[Cite as State v. Cruz, 2015-Ohio-3519.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                       WOOD COUNTY


State of Ohio                                         Court of Appeals No. WD-14-085

        Appellee                                      Trial Court No. 13 CR 493

v.

Anthony Cruz                                          DECISION AND JUDGMENT

        Appellant                                     Decided: August 28, 2015

                                                *****

        Paul A. Dobson, Wood County Prosecuting Attorney,
        Gwen Howe-Gebers, Chief Assistant Prosecuting Attorney,
        and David T. Harold, Assistant Prosecuting Attorney, for appellee.

        Lawrence A. Gold, for appellant.

                                                *****

        YARBROUGH, P.J.

                                           I.   Introduction

        {¶ 1} Appellant, Anthony Cruz, appeals the judgment of the Wood County Court

of Common Pleas, sentencing him to five years in prison following the acceptance of his

guilty plea to one count of illegal use of a minor in nudity-oriented material or

performance. We affirm.
                         II. Facts and Procedural Background

       {¶ 2} On September 19, 2013, appellant was indicted on two counts of illegal use

of a minor in nudity-oriented material or performance in violation of R.C.

2907.323(A)(1), felonies of the second degree. Appellant initially appeared at his

arraignment and entered pleas of not guilty to the charges. However, following extensive

plea negotiations with the state, appellant appeared before the court for a change of plea

hearing on September 29, 2014, and entered a plea of guilty to one count of illegal use of

a minor in nudity-oriented material or performance. At this time, the state offered the

following factual basis to support appellant’s guilty plea:

              [H]ad this case proceeded to trial, the State of Ohio would have

       called the necessary witnesses from the Perrysburg Police Department who

       would have testified that as a result of information that they received a

       forensic analysis of the defendant’s numerous mobile items, that being cell

       phones, iPhone, and other items were extracted from the defendant. As a

       result of that, there were items located on the phone wherein there were

       nude juvenile females who were located on the defendant’s phone where

       they were either sent to him or he photographed and made those

       photographs and videos of those victims. That both victims being

       identified, both juvenile victims being identified, as being less than 18

       years of age, all occurring in Perrysburg, Wood County, Ohio.




2.
       {¶ 3} The trial court accepted appellant’s guilty plea, ordered the preparation of a

presentence investigation report, and continued the matter for sentencing.

       {¶ 4} Appellant’s sentencing hearing was held on November 17, 2014. At the

outset, the court held a sex offender classification hearing and appellant was classified as

a tier II sex offender. The court then proceeded to sentencing. According to the

sentencing entry, the court “carefully reviewed” the record, oral statements, the

presentence report, appellant’s relevant financial information, the purposes and principles

of sentencing, and the relevant seriousness and recidivism factors. Additionally, the

photographs for which appellant was convicted of the charged offense were presented at

the sentencing hearing. Regarding the trial court’s consideration of the relevant statutory

sentencing guidelines, the sentencing entry states the following:

              The court noted that the overriding purposes of felony sentencing are

       to protect the public from future crime by the offender and to punish the

       offender using the minimum sanctions that the court determines accomplish

       those purposes without imposing an unnecessary burden on state or local

       government resources. The court further noted that in achieving those

       purposes, the sentencing court shall 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. The court further noted that a sentence must be

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




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       conduct and its impact upon the victim, and consistent with sentences

       imposed for similar crimes committed by similar offenders.

              The court reviewed the seriousness and recidivism factors and

       considered that the victim suffered serious psychological injury as a result

       of the offense and the offender had a history of criminal convictions.

       {¶ 5} Upon consideration of the foregoing, the court imposed a five-year prison

sentence and ordered appellant to pay a $5,000 fine, along with all costs associated with

the case. It is from this order that appellant now appeals, asserting the following

assignment of error:

              APPELLANT’S SENTENCE SHOULD BE VACATED DUE TO

       THE TRIAL COURT’S FAILURE TO COMPLY WITH THE SPECIFIC

       DIRECTIVES OF R.C. 2929.11 AND 2929.12.

                                       III. Analysis

       {¶ 6} In appellant’s sole assignment of error, he argues that his sentence is

contrary to law in that the trial court failed to comply with the statutory sentencing

guidelines set forth in R.C. 2929.11 and 2929.12.

       {¶ 7} We review felony sentences under the two-prong approach set forth in R.C.

2953.08(G)(2). R.C. 2953.08(G)(2) provides that an appellate court may increase,

reduce, modify, or vacate and remand a disputed sentence if it clearly and convincingly

finds either of the following:




4.
              (a) That the record does not support the sentencing court’s findings

       under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of

       section 2929.14, or division (I) of section 2929.20 of the Revised Code,

       whichever, if any, is relevant;

              (b) That the sentence is otherwise contrary to law.

       {¶ 8} Here, appellant’s argument is limited to the second prong of R.C.

2953.08(G)(2), namely that the sentence is contrary to law. Appellant concedes that his

five-year sentence was within the permissible range for a felony of the second degree.

However, he contends that the trial court failed to properly consider R.C. 2929.11 and

2929.12 in fashioning his sentence. More particularly, appellant argues that the

presentation of the offending photographs at the sentencing hearing was unduly

inflammatory. We disagree.

       {¶ 9} In his appellate brief, appellant acknowledges that the photographs would

have been admissible had the matter proceeded to trial. Further, reference to the

photographs is conspicuously absent from the trial court’s sentencing entry, in which it

stated that it considered the relevant statutory factors in fashioning appellant’s sentence.

Moreover, the trial court’s entry demonstrates compliance with the mandates of R.C.

2929.11 and 2929.12.

       {¶ 10} R.C. 2929.11 states, in relevant part:

              (A) A court that sentences an offender for a felony shall be guided

       by the overriding purposes of felony sentencing. The overriding purposes




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       of felony sentencing are to protect the public from future crime by the

       offender and others and to punish the offender using the minimum

       sanctions that the court determines accomplish those purposes without

       imposing an unnecessary burden on state or local government resources.

       To achieve those purposes, the sentencing court shall 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.

              (B) A sentence imposed for a felony shall be reasonably calculated

       to achieve the two overriding purposes of felony sentencing set forth in

       division (A) of this section, commensurate with and not demeaning to the

       seriousness of the offender’s conduct and its impact upon the victim, and

       consistent with sentences imposed for similar crimes committed by similar

       offenders.

       {¶ 11} R.C. 2929.12 further requires a court to consider whether any aggravating

or mitigating factors are present that would warrant a greater or lesser sentence. Relevant

here, R.C. 2929.12 lists the following as an aggravating factor: “The victim of the

offense suffered serious physical, psychological, or economic harm as a result of the

offense.”

       {¶ 12} As noted above, the trial court expressly indicated its consideration of the

overriding purposes of felony sentencing under R.C. 2929.11, as well as the seriousness




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and recidivism factors under R.C. 2929.12. Regarding the seriousness and recidivism

factors, the court found that appellant’s conduct caused serious psychological harm to the

minor victims. Thus, we conclude that the trial court complied with the mandates of R.C.

2929.11 and 2929.12. We further find no evidence to support appellant’s assertion that

the trial court was unduly influenced by the presentation of the photographs at the

sentencing hearing. Therefore, we find that appellant’s sentence was not contrary to law.

       {¶ 13} Accordingly, appellant’s sole assignment of error is not well-taken.

                                     IV. Conclusion

       {¶ 14} Based on the foregoing, the judgment of the Wood County Court of

Common Pleas is affirmed. Costs are hereby assessed to appellant in accordance with

App.R. 24.

                                                                       Judgment affirmed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Stephen A. Yarbrough, P.J.                                 JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE

           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.



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