STATE OF OHIO v. EDWIN H. PAULINO
No. 104198
Cоurt of Appeals of Ohio, Eighth Appellate District, County of Cuyahoga
January 5, 2017
2017-Ohio-15
McCORMACK, P.J.
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104198
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
EDWIN H. PAULINO
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-595446-A
BEFORE: McCormack, P.J., E.T. Gallagher, J., and Celebrezze, J.
RELEASED AND JOURNALIZED: January 5, 2017
Edward M. Heindel
400 Terminal Tower
50 Public Square
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Carl Sullivan
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
{¶1} Defendant-appellant Edwin Paulino appeals from the judgment of the Cuyahoga County Court of Common Pleas following a guilty plea. For the reasons that follow, we affirm.
{¶2} Paulino was charged in a 70-count indictment as follows: Count 1 — pandering sexually oriented matter involving a minor, in violation of
{¶3} On December 16, 2015, Paulino pleaded guilty to Counts 2-50, pandering sexually oriented matter involving a minor, and Count 70, possessing criminal tools. The state agreed to dismiss the remaining counts. Prior to sentencing, Paulino obtained new counsel and moved the court to withdraw his guilty plea. Following a hearing, the trial court denied Paulino’s motion. Thereafter, the court dismissed Count 70, finding the count infirm, and sentenced Paulino on Counts 2-50 to 6 years in prison on each count, to be served concurrently. The court also imposed a $10,000 fine on Count 2.
I. The trial cоurt erred when it denied Paulino’s presentence motion to withdraw [his] guilty plea.
II. The trial court erred at sentencing when it did not consider the presentence investigation report as required by [
III. The trial court erred when it found that Paulino had not overcome the presumption of a prison sentence as stated in
Guilty Plea
{¶5} In his first assignment of error, Paulino contends that the trial court erred when it denied his motion to withdraw his guilty plea. In support, Paulino claims that he voiced “genuine concerns” regarding his actual innocence and his computer had not been analyzed to determine whether the pornographic images had, in fact, been discovered on his computer.
{¶6} Crim.R. 32.1 governs withdrawals of guilty pleas and provides as follows: “A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set аside the judgment of conviction and permit the defendant to withdraw his or her plea.” Generally, a presentence motion to withdraw a guilty plea should be freely granted. State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). It is well established, however, that a defendant does not have an absolute right to withdraw a guilty plea prior to
{¶7} The decision whether to grant or deny a motion to withdraw a guilty plea is entirely within the sound discretion of the trial court, and we will not alter the trial court’s decision absent a showing of an abuse of that discretion. Xie at paragraph two of the syllabus; State v. Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863 (8th Dist.1980), syllabus. “‘Unless it is shown that the trial court acted unjustly or unfairly, there is no abuse of discretion.’” Peterseim at 213, 214, quoting Barker v. United States, 579 F.2d 1219, 1223 (10th Cir.1978).
{¶8} A trial court does not abuse its discretion in denying a motion to withdraw a guilty plea where the following occurs: (1) the accused is represented by highly competent counsel; (2) the accused was afforded a full hearing, pursuant to Crim.R. 11, before he entered the plea; (3) when, after the motion to withdraw is filed, the accused is given a complete and impartial hearing on the motion; and (4) the record reveals that the court gave full and fair consideration to the plea withdrawal request. Peterseim at paragraph three of the syllabus. Additional factors this court has considered include whether the motion was made in a reasonable time; whether the motion states specific reasons for withdrawal; whether the accused understood the nature of the charges and the possible penalties; and whether the accused was perhaps not guilty or had a complete defense. State v. Benson, 8th Dist. Cuyahoga No. 83178, 2004-Ohio-1677, ¶ 8-9.
{¶10} Next, the record shows that Paulino was afforded a full Crim.R. 11 hearing before he entered his plea and that he understood the nature of the charges and thе possible penalties.
{¶11} Our review of the plea hearing reflects that the trial court engaged in a thorough Crim.R. 11 colloquy, explaining to Paulino each of the constitutional rights he would be waiving by pleading guilty. The court provided Paulino an opportunity to ask the court any questions he may have, and Paulino repeatedly indicated that he understood. The court also described the offenses and advised Paulino about the possible penaltiеs, including the maximum sentence, and the consequences of a plea, including deportation.
{¶12} A review of the record also shows that the motion to withdraw the guilty plea was made in a reasonable time, the motion stated specific reasons for withdrawal, and the trial court carefully considered the motion in a complete and impartial hearing.
{¶13} The scope of a hearing on a defendant’s motion to withdraw a plea should reflect the substantive merit of the motion; bold assertions without evidentiary support do not merit the scrutiny that substantiated allegations would merit. State v. Hall, 8th Dist. Cuyahoga No. 55289, 1989 Ohio App. LEXIS 1602, 2-3 (Apr. 27, 1989). The scope of the hearing is within the sound discretion of the trial court. State v. Bosby, 8th Dist. Cuyahoga No. 94466, 2011-Ohio-599, ¶ 10.
{¶14} In his motion to withdraw his guilty plea, with the assistance of new counsel, Paulino claimed that he is innocent of the charges, that there was no evidence on his computer that would support the charges, and that hе was denied an opportunity to
{¶15} At the withdrawal hearing, the court heard from Paulino’s new counsel, who conceded that, prior to the hearing on Paulino’s motion to withdraw, the trial court provided an opportunity for counsel and his client to review the evidence in the case and obtain a forensic expert to review the materiаls allegedly on Paulino’s computer. Defense counsel advised the court that the expert confirmed that the evidence supporting Paulino’s convictions — images and videos — were, in fact, present on the hard drive of Paulino’s computer. Counsel advised the court that, regardless of the information confirmed by the expert, Paulino maintains his innocence. Counsel further advised the court that his client claims that he was not adequately informed оf the nature of the charges and possible defenses and that his plea was not knowing and voluntary.
{¶16} Thereafter, the court heard from the state, which submitted that Paulino had highly competent counsel, he was given a full Crim.R. 11 hearing, and the prosecutor and prior defense counsel had met numerous times regarding the discovery in the matter and Paulino’s immigration consequences. The state submitted that Paulino knowingly and voluntarily entered a guilty plea and his new claim оf innocence is a mere change of heart, with no evidence in support of his claimed innocence.
{¶17} At this time, the court addressed Paulino, who claimed that he “didn’t really know what was going on” at the time of the plea hearing, and he explained that he was expecting “a good outcome.” Paulino further stated that “after a day or two I was
{¶18} Prior to making a ruling, the court recalled its thorough Crim.R. 11 colloquy, marking the transcripts of the plea hearing as an exhibit. In particular, the court noted that the following matters were addressed: the potential maximum sentence; likely deportation; no threats or promises made; Paulino had no questions for the court; and there was no language barrier, because he spoke fluent English. Having reviewed the plea hеaring, the court found that Paulino was given a full and fair hearing and Paulino entered a knowing plea. The court also determined that Paulino was represented by highly competent counsel. Finally, the court noted that Paulino’s new claim of innocence is merely a bold assertion, without support, that he is not guilty; however, at the time of his scheduled trial, Paulino maintained that he was guilty.
{¶19} Where a defendant does not assert his innocence at the plea colloquy, he is presumed to understand that a guilty plea is a complete admission of guilt. State v. Lee, 8th Dist. Cuyahoga No. 99796, 2014-Ohio-205, ¶ 8, citing State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, syllabus. Moreover, a mere change of heart
{¶20} After considering statements from counsel and the entire record, the trial court denied Paulino’s motion to vacate his plea. The court found, however, that Count 70, relating to Paulino’s laptop, was infirm, and the court struck the count from Paulino’s plea.
{¶21} In light of the above, we find the record demonstrates that Paulino was represented by highly competent counsel, he was given a full Crim.R. 11 hearing before entering a plea, he was afforded a complete and impartial hearing on his motion, and the trial court gave full and fаir consideration to the plea withdrawal request. Additionally, there is no evidence in the record that the trial court acted unjustly or unfairly. Therefore, the trial court did not abuse its discretion in denying Paulino’s motion to withdraw his guilty plea.
{¶22} Paulino’s first assignment of error is overruled.
Presentence Investigation Report
{¶23} In his second assignment of error, Paulino contends that the trial court erred when it failed to consider the presentence investigative report (“PSI”) prior to imposing sentence.
{¶25} Here, the trial court did not impose community control sanctions. Rather, the court imposed a prison term of six years on each count. The court, therefore, had no duty to order a PSI.
{¶26} Regardless, the court ordered a PSI in this case. And the record demonstrates that the court did, in fact, consider the PSI prior to imposing a sentence. In considering the relevant sentencing factors under
{¶27} Accordingly, Paulino’s second assignment of error is overruled.
Presumption of Prison
{¶28} In his third assignment of error, Paulino alleges that the trial court erred when it found that Paulino had not overcome the presumption of prison.
{¶29} When reviewing felony sentences, the reviewing cоurt does not review the sentence for an abuse of discretion.
{¶30} A sentence is contrary to law if the sentence falls outside the statutory range for the particular degree of offense or if the trial court fails to consider the purposes and principles of felony sentencing set forth in
{¶31}
{¶32}
{¶34} Under certain circumstances, however, a trial court may depart from that presumption:
[T]he sentencing court may impose a community control sanction or a combination of community control sanctions instead of a prison term on an offender for a felony of the first or second degree * * * for which a presumption in favor of a prison term is specified as being applicable if it makes both of the following findings:
(a) A community control sanction or a combination of community control sanctions would adequately punish the offender and protect the public from future crime, because the applicable factors under [
R.C. 2929.12 ] indicating a lesser likelihood of recidivism outweigh the applicable factors under that section indicating a greater likelihood of recidivism.
(b) A community control sanсtion or a combination of community control sanctions would not demean the seriousness of the offense, because one or more factors under [
R.C. 2929.12 ] that indicate that the offender’s conduct was less serious than conduct normally constituting the offense are applicable, and they outweigh the applicable factors under that section that indicate that the offender’s conduct was more serious than conduct normally cоnstituting the offense.
{¶35} Accordingly, in order to overcome the presumption of prison, the trial court must make both of the above findings. State v. Reid, 8th Dist. Cuyahoga No. 103186, 2016-Ohio-7475, ¶ 15, citing State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, paragraph one of the syllabus. The finding requirements of
{¶36} In this case, Paulino does not claim that the trial court did not make sufficient findings. Rather, he essentially disagrees with how the court weighed and
{¶37} The trial court has a mandatory duty to “considеr” the statutory factors under
{¶38} Here, the record demonstrates that the trial court considered
You had multiple, multiple images and videos of children being sexually exploited. And that is harmful to everyone in the community, whether a
person is the perpetrator or here the onlooker. It may be in distance, in time and place and such, but using a computer, as you did, you were the onlooker to a child being victimized. And that’s harmful and it corrodes the safety net that we ought to afford our children in thе community.
Additionally, the court noted that there were no factors indicating Paulino’s likelihood of reoffending, and it found “positive things” about Paulino, such as his steady employment and testing negative for drugs.
{¶39} Ultimately, however, the court considered “everything together” and imposed prison. In specifically noting the presumption of prison, the court determined that “more than the minimum” was warranted because of the sheer number of videos, the child exploitation, the harm to the community, and the fact that the offenses occurred over a span of one year. Finally, the trial court stated in its sentencing entry that it considered the required statutory factors.
{¶40} To the extent Paulino disagrees with the court’s consideration of the sentencing factors or the greater weight it gave to the “more serious” factors than the mitigating factors, we have no jurisdiction for review. See State v. Switzer, 8th Dist. Cuyahoga No. 102175, 2015-Ohio-2954, ¶ 12. The trial court has the “‘discretion to dеtermine the weight to assign a particular statutory factor.’” Id., quoting State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000); see also
{¶41} In light of the foregoing, we find that the trial court considered all of the relevant statutory factors, and Paulino has not demonstrated by “clear and convincing evidence that the record does not support the sentence.” Marcum at ¶ 23. Accordingly, Paulino’s sentence was not contrary to law.
{¶42} Paulino’s third assignment of error is overruled.
{¶43} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant’s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
__________________________________________
TIM McCORMACK, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR