[Cite as State v. Gonzales, 2011-Ohio-4415.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                            JOURNAL ENTRY AND OPINION
                                     No. 96058




                                     STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                               ROSELIO GONZALES
                                                     DEFENDANT-APPELLANT




                     JUDGMENT:
       AFFIRMED IN PART, REVERSED IN PART AND
                     REMANDED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-535203

        BEFORE:            Rocco, J., Stewart, P.J., and Cooney, J.

        RELEASED AND JOURNALIZED:                       September 1, 2011
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                                     -i-

ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender

BY: John T. Martin
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Jennifer A. Driscoll
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




KENNETH A. ROCCO, J.:

      {¶ 1} After pleading guilty to two counts of gross sexual imposition

(“GSI”) committed upon a child victim, defendant-appellant Roselio Gonzales

appeals from his sexual offender classification and from the ten-year sentence

he received for his convictions.
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      {¶ 2} Gonzales presents three assignments of error.         He argues his

sexual offender classification is incorrect, the trial court failed to engage in a

proportionality analysis prior to sentencing him, and the trial court failed to

make the necessary findings and to provide reasons for imposing consecutive

terms.

      {¶ 3} Upon a review of the record, Gonzales’s first assignment of error

has merit; it is clear the parties misunderstood the effect of his plea on his

sexual offender classification. However, Gonzales never brought the issue of

sentence proportionality to the trial court’s attention; thus, he waived the

argument he presents in his second assignment of error. In addition, in State

v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, the Ohio

Supreme Court rejected the argument Gonzales presents in his third

assignment of error, and      Gonzales’s sentence is within statutory limits,

consequently, his third assignment of error also lacks merit.

      {¶ 4} This case, therefore, is reversed in part, affirmed in part, and

remanded for the trial court to conduct a new sexual offender classification

hearing. The trial court is required under R.C. 2950.01(F)(1)(c) to classify

Gonzales as a Tier II offender.

      {¶ 5} Gonzales originally was indicted in this case on two counts of

kidnapping in violation of R.C. 2905.01(A)(4) and two counts of GSI in
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violation of R.C. 2907.05(A)(4). The two victims were alleged to be under the

age of thirteen, and all of the counts contained a sexually violent predator

specification.    The kidnapping counts also contained sexual motivation

specifications.

      {¶ 6} Eventually, Gonzales and the state entered into a plea agreement.

The prosecutor informed the trial court that, in exchange for Gonzales’s guilty

pleas to the GSI counts, the state would amend the indictment to dismiss the

sexually violent predator specifications from those counts, and would dismiss

the kidnapping charges. The prosecutor mistakenly told the trial court that

Gonzales would be a “Tier III sexual offender.”

      {¶ 7} The trial court asked the prosecutor if that classification was “by

agreement,” and the prosecutor responded, “No. That’s due to the statute.”

Defense counsel indicated the prosecutor’s representations were “correct.”

      {¶ 8} The trial court thereupon engaged Gonzales in a colloquy.

Gonzales indicated he understood that his guilty pleas to two third-degree

felonies could subject him to possible punishments “from one to five years in

yearly increments” on both, and that he “would be classified as a Tier III

offender.” The trial court accepted Gonzales’s pleas.

      {¶ 9} The sentencing and classification hearing took place a month later.

By that time, the trial court had obtained a presentence report, and the
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prosecutor had filed a sentencing memorandum. The prosecutor requested

the court to impose the maximum term possible “under the law.”

      {¶ 10} After listening to Gonzales, his defense counsel, the parents of one

of the victims, and the prosecutor, the trial court imposed consecutive terms of

five years on each count. The court further advised Gonzales that he was

classified as “a Tier III offender,” and informed him of those registration

requirements.

      {¶ 11} Gonzales filed an appeal from his classification and sentences, and

presents the following three assignments of error.

      {¶ 12} “I.     Pursuant to R.C. 2950.01, the offense of Gross Sexual

Imposition in violation of R.C. 2907.05(A)(4) is a Tier II offense and

the Defendant’s Tier III classification is incorrect.

      {¶ 13} “II.    The trial court failed to adequately ensure that its

total sentence was proportionate to sentences being given to

similarly situated offenders who have committed similar offenses.

      {¶ 14} “III.    Appellant’s consecutive sentences are contrary to

law and violative of due process because the trial court failed to

make and articulate the findings and reasons necessary to justify it.”

      {¶ 15} Gonzales argues in his first assignment of error that the trial court

improperly classified him as a “Tier III” sexual offender. He contends, in
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light of the amendments to his indictment made by the state, the relevant

statutory provision mandates a “Tier II” classification. His argument has

merit.

       {¶ 16} Pursuant to R.C. 2950.01(F)(1)(c), Gonzales’s conviction for

violation of R.C. 2907.05(A)(4) requires a “Tier II” classification. The state

deleted the sexually violent predator specifications from the counts to which

he entered his guilty pleas. Had Gonzales pleaded guilty to the two counts of

GSI with those specifications attached, he would “automatically” have been

classified as a “Tier III” offender pursuant to R.C. 2950.01(G)(6), but he did

not.

       {¶ 17} The transcript of the plea hearing, moreover, clearly reflects that

Gonzales’s acquiescence to the classification was due to a mistake, rather than

due to the plea agreement itself.      State v. Powell, 188 Ohio App.3d 232,

2010-Ohio-3247, 955 N.E.2d 85; cf., State v. Grate, Trumbull App. No.

2008-T-0058, 2009-Ohio-4452, ¶44.

       {¶ 18} Under these circumstances, Gonzales’s first assignment of error is

sustained.

       {¶ 19} In his second assignment of error, Gonzales argues the trial court

failed to engage in the proportionality analysis required by R.C. 2929.11. His

argument is rejected.
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      {¶ 20} This court previously has held that in order to support a

contention that a sentence is disproportionate to sentences imposed upon

other offenders, the defendant must raise this issue before the trial court and

present some evidence, however minimal, in order to provide a starting point

for analysis and to preserve the issue for appeal. State v. Edwards, Cuyahoga

App. No. 89081, 2007-Ohio-6068. In this case, although the state submitted a

sentencing memorandum to the court, Gonzales did not even mention the

issue of proportionality at his sentencing hearing. Consequently, he waived

the issue on appeal.        State v. Jordan, Cuyahoga App. No. 91869,

2009-Ohio-3078, ¶17.

      {¶ 21} Gonzales’s second assignment of error, accordingly, also is

overruled.

      {¶ 22} In his third assignment of error, Gonzales argues that the trial

court failed to make the necessary required findings to justify the imposition of

consecutive sentences.    Gonzales recognizes that the Ohio Supreme Court

excised those statutory provisions that required judicial fact-finding before

imposing consecutive sentences in State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, 845 N.E.2d 470. Nevertheless, he argues that the United

States Supreme Court decision in Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct.

711, 172 L.Ed.2d 517, abrogated Foster.
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      {¶ 23} Gonzales concedes, however, as he must, that the Ohio Supreme

Court recently rejected this argument and held that trial courts are not

obligated to engage in judicial fact-finding prior to imposing consecutive

sentences. State v. Burrell, Cuyahoga App. No. 95512, 2011-Ohio-2533, ¶22,

citing Hodge. This court is bound to follow decisions of the Ohio Supreme

Court. Battig v. Forshey (1982), 7 Ohio App.3d 72, 454 N.E.2d 168, paragraph

three of the syllabus.

      {¶ 24} Accordingly,   Gonzales’s third assignment of error also is

overruled.

      {¶ 25} Gonzales’s convictions and sentences are affirmed.     His sexual

offender classification is reversed, and this case is remanded for a hearing for

the limited purpose of notifying Gonzales that his convictions cause him to be

classified as a “Tier II” offender. It is ordered that appellee and appellant

share 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

convictions having been affirmed, any bail pending appeal is terminated.

Case remanded to the trial court for execution of sentence.
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     A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



_______________________________________
KENNETH A. ROCCO, JUDGE

MELODY J. STEWART, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR
