Opinion
No. 105952
04-05-2018
STATE OF OHIO PLAINTIFF-APPELLEE v. CARMELO GONZALEZ DEFENDANT-APPELLANT
ATTORNEY FOR APPELLANT Ruth R. Fischbein-Cohen 3552 Severn Road, #613 Cleveland, Ohio 44118 ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: John Farlely Hirschauer Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-16-612666-A BEFORE: Jones, J., Blackmon, P.J., and Laster Mays, J.
ATTORNEY FOR APPELLANT
Ruth R. Fischbein-Cohen
3552 Severn Road, #613
Cleveland, Ohio 44118
ATTORNEYS FOR APPELLEE
Michael C. O'Malley
Cuyahoga County Prosecutor BY: John Farlely Hirschauer
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113 LARRY A. JONES, SR., J.:
{¶1} Defendant-appellant Carmelo Gonzalez appeals his sentence, which was imposed after his plea to one count each of breaking and entering and vandalism. Both charges were fifth-degree felonies. For the reasons that follow, we affirm.
{¶2} In January 2017, Gonzalez was charged in a four-count indictment as follows: two counts of breaking and entering, one count of theft, and one count of vandalism. The charges resulted after Gonzalez and his codefendant Marisol Gonzalez broke into a Tremont-area restaurant and stole three Apple ipads, a Samsung tablet, and two cash register draws containing approximately $400. The cash registers were physically "ripped out" of their location. The defendants' actions were captured on the restaurant's surveillance camera.
{¶3} In May 2017, Gonzalez pled guilty to one count each of breaking and entering and vandalism; the remaining counts were nolled. Several days after his plea, Gonzalez was sentenced. Earlier that same day, Gonzalez was sentenced in an unrelated case, Cuyahoga County C.P. No. CR-16-614114.
{¶4} At sentencing in this case, the trial court imposed a 12-month prison term on each of the two counts, to run concurrently. However, the court ordered the sentence in this case to run consecutively to the sentence on the other case. Gonzalez now appeals and raises the following assignments of error for our review:
I. It was error to sentence Carmelo Gonzalez to maximum and consecutive sentences.
II. It was error to separately sentence Carmelo Gonzalez.
III. It was error not to give Carmelo Gonzalez credit for time served.
Maximum Sentence
{¶5} In his first assignment of error, Gonzalez challenges the trial court's imposition of maximum, consecutive sentences. We consider each sentence in turn.
{¶6} We review felony sentencing under the standard of review set forth in R.C. 2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22. R.C. 2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence and remand for resentencing where we clearly and convincingly find that either the record does not support the sentencing court's findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.
{¶7} As long as the sentence is within the statutory range for the offense, and the court considers both the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the seriousness and recidivism factors set forth in R.C. 2929.12, a trial court's imposition of a maximum prison term for a felony conviction is not contrary to law. State v. Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016-Ohio-5234, ¶ 10, 16. Gonzalez pled to two fifth-degree felonies; the sentencing range for a felony of the fifth degree is 6 to 12 months. R.C. 2929.14(A)(5). The trial court sentenced him to 12 months on each count; it therefore sentenced Gonzalez to the maximum sentence for each of his two convictions.
{¶8} Upon review, the trial court considered both the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the seriousness and recidivism factors set forth in R.C. 2929.12. Thus, the sentence was not contrary to law, and the imposition of maximum terms was not error.
Consecutive Sentences
{¶9} R.C. 2929.14(C)(4) provides that a trial court may impose consecutive sentences if the court finds that the consecutive service is (1) necessary to protect the public from future crime or to punish the offender, and (2) that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public. Additionally, the trial court must find that 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, 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.
{¶10} In State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d, the Ohio Supreme Court held that: "[i]n order to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing entry, but it has no obligation to state reasons to support its findings." Id. at syllabus.
{¶11} In sentencing Gonzalez, the trial court stated that his record was "deplorable," and included numerous convictions for drug possession, attempted burglary, grand theft of a motor vehicle, driving under the influence, receiving stolen property, carrying a concealed weapon, theft, burglary, and identity theft. He also had numerous misdemeanor convictions. The court found the following:
You committed all of those crimes. You've been to prison, and I find it is necessary to give you a consecutive sentence [to the sentence you received earlier today] because it is necessary to protect the public and to punish you. It's not disproportionate given your record and given other sentences that are handed down in this court, as well as other courts in this state. And I find further that your criminal history shows that consecutive terms are needed to protect the public.
{¶12} Further, the trial court's sentencing judgment entry states the following:
The court imposes terms consecutively finding that consecutive service is necessary to protect the public from future crime or to punish defendant; that the consecutive sentences are not disproportionate to the seriousness of defendant's conduct and to the danger defendant poses to the public; and that defendant's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by defendant.
{¶13} On this record, the trial court properly sentenced Gonzalez to consecutive sentences.
{¶14} In light of the above, the trial court's imposition of maximum, consecutive sentences was proper and the first assignment of error is therefore overruled.
Merger
{¶15} In his second assignment of error, Gonzalez contends that the trial court erred by not merging the breaking and entering and vandalism counts for the purpose of sentencing. We disagree.
{¶16} R.C. 2941.25 prohibits the imposition of multiple punishments for the same criminal conduct. An appellate court applies a de novo standard of review in reviewing a trial court's R.C. 2941.25 merger determination. State v. Cummings, 8th Dist. Cuyahoga No. 100657, 2014-Ohio-3717, ¶ 27.
{¶17} In determining whether offenses merge, courts consider the defendant's conduct. State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 44. The court must first determine if the multiple offenses can be committed by the same conduct. If so, then the court must determine whether the offenses were, in fact, committed by the same conduct, i.e., whether they were a single act committed with a single state of mind. Id. at ¶ 49. If the court answers both questions affirmatively, the offenses are allied offenses of similar import and will be merged. Id. at ¶ 50.
{¶18} Gonzalez pled guilty to breaking and entering under R.C. 2911.13(A), which charged that he "did, by force, stealth, or deception, trespass * * * in an unoccupied structure * * * with the purpose to commit therein any theft offense * * *."
{¶19} He also pled guilty to vandalism under R.C. 2909.05(B)(1)(b), which charged that he "did knowingly cause physical harm to the property that was owned or possessed by [the restaurant] * * * and the property or its equivalent was necessary in order for its owner or possessor to engage in the owner's or possessor's profession, business, trade, or occupation."
{¶20} The state's theory as to the vandalism charge was that the crime was committed when Gonzalez and his codefendant ripped out the restaurant's cash registers. Thus, the breaking and entering and vandalism here were not committed by the same conduct, and they were not a single act committed with a single state of mind.
{¶21} We note this court's decision in State v. Wainwright, 8th Dist. Cuyahoga No. 101210, 2015-Ohio-677, and find it distinguishable from this case. In Wainwright, the defendant was convicted of breaking and entering and vandalism as a result of his trespassing on the property of a food mart and using a sledgehammer to attempt to gain entry into the store. The defendant never actually went into the store because the police arrived as he was attempting the break-in, and he fled.
{¶22} At sentencing, the defendant's counsel contended that the two charges were allied offense and should merge, but the trial court disagreed. This court upheld the trial court's decision, finding that the defendant committed breaking and entering "merely by trespassing on [the store's] land with intent to steal. Using the sledgehammer to try to gain entry to the store was a separate act of vandalism." Id. at ¶ 11.
{¶23} This court noted, however, that the defendant's allied offense argument would have had merit if he had been convicted of breaking and entering under R.C. 2911.13(A), as was the case here, which subsection required the use of "force." (The defendant's "use of the sledgehammer to gain entry to the store would have satisfied the force element of breaking and entering under R.C. 2911.13(A), and the physical harm element of vandalism under R.C. 2909.05(B)(1)(b)." Id. at ¶ 12.
{¶24} But, as mentioned, here, the vandalism charge was not premised on the harm Gonzalez and his codefendant did to the restaurant in breaking into it. Rather, the charge was based on their ripping out cash registers once they were inside the restaurant — an altogether separate act from breaking into the restaurant.
{¶25} For the reasons stated above, the breaking and entering and vandalism convictions were not subject to merger and the second assignment of error is therefore overruled.
Credit for Time Served
{¶26} In his final assignment of error, Gonzalez contends that the trial court failed to give him credit for the time he served. His assertion is untrue. The trial court gave him credit as set forth in its sentencing judgment entry: "Defendant to receive jail time credit for 115 days, to date." Therefore, his third assignment of error is overruled.
{¶27} 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
LARRY A. JONES, SR., JUDGE PATRICIA ANN BLACKMON, P.J., and
ANITA LASTER MAYS, J., CONCUR