[Cite as State v. Ybarra, 2012-Ohio-3309.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PUTNAM COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 12-11-13
v.
BENJAMIN YBARRA, OPINION
DEFENDANT-APPELLANT.
Appeal from Putnam County Common Pleas Court
Trial Court No. 2011 CR 50
Judgment Affirmed
Date of Decision: July 23, 2012
APPEARANCES:
Christopher R. Bucio for Appellant
Todd C. Schroeder for Appellee
Case No. 12-11-13
SHAW, P.J.
{¶1} Defendant-appellant Benjamin Ybarra (“Ybarra”) appeals the
December 6, 2011 judgment of the Putnam County Court of Common Pleas
sentencing Ybarra to three years in prison following Ybarra’s guilty plea to Child
Endangering in violation of R.C. 2919.22(A), a felony of the third degree.
{¶2} The facts relevant to this appeal are as follows. On May 11, 2011,
Ms. Cole took her three-year-old daughter, “Jane Doe,” to St. Rita’s Ambulatory
Care Center in Glandorf. Jane Doe was treated for injuries consisting of a
fractured skull, a broken right wrist, a fractured right femur, a small tear in her
vaginal area, and a bruise along her buttocks. Based upon the injuries, medical
personnel from St. Rita’s called the police, advising the police that they were
treating a child who had potentially been abused. Brian Siefker of the Putnam
County Sherriff’s Office responded.
{¶3} Officer Siefker learned from medical staff that Jane Doe stated Ybarra
had tried to choke her and kick her. Officer Siefker learned from Ms. Cole that
Ybarra and Ms. Cole were dating and that they had been living together since
March of 2011. After speaking with medical staff, Ms. Cole and Jane Doe,
Officer Siefker photographed Jane Doe’s injuries. Officer Siefker then went to the
residence of Ybarra and Ms. Cole to interview Ybarra. At the residence, Officer
Siefker advised Ybarra that Ybarra was a registered sex offender and that he was
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still registered under a different address than that of Ms. Cole’s where he had
purportedly been staying since March. Ybarra was then taken to the Sheriff’s
Office for an interview.
{¶4} On June 17, 2011, Ybarra was indicted for one count of Child
Endangering with allegations of serious physical harm to a child as a result of
abuse, in violation of R.C. 2919.22(B), a felony of the second degree, and Failure
to Register as a Sex Offender, in violation of R.C. 2950.99, a felony of the fourth
degree.
{¶5} On October 28, 2011, pursuant to a written agreement, Ybarra agreed
to plead guilty to the amended charge of Child Endangering in violation of R.C.
2919.22(A), a felony of the third degree rather than a felony of the second degree
as indicted, and the State agreed to dismiss the remaining charge of Failure to
Register as a Sex Offender. In addition, the State agreed to recommend a sentence
of community control sanctions.
{¶6} On October 28, 2011, the court held a change-of-plea hearing wherein
Ybarra’s guilty plea was accepted. A sentencing hearing was set for November
30, 2011.
{¶7} On November 30, 2011, Ybarra’s sentencing hearing was held. At the
sentencing hearing, the State recommended a sentence of community control and
then Ybarra, his attorney and Ms. Cole all made statements regarding the
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underlying incident that led to the charges in this case. Ybarra and Ms. Cole
maintained that Jane Doe’s injuries resulted from a fall on a playground.
{¶8} Despite the State and Ybarra’s recommendation of a sentence of
community control, the court imposed a four-year prison sentence on Ybarra. Just
after the court announced Ybarra’s four-year sentence, a sidebar was conducted at
the bench. Following the sidebar, the court stated that under the newly revised
sentencing statute that went into effect in September of 2011, the maximum
sentence for Ybarra’s crime was three years. The court then vacated the four year
sentence and imposed a prison term of three years rather than four years.
{¶9} On December 6, 2011, the court filed its “Judgment Entry of
Sentence.” It is from this judgment that Ybarra appeals, asserting the following
assignments of error for our review.
ASSIGNMENT OF ERROR I
THE TRIAL COURT’S SENTENCE IS NOT SUPPORTED BY
THE RECORD AND IS CONTRARY TO LAW.
ASSIGNMENT OF ERROR II
THE TRIAL COURT FAILED TO ADVISE THE
DEFENDANT OF HIS TERMS OF COMMUNITY
CONTROL.
First Assignment of Error
{¶10} In Ybarra’s first assignment of error, he argues that his sentence was
not supported by the record. Specifically, Ybarra argues that the trial court did not
make required statutory findings to support giving Ybarra a maximum sentence,
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that the trial court considered the victim’s statements in passing sentence, which,
he claims, were not contained in the record, and that the trial court considered the
dismissed charge of Failure to Register as a Sex Offender in determining Ybarra’s
sentence.
{¶11} An appellate court must conduct a meaningful review of the trial
court’s sentencing decision. State v. Daughenbaugh, 3d Dist. No. 16-07-07, 2007-
Ohio-5774, ¶ 8, citing State v. Carter, 11th Dist. No. 2003-P0007, 2004-Ohio-
1181. A meaningful review means “that an appellate court hearing an appeal of a
felony sentence may modify or vacate the sentence and remand the matter to the
trial court for re-sentencing if the court clearly and convincingly finds that the
record does not support the sentence or that the sentence is otherwise contrary to
law.” Daughenbaugh at ¶ 8, citing Carter, 2004-Ohio-1181, at ¶ 44; R.C.
2953.08(G). Clear and convincing evidence is “[t]he measure or degree of proof
that will produce in the mind of the trier of fact a firm belief or conviction as to the
allegations sought to be established. It is intermediate, being more than a mere
preponderance, but not to the extent of such certainty as required beyond a
reasonable doubt as in criminal cases. It does not mean clear and unequivocal.” In
re Estate of Haynes, 25 Ohio St.3d 101, 103-104 (1986).
{¶12} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, ¶ 97, the
Supreme Court of Ohio stated that “[t]rial courts [now] have full discretion to
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impose a prison sentence within the statutory range and are no longer required to
make findings or give their reasons for imposing maximum, consecutive, or more
than the minimum sentences.” Id. at paragraph seven of the syllabus. In fact, the
Court in Foster specifically found that
[t]he following sections, because they either create presumptive
minimum or concurrent terms or require judicial fact-finding to
overcome the presumption, have no meaning now that judicial
findings are unconstitutional: R.C. 2929.14(B), 2929.19(B)(2),
and 2929.41. These sections are severed and excised in their
entirety, as is R.C. 2929.14(C), which requires judicial fact-
finding for maximum prison terms[.]
Id. at ¶ 97.
{¶13} Although the trial court is given full discretion in sentencing
pursuant to Foster, the trial court must still consider the overriding purposes of
felony sentencing, which are to protect the public from future crimes by the
offender and to punish the offender. R.C. 2929.11(A); State v. Scott, 3d Dist. No.
6-07-17, 2008-Ohio-86, ¶ 49, citing State v. Foust, 3d Dist. No. 3-07-11, 2007-
Ohio-5767, ¶ 27. Additionally, “[a] sentence imposed for a felony shall be
reasonably calculated to achieve the two overriding purposes of felony sentencing
* * * commensurate with and not demeaning to the seriousness of the offender's
conduct and its impact upon the victim, and consistent with sentences imposed for
similar crimes committed by similar offenders.” R.C. 2929.11(B).
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{¶14} Ybarra first argues that his sentence was improper because the trial
court gave him a maximum sentence without making “required” statutory
findings. Ybarra cites the severed portions of R.C. 2929.14(C), and R.C.
2929.19(B)(2)(d) in support of his argument. Pursuant to the Ohio Supreme
Court’s holding in Foster, the court was not required to make findings to support
his maximum sentence. Ybarra’s three-year sentence for his third degree felony
offense of Child Endangering was within the statutorily permissible range under
the new sentencing guidelines. See R.C. 2919.22(A); R.C. 2929.14(A)(3)(b).
{¶15} Moreover, not only was Ybarra’s sentence within the statutory
permissible range under the new sentencing guidelines, but the court also did state
at the sentencing hearing that it had reviewed the “principals (sic) and purposes of
incarceration under R.C. 2929.13.”1 (Tr. at 15). Furthermore, at the sentencing
hearing the court reviewed on the record its reasoning for sentencing Ybarra to
three years in prison citing Ybarra’s criminal history2 and citing that Ybarra’s
version of the events from the underlying crime was not credible.3 (Tr. at 12-15).
1
The specific reference to Endangering Children in R.C. 2929.13 can be found at R.C. 2929.13(F)(16).
2
The court’s review of Ybarra’s criminal history showed that Ybarra had a Driving Under Suspension
charge in 1998, a Theft charge in 1999, a Probation Violation in 1999, a Receiving Stolen Property charge
in in 1999, a second Probation Violation charge in 1999 wherein Ybarra made inappropriate sexual
comments at an individual’s school, a Corruption of a Minor charge in 2000 resulting from sexual acts that
occurred with a 13 year old, a Disorderly Conduct and a Failure to Appear as a result of “jump[ing]” bond
and taking the girl to Texas, a Disorderly Conduct and an Assault charge in 2001, a Driving Under
Suspension charge in 2005, and an OVI reduced to reckless operation in 2010. (Tr. at 12-13).
3
Ybarra claimed that the victim’s injuries occurred from her falling off a piece of playground equipment.
Ybarra felt that he was “guilty of not giving her medical treatment as soon as the incident happened.” (Tr.
at 6). The court found this not to be credible finding that the child’s injuries were not consistent with
Ybarra’s version of events. (Tr. at 14-15).
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{¶16} In addition to the reasoning articulated at the sentencing hearing, in
the “Judgment Entry of Sentence” the trial court stated that it “ha[d] considered
the record, oral statements, any victim impact statements, and the pre-sentence
investigation report prepared, as well as the principles and purposes of sentencing
under Ohio Revised Code Section 2929.11 & 2929.12.” (Doc. 44). As the trial
court reviewed its reasoning at the sentencing hearing and recounted what it had
considered in the judgment entry, we find no error in sentencing Ybarra based
upon the record.
{¶17} Ybarra next argues that his sentence was improper because the trial
court improperly relied on the child victim’s out of court statements to determine
Ybarra’s sentence. After examining the record, we find that the trial court’s
references to any statements of the victim are contained in the following statement
taken from the sentencing hearing:
THE COURT: Well, Mr. Ybarra, my conclusion is that you are
misrepresenting what happened here. My conclusion is that
you’re the one that’s responsible for this. My conclusion is that
the injuries do not match what are (sic) your version of what
happened. I do not believe you have any credibility. I do not
believe any of the statements that you have made, either in the
statements to law enforcement, to the officer who did the
investigation, or to the court today. When the child was brought
in, she had a broken wrist, a fractured right thigh, and a
fractured skull. There were injuries to face, left foot, throat, left
buttock, cheek, chin and right knee. The victim stated that you
tried to choke her and kick her, but you had some other version
of events. Your continued statements about the origin of this
trauma simply don’t match the injuries here.
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(Tr. at 15).
{¶18} Here, the trial court made reference to the child’s injuries, which
were contained in the record in the police report attached to the criminal
complaint, in the affidavit attached to a search warrant issued to search some of
Ybarra’s property, and in the pre-sentencing investigation report.4 The reference
that “the victim stated that [Ybarra] tried to choke her” is also contained in the
police report and the victim’s statement that Ybarra had tried to choke and kick
her was contained in the pre-sentencing investigation report.5 All of these
statements of the victim that were mentioned by the trial court at the hearing were
thus contained in the record and could properly be considered by the trial court in
passing sentence.
{¶19} Furthermore, given the fact that none of these allegedly improper
statements of the trial court were mentioned in the “Judgment Entry of Sentence”
it is not even clear how much weight, if any, was given to these particular facts.
The degree of Ybarra’s felony and Ybarra’s criminal history alone could have
justified Ybarra’s sentence. Therefore we find that the statements were not
improper, and even discounting these statements, Ybarra’s sentence was still
justified in the record.
4
These documents are not numbered but they are all contained within the record provided to this court for
review.
5
There is also at least one reference in Ybarra’s “Motion in Limine of J.L.’s Statements to Medical
Personnel” to the victim’s claims of Ybarra kicking her. (Doc. 30).
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{¶20} Ybarra next argues that the trial court improperly considered
Ybarra’s dismissed charge of Failure to Register as a Sex Offender when
determining Ybarra’s sentence. At the outset of analyzing this argument, we note
that the dismissed charge was not mentioned at all in the court’s “Judgment Entry
of Sentence.” (Doc. 44). When reviewing the transcript from the sentencing
hearing, we find the following passages are the only references the court made to
Ybarra’s dismissed charge of Failure to Register as a Sex Offender.
THE COURT: Did you know that [Ybarra] was not to be
residing at this residence, that he wasn’t registered at that
residence?
MS. COLE: As far as registration, I don’t know how that goes
because I don’t know anything about all that.
***
[THE COURT:] Then the within charges that were originally
charged as an endangering children, a felony of the second
degree, was reduced to a felony of the third degree, as well as a
failure to register charge for the fact that you were not residing
at the residence that you were supposed to be residing and
registered at; is that correct?
[Ybarra:] Yes, Your honor.
[THE COURT:] Your version of events, Mr. Ybarra, include
that there were supposedly two incidents, one on a Friday and
one on a Sunday; is that correct, with this child?
(Tr. at 9-10, 13).
{¶21} The preceding testimony represents the totality of the court’s
reference to Ybarra’s dismissed charge of Failure to Register as a Sex Offender at
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the sentence hearing. There is nothing in these statements to suggest the trial court
was doing anything more than testing the credibility of Ms. Cole who was
speaking on behalf of Ybarra at his sentencing hearing, or that the court was doing
anything more than clarifying the charges against Ybarra. Based upon the plain
language, we do not find that the trial court improperly relied on the dismissed
case in passing sentence.
{¶22} For the foregoing reasons, Ybarra’s first assignment of error is
overruled.
Second Assignment of Error
{¶23} In Ybarra’s second assignment of error, he argues that the trial court
failed to advise him of the terms of his community control. Specifically, Ybarra
argues that:
when a trial court sentences a defendant to community control
sanctions, the court must advise the defendant that if the
conditions are violated, the court may impose a longer term
under the same sanction, a more restrictive sanction, or a prison
term. Furthermore, the court is required to advise the
defendant of the specific prison term that will be imposed for
violation of community control sanctions.
(Appt. Br. at 4).
{¶24} Despite Ybarra’s arguments, Ybarra was not sentenced to community
control and community control was not part of his sentence. (Doc. 44).
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Therefore, there was no error in the trial court’s “failure” to advise Ybarra of
anything related to community control sanctions.
{¶25} If Ybarra had intended to argue that the trial court did not properly
advise him of his post-release control, that argument would also fail. Ybarra was
notified in his written plea-agreement, at the sentencing hearing, and in the
“Judgment Entry on Sentencing” that following his prison term he “may be subject
to a discretionary period of post-release control for three (3) years under the terms
and conditions as determined by the Adult Parole Authority.” (Doc. 40); (Tr. at
15-16); (Doc. 44). As post-release control is discretionary in his case up to three
years, the court’s instruction was proper. See R.C. 2967.28. Accordingly,
Ybarra’s second assignment of error is overruled.
{¶26} For the foregoing reasons Ybarra’s assignments of error are
overruled and the judgment of the Putnam County Court of Common pleas is
affirmed.
Judgment Affirmed
PRESTON and ROGERS, J.J., concur.
/jlr
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