STATE OF OHIO v. PEDRO LUYANDO
No. 97203
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
May 3, 2012
2012-Ohio-1947
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-545841
BEFORE: Kilbane, J., Blackmon, A.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: May 3, 2012
Joseph Vincent Pagano
P.O. Box 16869
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Brian M. McDonough
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{1} Defendant-appellant, Pedro Luyando, appeals from his sentence for involuntary manslaughter with а firearm specification. For the reasons set forth below, we affirm.
{2} On January 28, 2011, defendant and codefendant, Angel Garcia (“Garcia“), were indicted pursuant to a four-count indictment for the shooting deаth of David Morales. Count 1 charged the defendant with aggravated murder in violation of
{3} Defendant pled not guilty, but on April 11, 2008, he reached a plea agreement with the State whereby Count 1 was amended to charge him with the offense of involuntary manslaughter. He pled guilty to this offense as well as the firearm and forfeiture specifications, and the remaining charges were dismissed.
{4} On July 26, 2011, defendant submitted a sentencing memorandum thаt provided in relevant part as follows:
He is married to Wanda Torres, his wife of 29 years. They have two sons, 26 and 16 [and the older child] suffers from a severe mental illness. Mr. Luyando is universally well-regarded in his community. * * *
Mr. Luyando has consistently been employed over the years and is the main financial support for his family. He was most recently employed for the past eight (8) years as a security guard for Royce Security. His emplоyment ended only as a result of the instant case. In this capacity, [defendant] was trained and licensed to carry a concealed firearm continuously from 2004-present. The firearm was lawfully purchasеd in 2003 for use in his employment. (The firearm * * * is the weapon involved in this case).
Mr. Luyando has never previously been convicted of any felony offense. He has * * * no substance abuse/dependency issues.
He * * * dеeply regrets his actions [and is] extremely remorseful for effects this case has had on others, most notably the victim[.]
{5} With regard to the factors set forth in
{7} Defendant‘s assignment of error states:
“The trial court‘s imposition of a nine year prison term was contrary to law and an abuse of discretion.”
{8} Within this assignment of error, defendant complains that the trial court did not make necessary statutory findings аnd did not provide sufficient reasons for imposing the sentence. He additionally complains that the court imposed a sentence beyond that needed to accomplish the purpose of sеntencing, the sentence constituted a drain on governmental resources, and that the court failed to consider the proportionality and consistency of the sentence.
{9} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, “trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings and give reasons for imposing maximum, consecutive or more than the minimum sentence.” Id. at paragraph seven of the syllabus.1 In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 4, the Ohio Supreme
First, they 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. If this first prong is satisfied, the trial court‘s decision shall be reviewed under an abuse-of-discretion standard.
{10} The requirements of
[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. To achieve those purposes, the sentencing court shall consider the need for incaрacitating the offender, deterring the offender and others from future
768, the Ohio Supreme Court reiterated that
{11}
{12} These statutes are not fact-finding statutes, however. Kalish at ¶ 17. Moreover, where the record is silent, an аppellate court may presume that the trial court considered the statutory factors when imposing a sentence. State v. Martinez, 8th Dist. No. 96222, 2011-Ohio-5832, ¶ 12; State v. Dargon, 8th Dist. No. 82918, 2003-Ohio-5826.
{13} In this matter, defendant pled guilty to involuntary manslaughter in violation of
{14} Defendant complains, however, that the sentence does not mеet the purpose of punishing the offender using the “minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources.” We note that, although resource burdens are relevant sentencing considerations under former
{15} As to defendant‘s additional challenges regarding the proportionality and consistency of the sentence, we note that he did not challenge the proportionality of his sentence or the consistency of it аs compared to other similar offenders in the court below, therefore, he has waived this issue. State v. Santiago, 8th Dist. No. 95516, 2011-Ohio-3058; State v. Lycans, 8th Dist. No. 93480, 2010-Ohio-2780.
{16} Turning to the second prong of our standard of review, we find no abuse of discretion in connection with the sentence. The record reveals that defendant‘s brother had been in an altercation. Defendant denied being summoned to the scene, but he arrived nearby with his weapon a short time later. The record further reveals that
[L]ooking at your presentence investigatiоn report, and the sentencing memorandum that‘s prepared by your lawyers, and listening to you here today, in consideration, all the relevant seriousness and recidivism factors, and ensuring that the public is protеcted from future crime, and that you are punished, I am going to impose a prison term on the underlying offense of involuntary manslaughter * * *
So I am going to impose a prison term of six years at Lorain Correctiоnal Institution on the underlying offense of involuntary manslaughter. I am going to impose a prison term of three years for the firearm specification.
{17} We find no abuse of discretion. The record indicates that dеfendant intervened in an altercation by assisting the aggressor, and he shot Morales three times. The court carefully considered defendant‘s background, defendant‘s actions the night of the shooting, and the relеvant statutory provisions. In addition, the trial court considered the presentence investigation report that indicated defendant had “a history of criminal conviction,” and “shows no genuine remorse.” The court also considered defendant‘s sentencing memorandum and his statement before sentence. The six-year term was in the midpoint of the statutory range and was within the sound exercise of the trial court‘s discrеtion. The second prong of Kalish, 120 Ohio St.3d 23, 2008-Ohio-2372, ¶ 4, is therefore satisfied.
{18} In accordance with the foregoing, the assignment of error is without merit.
{19} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
PATRICIA A. BLACKMON, A.J., and
SEAN C. GALLAGHER, J., CONCUR