STATE OF OHIO, Plaintiff-Appellee, - vs - GILBERTO RANGEL, Defendant-Appellant.
CASE NO. 2015-L-119
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
October 3, 2016
2016-Ohio-7148
THOMAS R. WRIGHT, J.
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 14 CR 000846. Judgment: Affirmed.
Pamela D. Kurt, 30432 Euclid Avenue, Suite 101, Wickliffe, OH 44092 (For Defendant-Appellant).
OPINION
THOMAS R. WRIGHT, J.
{¶1} Appellant, Gilberto Rangel, appeals his consecutive sentences on two counts of aggravated vehicular assault and one count of driving while under the influence of alcohol. He contends that the trial court did not make sufficient findings justifying the duration of his sentence, the OVI count should have merged with the remaining two counts, and he was denied effective assistance of counsel. For the
{¶2} Appellant‘s convictions stem from an October 19, 2014 motor vehicle accident in Painesville, Ohio. At approximately 5:00 p.m., appellant was driving his pickup truck west on Kerr Avenue when he attempted to turn left onto Richmond Street. As he was completing the turn, he hit a minivan traveling north on Richmond. After the police arrived at the scene, appellant failed field sobriety tests and admitted to having a few beers immediately prior to driving. Appellant agreed to take a breathalyzer and, the concentration of alcohol in his breath was 0.184.
{¶3} A family of four was in the minivan. The father injured his shoulder and sustained serious lacerations to his face and head. One of the children suffered a broken leg requiring two surgeries. The mother and the second child did not sustain serious physical injuries, but experienced psychological harm. In all, the family‘s medical bills exceed $200,000.
{¶4} Appellant‘s case ultimately was bound over to the Lake County Court of Common Pleas. In August 2014, the state filed an information, charging appellant with two counts of aggravated vehicular assault, a third-degree felony under
{¶5} Appellant pleaded guilty to all three charges as stated in the information. The trial court accepted the pleas and ordered a presentencing investigation. In
{¶6} Appellant appeals asserting three assignments of error:
{¶7} “[1.] The appellant was denied due process by a sentence contrary to Ohio law and the state and federal constitutions including disproportionate prison terms and an order that all counts be served consecutively.
{¶8} “[2.] The trial court erred in sentencing the appellant to separate consecutive prison terms for OVI and aggravated vehicular assault as these specific crimes are allied offenses of similar import should have merged at the very least.
{¶9} “[3.] The appellant was denied effective assistance of counsel contrary to Ohio law and the state and federal constitutions due to his ineffective assistance of trial counsel.”
{¶10} Under his first assignment, appellant raises two arguments contesting the length of his sentence. First, he contends that the trial court erred in imposing a thirty-month prison term on each of the two aggravated vehicular assault charges. According to him, the trial court‘s decision was not guided by the statutory principles and purposes of felony sentencing, as delineated in
{¶11} An appellate court‘s review of a felony sentence is controlled solely by the
{¶12} “The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
{¶13} “The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court‘s standard of review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
{¶14} “(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section
2929.13 , division (B)(2)(e) or (C)(4) of section2929.14 , or division (I) of section2929.20 of the Revised Code , whichever, if any, is relevant;{¶15} “(b) That the sentence is otherwise contrary to law.”
{¶16} Under this standard, an appellate court must uphold the imposed felony sentence unless: (1) the trial court‘s findings on any applicable mandatory requirements are clearly and convincingly not supported by the record; or (2) the sentence is clearly and convincingly not consistent with other pertinent aspects of the law. State v. Talley, 11th Dist. Trumbull No. 2014-T-0098, 2015-Ohio-2816, ¶15, citing State v. Robinson, 1st Dist. Hamilton No. C-140043, 2015-Ohio-773, ¶38. Under the second prong of the standard, the length of any sentence for an individual offense is not contrary to law if the term falls within the statutory range for that particular offense and the record shows the
{¶17} Appellant was convicted of two third-degree felonies under
{¶18} At the sentencing hearing, the trial court expressly stated that it considered the general purposes and principles of felony sentencing, as provided in
{¶19} Appellant argues that the trial court‘s citation to
{¶20} Appellant does not contest any of these findings. The findings sufficiently warrant two thirty-month prison terms as necessary to protect the public and to punish. According, the record does not establish that the imposition of the thirty-month terms is clearly and convincingly contrary to law.
{¶21} As part of his challenge to the length of the terms for aggravated vehicular assault, appellant contends that the trial court did not engage in a proportionality analysis, as required under
{¶22} Under the second argument in his first assignment, appellant submits that the trial court failed to make requisite findings for imposing consecutive prison terms.
{¶23} The imposition of consecutive prison terms for multiple felony offenses is governed by
{¶24} “It is important to note ‘that the clear and convincing standard used by
{¶25} Pursuant to
{¶26} “(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.
{¶27} “(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.”
{¶28} The trial court expressly found all the prongs satisfied, prong three being satisfied by two of the three alternatives.
{¶29} The court also made specific factual findings regarding the seriousness of appellant‘s conduct, the seriousness of the injuries sustained by the family, and
{¶30} In the absence of conflicting evidence, appellant fails to clearly and convincingly demonstrate that the trial court‘s findings under
{¶31} Under his next assignment, appellant asserts that the drunk driving count should have been merged into the two aggravated vehicular assault counts because the two crimes are allied offenses of similar import. However, in State v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, ¶11-16, the Supreme Court of Ohio rejected this argument, concluding that aggravated vehicular assault and driving while under the influence of alcohol, pursuant to
{¶32} Under his third assignment, appellant claims ineffective assistance of counsel. First, he contends that counsel should not have apologized to the victims as part of his argument to the trial court during the sentencing hearing:
{¶33} “First, I just want to apologize to the family. I have a wife and two kids as
well, a family. I don‘t know how to express my sympathies with you and how you guys all – I have a daughter named Olivia and her accident, her injuries, I feel terrible. {¶34} “My family, years ago, we were victims of a drunk driving accident as well. My older brother and sister were involved in an accident. I was in another car with my parents, we saw the whole thing. Thankfully we had the same type of injuries that you guys suffered. I know from my prospective I‘m very sorry and I know – and I know somewhat what you‘re going through as a parent and a victim.
{¶35} “I know that [appellant] feels the same way. He is a parent of two kids, same. What he did was awful. And it‘s an accident. It‘s not malicious. It was an accident. And I just want to express to you again my apologies. But I just want you to know and this Court to know, I don‘t want to make you guys feel bad for what‘s happened here today, because [appellant] is here to accept responsibility for what he did and express his remorse as well. So, I don‘t want you to – I don‘t want you to feel bad for what‘s happening today, because honestly [appellant], he‘s here, he‘s taking responsibility for it.”
{¶36} “‘In evaluating ineffective assistance of counsel claims, Ohio appellate courts apply the two-part test enunciated by the United States Supreme Court in Strickland v. Washington, (1984), 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 * * *. See, In re Rogue, 11th Dist. No. 2005-T-0138, 2006-Ohio-7007, at ¶11. * * * First, it must be determined that counsel‘s performance fell below an objective standard of reasonableness. Id. Second, it must be shown that prejudice resulted. Id. “Prejudice exists when ‘the result of the trial would have been different’ but for counsel‘s ineffectiveness.” Id.’ State v. Woodard, 11th Dist. No. 2009-A-0047, 2010-Ohio-2949,
{¶37} “In applying the foregoing standard, a ‘reviewing court indulges a strong presumption that counsel‘s conduct is within the wide range of reasonable professional representation. Strickland, [466 U.S. at 689.] An attorney‘s arguably reasoned strategic or tactical decisions do not generally constitute ineffectiveness. State v. Phillips, 74 Ohio St.3d 72, 85, 1995-Ohio-171, 656 N.E.2d 643, * * *.’ State v. DelMonico, 11th Dist. No. 2003-A-0022, 2005-Ohio-2902, ¶13.” State v. Allen, 11th Dist. Lake No. 2011-L-157, 2013-Ohio-434, ¶15-16.
{¶38} At the close of his sentencing argument before the trial court, trial counsel requested that a total sentence of only two years be imposed. In support of the request, counsel emphasized three points: (1) appellant admitted his guilt immediately following the accident; (2) he felt extreme remorse for the injuries the victims sustained; and (3) even prior to sentencing, he had taken steps to overcome his drinking problems so that he would never again drive while under the influence. Therefore, by asserting his own apology for the accident, trial counsel was simply adding emphasis to the first two points of the argument; i.e., that appellant realized what he did was wrong and truly felt sorry for the injuries he caused.
{¶39} In adding his own apology, trial counsel made a strategic decision intended to reinforce the sentencing argument. This decision falls within the range of acceptable professional representation.
{¶40} Appellant also claims that trial counsel failed to present evidence regarding certain mitigating factors. Yet, in asserting this argument, appellant does not expressly state what other evidence should have been submitted. Instead, he states
{¶41} The transcript shows that, at times, the court reporter could not understand what appellant was saying when he spoke on his own behalf. However, nothing indicates that appellant experienced any problems in speaking with his counsel and formulating his strategy for the sentencing hearing. Furthermore, not knowing what could have been presented, we cannot state trial counsel was ineffective. Appellant‘s third assignment of error is not well taken.
{¶42} The judgment of the Lake County Court of Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, P.J., concurs,
COLLEEN MARY O‘TOOLE, J., concurs in judgment only.