[Cite as State v. Suarez, 2014-Ohio-1350.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      GEAUGA COUNTY, OHIO


STATE OF OHIO,                                  :       OPINION

                 Plaintiff-Appellee,            :
                                                        CASE NO. 2013-G-3167
        - vs -                                  :

ROBERT SUAREZ,                                  :

                 Defendant-Appellant.           :


Criminal Appeal from the Geauga County Court of Common Pleas, Case No. 12 C
000081.

Judgment: Affirmed.


James R. Flaiz, Geauga County Prosecutor, and Nicholas A. Burling, Assistant
Prosecuting Attorney, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH
44024 (For Plaintiff-Appellee).

Virgil T. Morant, 2130 Lakeland Avenue, Lakewood, OH 44107 (For Defendant-
Appellant).



DIANE V. GRENDELL, J.

        {¶1}     Defendant-appellant, Robert Suarez, appeals his conviction and sentence,

following a jury trial in the Geauga County Court of Common Pleas, for Having

Weapons While Under Disability. The issues to be determined by this court are whether

a court errs in sentencing a defendant when it determined that, although a defendant

apologized, he did not show sufficient remorse, and whether a trial court errs by not
inquiring of a juror regarding whether he was sleeping during the trial. For the following

reasons, we affirm the judgment of the trial court.

        {¶2}   On August 13, 2012, the Geauga County Grand Jury issued an

Indictment, charging Suarez with one count of Having Weapons While Under Disability,

a felony of the third degree, in violation of R.C. 2923.13(A)(2).

        {¶3}   A jury trial was held in this matter on July 16 and 17, 2013.        Dawn

Rositano, Suarez’s neighbor, testified that on May 4, 2012, she observed Suarez

arguing with his son, Damian, and then heard Damian shout, “Dad, put the gun down.”

She went over to the home, where Suarez was pointing a shotgun at Damian. Suarez

threatened to “blow [Rositano’s] head off” if she touched the gun.

        {¶4}   Rositano called 911 and police subsequently responded to Suarez’s

home.     Deputy Brian Sebor testified that, upon searching the home, officers recovered

a shotgun underneath the couch in the living room. The parties stipulated that Suarez

had previously been convicted of a felony offense and had not been relieved of a

weapons disability, pursuant to R.C. 2923.14.

        {¶5}   Closing arguments were presented on July 16, 2013. At the beginning of

proceedings on the following day, defense counsel requested that “the judge * * * say

something that I noticed at the very end of the day, ask the jury their sense of their

attentiveness because I did notice Juror Number 10 * * * was getting a bit sleepy eyed

while I was giving my closing argument, and his head was nodding a little bit.” He

stated that the court “might like to inquire of the jury whether they felt they were fully

attentive during the entirety of the proceedings.” The court determined that such a

question was open-ended and might “bring about a can of worms.” Defense counsel




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indicated that this “point is well taken” and the defense “will be satisfied that the

observation has been placed on the record.”

       {¶6}   The jury found Suarez guilty of Having Weapons While Under Disability,

as charged in the Indictment. This verdict was memorialized in the trial court’s July 25,

2013 Order.

       {¶7}   On September 20, 2013, a sentencing hearing was held. At the hearing,

Suarez stated that he had good intentions in allowing his son to move into his home to

help him with a drug problem and admitted that he did not act “properly, * * *

thoughtfully or respectfully” on the night of the incident.   Suarez stated that he felt

“horrible” for what had happened and wished he could “take it all back.” Suarez’s

counsel noted that Rositano came to the hearing to “show some level of support” for

Suarez. He also noted that Suarez had medical problems, including Hepatitis C, liver

disease, and diabetes.

       {¶8}   The State recommended a sentence of at least 30 months, due to

Suarez’s frequent incarceration in the past.

       {¶9}   The court found that Suarez did express some remorse in court, but had

not done so at the time of the presentence investigation (PSI), and emphasized his

history of criminal offenses. The court sentenced Suarez to serve a term of three years

in prison.

       {¶10} This sentence was memorialized in a September 25, 2013 Judgment of

Conviction. In that Judgment, the court also noted that it had considered the relevant

sentencing factors under R.C. 2929.11 and .12.

       {¶11} Suarez timely appeals and raises the following assignments of error:




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       {¶12} “[1.] The trial court erred in imposing the maximum sentence allowed by

law without duly taking into consideration and applying all of the facts before the Court

to all of the factors and purposes in R.C. 2929.11 and R.C. 2929.12.

       {¶13} “[2.] The trial court erred in refusing either to investigate whether one of

the jurors had slept during the trial or to admonish the jury concerning the matter.”

       {¶14} In his first assignment of error, Suarez argues that the trial court

“overlooked” several facts related to sentencing, and this was both an abuse of

discretion and resulted in a sentence that was clearly and convincingly contrary to law.

       {¶15} Regarding the evaluation of felony sentences, this court has repeatedly

followed the standard of review set forth by a plurality of the Ohio Supreme Court in

State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, which requires

that courts “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 in

imposing the term of imprisonment is reviewed under the abuse-of-discretion standard.”

Id. at ¶ 26; State v. Vanderhoof, 11th Dist. Lake No. 2013-L-036, 2013-Ohio-5366, ¶

7; State v. Grodzik, 11th Dist. Portage No. 2012-P-0111, 2013-Ohio-5364, ¶ 5.

       {¶16} It is well-recognized that a sentencing court “has discretion to determine

the most effective way to comply with the purposes and principles of sentencing.” R.C.

2929.12(A). The Ohio Supreme Court has described a sentencing court’s discretion as

“full discretion to impose a prison sentence within the statutory range.” State v. Mathis,

109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, paragraph three of the syllabus.

“[T]he trial court is not obligated, in the exercise of its discretion, to give any particular




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weight or consideration to any sentencing factor.” State v. Holin, 174 Ohio App.3d 1,

2007-Ohio-6255, 880 N.E.2d 515, ¶ 34 (11th Dist.).

      {¶17} Suarez takes issue with the trial court’s failure to properly consider and

weigh the relevant facts before it in reaching its sentence. He first argues that the trial

court did not take into account the remorse he expressed during the sentencing hearing.

      {¶18} The trial court noted that Suarez expressed “some remorse” in court, but

also that he had not expressed remorse at the time the PSI was performed, stating only

that the case was going to be appealed. The court was “surprised there isn’t more of a

heartfelt, profound expression” of remorse. Based on these comments, it appears the

court considered all of the evidence before it, both the PSI and Suarez’s in-court

statements, in determining that his expression of remorse was not genuine or sufficient.

As this court has held, “a reviewing court must defer to the trial court as to whether a

defendant’s remarks are indicative of genuine remorse because it is in the best position

to make that determination.” (Citation omitted.) State v. Davis, 11th Dist. Lake No.

2010-L-148, 2011-Ohio-5435, ¶ 15.        Based on the foregoing, we find no basis to

second-guess the lower court’s determination as to this issue.

      {¶19} Suarez also argues that the court failed to take into account his serious

medical problems. Although the trial court did not make a statement specifically as to

these issues, this does not mean that they were not considered. The court noted in its

Judgment of Conviction that it had considered the information presented on behalf of

Suarez and the PSI report, both of which included statements regarding his health.

While his medical issues may be relevant, it has been noted that a defendant’s medical

condition does not require the imposition of a lesser sentence, since his medical needs




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can be met in the prison system. State v. Martin, 12th Dist. Butler No. CA2013-03-055,

2013-Ohio-3676, ¶ 25. “[T]he court must sentence [a defendant] so as to protect the

public,” and not only consider what is best for the defendant. Davis at ¶ 14.

       {¶20} Finally, Suarez argues that the trial court did not take into account the

victim’s statement, which was favorable to him. Again, there is no indication that the

court did not take this into consideration, given that it noted in its Judgment of

Conviction that it had considered this statement, even if no specific findings of fact were

made. State v. DeNiro, 11th Dist. Lake Nos. 2012-L-121 and 2012-L-122, 2013-Ohio-

2826, ¶ 20 (judicial fact-finding as to the statutory factors for sentencing is not required).

The fact that Suarez’s son did not want a lengthy sentence is also only marginally

relevant to the crime committed, given that Suarez was convicted of improperly

possessing a firearm due to his status as an individual under a weapons disability.

       {¶21} The court was entitled to weigh any degree of remorse expressed and the

additional potential mitigating circumstances raised by Suarez with the other factors in

favor of granting a prison term.     In addition to considering the foregoing, the court

emphasized that Suarez had an extensive criminal record, which is documented in the

PSI report. “Even the demonstration of genuine remorse” and the existence of other

mitigating factors does not “mandate a lesser sentence where the judge determines * * *

that the maximum or more than minimum sentence is necessary to achieve the

purposes of felony sentencing, i.e., protecting the public from future crime by the

offender and punishing the offender.” Davis, 2011-Ohio-5435, at ¶ 17, citing Holin,

2007-Ohio-6255, at ¶ 34.        The court expressed concern about Suarez being a

dangerous and violent person, which provided justification for its sentence.




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       {¶22} Based on the foregoing, we cannot find that the trial court erred in issuing

its sentence or in considering the requisite facts before it. Its sentence was within the

statutory range and the court considered the necessary factors to reach Suarez’s

sentence.

       {¶23} The first assignment of error is without merit.

       {¶24} In his second assignment of error, Suarez argues that the trial court erred

by failing to investigate or inquire further as to a juror who had fallen asleep during

closing argument and by not “admonish[ing] the jury concerning the matter.”

       {¶25} The State argues that the failure to question the juror or investigate further

did not amount to plain error and no prejudice resulted to Suarez.

       {¶26} In a similar case, State v. Sanders, 92 Ohio St.3d 245, 750 N.E.2d 90

(2001), defense counsel raised the issue of a sleeping juror, and then argued on appeal

that the juror should have been replaced or examined to determine whether she was

sleeping. The court held that since defense counsel did not request these remedies at

trial, or “express dissatisfaction with the trial judge’s handling of the matter,” a plain error

standard should be applied. Id. at 253. Various courts have applied a plain error

standard when defense counsel has brought the matter of a sleeping juror to the trial

court’s attention, but did not request that a remedy such as juror removal be ordered

and did not object to the trial court’s resolution of the issue. State v. McKnight, 107

Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 185; State v. Allen, 8th Dist.

Cuyahoga No. 97014, 2012-Ohio-1831, ¶ 35; see State v. Houseman, 7th Dist. Belmont

No. 98 BA 4, 2000 Ohio App. LEXIS 3015, 20 (June 29, 2000) (appellant waived his

right to seek review of error related to a sleeping juror when, although defense counsel




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informed the court that the juror was sleeping, he “did not ask that the juror be voir

dired, that testimony be repeated, that the sleeping juror be replaced by an alternate, or

that a mistrial be granted”).

       {¶27} Similarly, in the present case, defense counsel brought the issue of the

potential sleeping juror to the attention of the trial court and asked the judge to “inquire

of the jury whether they felt they were fully attentive during the entirety of the

proceedings.”    He did not argue, as he does now, that the trial court should have

investigated into whether the specific juror was sleeping or that the jury should have

been directed to pay attention (especially given that the trial had ended). He did not

object to the trial court’s handling of the matter. Thus, it appears a plain error standard

would be appropriate in this matter. An alleged error constitutes plain error only if the

error is obvious and, but for the error, the outcome of the trial clearly would have been

different. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶

108.

       {¶28} In the present matter, defense counsel stated to the court that “Juror

Number 10 * * * was getting a bit sleepy eyed while I was giving my closing argument,

and his head was nodding a little bit.” No other evidence was put on the record to

support a finding that the juror actually was asleep, nor did defense counsel object to

the lack of questioning of the juror. “[T]here is no per se rule requiring an inquiry in

every instance of alleged [juror] misconduct.” (Citation omitted.) Sanders at 253. In

this case, in the absence of such a request, or specific allegations that the juror actually

was sleeping and for how long, we cannot find that the trial court committed plain error




                                             8
by not questioning the juror. State v. Keener, 11th Dist. Lake No. 2005-L-182, 2006-

Ohio-5650, ¶ 27.

       {¶29} “Courts have also rejected claims of error raised * * * where they are

premised upon isolated incidents, where the defendant is the only person who

witnesses the alleged misconduct, or where the claim is not raised until the trial is over.”

State v. Majid, 182 Ohio App.3d 730, 2009-Ohio-3075, 914 N.E.2d 1113, ¶ 12 (8th

Dist.). All of these circumstances were present in the current case, where defense

counsel waited until the next day, after closing arguments had concluded, to report that

he observed a juror possibly sleeping and revealed no other potential juror misconduct.

       {¶30} Moreover, this incident allegedly occurred only during closing arguments.

Even if the juror in question had been sleeping during closing arguments, we cannot

hold that this resulted in prejudice to Suarez. Where there is no evidence that the juror

missed “large or critical portions of the trial,” plain error does not occur in allowing the

juror to remain on the panel. Sanders, 92 Ohio St.3d at 253, 750 N.E.2d 90; State v.

McConkey, 11th Dist. Ashtabula No. 2004-A-0017, 2005-Ohio-6580, ¶ 24. In this case,

any potential portion of the trial missed occurred during closing arguments, not during

presentation of any evidence or jury instructions necessary to properly reach a verdict in

this case. There is also no indication that it had any impact on the rest of the jury due to

the fact that the juror was the foreman, as is alleged by Suarez.

       {¶31} Even to the extent that it can be argued that, since defense counsel did

raise the issue of the sleeping juror, plain error does not apply, we cannot find error. “A

trial court possesses considerable discretion in deciding how to handle a sleeping juror.”

(Citation omitted.) Keener, 2006-Ohio-5650, at ¶ 26. In light of the limited evidence of




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the sleeping juror and the lack of prejudice that would result from a juror potentially

acting sleepy briefly during closing arguments only, the trial court did not abuse its

discretion in determining that no further action was necessary.

      {¶32} The second assignment of error is without merit.

      {¶33} For the foregoing reasons, Suarez’s conviction and sentence in the

Geauga County Court of Common Pleas are affirmed.            Costs to be taxed against

appellant.



TIMOTHY P. CANNON, P.J.,

THOMAS R. WRIGHT, J.,

concur.




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