franklin No. 08AP-233, 2009-Ohio-1100, ¶ 10.
{¶ 14} Appellant has named a defendant convicted of the same crime with a similar criminal background without any reference to the factual similarities that make up their conviction; plainly, perhaps intentionally, appellant provides no other facts at all. Factual dissimilarities may justify disproportionate sentences despite similar or identical
{¶ 15} Further, the trial court noted that it considered the entirety of the record, victim impact statements and other relevant reports as well as the principles and purposes of
{¶ 16} Further, in accordance with
{¶ 17} Upon review of the proceedings below, we find that appellant did not present sufficient evidence of similar cases with disproportionate sentencing. Appellant
{¶ 18} On consideration whereof, we find that appellant was not prejudiced or prevented from having a fair proceeding and the judgment of the Lucas County Court of Common Pleas is affirmed. Pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
JUDGE
Stephen A. Yarbrough, P.J.
JUDGE
James D. Jensen, J.
JUDGE
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.