[Cite as State v. Reyes, 2018-Ohio-494.]


                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105794




                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                           LUIS A. REYES
                                                      DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-16-611804-A

        BEFORE: Kilbane, P.J., Laster Mays, J., and Keough, J.

        RELEASED AND JOURNALIZED: February 8, 2018
ATTORNEYS FOR APPELLANT

Mark Stanton
Cuyahoga County Public Defender
By: Frank Cavallo
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Anna Woods
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, P.J.:

          {¶1} Defendant-appellant, Luis A. Reyes (“Reyes”), appeals his sentence for

attempted aggravated arson and domestic violence. For the reasons set forth below, we

affirm.

          {¶2} In December 2016, Reyes was charged in a twelve-count indictment with ten

counts of aggravated arson, one count of attempted aggravated arson, and one count of

domestic violence.

          {¶3} In March 2017, pursuant to a plea agreement with the state of Ohio, Reyes

pled guilty to three counts of attempted aggravated arson and one count of domestic

violence. The trial court referred Reyes to the probation department for a presentence

investigation report (“PSI”) and set this matter for sentencing in April 2017.

          {¶4} At the sentencing hearing, the trial court referenced the PSI and heard

testimony from Captain Schroeder of the Cleveland Fire Department Arson Unit. It was

adduced from the PSI and Captain Schroeder’s statement that Reyes, following an

argument with his girlfriend, poured gasoline on his girlfriend and the basement floor of

his home and threatened to burn the house down. Reyes’s girlfriend’s daughter heard her

mother’s screams for help and intervened by smacking a lighter out of Reyes’s hand before

he was able to light it. Several other family members were sleeping upstairs at the time of

this incident. Cleveland Police officers arrived at Reyes’s home and were able to detect

the strong odor of gasoline at the front door emanating from the basement. The arson
investigator from the Cleveland Fire Department determined that Reyes had poured so

much gasoline that “it was too rich to ignite right then.”

         {¶5} The parties agreed that the attempted aggravated arson in Count 11 merged

with the acts of attempted aggravated arson charged in Counts 1 and 2. The state elected

to seek sentencing on Counts 1 and 2. The trial court sentenced Reyes to five years on

each of Counts 1 and 2 and ordered these sentences to run consecutive to each other for a

total of ten years. The trial court sentenced Reyes to time served on the domestic violence

count.

         {¶6} Reyes now appeals, raising the following single assignment of error for our

review:

                                     Assignment of Error

         The trial court erred when it ordered consecutive sentences without support
         in the record for the requisite statutory findings under R.C. 2929.11, R.C.
         2929.12, and R.C. 2929.14.

         {¶7} In his sole assignment of error, Reyes argues that the record does not support

the trial court’s consecutive sentence findings pursuant to R.C. 2929.14(C).

         {¶8} Our standard of review of a felony sentence is found in R.C. 2953.08(G)(2),

which states in relevant part:

         The appellate court may increase, reduce, or otherwise modify a sentence * *
         * or may vacate the sentence and remand the matter to the sentencing court
         for resentencing * * * if it clearly and convincingly finds either of the
         following:

         (a) That the record does not support the sentencing court's findings under * *
         * [R.C. 2929.14(C)(4)] * * *;
       (b) That the sentence is otherwise contrary to law.

       {¶9} We note that under R.C. 2929.14(A), prison terms are to be served

concurrently, subject to certain exceptions. A trial court may, in its discretion, order that

a defendant consecutively serve multiple prison terms for convictions of multiple offenses,

provided the court make certain statutory findings under R.C. 2929.14(C)(4).

Specifically, the trial court must find that (1) “consecutive service is necessary to protect

the public from future crime or to punish the offender,” (2) “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) if one of three statutory factors set forth in R.C.

2929.14(C)(4)(a)-(c) applies. Id.

       {¶10} Here, the trial court made the first two findings and further found that the

factors of R.C. 2929.14(C)(4)(b) and (c) applied in relation to the third required finding:

       I find that a consecutive prison term is necessary to protect the community
       and to punish you, the offender, and it’s not disproportionate, and I find that
       the harm is so great or unusual that a single term does not adequately reflect
       the seriousness of your conduct as I find that there were multiple victims in
       this case.
       You poured gasoline on the floor of a dwelling, of a home, in the early
       morning hours of the night, not to mention putting gasoline on your
       girlfriend or spouse at any given moment that home and your wife could
       have gone up in flames. So that’s why I find that a consecutive sentence is
       necessary as there were multiple victims and the risk of harm is so serious in
       this case, and your criminal history shows that a consecutive sentence is
       necessary to protect the public.

       Also, I find that at least two of the multiple offenses were commited 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 your conduct.
       {¶11} Reyes contends that the record does not support the trial court’s findings in

relation to the third prong of the required consecutive sentence findings. Specifically, he

challenges the trial court’s findings that his “criminal history shows that * * * consecutive

sentence[s are] necessary to protect the public” and that the offenses to which he pled

“were committed as part of [a course of conduct], and the harm caused by [this course of

conduct] was so great or unusual that no single prison term * * * adequately reflects the

seriousness of [his] conduct.” Reyes contends that because his prior record is limited to

misdemeanor convictions and contains no violent offenses or crimes that “harmed a person

or property,” his criminal history does not demonstrate that consecutive sentences are

warranted under R.C. 2929.14(C)(4)(c). He also argues that his conduct merely created a

“risk of harm,” rather than actual harm and therefore, consecutive sentences are not

warranted under R.C. 2929.14(C)(4)(b).

       {¶12} Reyes did not dispute the details of his conduct adduced at the sentencing

hearing. At sentencing, the trial court addressed Reyes as to the seriousness of this

conduct:

       [Y]ou created an extremely dangerous situation and an extremely serious

       risk to a number of people by pouring gasoline all over the floor of this

       house and pouring it on the victim in this case, and having so many other

       people be in this house. You should be so thankful that this house didn’t go

       up in flames which would carry a signficant risk to people who even lived

       around you.
       {¶13} As the trial court aptly noted, Reyes’s conduct was very serious and

presented an extremely dangerous situation.        Reyes’s argument that his conduct is

somehow less serious because the gasoline he poured did not actually ignite is

unpersuasive. This does not diminish the physical and psychological harm suffered by his

victims.

       {¶14} The trial court also read a portion of Reyes’s criminal record from the PSI

on the record. While Reyes’s criminal history prior to this matter is not violent and not as

serious as the offenses to which he pled guilty in the present matter, his record is,

nonethless, lengthy and indicates a substance abuse problem, which, according to his

girlfriend’s statement to the fire investigator, precipitated the domestic violence underlying

the present offenses.

       {¶15} Upon review of the record in this matter, we cannot clearly and convincingly

find that the trial court’s findings that the statutory factors set forth in R.C.

2929.14(C)(4)(b) and (c) are unsupported by the record.          Accordingly, Reyes’s sole

assignment of error is overruled.

       {¶16} Judgment is 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 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.




MARY EILEEN KILBANE, PRESIDING JUDGE

ANITA LASTER MAYS, J., and
KATHLEEN ANN KEOUGH, J., CONCUR
