[Cite as State v. Saldana, 2013-Ohio-1122.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               PUTNAM COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 12-12-09

        v.

JOSEPH S. SALDANA,                                        OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Putnam County Common Pleas Court
                           Trial Court No. 2012CR00008

                                      Judgment Affirmed

                             Date of Decision: March 25, 2013




APPEARANCES:

        Esteban R. Callejas for Appellant

        Todd C. Schroeder for Appellee
Case No. 12-12-09


WILLAMOWSKI, J.

       {¶1} Defendant-Appellant, Joseph Saldana (“Saldana”), appeals the

judgment of the Putnam County Court of Common Pleas, finding him guilty and

sentencing him to eighteen months in prison after Saldana pled guilty to one count

of aggravated assault. On appeal, Saldana contends that his guilty plea was not

knowingly, intelligently, and voluntarily given, and that the trial court erred when

it sentenced him to the maximum sentence. For the reasons set forth below, the

judgment is affirmed.

       {¶2} On January 18, 2012, the Putnam County Grand Jury filed a single

count indictment charging Saldana with felonious assault in violation of R.C.

2903.11(A)(1) and/or (2), a felony of the second degree. The charges stem from

an altercation that occurred on January 1, 2012, when Saldana, his brother, and

another man went to the home of the victim, and a fight ensued. The indictment

stated that Saldana caused and/or attempted to cause serious physical harm to

another by means of a deadly weapon by using a handgun as a weapon and

striking the victim while at his house in Ottawa, Putnam County, Ohio.

       {¶3} Saldana originally entered a plea of not guilty.        (Jan. 19, 2012

Arraignment Hearing Tr.) A jury trial was set for April 10, 2012.

       {¶4} Subsequently, a plea agreement was reached and a change of plea

hearing was held on March 20, 2012. Saldana, who appeared along with his court-


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appointed attorney, elected to waive indictment and to proceed by bill of

information upon the agreement that Saldana would plead guilty to a reduced

charge of aggravated assault in the bill of information, which was a felony of the

fourth degree. The plea agreement did not make a sentencing recommendation but

stated that the State would remain silent as to sentencing.

       {¶5} The trial court conducted a full and detailed Crim.R. 11 plea colloquy

before accepting Saldana’s pleas and finding him guilty.             The trial court

questioned Saldana in detail to determine whether he understood everything that

he was agreeing to, whether he could read and write, how far he went in school, if

he was satisfied that he knew what the charges were about, whether he was under

the influence of drugs or alcohol, whether he knew what he was doing, and

whether he was changing his plea and waiving indictment freely and voluntarily of

his own free will. The trial court informed Saldana that the offense carried with it

a potential sentence of up to eighteen months in prison. Saldana was given several

opportunities to ask questions.

       {¶6} Before the trial court would accept the plea, it explained in detail all of

the rights that Saldana was giving up by entering his pleas rather than going to

trial. Saldana acknowledged that he understood and agreed to waive each and

every right read to him by the trial court.




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       {¶7} The trial court then asked the prosecutor to state the factual basis of

the plea. When Saldana disputed the accuracy of the facts, the trial court asked

him why he was entering a plea if he did not acknowledge what had occurred.

However, after further discussion, Saldana admitted that the victim was assaulted,

and understood that he could be held equally culpable of assault if he was found to

be aiding or abetting, or complicit with another in the assault. He affirmatively

indicated that he wished to enter a guilty plea.

       {¶8} The trial court was given a copy of the plea agreement signed by

Saldana, his attorney, and the prosecutor. The plea agreement also set forth the

rights that Saldana was waiving, and the maximum penalties and other

ramifications of a guilty plea. The trial court then accepted Saldana’s guilty plea.

It ordered a presentence investigation report and continued the matter for

sentencing.

       {¶9} A sentencing hearing was held on April 30, 2012. The trial court

sentenced Saldana to the maximum sentence, eighteen months in prison, with

credit for the 121 days served.

       {¶10} It is from this judgment that Saldana now appeals, raising the

following assignments of error for our review.

                            First Assignment of Error

       The trial court erred when it imposed the maximum sentence
       upon [Saldana].

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                           Second Assignment of Error

       The trial court erred when it accepted [Saldana’s] guilty plea as
       that plea was not knowingly, intelligently, and voluntarily given.

       {¶11} In order to facilitate our review, we elect to address the assignments

of error out of order. In the second assignment of error, Saldana claims that his

plea was not knowingly, intelligently, and voluntarily given for several reasons,

including, Saldana had suffered a head injury “a mere several months before the

plea”; the court failed to give him a competency examination; the court failed to

advise him of his presumption of innocence; the trial court did not inform him that

“the state’s recommendation and [Appellant’s] plea did not bind the court nor

guarantee a less than maximum sentence”; and, that the State failed to allege at the

plea hearing that the offense occurred within the State of Ohio.

       {¶12} However, the record reflects that Saldana never filed a motion to

withdraw his guilty plea with the trial court pursuant to Crim.R. 32.1, either prior

to or after sentencing. A failure to assert an alleged error in the trial court waives

that error on appeal. State v. Awan, 22 Ohio St.3d 120, 122 (1986).        Therefore,

his failure to raise these arguments in the court below ordinarily precludes us from

reviewing these issues on appeal. See State v. Draper, 3d Dist. No. 12-10-07,

2011-Ohio-773, ¶ 9; State v. Rodeback, 8th Dist. No. 80151, 2002-Ohio-2739, ¶




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21; State v. Stokes, 8th Dist. No. 69032 (Mar. 7, 1996), 1996 WL 100955; State v.

Tisdale, 8th Dist. 74331 (Dec. 17, 1998), 1998 WL No. 895279.

       {¶13} Notwithstanding this omission, we find that the trial court’s colloquy

with Saldana demonstrated that he entered his plea knowingly, voluntarily, and

intelligently. The trial court covered all of the areas required by Crim.R. 11(C)

and Saldana indicated that he understood everything. The trial court even stopped

and further explained one or two areas in more detail when Saldana raised a

question. Saldana was represented by an attorney, and indicated that he was

satisfied with his representation.

       {¶14} There is no merit to the arguments raised by Saldana. Even if he

would have raised the matter in the trial court, Saldana has not pointed to any

issues that would have constituted a manifest injustice to allow for the withdrawal

of his guilty plea.

       {¶15} Although Saldana did suffer an injury to his head during the

altercation, several month prior, he was treated and released that same evening.

There was no evidence anywhere in the record that he suffered any lingering

effects from his injury that would impair his understanding in any way. Without

any factual assertions that support that this injury had a lasting and detrimental

effect, there was no reason for a competency examination.




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      {¶16} There was also no need to inform Saldana that the State’s

recommendation for less than the maximum sentence wasn’t binding, because the

State made no such recommendation; the plea agreement only stated that the State

would remain silent as to sentencing. There was never any representation that

Saldana would get any lesser sentence, other than the fact that his original second

degree felony was reduced to a fourth degree felony because of the plea

agreement, thereby resulting in a considerable reduction in the maximum possible

sentence.

      {¶17} Although the State did not mention that the offense had occurred in

Ohio when it reviewed the underlying facts, that element was clearly specified in

the bill of information, which Saldana acknowledged. “[F]or a trial court to

determine that a defendant in a criminal case understands the nature of the charge

to which he was entering a guilty plea, it is not always necessary that the trial

court advise the defendant of the elements of the crime, or to specifically ask the

defendant if he understands the charge, so long as the totality of the circumstances

are such that the trial court is warranted in making a determination that the

defendant understands the charge.” State v. Cantrell, 10th Dist. No. 01-AP-818,

2002-Ohio-1353, quoting State v. Rainey, 3 Ohio App.3d 441 (10th Dist.1982).




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       {¶18} The trial court complied with all aspects of the law to ensure that

Saldana’s guilty plea was entered knowingly, voluntarily, and intelligently. The

second assignment of error is overruled.

       {¶19} The first assignment of error raised by Saldana complains that the

trial court abused its discretion when it sentenced him to the maximum sentence.

Saldana claims that the trial court failed to consider the required statutory

sentencing factors. Although he acknowledges that the trial court “adequately

found at least one factor under R.C. 2929.13(B)(1) to justify a possible prison term

for a fourth degree felony,” he claims that the court failed to consider the factors

with the proper weight and proportionality.        And, he argues that the trial court

failed to consider the mitigating factors.

       {¶20} Ever since the Ohio Supreme Court’s ruling in State v. Foster, 109

Ohio St.3d 1, 2006–Ohio–856, “trial courts have full discretion to impose a prison

sentence within the statutory range and are no longer required to make findings or

give their reasons for imposing maximum, consecutive, or more than the minimum

sentences.” State v. Mathis, 109 Ohio St .3d 54, 2006–Ohio–855, 846 N.E.2d 1, ¶

37. Courts, nevertheless, are still required to comply with the sentencing laws

unaffected by Foster, such as R.C. 2929.11 and 2929.12, which require

consideration of the purposes and principles of felony sentencing and the

seriousness and recidivism factors. Mathis at ¶ 38.


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       {¶21} R.C. 2929.11 provides, in pertinent part, that the “overriding

purposes of felony sentencing are to protect the public from future crime and to

punish the offender.” R.C. 2929.11(A). In advancing these purposes, sentencing

courts are instructed to “consider the need for incapacitating the offender,

deterring the offender and others from future crime, rehabilitating the offender,

and making restitution to the victim of the offense, the public, or both.” Id.

Meanwhile, R.C. 2929.11(B) states that felony sentences must be both

“commensurate with and not demeaning to the seriousness of the offender’s

conduct and its impact upon the victim” and consistent with sentences imposed in

similar cases.

       {¶22} Pursuant to App.R. 9(C), a “Statement of the Evidence or

Proceeding” (“Statement”) was submitted because a transcript of the sentencing

hearing was not available. There was no objection by the State, and the Statement

was approved by the trial court. The Statement indicated that the sentencing

judgment entry accurately reflected the sentencing as ordered by the trial court,

and included the affidavit of Saldana’s trial council who stated that she had

highlighted the following in mitigation: that Saldana suffered the brunt of the

injuries in the altercation; his intent in going to the victim’s residence was to speak

with him about a personal matter, not to cause an altercation; and that he regretted




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that the matter turned into a physical altercation and he accepted responsibility for

his actions.

       {¶23} In the Judgment Entry of Sentence, the trial court stated:

       The Court has considered the record, oral statements, any victim
       impact statements, and the pre-sentence investigation report
       prepared, as well as the principles and purposes of sentencing under
       [R.C.] 2929.11 and 2929.12. The Court finds that [Saldana] did
       cause serious physical harm to the victim, that the offense involved
       an actual threat of harm, and that [Saldana] has a prior offense of
       violence, and that [Saldana] has served a prison term.

(May 14, 2012 J.E.)

       {¶24} Saldana’s sentence was within the statutory range for the offense,

and he had been informed repeatedly that he could be subject to the maximum

eighteen-month sentence. Additionally, the trial court considered the purposes and

principals for felony sentencing set forth in R.C. 2929.11 and the factors relating

to the seriousness of the offense and the recidivism of the offender pursuant to

R.C. 2929.12. See State v. Pence, 3d Dist. No. 2–11–18, 2012–Ohio–1794, ¶ 7.

       {¶25} Saldana selects the wording in the judgment entry of sentencing

stating that “the Defendant has a prior offense of violence, and that the Defendant

has served a prior prison term,” upon which to base his argument that “one prior

violent offense” may be a justification for imposing “any” prison term, but it

cannot be a justification for a maximum term. (Emphasis added.) (Appellant’s

Brief, p. 8) He also cited to an Ohio Supreme Court case for the proposition that


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merely because a person has been convicted of one offense, that is not necessarily

a clear predictor of whether that person is likely to engage in similar offenses in

the future. (Appellant’s Br., p. 14, citing to State v. Eppinger, 90 Ohio St.3d 153,

162, 2001-Ohio-247).1

        {¶26} However, the record contradicts Appellant’s assertion that he has

been convicted of only one offense and served only one term of incarceration.

Although the trial court did not proffer a long list of Santana’s prior offenses in the

judgment entry itself, the court stated that it considered the pre-sentence

investigation report (“PSI”), which indicated that Santana had a long history of

criminal activity, including multiple prior offenses of violence and a history of

recidivism. Saldana, who was 26 years old at the time he committed the offense,

had numerous, repeated juvenile offenses, beginning when he was thirteen years

old. Shortly after he turned eighteen, he was convicted as an adult of aggravated

menacing, followed by convictions for criminal trespassing and disorderly

conduct; assault in 2004; criminal mischief; multiple counts of violation of

protection orders; felony trafficking in drugs; and additional menacing charges,

(amended to persistent disorderly conduct). He was incarcerated several times,

and the PSI further indicated that Saldana’s compliance with conditions of

probation was “extremely poor.”


1
 We note that the issue in Eppinger is not exactly on point, pertaining to sexual predator classification
hearings.

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       {¶27} Based on the above, we find that the trial court properly considered

all of the appropriate statutory factors, and that the record supports the trial court’s

findings and the imposition of the maximum sentence in order to punish the

defendant and to protect the public. Therefore, Saldana’s first assignment of error

is overruled.

       {¶28} Having found no error prejudicial to the Appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                  Judgment Affirmed

ROGERS and SHAW, J.J., concur.

/jlr




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