State of Ohio v. Pablo Trevino
Court of Appeals No. E-13-042
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
August 1, 2014
[Cite as State v. Trevino, 2014-Ohio-3363.]
Trial Court No. 2012-CR-063
Kevin J. Baxter, Erie County Prosecuting Attorney, Mary Ann Barylski and Frank Romeo Zeleznikar, Assistant Prosecuting Attorneys, for appellee.
Geoffrey L. Oglesby, for appellant.
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OSOWIK, J.
{¶ 1} This is an appeal from a June 27, 2013 sentencing judgment of the Erie County Court of Common Pleas, which found appellant guilty of four counts of sexual battery against his two minor stepdaughters. On February 8, 2012, appellant, Pablo Trevino, was indicted by the Erie County Grand Jury in a six-count indictment.
{¶ 3} On April 25, 2013, pursuant to a plea agreement, appellant pled guilty to four reduced counts of sexual battery, in violation of
{¶ 4} Appellant sets forth the following two assignments of error:
- The trial court erred by running Counts 1 and 2 consecutive with Count 1 is subsumed into Count 2 and all the Defendant‘s acts in Counts 4 and 6 and subsumed into one act.
The Trial Court Erred by Running all the Counts Consecutive when the Court improperly applied and violated the spirit of R.C. 2929.141 [sic] (4).
{¶ 5} The following undisputed facts are relevant to this appeal. This case arises from appellant‘s unlawful sexual interactions over many years with his two young stepdaughters. Appellant initiated the conduct with the two girls when each reached approximately eight years of age.
{¶ 6} Appellant‘s older stepdaughter ultimately disclosed the illicit conduct to her mother some years later. Subsequently, the victim conveyed to the police that when she was around eight years of age, appellant would come into her bedroom during the night and perform oral sex upon her. Appellant admonished his stepdaughter not to tell her mother about the incidents. The victim unsuccessfully attempted to resist appellant‘s nighttime visits. She further stated that these incidents always occurred when her mother was not at home.
{¶ 7} When the victim reached approximately 12 or 13 years of age, appellant began forcing her to perform oral sex upon him in addition to performing oral sex upon her. As he escalated the scope of his unlawful conduct, appellant attempted vaginal intercourse with the victim. She resisted and warned him she was going to tell her mother if that occurred. The sexual abuse lasted for approximately seven years.
{¶ 8} Appellant‘s younger stepdaughter similarly disclosed during the investigation underlying this matter that when she was approximately eight years of age
{¶ 9} On April 25, 2013, appellant pled guilty to four reduced counts of sexual battery, in violation of
{¶ 10} In the first assignment of error, the crux of appellant‘s contention is that the trial court committed plain error in failing to merge the sexual battery offenses for both victims. We are not persuaded. We note that the issue of allied offenses and merger was not raised before the trial court. Of greater relevance, the offenses stemmed from completely different incidents covering separate time periods.
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{¶ 12} Appellant‘s failure to raise a claim that the sexual battery offenses are allied offenses of similar import before the trial court operates as a waiver of appellant‘s right to raise the issue on appeal. State v. Edwards, 6th Dist. Lucas No. L-08-1408, 2010-Ohio-2582, ¶ 8 (citations omitted). Thus, “[a]n error not raised in the trial court must be plain error in order for an appellate court to reverse.” Id., citing State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978).
{¶ 13} To be considered plain error, appellant bears the burden of demonstrating that the outcome of the trial clearly would have been different but for the error and taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. Id.
{¶ 15} Importantly, as applied to the present case, the multiple rape offenses do not merge because the record shows that appellant possessed a separate specific intent to commit each offense and because each of the two victims suffered a separate risk of harm from each rape. See also State v. Davic, 10th Dist. Franklin No. 11AP-555, 2012-Ohio-952, ¶ 16 (holding multiple rape offenses do not merge when the appellant was alternating between cunnilingus and digital penetration because each required a separate specific intent and the victim suffered a separate risk of harm from each rape).
{¶ 16} Here, an intervening act separated each of appellant‘s multiple rapes because he was alternating between forcing his performance of cunnilingus upon the victims, forcing the victims to perform oral sex on him, and also forcing one of the two victims to engage in vaginal intercourse with him. Thus, each rape count constituted a separate offense committed with a separate specific intent and causing separate harm to each of the victims.
{¶ 17} Accordingly, we find that the trial court did not err in its treatment of the separate counts for sentencing purposes. Wherefore, we find appellant‘s first assignment of error to be not well-taken.
{¶ 19}
An appellate court may increase, reduce, modify, or vacate and remand a dispute[d] sentence if it clearly and convincingly finds either of the following:
(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 section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
Tammerine at ¶ 11, quoting
{¶ 20} However, the approach articulated in State v. Kalish can be used in the context of determining whether a sentence is “clearly and convincingly contrary to law”
{¶ 21} In applying the controlling
{¶ 22} In conjunction with the above, the record also reflects that the trial court properly considered the record, oral statements and sentencing report, as well as the principles and purposes of sentencing under
{¶ 23} Next, in connection to consideration of any
{¶ 24} We review the imposition of consecutive sentences using the standard of review set forth in
{¶ 25}
If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(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, or 2929.18 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.
{¶ 26} The trial court “is not required to recite any ‘magic’ or ‘talismanic’ words when imposing consecutive sentences provided it is ‘clear from the record that the trial court engaged in the appropriate analysis.‘” State v. Wright, 6th Dist. Lucas Nos. L-13-1056, L-13-1057, L-13-1058, 2013-Ohio-5903, ¶ 33, quoting State v. Murrin, 8th Dist. Cuyahoga No. 83714, 2004-Ohio-3962, ¶ 12. “While the trial court need not quote the statute verbatim, [the
{¶ 27} Thus,
{¶ 28} As to the first required statutory finding for consecutive sentences, the judgment entry states that the trial court “considered and weighed the principles and purposes of sentencing (O.R.C. 2929.11 / §2929.21 et.. seq..).”
{¶ 29} As to the second required statutory finding for consecutive sentencing, the judgment entry expressly states that the trial court “considered, weighed, and made findings for * * * Consecutive sentence[s] (O.R.C. §2929.12 / §2929.13 / 2929.14 et.. seq..).” The second required finding for consecutive sentencing is satisfied.
{¶ 30} With respect to the third statutory requirement for consecutive sentencing, the trial court expressly found at sentencing pursuant
{¶ 31} Contrary to appellant‘s contention that his sentence is improper, the record shows the disputed sentence to be wholly lawful and in compliance with the statutory requirements as part of
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J.
JUDGE
Arlene Singer, J.
Thomas J. Osowik, J.
JUDGE
CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.