[Cite as State v. Magallanes, 2014-Ohio-4878.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PUTNAM COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 12-14-02
v.
VICTOR R. MAGALLANES, OPINION
DEFENDANT-APPELLANT.
Appeal from Putnam County Common Pleas Court
Trial Court No. 2013 CR 69
Judgment Reversed and Cause Remanded
Date of Decision: November 3, 2014
APPEARANCES:
Gregory J. Hermiller for Appellant
Todd C. Schroeder for Appellee
Case No. 12-14-02
PRESTON, J.
{¶1} Defendant-appellant, Victor R. Magallanes (“Magallanes”), appeals
the March 31, 2014 judgment entry of sentence of the Putnam County Court of
Common Pleas. For the reasons that follow, we reverse the judgment of the trial
court and remand for resentencing.
{¶2} On December 18, 2013, the Putnam County Grand Jury indicted
Magallanes on Counts One and Two of trafficking in cocaine in violation of R.C.
2925.03(A)(1), (C)(4)(a), fifth-degree felonies. (Doc. No. 1).
{¶3} On January 2, 2014, Magallanes appeared for arraignment and entered
pleas of not guilty. (Doc. No. 20).
{¶4} On February 11, 2014, Magallanes withdrew his pleas of not guilty
and entered a plea of guilty to Count One pursuant to a written plea agreement.
(Doc. No. 35); (Feb. 11, 2014 Tr. at 2). In exchange for his change of plea, the
State agreed to dismiss Count Two and remain silent at sentencing. (Id.); (Id.).
The trial court accepted Magallanes guilty plea, found him guilty, and ordered a
presentence investigation (“PSI”). (Feb. 11, 2014 Tr. at 10).
{¶5} On March 27, 2014, the trial court sentenced Magallanes to 12 months
in prison. (Mar. 27, 2014 Tr. at 4). The trial court further ordered that Magallanes
serve the 12-month term of imprisonment in the Putnam County case consecutive
to the 12-month term of imprisonment in his Wood County, Ohio case—a case
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stemming from a receiving-stolen-property offense that Magallanes committed in
that county. (Id. at 4-5); (Doc. No. 33).
{¶6} On March 31, 2014, the trial court filed its judgment entry of sentence.
(Mar. 31, 2014 JE, Doc. No. 48).
{¶7} On April 23, 2014, Magallanes filed his notice of appeal. (Doc. No.
60). He raises three assignment of error for our review. We elect to address
Magallanes’s second assignment of error first.
Assignment of Error No. II
The trial court failed to make the necessary findings under
Section 2929.14(C) of the Ohio Revised Code for the imposition
of consecutice [sic] sentences in the appellant’s case.
{¶8} In his second assignment of error, Magallanes argues that the trial
court failed to make the necessary findings under R.C. 2929.14(C)(4) to impose
consecutive sentences. We agree.
{¶9} A trial court’s sentence will not be disturbed on appeal absent a
defendant’s showing by clear and convincing evidence that the sentence is
unsupported by the record; the sentencing statutes’ procedure was not followed or
there was not a sufficient basis for the imposition of a prison term; or that the
sentence is contrary to law. State v. Ramos, 3d Dist. Defiance No. 4-06-24, 2007-
Ohio-767, ¶ 23 (the clear and convincing evidence standard of review set forth
under R.C. 2953.08(G)(2) remains viable with respect to those cases appealed
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under the applicable provisions of R.C. 2953.08(A), (B), and (C) * * *); State v.
Rhodes, 12th Dist. Butler No. CA2005-10-426, 2006-Ohio-2401, ¶ 4; State v.
Tyson, 3d Dist. Allen Nos. 1-04-38 and 1-04-39, 2005-Ohio-1082, ¶ 19, citing
R.C. 2953.08(G).
{¶10} Clear and convincing evidence is that “which will produce in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.” Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus; State v. Boshko, 139 Ohio App.3d 827, 835 (12th Dist.2000). An
appellate court should not, however, substitute its judgment for that of the trial
court because the trial court is “‘clearly in the better position to judge the
defendant’s dangerousness and to ascertain the effect of the crimes on the
victims.’” State v. Watkins, 3d Dist. Auglaize No. 2-04-08, 2004-Ohio-4809, ¶ 16,
quoting State v. Jones, 93 Ohio St.3d 391, 400 (2001).
{¶11} “Except as provided in * * * division (C) of section 2929.14, * * * a
prison term, jail term, or sentence of imprisonment shall be served concurrently
with any other prison term, jail term, or sentence of imprisonment imposed by a
court of this state, another state, or the United States.” R.C. 2929.41(A). R.C.
2929.14(C) provides:
(4) * * * [T]he court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
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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.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
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{¶12} R.C. 2929.14(C)(4) requires a trial court to make specific findings on
the record before imposing consecutive sentences. State v. Hites, 3d Dist. Hardin
No. 6-11-07, 2012-Ohio-1892, ¶ 11; State v. Peddicord, 3d Dist. Henry No. 7-12-
24, 2013-Ohio-3398, ¶ 33. Specifically, the trial court must find: (1) consecutive
sentences are necessary to either protect the public or punish the offender; (2) the
sentences would not be disproportionate to the offense committed; and (3) one of
the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies. Id.; Id.
{¶13} The trial court must state the required findings at the sentencing
hearing and incorporate the statutory findings into the sentencing entry. State v.
Sharp, 3d Dist. Putnam No. 12-13-01, 2014-Ohio-4140, ¶ 50, citing State v.
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 29. “‘However, a word-for-word
recitation of the language of the statute is not required, and as long as the
reviewing court can discern that the trial court engaged in the correct analysis and
can determine that the record contains evidence to support the findings,
consecutive sentences should be upheld.’” Id.
{¶14} We cannot discern from the record that the trial court made the three
statutorily required findings. At the sentencing hearing, the trial court stated:
At this time, the Court is making certain findings. First of all, that
the defendant’s presently serving a prison term and that the offense
here was committed while the offender was under a community
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control sanction. The Court is also determining that in weighing the
seriousness of recidivism factors, that prison is consistent with the
principles of the revised code and the offender is not amenable to an
available community control sanction. As a result, the Court is
imposing a period of 12 months at the Ohio Department of
Correction and Rehabilitation. The Court is imposing the sentence
as a consecutive sentence. * * * The Court is also making a finding
that the defendant’s record indicates that the recidivism, that the
defendant is likely to be a repeat offender.
(Mar. 27, 2014 Tr. at 4-5). In its sentencing entry, the trial court stated:
The Court finds that the Defendant is currently serving another
prison term. The Court further finds that a prison term is consistent
with the principles and purposes of sentencing, and that the
Defendant is not amenable to community control sanctions. The
Court further finds the Defendant’s criminal record demonstrates he
is likely to be a repeated offender. IT IS THEREFORE ORDERED,
ADJUDGED AND DECREED that the Defendant shall be
sentenced to twelve (12) months at the Ohio Department of
Rehabilitation and Correction. The Defendant’s sentence shall run
consecutive to the Defendant’s sentence in Wood County.
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(Mar. 31, 2014 JE, Doc. No. 48).
{¶15} The trial court made one of the three necessary findings under R.C.
2929.14(C)(4)—that is, the trial court found that Magallanes committed the
trafficking in cocaine offense while he was under a community control sanction.
See R.C. 2929.14(C)(4)(a). However, it is not apparent that the trial court found
that consecutive sentences were necessary to protect the public or punish the
offender or that the sentences were not disproportionate to the offense committed.
As a result, the trial court did not make all of the statutory findings required by
R.C. 2929.14(C)(4) before imposing consecutive sentences or incorporate the
necessary findings into its sentencing entry. See Sharp, 2014-Ohio-4140, at ¶
51-52; Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, at ¶ 36.
{¶16} Accordingly, we sustain Magallanes’s second assignment of error.
Assignment of Error No. I
The trial court failed to make necessary findings under Section
2929.11, Section 2929.12, Section 2929.13 and Section 2929.14 of
the Ohio Revised Code for the imposition of a maximum prison
sentence in the appellant’s case.
{¶17} In his first assignment of error, Magallanes argues that the trial court
failed to make the necessary findings under R.C. 2929.11, 2929.12, 2929.13, and
2929.14 before imposing a maximum prison sentence. Specifically, Magallanes
argues that the trial court failed to make sufficient findings under R.C. 2929.13
prior to imposing a maximum prison sentence and that the record did not support a
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maximum prison sentence. Magallanes argues that he should have instead been
sentenced to a community-control sanction under R.C. 2929.13(B)(1)(a).
{¶18} Before we address the merits of Magallanes’s first assignment of
error, we note that his first assignment of error is rendered moot because we are
reversing the trial court’s judgment and remanding this case for resentencing. See
State v. Fuller, 3d Dist. Henry No. 7-13-06, 2013-Ohio-5661, ¶ 28, citing App.R.
12(A)(1)(c). However, in the interests of justice, we elect to address the merits of
Magallanes’s first assignment of error. State v. Richardson, 94 Ohio App.3d 501,
510 (1st Dist.1994), abrogated on other grounds by Dayton v. Erickson, 76 Ohio
St.3d 3, 11 (1996).
{¶19} As we noted above, for a defendant’s sentence to be disturbed on
appeal, the defendant must show by clear and convincing evidence that the
sentence is unsupported by the record; the sentencing statutes’ procedure was not
followed; there was not a sufficient basis for the imposition of a prison term; or
that the sentence is contrary to law. Ramos, 2007-Ohio-767, at ¶ 23.
{¶20} Magallanes argues that the trial court failed to make the necessary
findings under R.C. 2929.11 and 2929.12 prior to imposing a maximum sentence.
However, Magallanes’s brief provides no argument relative to how the trial court
failed to make the necessary findings under R.C. 2929.11 or 2929.12 prior to
imposing the maximum sentence. App.R. 12(A)(2) provides us the authority to
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disregard Magallanes’s argument; however, in the interests of justice, we will
address it. See State v. Lasenby, 3d Dist. Allen No. 1-13-36, 2014-Ohio-1878, ¶
38, citing State v. Dunlap, 3d Dist. Auglaize Nos. 12-13-15 and 2-13-16,
2013-Ohio-5083, ¶ 12. See also App.R. 12(A)(2); App.R. 16(A)(7).
{¶21} Magallanes’s sentence is not contrary to law. When sentencing an
offender, the trial court must consider the overall purposes of sentencing under
R.C. 2929.11 and the factors relating to the seriousness of the offense and
recidivism of the offender under 2929.12. State v. Smith, 3d Dist. Auglaize No.
2-06-37, 2007-Ohio-3129, ¶ 26, citing State v. Mathis, 109 Ohio St.3d 54,
2006-Ohio-855, ¶ 38; State v. Pence, 3d Dist. Auglaize No. 2-11-18,
2012-Ohio-1794, ¶ 9. Although it is required to consider R.C. 2929.11 and
2929.12, the trial court is not required to use specific language regarding its
consideration of those statutes. Smith at ¶ 26; State v. Fletcher, 3d Dist. Auglaize
No. 2-13-02, 2013-Ohio-3076, ¶ 22, citing State v. Patrick, 10th Dist. Franklin No.
10AP-26, 2011-Ohio-1592, ¶ 25-26. See also State v. Arnett, 88 Ohio St.3d 208,
215 (2000) and State v. Snyder, 3d Dist. Seneca No. 13-12-38, 2013-Ohio-2046, ¶
25.
{¶22} A review of the record indicates that the trial court considered R.C.
2929.11 and R.C. 2929.12 in sentencing Magallanes. Prior to sentencing
Magallanes, the trial court stated it weighed the sentencing factors concerning
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seriousness and recidivism and stated that its sentence was consistent with the
principles of the Revised Code. (Mar. 27, 2014 Tr. at 4). Likewise, the trial court
incorporated its statements into its sentencing entry by noting that it considered the
principles and purposes of sentencing under R.C. 2929.11 and 2929.12. (Mar. 31,
2014 JE, Doc. No. 48). More specifically, the trial court found that Magallanes
has “been in and out of court on either additional charge[s] or a probation or
supervision violation * * *.” (Mar. 27, 2014 Tr. at 3). Based on Magallanes’s
criminal record, the trial court concluded that Magallanes is likely to be a repeat
offender and not amenable to a community-control sanction since he committed
the underlying offense while serving a community-control sanction. (Id. at 4-5).
Accordingly, we find that the record sufficiently demonstrates that the trial court
considered both R.C. 2929.11 and R.C. 2929.12 as required. State v. Parsons, 3d
Dist. Auglaize No. 2-10-27, 2011-Ohio-168, ¶ 16.
{¶23} The trial court sentenced Magallanes to a 12-month prison term after
finding him guilty of committing a fifth-degree felony. (Mar. 31, 2014 JE, Doc.
No. 48). R.C. 2929.14(A)(5) provides that “[f]or a felony of the fifth degree, the
prison term shall be six, seven, eight, nine, ten, eleven, or twelve months.”
Magallanes’s sentence was within the statutory range. Therefore, Magallanes’s
sentence was not contrary to law. See State v. Toler, 3d Dist. Auglaize No.
2-13-18, 2013-Ohio-5084, ¶ 19.
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{¶24} Nevertheless, Magallanes argues that the trial court erred in imposing
the maximum sentence because it failed to make the necessary findings under R.C.
2929.13 before imposing his sentence. Specifically, Magallanes argues that R.C.
2929.13(B)(1)(a) required the trial court to sentence him to a community-control
sanction as opposed to a prison term. R.C. 2929.13(B)(1)(a) states:
Except as provided in division (B)(1)(b) of this section, if an
offender is convicted of or pleads guilty to a felony of the fourth or
fifth degree that is not an offense of violence or that is a qualifying
assault offense, the court shall sentence the offender to a community
control sanction of at least one year’s duration if all of the following
apply:
(i) The offender previously has not been convicted of or pleaded
guilty to a felony offense.
(ii) The most serious charge against the offender at the time of
sentencing is a felony of the fourth or fifth degree.
(Emphasis added.) R.C. 2929.13(B)(1)(a).
Magallanes’s argument is erroneous for two reasons. First, Magallanes failed to
acknowledge the effect of the “except as provided in division (B)(1)(b)” language
of R.C. 2929.13(B)(1)(a). R.C. 2929.13(B)(1)(b) provides, in relevant part:
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The court has discretion to impose a prison term upon an offender
who is convicted of or pleads guilty to a felony of the fourth or fifth
degree that is not an offense of violence or that is a qualifying
assault offense if any of the following apply:
***
(xi) The offender committed the offense while under a community
control sanction, while on probation, or while released from custody
on a bond or personal recognizance.
(Emphasis added.) R.C. 2929.13(B)(1)(b). Because Magallanes committed the
trafficking-in-cocaine offense in this case while he was under a
community-control sanction, it was within the trial’s discretion to sentence
Magallanes to a term of imprisonment.
{¶25} Second, Magallanes argument is erroneous because R.C.
2929.13(B)(1)(a) mandates that the trial court impose a community-control
sanction if the offender has not previously been convicted or pleaded guilty to a
felony offense. R.C. 2929.13(B)(1)(a)(i). Because Magallanes previously pleaded
guilty to a felony offense, the trial court was not required to sentence him to a
community-control sanction. (See PSI). Therefore, the trial court did not err in
sentencing Magallanes to a prison sentence.
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{¶26} Having determined that there was a sufficient basis for the trial court
to impose a prison term, we turn next to Magallanes’s argument that his sentence
was unsupported by the record. Magallanes failed to clearly and convincingly
demonstrate that his sentence was not supported by the record. Ramos,
2007-Ohio-767, at ¶23.
{¶27} The trial court noted that, in addition to the current charge,
Magallanes has been in and out of court on either additional charges or probation
or supervision violations approximately 20 times since 1998. (Mar. 27, 2014 Tr.
at 3-4); (PSI). Likewise, Magallanes committed the instant offense while under a
community-control sanction in a Wood County case and had charges pending
against him in Henry County at the time of sentencing in this case. (Id. at 2, 4);
(Id.). More specifically, in the Wood County case, Magallanes pleaded guilty to
receiving stolen property, a fifth-degree felony, and was sentenced to three years
of community control. (PSI). The record reflects that Magallanes was charged
with approximately six probation and community-control violations during the
time he was on community control. (See id.). As a result of his numerous
probation and community-control violations, Magallanes was sentenced to
12-months imprisonment in the Wood County case. (Id.). In the Henry County
case, Magallanes was charged with failure to comply and theft, both first-degree
misdemeanors, stemming from stealing ten cases of beer and leading law
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enforcement officers on a pursuit in which he failed to stop for posted stop signs
and reached speeds higher than the posted speed limit. (Id.). Magallanes was also
in arrears on his child support for his children as well as his court costs and fines,
and he had a documented drug and alcohol problem. (Id.). See also State v.
Ramey, 3d Dist. Auglaize No. 2-11-11, 2012-Ohio-133, ¶ 12.
{¶28} In light of the foregoing, we cannot conclude that Magallanes’s 12-
month maximum sentence was unsupported by the record. Ramey at ¶ 13.
{¶29} Magallanes’s first assignment of error is, therefore, overruled.
Assignment of Error No. III
The appellant was denied his constitutional right to effective
assistance of counsel when the appellant’s trial counsel failed to
advocate and protect appellant’s rights upon sentencing.
{¶30} In his third assignment of error, Magallanes argues that he was
deprived the effective assistance of trial counsel. In particular, Magallanes argues
that his trial counsel failed to offer any factual basis or legal support for his
argument at the sentencing hearing that Magallanes should be sentenced only to
concurrent prison terms.
{¶31} In light of our decision to reverse the judgment of the trial court and
remand for resentencing, Magallanes’s third assignment of error is rendered moot,
and we decline to address it. See State v. Panning, 3d Dist. Van Wert No.
15-13-07, 2014-Ohio-1880, ¶ 18, citing App.R. 12(A)(1)(c).
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{¶32} We find no error prejudicial to the appellant herein in the particulars
assigned and argued in appellant’s first assignment of error. However, having
found error prejudicial to the appellant herein in the particulars assigned and
argued in appellant’s second assignment of error, we reverse the judgment of the
trial court and remand for further proceedings consistent with this opinion.
Judgment Reversed and
Cause Remanded
WILLAMOWSKI, P.J. and SHAW, J., concur.
/jlr
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