[Cite as State v. Luyando, 2012-Ohio-1947.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97203



                                      STATE OF OHIO
                                                PLAINTIFF-APPELLEE

                                                 vs.


                                    PEDRO LUYANDO
                                                DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CR-545841

        BEFORE: Kilbane, J., Blackmon, A.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                      May 3, 2012
ATTORNEY FOR APPELLANT

Joseph Vincent Pagano
P.O. Box 16869
Rocky River, Ohio 44116

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
Brian M. McDonough
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

       {¶1} Defendant-appellant, Pedro Luyando, appeals from his sentence for

involuntary manslaughter with a firearm specification. For the reasons set forth below,

we affirm.

       {¶2} On January 28, 2011, defendant and codefendant, Angel Garcia (“Garcia”),

were indicted pursuant to a four-count indictment for the shooting death of David

Morales.     Count 1 charged the defendant with aggravated murder in violation of

R.C. 2903.01(A), and Count 2 charged him with discharging a firearm near prohibited

premises in violation of R.C. 2923.162(A)(3). Both Counts 1 and 2 set forth one- and

three-year firearm specifications and a forfeiture of a weapon specification. Count 3

charged him with carrying a concealed weapon in violation of R.C. 2923.12(A)(2) with

forfeiture of a weapon specification. Count 4 charged his codefendant with obstructing

justice in violation of R.C. 2921.32(A)(5) with a forfeiture of a weapon specification.

       {¶3} Defendant pled not guilty, but on April 11, 2008, he reached a plea

agreement with the State whereby Count 1 was amended to charge him with the offense

of involuntary manslaughter. He pled guilty to this offense as well as the firearm and

forfeiture specifications, and the remaining charges were dismissed.

       {¶4} On July 26, 2011, defendant submitted a sentencing memorandum that

provided in relevant part as follows:
       He is married to Wanda Torres, his wife of 29 years. They have two sons,
       26 and 16 [and the older child] suffers from a severe mental illness. Mr.
       Luyando is universally well-regarded in his community. * * *

       Mr. Luyando has consistently been employed over the years and is the main
       financial support for his family. He was most recently employed for the
       past eight (8) years as a security guard for Royce Security. His
       employment ended only as a result of the instant case. In this capacity,
       [defendant] was trained and licensed to carry a concealed firearm
       continuously from 2004-present. The firearm was lawfully purchased in
       2003 for use in his employment. (The firearm * * * is the weapon involved
       in this case).

       Mr. Luyando has never previously been convicted of any felony offense.
       He has * * * no substance abuse/dependency issues.

       He * * * deeply regrets his actions [and is] extremely remorseful for effects

       this case has had on others, most notably the victim[.]

       {¶5} With regard to the factors set forth in R.C. 2929.12 regarding the

seriousness of the offense, defendant indicated that although “his actions fall short of a

valid self defense claim as he brought himself to the scene with a gun,” the victim partly

induced or facilitated the offense in that he was fighting in the street immediately prior to

the shooting, had been fighting with defendant’s brother, codefendant Garcia, and was

under the influence of alcohol and medication. Defendant additionally maintained that

he and an independent witness, Jose Perez, observed the victim with a gun, but an

unknown person took it from the scene. With regard to the factors set forth in R.C.

2929.12 regarding recidivism, defendant indicated that he did not meet any statutory

criteria that are indicative of likelihood to reoffend.
      {¶6} On July 27, 2011, the trial court rejected defendant’s request to receive the

minimum term of three years of imprisonment for the offense of involuntary

manslaughter, and sentenced defendant to six years of imprisonment for involuntary

manslaughter plus three years of imprisonment for the firearm specification, and five

years of postrelease control. Defendant now appeals and assigns the following error for

our review.

      {¶7}    Defendant’s assignment of error states:

      “The trial court’s imposition of a nine year prison term was contrary to law

      and an abuse of discretion.”

      {¶8} Within this assignment of error, defendant complains that the trial court did

not make necessary statutory findings and did not provide sufficient reasons for imposing

the sentence. He additionally complains that the court imposed a sentence beyond that

needed to accomplish the purpose of sentencing, the sentence constituted a drain on

governmental resources, and that the court failed to consider the proportionality and

consistency of the sentence.

      {¶9} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, “trial

courts have full discretion to impose a prison sentence within the statutory range and are

no longer required to make findings and give reasons for imposing maximum,

consecutive or more than the minimum sentence.”          Id. at paragraph seven of the

syllabus.1 In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 4, the Ohio Supreme


      1Thereafter,   in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d
Court held that, in accordance with the court’s decision in Foster, appellate courts must

apply the following two-step approach to review a felony sentence:

              First, they must examine the sentencing court’s compliance with all

       applicable rules and statutes in imposing the sentence to determine whether

       the sentence is clearly and convincingly contrary to law. If this first prong

       is satisfied, the trial court’s decision shall be reviewed under an

       abuse-of-discretion standard.

       {¶10} The requirements of R.C. 2929.11 and 2929.12 remain intact, however, and

the trial court must still consider these statutes when imposing a sentence. Kalish at ¶

13, citing; State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, paragraph

three of the syllabus.

       R.C. 2929.11(A) provides:

       [A] court that sentences an offender for a felony shall be guided by the

       overriding purposes of felony sentencing[,] * * * to protect the public from

       future crime by the offender and others and to punish the offender. To

       achieve those purposes, the sentencing court shall consider the need for

       incapacitating the offender, deterring the offender and others from future



768, the Ohio Supreme Court reiterated that R.C. 2929.14(C)(4) remained
unconstitutional and imposed no fact-finding obligation on Ohio’s trial courts. Id. at
 39. The General Assembly, however, recently amended former R.C. 2929.14(E)(4),
renumbered R.C. 2929.14(C)(4), effective date of September 30, 2011, requiring
fact-finding for consecutive sentences. Am.Sub.H.B. No. 86.
      crime, rehabilitating the offender, and making restitution to the victim of

      the offense, the public, or both.

      {¶11} R.C. 2929.12 provides a nonexhaustive list of factors a trial court must

consider when determining the seriousness of the offense and the likelihood that the

offender will commit future offenses.

      {¶12} These statutes are not fact-finding statutes, however.        Kalish at ¶ 17.

Moreover, where the record is silent, an appellate court may presume that the trial court

considered the statutory factors when imposing a sentence. State v. Martinez, 8th Dist.

No. 96222, 2011-Ohio-5832, ¶ 12; State v. Dargon, 8th Dist. No. 82918,

2003-Ohio-5826.

      {¶13} In this matter, defendant pled guilty to involuntary manslaughter in violation

of R.C. 2903.04(A), a felony of the first degree, which carried a possible penalty of three

to ten years of imprisonment. R.C. 2929.14(A)(1). 2 Defendant also pled guilty to a

firearm specification, in violation of R.C. 2941.145, which carried a three-year term of

imprisonment. R.C. 2929.14(D). The record indicates that the trial court considered the

required statutory provisions in sentencing defendant. The sentence is within the range

set forth in the applicable statutory provisions. It meets the overriding purposes of the

sentencing provisions of protecting the public and punishing the offender. The six-year

term is substantially less than the ten-year term that defendant could have received on the


      2R.C.  2929.14(A)(1) has since been modified to provide for a maximum term
of eleven years for felonies of the first degree.
involuntary manslaughter charge. It reflects both the seriousness of the offense and the

likelihood that defendant will reoffend and is not clearly and convincingly contrary to

law. Under Kalish at ¶ 4, the first prong is satisfied.

       {¶14} Defendant complains, however, that the sentence does not meet the purpose

of punishing the offender using the “minimum sanctions that the court determines

accomplish those purposes without imposing an unnecessary burden on state or local

government resources.” We note that, although resource burdens are relevant sentencing

considerations under former R.C. 2929.13(A) and newly enacted language in R.C.

2929.11, a sentencing court is not required to elevate resource conservation above

seriousness and recidivism factors.        State v. Burton, 10th Dist. No. 06AP-690,

2007-Ohio-1941, ¶ 19. In any event, the record does not support the contention that the

sentence imposes an unnecessary burden on state or local resources.

       {¶15} As to defendant’s additional challenges regarding the proportionality and

consistency of the sentence, we note that he did not challenge the proportionality of his

sentence or the consistency of it as compared to other similar offenders in the court

below, therefore, he has waived this issue. State v. Santiago, 8th Dist. No. 95516,

2011-Ohio-3058; State v. Lycans, 8th Dist. No. 93480, 2010-Ohio-2780.

       {¶16} Turning to the second prong of our standard of review, we find no abuse of

discretion in connection with the sentence. The record reveals that defendant’s brother

had been in an altercation. Defendant denied being summoned to the scene, but he

arrived nearby with his weapon a short time later.        The record further reveals that
defendant mistakenly believed that his brother did not create the altercation, and

intervened, shooting Morales three times.    The court stated:

       [L]ooking at your presentence investigation report, and the sentencing
       memorandum that’s prepared by your lawyers, and listening to you here
       today, in consideration, all the relevant seriousness and recidivism factors,
       and ensuring that the public is protected from future crime, and that you are
       punished, I am going to impose a prison term on the underlying offense of
       involuntary manslaughter * * *.

       So I am going to impose a prison term of six years at Lorain Correctional
       Institution on the underlying offense of involuntary manslaughter. I am
       going to impose a prison term of three years for the firearm specification.

       {¶17} We find no abuse of discretion.         The record indicates that defendant

intervened in an altercation by assisting the aggressor, and he shot Morales three times.

The court carefully considered defendant’s background, defendant’s actions the night of

the shooting, and the relevant statutory provisions. In addition, the trial court considered

the presentence investigation report that indicated defendant had “a history of criminal

conviction,” and “shows no genuine remorse.” The court also considered defendant’s

sentencing memorandum and his statement before sentence. The six-year term was in

the midpoint of the statutory range and was within the sound exercise of the trial court’s

discretion. The second prong of Kalish, 120 Ohio St.3d 23, 2008-Ohio-2372, ¶ 4, is

therefore satisfied.

       {¶18} In accordance with the foregoing, the assignment of error is without merit.

       {¶19} Judgment 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.




       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

PATRICIA A. BLACKMON, A.J., and
SEAN C. GALLAGHER, J., CONCUR
