STATE OF OHIO v. JAEN RAIMUNDY-TORRES
No. 101490
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
April 16, 2015
2015-Ohio-1450
Kilbane, P.J., S. Gallagher, J., Blackmon, J.
STATE OF OHIO, PLAINTIFF-APPELLEE vs. JAEN RAIMUNDY-TORRES, DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-12-560319-A and CR-13-570741-A
Judith M. Kowalski
333 Babbitt Road
Suite 323
Euclid, Ohio 44123
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Edward R. Fadel
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Jaen Raimundy-Torres (“Raimundy-Torres”), appeals from his six-year sentence for drug trafficking, in violation of
{¶2} The record reflects that on April 4, 2012, Raimundy-Torres was charged by an information in Cuyahoga C.P. No. CR-12-560137 for drug trafficking, in violation of
{¶4} Following his indictment in Case No. CR-13-570741, Raimundy-Torres was charged with violating the terms of his community control sanctions in his prior cases. Several months later, on April 30, 2013, Raimundy-Torres entered into a plea agreement in Case No. CR-13-570741, whereby, in exchange for his guilty plea to Count 6, first-degree felony drug trafficking, and its specifications, the state dismissed the remaining charges. At the conclusion of the plea proceedings, the trial court ordered a presentence investigation report (“PSI”).
Assignment of Error I
The trial court abused its discretion and erred to the prejudice of appellant by sentencing him to a total of six years’ imprisonment in that the prison term is excessive for the purposes set forth in Ohio Revised Code section 2929.11(A) and (B), and is not necessary to protect the public. (Tr. 47-82.)
Assignment of Error II
The trial court abused its discretion to the prejudice of the appellant by imposing a six-year prison term, when consideration of the factors in R.C. 2929.12 tended to favor a lesser sentence. (Tr. 47-82.)
Assignment of Error III
The trial court erred to the prejudice of the defendant by imposing a fine of $10,000 when appellant is indigent and has no means to pay. (Tr. 75-82.)
{¶6} Raimundy-Torres argues that in imposing a six-year prison term, the trial court failed to properly consider the purposes and principles of sentencing set forth in
{¶7}
{¶8}
{¶10} Accordingly, the first and second assignments of error are without merit.
Imposition of Fine
{¶11} Pursuant to
If an offender alleges in an affidavit filed with the court prior to sentencing that the offender is indigent and unable to pay the mandatory fine and if the court determines the offender is an indigent person and is unable to pay the mandatory fine described in this division, the court shall not impose the mandatory fine upon the offender.
{¶12} Accordingly, imposition of the mandatory fine is required unless: (1) the offender files an affidavit of indigence prior to sentencing, and (2) the trial court finds that the offender is an indigent person and is unable to pay the mandatory fines. State v.Gipson, 80 Ohio St.3d 626, 634, 1998-Ohio-659, 687 N.E.2d 750;
{¶13} In this case, the trial court noted that it received defendant‘s affidavit of indigency on the day of sentencing. The court concluded, however, that Raimundy-Torres is not indigent and stated:
[Y]ou were caught with $3,300 some odd dollars in the last case. Not as much in this case. But you lost your car and some other accoutrements of the drug trade[,] and you have a retained attorney for all three of these cases so I‘m going to find you are not indigent, that you have the resources available to you with the support of your family and whatever resources you‘re not reporting here because every indiction is that you are able to garner resources. So I‘m going to impose the minimum mandatory find [of] $10,000 for the felony of the first degree.
{¶14} In accordance with the foregoing, the record supports the conclusion that the Raimundy-Torres had the present and future ability to pay the mandatory fine so we find
{¶15} Judgment is 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
PATRICIA A. BLACKMON, J., CONCUR