STATE OF OHIO v. ALFREDO REGALO
No. 108430
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
March 12, 2020
[Cite as State v. Regalo, 2020-Ohio-917.]
JUDGMENT: AFFIRMED IN PART; VACATED IN PART; REMANDED
RELEASED AND JOURNALIZED: March 12, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-630397-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Marcus A. Henry, Assistant Prosecuting Attorney, for appellee.
John P. Parker, for appellant.
EILEEN A. GALLAGHER, J.:
{¶ 1} Defendant-appellant Alfredo Regalo appeals his consecutive sentences after he pled guilty to one count of sexual battery and two counts of gross sexual imposition. Because we clearly and convincingly find that the record does
Procedural History and Factual Background
{¶ 2} On July 10, 2018, a Cuyahoga County Grand Jury indicted Regalo on one count of rape, one count of kidnapping and two counts of gross sexual imposition. The charges related to Regalo’s alleged sexual assault of two children several years earlier. At the time of the abuse, Regalo was in a relationship with the children’s mother and had a son with her. That relationship ended in 2017.
{¶ 3} In June 2018, during an interview with a nutritionist and a psychologist at a “Be Well” appointment, the children reported that they had been abused by Regalo three to four years earlier (when the first victim was eight or nine years old and the second victim was six years old). The victims stated that Regalo touched them inappropriately when their mother was at work or out running errands. One victim stated that Regalo had placed his hand under her shirt and touched her chest, touched her buttocks and digitally penetrated her. She stated that this happened up to five times. The second victim, her sister, stated that Regalo had touched her breasts and vaginal area. The children’s mother stated that she was unaware this had happened to her daughters because they had never mentioned it to her and were both straight-A students and “very happy kids.”1
{¶ 5} A plea agreement was reached and, on November 1, 2018, Regalo pled guilty to an amended count of sexual battery in violation of
{¶ 6} After accepting Regalo’s guilty pleas, the trial court referred Regalo to the Cuyahoga County Probation Department for a presentence investigation and report.
{¶ 7} On November 20, 2018, the trial court conducted a sentencing hearing. After reviewing the presentence investigation report and hearing from Regalo, defense counsel and the state, the trial court sentenced Regalo to four years in prison on each count. The trial court ordered that the four-year sentences on
{¶ 8} At the sentencing hearing, the trial court made the following findings in support of its imposition of consecutive sentences:
I am sentencing you to a consecutive prison sentence because I find it’s necessary to protect the community and to punish you, and it’s not disproportionate. And I find that the harm is so great or unusual that a single term did not adequately reflect the seriousness of your conduct. There’s multiple victims and these sex offenses that you committed upon these victims happened on multiple occasions and these are children who you violated.
At least two — also I find that 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 your conduct. Obviously these children will have to live with this emotion and this harm that you caused them for the rest of their lives. So that’s why I find multiple or consecutive sentences are appropriate in this case. Multiple offenses upon them and multiple victims.
The trial court set forth these findings in its November 27, 2018 sentencing journal entry.
{¶ 9} Regalo appealed, raising the following single assignment of error for review:
The sentence imposed is contrary to law and/or not supported by the record and this Court must take action under State v. Jones, 2018-Ohio-498 (En Banc).
{¶ 10} In this appeal, Regalo challenges only the trial court’s imposition of consecutive sentences. There are two ways that a defendant can challenge consecutive sentences on appeal:
“First, the defendant can argue that consecutive sentences are contrary to law because the court failed to make the necessary findings required by
R.C. 2929.14(C)(4) . SeeR.C. 2953.08(G)(2)(b) ; State v. Nia, 8th Dist. Cuyahoga No. 99387, 2014-Ohio-2527, 15 N.E.3d 892, ¶ 16. Second, the defendant can argue that the record does not support the findings made underR.C. 2929.14(C)(4) . SeeR.C. 2953.08(G)(2)(a) ; Nia.”
State v. Tidmore, 8th Dist. Cuyahoga No. 107369, 2019-Ohio-1529, ¶ 16, quoting State v. Johnson, 8th Dist. Cuyahoga No. 102449, 2016-Ohio-1536, ¶ 7.
{¶ 11} To impose consecutive sentences, a trial court must find that (1) consecutive sentences are necessary to protect the public from future crime or to punish the offender, (2) consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public and (3) at least one of the following applies:
(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.
{¶ 12} The trial court must make the requisite findings in support of the imposition of consecutive sentences at the sentencing hearing and incorporate those findings into its sentencing journal entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus.
{¶ 13} In this case, the trial court found that (1) consecutive sentences were necessary to protect the public from future crime or to punish Regalo, (2) consecutive sentences were not disproportionate to the seriousness of Regalo’s conduct and to the danger he poses to the public and (3) 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.
{¶ 14} An appellate court must conduct a “meaningful review” of a trial court’s decision to impose consecutive sentences. See, e.g., State v. Peters, 8th Dist. Cuyahoga No. 108068, 2019-Ohio-4461, ¶ 30; State v. Johnson, 8th Dist. Cuyahoga No. 97579, 2012-Ohio-2508, ¶ 6.
{¶ 15} The appellate court “may increase, reduce, or otherwise modify a sentence” or it “may vacate the sentence and remand the matter to the sentencing court for resentencing” if it “clearly and convincingly finds” that either (1) “the record does not support the sentencing court’s findings” under
{¶ 16} Regalo does not dispute that the trial court made all of the requisite findings supporting the imposition of consecutive sentences. Rather, he contends that his consecutive sentences must be vacated or modified to concurrent sentences
{¶ 17} There is no question that this case involves serious crimes against children. Nevertheless, we cannot ignore our obligation under
{¶ 18} Following a thorough, meaningful review of the record, we clearly and convincingly find that there is nothing in the record that supports the trial court’s findings that consecutive sentences are necessary to protect the public from future crime and are not disproportionate to the danger Regalo poses to the public.
{¶ 19} The record reflects that, at the time of his sentencing, Regalo was 52 years of age. Regalo is a citizen of El Salvador who came to the United States in 1998 or 1999 on a “work permit.” When he was arrested, Regalo was employed and had been working as a cook and in factories. He had no alcohol or drug problems. Acknowledging that he had five unspecified traffic convictions, Regalo had no criminal record. He is not alleged to have engaged in any criminal conduct prior to the commission of the offenses of which he was convicted in this case and, although these offenses were not reported until 2018, several years after they occurred,
{¶ 20} We sustain Regalo’s assignment of error.
{¶ 21} We vacate the consecutive aspect of Regalo’s sentences and remand for the trial court to resentence Regalo to concurrent terms, i.e., to an aggregate sentence of four years in prison. We affirm in all other respects.
{¶ 22} Judgment affirmed in part; vacated in part; remanded.
It is ordered that appellant recover from appellee the 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 Cuyahoga County Court of Common Pleas to carry out this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
PATRICIA A. BLACKMON, P.J., CONCURS;
FRANK D. CELEBREZZE, JR., J., DISSENTS WITH SEPARATE OPINION
STATE OF OHIO v. ALFREDO REGALO
No. 108430
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
March 12, 2020
2020-Ohio-917
{¶ 23} I respectfully dissent from the majority’s holding that the record clearly and convincingly does not support the first two
{¶ 24} Regarding the first finding, the majority clearly and convincingly finds that consecutive sentences are not necessary to protect the public from future crime. The first finding requires the trial court to find that consecutive sentences are “necessary to protect the public from future crime or to punish the offender.” (Emphasis added.) In my view, for the reasons set forth below, I would find that consecutive sentences are, in fact, necessary in this case to punish Regalo.
{¶ 25} Regarding the second finding, the majority clearly and convincingly finds that consecutive sentences are disproportionate to the danger Regalo poses to the public. The second finding also requires the trial court to consider whether consecutive sentences are not disproportionate to the seriousness of Regalo’s conduct.
{¶ 26} The majority does not address the third finding under
{¶ 27} Regalo also relies on this assertion in support of his challenge to the first and second consecutive sentence findings. In challenging the second finding, Regalo argues that because the victims are “very happy” and “straight A” students,
{¶ 28} Initially, it was the mother of the victims, not the victims themselves, that indicated that the victims were very happy and straight-A students. As the majority recognizes, this statement was made by the victims’ mother, and in the context of the victims’ mother not being aware of the abuse at the time it was disclosed in June 2018.
{¶ 29} The mother’s statement about the victims’ happiness and performance in school is hardly evidence that Regalo’s actions did not cause long-lasting damage to the victims. The record is devoid of any statement made by the victims regarding the harm caused by Regalo’s violent actions. The prosecutor explained that the victims and their mother chose to not attend the sentencing hearing. The prosecutor asserted, however, that the matter was “very traumatic” for both the victims and their mother. (Tr. 54.)
{¶ 30} In imposing consecutive sentences, the trial court stated, in relevant part,
And I find that the harm is so great or unusual that a single term did not adequately reflect the seriousness of your conduct. There’s multiple victims and these sex offenses that you committed upon these victims happened on multiple occasions and these are children who you violated.
At least two — also I find that 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 your conduct. Obviously these children will have to live with this emotion and this harm that you caused them for the rest of their lives. So that’s why I find multiple or consecutive sentences are appropriate in this case. Multiple offenses upon them and multiple victims.
(Tr. 61.)
{¶ 31} The majority concludes that the record does not clearly and convincingly support the trial court’s findings that consecutive sentences are necessary to protect the public from future crime and are not disproportionate to the danger Regalo poses to the public. I respectfully disagree.
{¶ 32} Aside from the fact that Regalo committed serious felonies against children, the felonies were committed against the very children that Regalo was tasked with protecting. Regalo’s role in the victims’ lives was that of a stepfather. As such, he was in a position of trust. At the time of the abuse, the older victim was eight or nine years old, and the younger victim was six. They were vulnerable, and Regalo took advantage of their vulnerability.
{¶ 33} When their mother was unable to care for the victims, the girls were left in Regalo’s care. Not only did Regalo fail to care for and protect the victims while they were in his care, he exploited his position of trust and parental role in committing the offenses. Under these circumstances, I would find that consecutive sentences are warranted to punish Regalo.
{¶ 34} According to the presentence investigation report, the older victim asserted that Regalo abused her approximately five times. She explained that she did not report the abuse for three years because “she was scared that something bad
{¶ 35} Regalo showed no remorse whatsoever and failed to accept any responsibility for his actions. He denied any wrongdoing during his competency evaluation and presentence investigation report. During the sentencing hearing, defense counsel asserted that Regalo “is going to admit and accept full responsibility for what he did in court today.” (Tr. 49.) Regalo did not express any remorse or accept responsibility in his brief statement at sentencing. The trial court was particularly concerned by the information in the presentence investigation report:
Well, Mr. Regalo, I’ve had an opportunity to review your presentence investigation report and it’s very, very, very concerning to me. These children were six and eight years old or nine years old when you violated them. And you were a stepfather to them, you were in a position of trust and that’s what your responsibility was to them. And it sounds to me that when their mother was at work or running errands that you would be home with the girls, and at that time you would violate them.
And children, being six and eight years old or nine years old, are extremely vulnerable. They’re not able to take care of themselves. They’re not able to be left alone by themselves. And you were there to be the one to supposedly protect them, and instead you violated them. Not just once or twice. It appears that it was multiple times to both girls. And, now, the lasting effect on each of them is real and they have to live their lives with this and that’s reprehensible. These are children.
(Tr. 55.) The trial court continued,
Now, I’ve had an opportunity to hear from you, hear from your lawyer, read your presentence investigation report, hear from the State. And
as I’ve said you violated small children, six years old, eight-year-old, eight or nine-year-old, multiple children and it appears over a period of time. As I’ve already said, you were in a position of trust, to protect them, to make sure that no one harmed them, and instead you harmed them. And as I also also said, they now have to live with this for the rest of their life and have to deal with the emotions involved with being victims of sex offenses.
(Tr. 59.)
{¶ 36} Finally, the arguments presented by Regalo in this appeal, particularly that his actions did not cause any long-lasting damage to the victims, indicate that he continues to minimize the severity of his actions.
{¶ 37} For all of these reasons, I respectfully dissent. After reviewing the record, I cannot clearly and convincingly find that the record fails to support the trial court’s findings under