State v. Galindo-Barjas , 2013 Ohio 431 ( 2013 )

[Cite as State v. Galindo-Barjas, 2013-Ohio-431.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 12 MA 37
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
VICTOR M. GALINDO-BARJAS )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 11 CR 833
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Anthony Meranto
Atty. Louis Defabio
4822 Market Street, Suite 220
Youngstown, Ohio 44512
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: February 5, 2013
[Cite as State v. Galindo-Barjas, 2013-Ohio-431.]
WAITE, J.
{¶1} Appellant Victor M. Galindo-Barjas appeals his felony sentence of two
consecutive four-year prison terms after pleading guilty to two counts of aggravated
vehicular assault, third degree felonies, and one count of operating a motor vehicle
under the influence of alcohol (“OMVI”), a first degree misdemeanor. The trial court
sentenced Appellant to less than the ten-year prison term recommended by the
prosecutor. Appellant argues that the court abused its discretion by basing its
sentence on the harm to victim when “serious physical harm” was already a part of
the definition of aggravated vehicular assault. Appellant argues that the court cannot
use an element of the crimes as a factor supporting consecutive sentences. In this
instance, we cannot agree. Even though “serious physical harm” is an element of
aggravated vehicular assault, there is a range of harm possible within the concept of
what constitutes “serious physical harm.” The court was permitted to consider the
kind and extent of harm to the victim as a basis for the sentence even though it forms
an element of the crime as well. Appellant's further assertion that the trial court failed
to consider any other relevant factor is mere speculation that is not supported by the
record.
{¶2} Appellant also contends that the imposition of consecutive sentences
was incorrect because the court did not give reasons to support consecutive
sentences. Appellant seems to be aware that, under the newly enacted sentencing
statutes, the trial court must make certain findings before imposing consecutive
sentences, but the law does not require the judge to articulate reasons in support of
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the findings. The record reflects that the court made the necessary findings. The
judgment of the trial court is affirmed.
{¶3} On July 25, 2011, Appellant was involved in a head-on car collision.
There were two people in the other vehicle, and they suffered severe injuries from the
accident. Appellant was intoxicated at the time. He was indicted on November 16,
2011. Appellant pleaded guilty to two counts of aggravated vehicular assault, R.C.
2903.08(A)(1)(a), a third degree felony, and one count of OMVI, R.C.
4511.19(A)(1)(a), a first degree misdemeanor. One of the terms of the plea was that
the prosecutor would recommend a ten-year prison term, signifying maximum
consecutive prison terms for the two felonies.
{¶4} On January 27, 2012, the trial court held a sentencing hearing. One of
the victims, Lauren Carissimi, testified at the hearing about the extent of her injuries.
She sustained a broken humerus bone, torn neck ligaments, and suffered radial
nerve palsy. (1/27/12 Tr., p. 4.) She testified that the accident “caused unspeakable,
unthinkable, unimaginable despair, pain, suffering, deep grief emotionally and
physically to me and everyone around me, and it is very difficult for me to put it into
words.” (1/27/12 Tr., p. 5.) She thought she was going to die. She was hospitalized
and endured surgery. She has had both physical and psychological therapy because
of the accident. She also stated that her boyfriend's injuries “were far worse than
mine.” (1/27/12 Tr., p. 4.) She requested imposition of the maximum possible
punishment for the crime.
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{¶5} The other victim, Bruce Alan Minnotti, Jr., testified that he has lasting
physical scars from his injuries, which included a broken elbow, broken pelvis,
dislocated ankle, broken bones in his foot, nerve and ligament damage, and
“indescribable pain.” (1/27/12 Tr., pp. 7-8.) He has a permanent limp, can no longer
run, cannot work, and spends much of his life in bed because of the accident. His
schooling has been set back at least one year due to the accident. He also
described the emotional and financial toll he has endured from the accident.
{¶6} The court sentenced Appellant to two prison terms of four years each
for the two felony counts, to be served consecutively, and 180 days in jail for OMVI,
to be served concurrently. The court included the statutory findings required to
impose consecutive prison terms as set forth in newly revised R.C. 2929.14(C)(4).
The court's judgment entry was filed January 31, 2012, and this timely appeal
followed.
ASSIGNMENT OF ERROR
THE TRIAL COURT’S SENTENCE OF TWO (2) CONSECUTIVE
FOUR (4) YEAR TERMS OF IMPRISONMENT WAS CONTRARY TO
LAW AND CONSTITUTED AN ABUSE OF DISCRETION.
{¶7} Appellant asserts two sentencing errors under this assignment. First,
he argues that the trial court abused its discretion by considering an element of the
crime as an aggravating sentencing factor. Appellant states that the trial court
imposed consecutive sentences based on the serious physical harm suffered by the
victims, even though “serious physical harm” is one of the elements of aggravated
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vehicular assault. Appellant contends that a court cannot use an essential element
of a crime as a factor to enhance a sentence beyond the minimum sentence.
Appellant also argues that the trial court failed to give reasons to support the
consecutive sentences, hence, concurrent sentences should be imposed. Neither
argument is persuasive.
{¶8} We review felony sentences using both the “clearly and convincingly
contrary to law” standard and the “abuse of discretion” standard. State v. Gratz, 7th
Dist. No. 08MA101, 2009-Ohio-695, ¶8; State v. Gray, 7th Dist. No. 07MA156, 2008-
Ohio-6591, ¶17. The reviewing court first determines whether the sentencing court
complied with all applicable rules and statutes in imposing the sentence to determine
whether the sentence is clearly and convincingly contrary to law. Gratz at ¶8, citing
State v. Kalish, 120 Ohio St .3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶13-14. Then,
if the sentence is not clearly and convincingly contrary to law, the reviewing court
must determine whether the sentencing court abused its discretion in applying the
factors in R.C. 2929.11, R.C. 2929.12, or any other applicable statute. Gratz at ¶8,
citing Kalish at ¶17.
{¶9} R.C. 2929.12(B) and (C) contain various factors that the trial court must
consider in determining whether a defendant's conduct is more or less serious than
conduct normally constituting the offense. The trial court is not confined only to the
factors listed in the statute and may consider “any other relevant factors”. R.C.
2929.12(B). Appellant contends that the only factor the trial court relied on in
sentencing is found in R.C. 2929.12(B)(2), namely, “[t]he victim of the offense
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suffered serious physical, psychological, or economic harm as a result of the
offense.” This assumption is not borne out by the record. The sentencing transcript
indicates that the trial judge considered the presentence investigation, the sentences
handed out in other similar cases, and “the factors contained in Section 2929 of the
Revised Code”. (1/27/12 Tr., p. 18.)
{¶10} Assuming for the sake of argument that the judge did consider only one
factor at sentencing, Appellant further contends that the court should not have relied
on serious physical harm to enhance the sentence because it is part of the definition
of the crime. Aggravated vehicular assault is defined in R.C. 2903.08(A) as:
No person, while operating or participating in the operation of a motor
vehicle, motorcycle, snowmobile, locomotive, watercraft, or aircraft,
shall cause serious physical harm to another person or another's
unborn in any of the following ways:
(1)(a) As the proximate result of committing a violation of division (A) of
section 4511.19 of the Revised Code or of a substantially equivalent
municipal ordinance; (Emphasis added.)
{¶11} Appellant submits that to enhance a sentence, the court must look to
some fact beyond or besides one which comprises a basic element of the crime. In
some instances, Appellant would be correct. He cites State v. Stroud, 7th Dist. No.
07 MA 91, 2008-Ohio-3187, in support. In Stroud, the defendant was convicted of
voluntary manslaughter. An element of the offense is that the defendant knowingly
caused the death of another. The trial court sentenced the defendant to the
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maximum prison term because he caused a death. We held that the trial court could
not have considered the crime the “worst form of the offense” based on the fact that a
life had been taken when this was a basic element of the offense itself. Id. at ¶48.
Every voluntary manslaughter involves a death. Thus, there must be something
more in the record to support a maximum prison term other than the fact that a life
had been taken.
{¶12} The crime with which Appellant is charged is not comparable to the
crime discussed in Stroud. There are no varying degrees of “death,” whereas
“serious physical harm” can take an endless variety of forms. In this case, the victims
almost died from their injuries, suffering multiple broken bones, nerve and ligament
damage, and unendurable pain. The damage is permanent, according to the
testimony of the victims. Any one injury to either of the victims could be treated as
serious physical harm: one broken bone; one torn ligament; or one cut requiring
surgery. The record indicates that the victims suffered multiple serious injuries. In
addition, the definition of the crime refers only to physical harm, whereas the
sentencing statute refers to physical, psychological or economic harm. R.C.
2929.12(B)(2). Thus, the sentencing statute is broader than the definition of
aggravated vehicular assault, and the court's review of the victim's psychological and
economic harm can be used to enhance the sentence without overlapping with a
basic element of the crime itself. For these reasons, we reject Appellant's argument.
{¶13} Moving on to the argument regarding whether the court properly
explained its reasons for imposing consecutive sentences, Appellant correctly posits
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that the law has recently changed in this area. Both parties agree that the newly
enacted version of R.C. 2929.14, effective September 30, 2011, applies to this case.
R.C. 2929.14(C)(4) states:
(4) 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.
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(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
{¶14} Prior to 2006, Ohio sentencing law created presumptions that offenders
be given minimum, concurrent terms of incarceration. See former R.C. 2929.14(B),
2929.14(E)(4), 2919.19(B)(2), and 2929.41. These presumptions could be overcome
if the court made specific factual findings regarding the nature of the offense and the
need to protect the public. This judicial fact-finding was called into question by
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and
Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), in
which the United States Supreme Court held that judicial fact-finding could infringe
upon a defendant's Sixth Amendment right to a jury trial because it invaded the fact-
finding function of the jury. In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470, the Ohio Supreme Court held that under Apprendi and Blakely, Ohio's
sentencing statutes that required a judge to make factual findings in order to increase
a sentence beyond presumptive minimum or concurrent terms unconstitutionally
infringed on the jury's function in violation of the Sixth Amendment. The Ohio
Supreme Court then severed those sections and held that courts have full discretion
to sentence within the applicable statutory range and likewise have discretion to
order sentences to be served consecutively. Id. at ¶99-100.
{¶15} The reasoning in Foster was partially called into question by Oregon v.
Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), in which the United States
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Supreme Court later ruled that neither Apprendi nor Blakely implicated a sentencing
judge's long-understood authority to order sentences to be served consecutively.
The Ohio Supreme Court later acknowledged that Foster erroneously applied
Apprendi and Blakely to ban judicial fact-finding in support of consecutive sentences,
but ruled that the Ice decision could not revive that which had previously been
severed as unconstitutional in Foster. See State v. Hodge, 128 Ohio St.3d 1, 2010-
Ohio-6320, 941 N.E.2d 768, paragraph two of the syllabus. In other words, the
former consecutive sentencing law contained in R.C. 2929.14(E)(4), which had been
declared unconstitutional and severed in Foster, remained severed and could not be
applied, regardless of the holding and analysis in Ice. Even after Ice, a trial court
retains “the discretion and inherent authority to determine whether a prison sentence
within the statutory range shall run consecutively or concurrently * * *.” State v.
Bates, 118 Ohio St.3d 174, 2008-Ohio-1983, 887 N.E.2d 328, ¶19.
{¶16} However, the newly-enacted revision of the consecutive sentencing
statute has reestablished the requirement that the sentencing judge make certain
findings before imposing consecutive sentences. See, e.g., State v. Wilson, 8th Dist.
No. 97657, 2012-Ohio-4153, ¶13 (court must again state its findings to support
consecutive sentences at the sentencing hearing and in the judgment entry pursuant
to the new statute, citing State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, 793
N.E.2d 473, paragraph one of the syllabus.); State v. Just, 9th Dist. No. 12CA0002,
2012-Ohio-4094, ¶48-49 (court need not explain its reasons for making the
consecutive sentencing findings, as the new statute does not require it); State v.
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Stalnaker, 11th Dist. No. 2011-L-151, 2012-Ohio-3028, ¶15 (trial court must again
state the required findings on the record to impose consecutive sentences, but not its
reasons supporting those findings).
{¶17} Prior to Foster, the sentencing statutes required both findings and
reasons in support of those findings in order for a consecutive sentence to be
imposed. Foster eliminated both requirements. The recently enacted law is not
simply a reenactment of the pre-Foster statute, but is an entirely new law, and the
new law requires only that the court make certain findings.
{¶18} A court may impose consecutive sentences under R.C. 2929.14(C)(4) if
it makes the following findings: (1) consecutive service is 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, and (3) one 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, or (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, or (c) the offender's history of
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criminal conduct demonstrates that consecutive sentences are necessary to protect
the public from future crime by the offender.
{¶19} The trial court made the necessary findings in this case and stated
them at the sentencing hearing (1/27/12 Tr., p. 19) and in the judgment entry. An
appellate court may only sustain an assignment of error challenging the imposition of
consecutive sentences under R.C. 2929.14 if the appellant shows that the judgment
was clearly and convincingly contrary to law. R.C. 2953.08(G). This record does not
support such a showing. The trial court followed the requirements of the new
sentencing law. Since the trial court need not explain its reasons for making its
findings, the absence of such reasons is not error. Appellant's argument regarding
consecutive sentences is unpersuasive.
{¶20} Because we have disposed of Appellant's two arguments in his sole
assignment of error, the assignment of error is overruled and the judgment of the trial
court is affirmed.
Donofrio, J., concurs.
DeGenaro, P.J., concurs.