[Cite as State v. Caraballo, 2014-Ohio-2641.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100354
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
EMILIO CARABALLO
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-572419
BEFORE: McCormack, J., Jones, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: June 19, 2014
ATTORNEY FOR APPELLANT
Allison S. Breneman
1220 West 6th Street
Suite 303
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Ronni Ducoff
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:
{¶1} Defendant-appellant, Emilio Caraballo, appeals from a maximum sentence
of 18 months in prison for his conviction of gross sexual imposition and unlawful
restraint involving a five-year-old victim. He argues the trial court failed to properly
consider the purposes and principles of felony sentencing set forth in R.C. 2929.11 and
the sentencing factors set forth in R.C. 2929.12. Finding no merit to his claim, we
affirm the trial court.
{¶2} The state alleged Caraballo, 21, engaged in improper sexual conduct with a
five-year-old girl, the daughter of Caraballo’s coworker at an MRDD work site. The
incident occurred at the time when the coworker was dying of HIV and the girl stayed at
Caraballo’s house. The day after the coworker died, the girl’s aunt, while giving the girl
a bath, notice a mark on her inner thigh. When the girl was asked about the mark, she
stated it was from jumping in the pool. When her aunt asked the girl if “she was sure
that no one touched her,” the girl stated, “Uncle Emilio stuck his pee pee in my,” and
pointed to her private area. The aunt called 911 and reported the incident.
{¶3} The state charged Caraballo with two counts of rape, two counts of
kidnapping with a sexual motivation specification, and two counts of gross sexual
imposition. Under a plea bargain, Caraballo pled guilty to one count of gross sexual
imposition, a fourth-degree felony, and one count of unlawful restraint, a misdemeanor of
the third degree. The trial court merged the two offenses and sentenced him to 18
months, the maximum penalty for a fourth-degree felony. He was also classified as a
Tier I Sex Offender. Caraballo now appeals.
{¶4} In his sole assignment of error, Caraballo argues the trial court abused its
discretion in imposing a sentence contrary to the purposes and principles of felony
sentencing set forth in R.C. 2929.11 and failed to properly assess the sentencing factors
set forth in R.C. 2929.12.
{¶5} Pursuant to R.C. 2953.08(G)(2), we do not review felony sentences under
an abuse of discretion standard. Rather, we review Caraballo’s sentence to determine
whether it is contrary to law under R.C. 2953.08(A)(4). See State v. Smith, 8th Dist.
Cuyahoga No. 100206, 2014-Ohio-1520, ¶ 13. There are two grounds for a criminal
defendant to claim that a sentence is contrary to law.
{¶6} First, a sentence is contrary to law if it falls outside the statutory range for
the particular degree of offense. State v. Holmes, 8th Dist. Cuyahoga No. 99783,
2014-Ohio-603, ¶ 10. Caraballo’s sentence of 18 months was within the statutory range
for a fourth-degree felony, therefore, it is not contrary to law.
{¶7} Second, a sentence is contrary to law if the trial court fails to consider the
purposes and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing
factors set forth in R.C. 2929.12. State v. Hodges, 8th Dist. Cuyahoga No. 99511,
2013-Ohio-5025, ¶ 7 (the trial court “has the full discretion to impose any term of
imprisonment within the statutory range, but it must consider the sentencing purposes in
R.C. 2929.11 and the guidelines contained in R.C. 2929.12”). In State v. Long, Slip
Opinion No. 2014-Ohio-849, ¶ 17-18, the Supreme Court of Ohio explained these two
statutes as follows:
In Ohio, two statutory sections serve as a general guide for every
sentencing. First, R.C. 2929.11(A) provides that the overriding purposes of
felony sentencing “are to protect the public from future crime by the
offender and others and to punish the offender.” To achieve these purposes,
the trial court “shall consider the need for incapacitating the offender,
deterring the offender and others from future crime, rehabilitating the
offender, and making restitution.” Id. The sentence must be “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).* * *
Second, R.C. 2929.12 specifically provides that in exercising its
discretion, a trial court must consider certain factors that make the offense
more or less serious and that indicate whether the offender is more or less
likely to commit future offenses. * * * R.C. 2929.12(C) and (E) also permit
a trial court to consider “any other relevant factors” to determine that an
offense is less serious or that an offender is less likely to recidivate.* * *
{¶8} This court has held that a trial court “fulfills its duty under the statutes by
indicating that it has considered the relevant sentencing factors.” Smith, 8th Dist.
Cuyahoga No. 100206, 2014-Ohio-1520, at ¶ 14, citing State v. Saunders, 8th Dist.
Cuyahoga No. 98379, 2013-Ohio-490, ¶ 4. The trial court “need not go through each
factor on the record — it is sufficient that the court acknowledges that it has complied
with its statutory duty to consider the factors without further elaboration.” Id., citing
State v. Pickens, 8th Dist. Cuyahoga No. 89658, 2008-Ohio-1407, ¶ 6.
{¶9} At Caraballo’s sentencing, his counsel confirmed that the presentence
investigation report (“PSI”) accurately recited the content of the police reports regarding
the incident, but asked for community control, claiming Caraballo had no criminal history
and the PSI indicated a low to moderate risk of recidivism. His counsel also argued that
the only evidence for Caraballo’s guilt was the five-year-old’s statement. Caraballo
himself denied raping the child. The trial court expressed its doubt about a
five-year-old’s ability to fabricate an account of an incident of a sexual nature, but offered
Caraballo an opportunity to withdraw his guilty plea and to proceed to trial. Caraballo
affirmed his decision to plead guilty, stating he wanted to avoid the risk of a long prison
term.
{¶10} Before imposing a maximum term for Caraballo’s offense, the trial court
acknowledged the purposes and principles of felony sentencing set forth in R.C.
2929.11, and placed on the record its consideration of various R.C. 2929.12 factors. The
court noted the injury was exacerbated by the physical and mental condition and age of
the victim as a five-year-old child. The court found the victim suffered serious physical
and psychological harm from being raped vaginally. The court also found Caraballo
used his relationship with the child-victim, as a family friend of the child’s parents, to
facilitate the offense. The court found no substantial grounds to mitigate Caraballo’s
conduct. The court also noted Caraballo’s history of arrests as reflected in the PSI,
which included an arrest for rape in 2010, although it was unclear whether an indictment
stemmed from the arrest. It found that the PSI did not truly address the question of
recidivism because the dispositions of the prior cases were unknown. The court
determined, however, that Caraballo posed a risk of re-offending. In addition, it found
him to lack remorse and to have pled guilty only to avoid a harsher sentence. The court
concluded that a maximum sentence was required to effectively punish Caraballo’s
behavior while protecting the public from his preying on the most vulnerable people in
the society.
{¶11} The record shows the trial court more than adequately fulfilled its duty
under both R.C. 2929.11 and 2929.12. Caraballo’s sentence is not contrary to law.
{¶12} 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. The defendant’s conviction having
been affirmed, any bail pending appeal 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.
______________________________________________
TIM McCORMACK, JUDGE
LARRY A. JONES, SR., P.J., and
KENNETH A. ROCCO, J., CONCUR