STATE OF OHIO, PLAINTIFF-APPELLEE vs. RAFAEL PEREZ, DEFENDANT-APPELLANT
No. 98417
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
March 28, 2013
2013-Ohio-1178
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-555340
BEFORE: McCormack, J., Celebrezze, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: March 28, 2013
Joseph F. Salzgeber
Foth & Foth Co. L.P.A.
11221 Pearl Road
Strongsville, OH 44136
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Andrew Rogalski
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
{¶1} Defendant-appellant, Rafael Perez (“Perez“), appeals his conviction and sentence, following a jury trial in the Cuyahoga County Court of Common Pleas. Perez was convicted of burglary, theft, and vandalism. The trial court sentenced Perez to four years in prison. For the reasons that follow, we affirm.
Substantive Facts and Procedural History
{¶2} This appeal is a companion case arising out of the same events contained in State v. Calimeno, 8th Dist. No. 98376, 2013-Ohio-1177, where Perez‘s codefendant, Angel Calimeno (“Calimeno” or “codefendant“), appealed from his conviction. For a recitation of the facts of this case, the reader is referred to the companion opinion rendered today. See Calimeno at ¶ 1-13.
{¶3} At the conclusion of the joint trial, the jury found Perez and Calimeno guilty on all counts. On May 11, 2012, the trial court held a sentencing hearing and ordered Perez to pay restitution in the amount of $1,000 and serve an aggregate four-year term of imprisonment.
{¶4} Perez now appeals, raising two assignments of error for review.
Assignments of Error
- There was insufficient evidence to support the jury‘s verdicts of “Guilty” as to the charged burglary, grand theft, and vandalism offenses, and those convictions are against the manifest weight of the evidence.
The prison sentence imposed on defendant-appellant for the second-degree felony burglary conviction was contrary to law where it was inconsistent with, and greater than, the prison sentence imposed upon the codefendant who was charged and convicted of the same offenses.
Law and Analysis
I. Manifest Weight and Sufficiency of the Evidence
{¶5} In his first assignment of error, Perez argues that his convictions are against the manifest weight of the evidence and are not supported by sufficient evidence. Specifically, Perez argues that there was no evidence that he was one of the persons inside the Wee residence and who perpetrated the burglary, vandalism, and grand theft.
{¶6} Perez‘s codefendant raises this argument in the companion case referenced above. In Calimeno, we conclude that the state presented sufficient evidence to support the jury‘s conviction on all counts. We further conclude that, in reviewing all of the evidence in the record and deferring to the jury‘s assessment of the credibility of the witnesses, we cannot say that the trier of fact lost its way and performed a miscarriage of justice in convicting Calimeno of burglary, theft, and vandalism. Because Perez‘s conviction stemmed from the same incident that led to Calimeno‘s conviction, we refer to ¶ 16-29 in Calimeno for our analysis on these claims, and similarly, we overrule Perez‘s first assignment of error. See Calimeno at ¶ 16-29.
{¶7} In his second assignment of error, Perez argues that the trial court erred when it sentenced him to four years of prison for the burglary conviction. Specifically, Perez argues that the four-year prison sentence is inconsistent and contrary to law where his codefendant received a three-year sentence for the same offense.
{¶8} Appellate courts must apply a two-step process in reviewing felony sentences. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. First, the reviewing court must examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence in order to determine whether the sentence is clearly and convincingly contrary to law. Id. at ¶ 4. If this first prong is satisfied, and the sentence is not “clearly and convincingly contrary to law,” then this court must determine whether the trial court abused its discretion. Id. If, for example, the trial court‘s sentence is outside of the statutory range and, therefore, is clearly and convincingly contrary to law, this court‘s review has ended and the sentence cannot stand. Id. at ¶ 15.
{¶9} According to
The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.
{¶10} Moreover,
{¶11} Additionally, a felony sentence shall be “commensurate with and not demeaning to the seriousness of the offender‘s conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.”
{¶12}
{¶14} Perez and Calimeno were sentenced on May 11, 2012, for burglary, a second degree felony, among other charges. At the sentencing hearing, the trial court properly considered the purposes and principles of felony sentencing under
{¶15} The trial court also referred to the presentence investigation report (“PSI“) and indicated that there was nothing substantial to report concerning the prior criminal history of either defendant. With respect to Perez, however, the court noted some differences. The PSI stated that Rafael Perez‘s true identity is Farley Efron Garcia Conseco. There is also information in the PSI that associates Perez, a.k.a. Farley Efron Garcia Conseco, with criminal gangs from the country of Columbia. Furthermore, the
{¶16} In light of the foregoing facts, we do not find that Perez‘s sentence on the burglary charge is clearly and convincingly contrary to law. In the first place, the four-year sentence imposed upon Perez was within the statutory guidelines for a second degree felony. Additionally, the trial court properly considered the relevant factors outlined in
{¶17} Because we find that Perez‘s sentence was not clearly and convincingly contrary to law, we must now determine whether the trial court abused its discretion in imposing the four-year sentence. An abuse of discretion “implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶19} 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
TIM McCORMACK, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and KENNETH A. ROCCO, J., CONCUR