STATE OF OHIO, PLAINTIFF-APPELLEE, v. VICTOR R. MAGALLANES, DEFENDANT-APPELLANT.
CASE NO. 12-14-02
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT PUTNAM COUNTY
November 3, 2014
2014-Ohio-4878
Appeal from Putnam County Common Pleas Court, Trial Court No. 2013 CR 69. Judgment Reversed and Cause Remanded.
Gregory J. Hermiller for Appellant
Todd C. Schroeder for Appellee
{¶1} Defendant-appellant, Victor R. Magallanes (“Magallanes“), appeals the March 31, 2014 judgment entry of sentence of the Putnam County Court of Common Pleas. For the reasons that follow, we reverse the judgment of the trial court and remand for resentencing.
{¶2} On December 18, 2013, the Putnam County Grand Jury indicted Magallanes on Counts One and Two of trafficking in cocaine in violation of
{¶3} On January 2, 2014, Magallanes appeared for arraignment and entered pleas of not guilty. (Doc. No. 20).
{¶4} On February 11, 2014, Magallanes withdrew his pleas of not guilty and entered a plea of guilty to Count One pursuant to a written plea agreement. (Doc. No. 35); (Feb. 11, 2014 Tr. at 2). In exchange for his change of plea, the State agreed to dismiss Count Two and remain silent at sentencing. (Id.); (Id.). The trial court accepted Magallanes guilty plea, found him guilty, and ordered a presentence investigation (“PSI“). (Feb. 11, 2014 Tr. at 10).
{¶5} On March 27, 2014, the trial court sentenced Magallanes to 12 months in prison. (Mar. 27, 2014 Tr. at 4). The trial court further ordered that Magallanes serve the 12-month term of imprisonment in the Putnam County case consecutive to the 12-month term of imprisonment in his Wood County, Ohio case—a case
{¶6} On March 31, 2014, the trial court filed its judgment entry of sentence. (Mar. 31, 2014 JE, Doc. No. 48).
{¶7} On April 23, 2014, Magallanes filed his notice of appeal. (Doc. No. 60). He raises three assignment of error for our review. We elect to address Magallanes‘s second assignment of error first.
Assignment of Error No. II
The trial court failed to make the necessary findings under Section 2929.14(C) of the Ohio Revised Code for the imposition of consecutice [sic] sentences in the appellant‘s case.
{¶8} In his second assignment of error, Magallanes argues that the trial court failed to make the necessary findings under
{¶9} A trial court‘s sentence will not be disturbed on appeal absent a defendant‘s showing by clear and convincing evidence that the sentence is unsupported by the record; the sentencing statutes’ procedure was not followed or there was not a sufficient basis for the imposition of a prison term; or that the sentence is contrary to law. State v. Ramos, 3d Dist. Defiance No. 4-06-24, 2007-Ohio-767, ¶ 23 (the clear and convincing evidence standard of review set forth under
{¶10} Clear and convincing evidence is that “which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus; State v. Boshko, 139 Ohio App.3d 827, 835 (12th Dist.2000). An appellate court should not, however, substitute its judgment for that of the trial court because the trial court is “clearly in the better position to judge the defendant‘s dangerousness and to ascertain the effect of the crimes on the victims.” State v. Watkins, 3d Dist. Auglaize No. 2-04-08, 2004-Ohio-4809, ¶ 16, quoting State v. Jones, 93 Ohio St.3d 391, 400 (2001).
{¶11} “Except as provided in * * * division (C) of section 2929.14, * * * a prison term, jail term, or sentence of imprisonment shall be served concurrently with any other prison term, jail term, or sentence of imprisonment imposed by a court of this state, another state, or the United States.”
(4) * * * [T]he 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 the 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 , or2929.18 of the Revised Code, or was under 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 as 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.
{¶13} The trial court must state the required findings at the sentencing hearing and incorporate the statutory findings into the sentencing entry. State v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-Ohio-4140, ¶ 50, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 29. ” ‘However, a word-for-word recitation of the language of the statute is not required, and as long as the reviewing court can discern that the trial court engaged in the correct analysis and can determine that the record contains evidence to support the findings, consecutive sentences should be upheld.’ ” Id.
{¶14} We cannot discern from the record that the trial court made the three statutorily required findings. At the sentencing hearing, the trial court stated:
At this time, the Court is making certain findings. First of all, that the defendant‘s presently serving a prison term and that the offense here was committed while the offender was under a community
control sanction. The Court is also determining that in weighing the seriousness of recidivism factors, that prison is consistent with the principles of the revised code and the offender is not amenable to an available community control sanction. As a result, the Court is imposing a period of 12 months at the Ohio Department of Correction and Rehabilitation. The Court is imposing the sentence as a consecutive sentence. * * * The Court is also making a finding that the defendant‘s record indicates that the recidivism, that the defendant is likely to be a repeat offender.
(Mar. 27, 2014 Tr. at 4-5). In its sentencing entry, the trial court stated:
The Court finds that the Defendant is currently serving another prison term. The Court further finds that a prison term is consistent with the principles and purposes of sentencing, and that the Defendant is not amenable to community control sanctions. The Court further finds the Defendant‘s criminal record demonstrates he is likely to be a repeated offender. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Defendant shall be sentenced to twelve (12) months at the Ohio Department of Rehabilitation and Correction. The Defendant‘s sentence shall run consecutive to the Defendant‘s sentence in Wood County.
{¶15} The trial court made one of the three necessary findings under
{¶16} Accordingly, we sustain Magallanes‘s second assignment of error.
Assignment of Error No. I
The trial court failed to make necessary findings under Section 2929.11, Section 2929.12, Section 2929.13 and Section 2929.14 of the Ohio Revised Code for the imposition of a maximum prison sentence in the appellant‘s case.
{¶17} In his first assignment of error, Magallanes argues that the trial court failed to make the necessary findings under
{¶18} Before we address the merits of Magallanes‘s first assignment of error, we note that his first assignment of error is rendered moot because we are reversing the trial court‘s judgment and remanding this case for resentencing. See State v. Fuller, 3d Dist. Henry No. 7-13-06, 2013-Ohio-5661, ¶ 28, citing
{¶19} As we noted above, for a defendant‘s sentence to be disturbed on appeal, the defendant must show by clear and convincing evidence that the sentence is unsupported by the record; the sentencing statutes’ procedure was not followed; there was not a sufficient basis for the imposition of a prison term; or that the sentence is contrary to law. Ramos, 2007-Ohio-767, at ¶ 23.
{¶20} Magallanes argues that the trial court failed to make the necessary findings under
{¶21} Magallanes‘s sentence is not contrary to law. When sentencing an offender, the trial court must consider the overall purposes of sentencing under
{¶22} A review of the record indicates that the trial court considered
{¶23} The trial court sentenced Magallanes to a 12-month prison term after finding him guilty of committing a fifth-degree felony. (Mar. 31, 2014 JE, Doc. No. 48).
Except as provided in division (B)(1)(b) of this section, if an offender is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence or that is a qualifying assault offense, the court shall sentence the offender to a community control sanction of at least one year‘s duration if all of the following apply:
(i) The offender previously has not been convicted of or pleaded guilty to a felony offense.
(ii) The most serious charge against the offender at the time of sentencing is a felony of the fourth or fifth degree.
(Emphasis added.)
The court has discretion to impose a prison term upon an offender who is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence or that is a qualifying assault offense if any of the following apply:
* * *
(xi) The offender committed the offense while under a community control sanction, while on probation, or while released from custody on a bond or personal recognizance.
(Emphasis added.)
{¶25} Second, Magallanes argument is erroneous because
{¶27} The trial court noted that, in addition to the current charge, Magallanes has been in and out of court on either additional charges or probation or supervision violations approximately 20 times since 1998. (Mar. 27, 2014 Tr. at 3-4); (PSI). Likewise, Magallanes committed the instant offense while under a community-control sanction in a Wood County case and had charges pending against him in Henry County at the time of sentencing in this case. (Id. at 2, 4); (Id.). More specifically, in the Wood County case, Magallanes pleaded guilty to receiving stolen property, a fifth-degree felony, and was sentenced to three years of community control. (PSI). The record reflects that Magallanes was charged with approximately six probation and community-control violations during the time he was on community control. (See id.). As a result of his numerous probation and community-control violations, Magallanes was sentenced to 12-months imprisonment in the Wood County case. (Id.). In the Henry County case, Magallanes was charged with failure to comply and theft, both first-degree misdemeanors, stemming from stealing ten cases of beer and leading law
{¶28} In light of the foregoing, we cannot conclude that Magallanes‘s 12-month maximum sentence was unsupported by the record. Ramey at ¶ 13.
{¶29} Magallanes‘s first assignment of error is, therefore, overruled.
Assignment of Error No. III
The appellant was denied his constitutional right to effective assistance of counsel when the appellant‘s trial counsel failed to advocate and protect appellant‘s rights upon sentencing.
{¶30} In his third assignment of error, Magallanes argues that he was deprived the effective assistance of trial counsel. In particular, Magallanes argues that his trial counsel failed to offer any factual basis or legal support for his argument at the sentencing hearing that Magallanes should be sentenced only to concurrent prison terms.
{¶31} In light of our decision to reverse the judgment of the trial court and remand for resentencing, Magallanes‘s third assignment of error is rendered moot, and we decline to address it. See State v. Panning, 3d Dist. Van Wert No. 15-13-07, 2014-Ohio-1880, ¶ 18, citing
Judgment Reversed and Cause Remanded
WILLAMOWSKI, P.J. and SHAW, J., concur.
/jlr