Opinion
No. 107484
04-25-2019
STATE OF OHIO, Plaintiff-Appellee, v. CHRISTOPHER M. RODRIGUEZ, (a.k.a. CHRISTOPHER M. RODRIQUEZ) Defendant-Appellant.
Appearances: Michael C. O'Malley, Prosecuting Attorney, and Anna M. Faraglia, Assistant Prosecuting Attorney, for appellee. John T. Forristal, for appellant.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-625525-B
Appearances:
Michael C. O'Malley, Prosecuting Attorney, and Anna M. Faraglia, Assistant Prosecuting Attorney, for appellee. John T. Forristal, for appellant. MARY EILEEN KILBANE, A.J.:
{¶ 1} Defendant-appellant, Christopher Rodriguez ("Rodriguez"), appeals his consecutive sentence. For the reasons set forth below, we affirm.
{¶ 2} In January 2018, Rodriguez was charged, along with his wife, with one count of murder, one count of felonious assault, two counts of endangering children, and one count of gross abuse of a corpse. The charges were filed after law enforcement discovered the body of the couple's five-year old son buried in their backyard.
{¶ 3} Pursuant to a plea agreement, Rodriguez pled guilty to Count 1 — as amended to involuntary manslaughter, Count 2 — felonious assault, Count 3 — endangering children, and Count 5 — gross abuse of a corpse. At the state's request, the trial court nolled Count 4 — endangering children.
{¶ 4} As part of the plea agreement, the parties agreed on a recommended sentencing range of 20 to 25 years. The trial court advised Rodriguez it was not bound by the recommended sentence and Rodriguez indicated he understood. In addition, the parties agreed that none of the four counts would merge for sentencing and that they were not allied offenses of similar import.
{¶ 5} After accepting Rodriguez's pleas, the trial court immediately proceeded to sentencing. The trial court imposed a prison term of 11 years for involuntary manslaughter, 8 years for felonious assault, 8 years for endangering children, and 4 years for gross abuse of a corpse. In addition, the trial court ordered that each sentence be served consecutively to each other, for a total of 28 years in prison.
{¶ 6} Rodriguez now appeals, assigning two errors for review:
Assignment of Error One
[Rodriguez's] sentence is contrary to law and is not supported by the record.
Assignment of Error Two
[Rodriguez's] Sixth Amendment rights were violated if counsel failed to preserve sentencing errors for review.
{¶ 7} In the first assignment of error, Rodriguez argues his consecutive sentence was contrary to law.
{¶ 8} We review consecutive sentences using the standard set forth in R.C. 2953.08. State v. Perry, 2018-Ohio-1760, 111 N.E.3d 746 (8th Dist.), citing State v. Wells, 8th Dist. Cuyahoga Nos. 99305, 99306, and 99307, 2013-Ohio-3809, ¶ 11, citing State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 10 (8th Dist.). R.C. 2953.08(G)(2) provides two grounds for an appellate court to overturn the imposition of consecutive sentences: (1) the appellate court, upon its review, clearly and convincingly finds that "the record does not support the sentencing court's findings" under R.C. 2929.14(C)(4); or (2) the sentence is "otherwise contrary to law." Venes at ¶ 11.
{¶ 9} Pursuant to R.C. 2929.14(C)(4), in order to impose consecutive sentences, the trial court must find that consecutive sentences are necessary to protect the public from future crime or to punish the offender, 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 that at least one of the following also 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 postrelease control for a prior offense.R.C. 2929.14(C)(4).
(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} The court must make the statutory findings as stated above at the sentencing hearing and incorporate those findings into its sentencing entry. See State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus.
{¶ 11} The trial court must make the statutory findings on the record before imposing consecutive sentences on a defendant. State v. Williams, 8th Dist. Cuyahoga No. 106570, 2018-Ohio-5022, citing Bonnell at ¶ 28 ("[T]he record must contain a basis upon which a reviewing court can determine that the trial court made the findings required by R.C. 2929.14(C)(2) before it imposed consecutive sentences.") Id.
{¶ 12} In the instant case, as previously noted, the trial court proceeded to sentence Rodriguez immediately after accepting his pleas. At the hearing, the prosecutor indicated it had provided the trial court with various exhibits, including photographs of the child's burial in Rodriguez's backyard and the autopsy report. The prosecutor specifically noted:
The State of Ohio has already handed you State's Exhibit under seal 1A through H, which are photographs of this child's burial and State's Exhibit Number 2, which is the autopsy and again, there are healing fractures and recent fractures on this little boy, a wrist fracture, and the healing fractures of the right side 6, 8, and 10 of the ribs and left 8th rib, which are most consistent with child abuse, and then the recent fractures of the right 6, 9, and 10 ribs, which are indicative of child abuse, but not definitive.
{¶ 13} The prosecutor also noted that instead of calling 911 for assistance, Rodriguez and his wife chose to bury their child and tried to conceal it by placing a diaper on the child's head and placing mothballs in and around the grave to mask the smell. In addition, the prosecutor noted that it was Rodriguez's brother, who was serving in the military in Pakistan, who alerted the police after Rodriguez simply told him the child had died and that they had decided to bury the child in the backyard. Rodriguez's brother advised him to immediately call the police, but Rodriguez claimed he could not go against his wife's wishes.
{¶ 14} Prior to imposing sentence, the trial court stated:
This is one of the worst things I've ever seen in my life. I don't understand, Mr. Rodriguez, why you don't want to cleanse yourself and tell the truth about what happened here. I hope someday you do. Whatever this child's life was supposed to be, you made sure it didn't happen; you and Larissa.
I look at friends and family and people that are desperate to have children and want to have family and you two have babies with no consideration. You just keep having them, disregarding the value of their life, disregarding their purpose in life, like they're less than an object. No remorse.
I didn't even hear you say you were sorry. I will not accept the recommendation for Mr. Rodriguez. These crimes are horrific. There's no question in my mind this child was abused. It's clear that you did everything you could, you and Larissa, to hide evidence to protect yourselves.
You had every opportunity at so many points to make a difference to get help, to stop beating somebody, to call the police, to ask for help, to try to take him to the hospital.
{¶ 15} In imposing the sentence, the trial court specifically noted that it found that consecutive sentences were necessary to protect the public from future crimes and to punish Rodriguez. The trial court also stated that it found the sentences were not disproportionate to the seriousness of the conduct and the danger Rodriguez posed to the public.
{¶ 16} In addition, the trial court stated it found at least two of the multiple offenses were committed as part of one or more courses of conduct, and that the harm caused by these offenses was so great or unusual that no single prison term would adequately reflect the seriousness of Rodriguez's conduct.
{¶ 17} Based on the foregoing, we are satisfied the trial court made the requisite statutory findings to impose consecutive sentences.
{¶ 18} Nonetheless, Rodriguez argues the trial court failed to consider the purposes of felony sentencing under R.C. 2929.11 and 2929.12.
{¶ 19} R.C. 2929.11 and 2929.12 are not fact-finding statutes. Accordingly, although the trial court must consider the principles and purposes of sentencing, the court is not required to use particular language or make specific findings on the record regarding its consideration of those factors. State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31; State v. Jones, 8th Dist. Cuyahoga No. 99759, 2014-Ohio-29, ¶ 13.
{¶ 20} We have recognized that a trial court's statement in its sentencing journal entry that it considered the required statutory factors is sufficient to fulfill a trial court's obligations under R.C. 2929.11 and 2929.12. State v. Sutton, 8th Dist. Cuyahoga Nos. 102300 and 102302, 2015-Ohio-4074, ¶ 72, citing State v. Clayton, 8th Dist. Cuyahoga No. 99700, 2014-Ohio-112, ¶ 9.
{¶ 21} Rodriguez's argument that the trial court failed to consider the relevant statutory factors under R.C. 2929.11 and 2929.12 is without merit. The record in this case reflects that the trial court did, in fact, consider both the purposes and principles of sentencing under R.C. 2929.11 and the relevant factors under R.C. 2929.12 when sentencing Rodriguez. The trial court noted this was a horrific crime, that Rodriguez had not accepted responsibility for his actions, and that he showed no remorse. Although the trial court made no specific reference to R.C. 2929.11 or 2929.12 during the sentencing hearing, it was not required to do so. The record is clear that the trial court considered the purposes and principles of felony sentencing and had given the matter a great amount of thought.
{¶ 22} Rodriguez also argues he should not have received a greater sentence than his wife, who received a total of 25 years in prison.
{¶ 23} Recently, in State v. Jarmon, 8th Dist. Cuyahoga No. 106727, 2018-Ohio-4710, we reiterated that the courts have not interpreted the notion of consistency to mean equal punishment for codefendants. Id. ¶ 20, citing State v. Harder, 8th Dist. Cuyahoga No. 98409, 2013-Ohio-580. Further, a sentence is not contrary to law because the trial court failed to impose a sentence that is the same as that imposed on another offender who committed similar conduct. State v. Ware, 8th Dist. Cuyahoga No. 106176, 2018-Ohio-2294, citing State v. Graham, 12th Dist. Warren No. CA3013-07-066, 2014-Ohio-1891, ¶ 15; State v. Blackley, 8th Dist. Cuyahoga No. 100574, 2014-Ohio-3140, ¶ 15.
{¶ 24} We have previously stated the trial court noted this was a horrific crime, that Rodriguez had not accepted responsibility for his actions, and that he showed no remorse. Although, Rodriguez now claims he was less culpable than his wife because he confessed to his brother, it is not borne out by the record. The prosecutor indicated that Rodriguez told his brother the child died, offered no explanation, and that they had decided to bury the child in the backyard. This can hardly be characterized as a confession, but instead a continued attempt at concealment of the horrific deed.
{¶ 25} In this regard, the trial court stated: "I have to imagine that at some point you got on the Internet, how do [I] bury a body, because this is unbelievable to me. The level of meticulousness that you went to not be discovered."
{¶ 26} Based on the foregoing, we find no merit to Rodriguez's claim.
{¶ 27} Finally, Rodriguez argues that there was confusion about his criminal history, which led the trial court to assume he had a violent history. He claims the confusion could have been avoided if the trial court had ordered a presentence investigation report. Rodriguez's claim lacks merit.
{¶ 28} At the hearing, defense counsel asked the trial court to consider Rodriguez's relative lack of a significant criminal history and claimed Rodriguez had no violent offenses. The trial court indicated it had information that Rodriguez had offenses in both Texas and Florida, which included felonies and misdemeanors for robbery, battery, and drug possession. Defense counsel then indicated he did not believe the aforementioned charges resulted in convictions. The trial court restated it had information regarding a felony battery, a misdemeanor battery, a robbery, and a drug possession case. The prosecutor indicated it had the same information as the trial court.
{¶ 29} Our review of the record indicates the trial court was only clarifying defense counsel's statement regarding Rodriguez's relative lack of a significant criminal history. Thus, we find no merit in Rodriguez's assertion.
{¶ 30} Regarding Rodriguez's claim that the trial court should have ordered a presentence investigation report, we note that a trial court need not order a presentence report pursuant to Crim.R. 32.2(A) in a felony case when probation is not granted. State v. Bonner, 8th Dist. Cuyahoga No. 97747, 2012-Ohio-2931, citing State v. Cyrus, 63 Ohio St.3d 164, 586 N.E.2d 94 (1992), syllabus; R.C. 2951.03.
{¶ 31} Here, the trial court was not imposing community control sanctions or granting probation, therefore it was not required to order a presentence investigation report. Moreover, as previously stated, the trial court was able to make the appropriate findings to justify the imposition of consecutive sentences based on the information in the record.
{¶ 32} Accordingly, the first assignment of error is overruled.
{¶ 33} In the second assignment of error, Rodriguez argues he was denied the effective assistance of counsel.
{¶ 34} To substantiate a claim of ineffective assistance of counsel, Rodriguez must show that counsel's performance was so deficient that he was prejudiced. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Rodriguez must also show that there is a reasonable probability that, but for counsel's errors, the result would have been different. Id. Judicial scrutiny of defense counsel's performance must be highly deferential. Id. at 689.
{¶ 35} Rodriguez claims he was denied the effective assistance of counsel because defense counsel failed to object to the trial court conducting the sentencing hearing without ordering a presentence investigation report.
{¶ 36} In the first assignment of error, we determined that it was not necessary for the trial court to order a presentence investigation report because it was not imposing community control sanctions or granting probation. Thus, it would have accomplished nothing if defense counsel objected on that basis. As a result, we find Rodriguez's claim without merit.
{¶ 37} Rodriguez also claims that defense counsel should have objected when the trial court imposed a sentence outside the agreed recommended sentencing range of 20-25 years.
{¶ 38} Under Ohio law, trial courts are not bound by a jointly recommended sentence. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 28. Prior to accepting Rodriguez's plea, the following exchange took place:
[COURT]: There has been a recommendation made to the Court. I want to be clear you understand it is not a promise of a sentence. The Court is not bound by the recommendation. It's a suggestion to the Court, but it is not binding and it is not a promise of sentence. Do you understand that?
[DEFENDANT]: Yes, Your Honor.
{¶ 39} Here, the trial court was not bound to impose the recommended sentence and, as reflected in the excerpt above, clearly forewarned Rodriguez of such. Thus, it would have accomplished nothing if defense counsel objected on that basis. As a result, we find Rodriguez's claim is without merit.
{¶ 40} Accordingly, the second assignment of error is overruled.
{¶ 41} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the common pleas court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE RAYMOND C. HEADEN, J., CONCURS;
LARRY A. JONES, SR., J., CONCURS IN JUDGMENT ONLY