[Cite as State v. Chavez, 2016-Ohio-8450.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY




STATE OF OHIO,                                     :
                                                         CASE NO. CA2015-11-195
        Plaintiff-Appellee,                        :
                                                               OPINION
                                                   :           12/28/2016
    - vs -
                                                   :

IVAN CHAVEZ,                                       :

        Defendant-Appellant.                       :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2015-07-1124



Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Brandabur & Bowling Co., L.P.A., Jeffrey W. Bowling, 315 South Monument Avenue,
Hamilton, Ohio 45011, for defendant-appellant



        M. POWELL, P.J.

        {¶ 1} Defendant-appellant, Ivan Chavez, appeals a decision of the Butler County

Court of Common Pleas sentencing him to five years in prison for robbery.

        {¶ 2} Appellant was indicted in July 2015 on one count of aggravated robbery, a first-

degree felony. The charge stemmed from allegations that appellant robbed two persons at

gunpoint, taking money, a flashlight, and cigarettes. On September 9, 2015, appellant
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entered a guilty plea to a reduced charge of robbery in violation of R.C. 2911.02(A)(1), a

second-degree felony. At the outset of the plea hearing, defense counsel informed the trial

court that appellant was not a United States citizen. Consequently, in compliance with R.C.

2943.031, the trial court advised appellant of the potential immigration consequences of

entering a guilty plea. The trial court also advised appellant that the maximum prison term for

the offense was eight years, and that a prison term for the offense was not mandatory but

presumed necessary.

       {¶ 3} Following a statement of the facts by the state, the trial court then told

appellant, "And we're going to come back on October 14th [for sentencing]. At that point in

time, I am telling you now, I'm going to send you to prison. It's just a matter of how long. So

I'm not going to review the community control sanctions with you[.]" Subsequently, following

a Crim.R. 11 colloquy, appellant pled guilty to robbery. The trial court accepted the plea,

found appellant guilty, and ordered a presentence investigation report ("PSI").

       {¶ 4} At the close of the hearing, after the trial court set a date for the sentencing

hearing, defense counsel inquired as follows:

              Judge, you indicated you would not consider community control.
              On the plea form it indicated that there was a presumption in
              favor of prison. And I think under that circumstance, I should ask
              him whether he still wants to go forward with the plea knowing
              that you'll give a prison sentence.

The trial court replied,

              Okay. And the reason why is there's a presumption, one. And
              two, since he's not here legally. I feel you have to be here legally
              in order to be afforded – how can I put someone illegally back
              out into the public. And that's why I said what I said. Now, I
              don't know what the sentence will be but.

Defense counsel informed the trial court he was not questioning the court's decision.

Thereafter, the plea hearing concluded.

       {¶ 5} A PSI was prepared for the trial court's consideration at sentencing. The PSI
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disclosed that appellant had 48 juvenile court adjudications between July 2012 and October

2014, including three felonies and seven probation violations or violations of court order. The

PSI further disclosed that appellant had an adult misdemeanor assault conviction in June

2015. With regard to appellant's instant robbery conviction, the PSI described the offense as

one where appellant robbed two individuals at gunpoint at the instigation of his companions

in order to obtain money for alcohol and drugs.           Finally, the PSI detailed the many

rehabilitative interventions and punitive measures ordered as a consequence of the various

juvenile adjudications and criminal conviction.

       {¶ 6} On October 14, 2015, at the outset of the sentencing hearing, the trial court

advised the parties it had reviewed the PSI and was "willing to listen to any mitigation." In

mitigation, defense counsel told the trial court that appellant was 19 years old, was

remorseful and apologized for his crime, and had a "short" adult criminal record but a "rather

lengthy juvenile record [with] what appeared to be two prior felonies." Defense counsel

further stated, "As the Court's aware, he's undocumented alien. However, he's lived in

Hamilton since age 3." Defense counsel then acknowledged the trial court's prior advisement

it was not considering community control as a sentence, indicated that neither he nor

appellant were disputing the trial court's decision and its reasons, but nonetheless asked the

trial court to consider community control sanctions or "a low-end sentence." Appellant

offered a brief statement in allocution, in which he apologized to the trial court and the victims

and accepted full responsibility for his actions.

       {¶ 7} The trial court indicated its review of the PSI and the victims' impact statement.

Addressing appellant, the trial court then stated,

              Well, you don't have much of a criminal record as an adult. Of
              course, you're only 19 years old so you haven't had time to
              acquire one. But you've got 48 priors as a juvenile. You wore
              the juvenile system out. And again, the fear that you put into
              these people because of you and your buddy's stupid action is

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              just. They weren't bothering anybody. So, you're smoking
              marijuana, drinking alcohol and you think let's go rob some
              people; that'll be fun. It makes no sense.

The trial court then sentenced appellant to five years in prison.

       {¶ 8} Appellant now appeals, raising one assignment of error:

       {¶ 9} THE COURT VIOLATED MR. CHAVEZ' RIGHT TO DUE PROCESS AND

EQUAL PROTECTION UNDER STATE AND FEDERAL LAW WHEN IT REFUSED TO

CONSIDER MITIGATION AGAINST A PRESUMPTION OF PRISON BASED UPON MR.

CHAVEZ' NATIONALITY.

                                   I. Appellant's Claims.

       {¶ 10} Appellant argues the trial court violated his constitutional rights to due process

and equal protection when it sentenced him to prison and not community control because the

trial court refused to follow the statutory sentencing guidelines and instead impermissibly

based its decision to impose a prison term solely on his immigration status and lack of United

States citizenship. In support of his argument, appellant cites the trial court's comment at the

plea hearing that appellant was "not here legally," as well as R.C. 2929.11(C), 2929.13(A),

and 2929.13(D).

                          II. Second-Degree Felony Sentencing.

       {¶ 11} Appellant was convicted of robbery in violation of R.C. 2911.02(A)(1), a felony

of the second degree, which is punishable by a prison term of two, three, four, five, six,

seven, or eight years. R.C. 2929.14(A)(2). R.C. 2929.13(D)(1) provides that for a second-

degree felony, "it is presumed that a prison term is necessary to comply with the purposes

and principles of sentencing under [R.C.] 2929.11."          Nonetheless, pursuant to R.C.

2929.13(D)(2), a trial court may impose a community control sanction for a second-degree

felony if it determines that a community control sanction would (1) adequately punish the

offender and protect the public from future crime, and (2) not demean the seriousness of the
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offense, based upon findings there is a lesser likelihood of recidivism and the offender's

conduct was less serious than conduct normally constituting the offense pursuant to the

recidivism and seriousness factors set forth in R.C. 2929.12. R.C. 2929.13(A) further

provides that if an offender is eligible to be sentenced to community control sanctions, the

trial court must consider the appropriateness of imposing a financial sanction or a community

service sanction as the sole sanction for the offense.

                       III. Felony Sentencing Standard of Review.

       {¶ 12} We review the imposed sentence under the standard of review set forth in R.C.

2953.08(G)(2), which governs all felony sentences. State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, ¶ 1; State v. Crawford, 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-

3315, ¶ 6. Pursuant to that statute, an appellate court does not review the sentencing court's

decision for an abuse of discretion. Marcum at ¶ 10. Rather, R.C. 2953.08(G)(2) compels an

appellate court to modify or vacate a sentence only if after reviewing the record, including the

findings underlying the sentence, the appellate court finds by clear and convincing evidence

that "the record does not support the trial court's findings under relevant statutes or that the

sentence is otherwise contrary to law." Id. at ¶ 1. A sentence is not clearly and convincingly

contrary to law where the trial court "considers the principles and purposes of R.C. 2929.11,

as well as the factors listed in R.C. 2929.12, properly imposes postrelease control, and

sentences the defendant within the permissible statutory range." State v. Julious, 12th Dist.

Butler No. CA2015-12-224, 2016-Ohio-4822, ¶ 8.

       {¶ 13} Moreover, even in those cases where a sentence is imposed solely after

consideration of the factors in R.C. 2929.11 and 2929.12, that is, where the sentence

imposed does not require any of the statutory findings specifically addressed within R.C.

2953.08(G)(2), an appellate court will nevertheless review those sentences "under a standard

that is equally deferential to the sentencing court." Marcum at ¶ 23; Julious at ¶ 9. "That is,
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an appellate court may vacate or modify any sentence that is not clearly and convincingly

contrary to law only if the appellate court finds by clear and convincing evidence that the

record does not support the sentence." Marcum at ¶ 23. Thus, this court may "increase,

reduce, or otherwise modify a sentence only when it clearly and convincingly finds that the

sentence is (1) contrary to law or (2) unsupported by the record." State v. Brandenburg, 146

Ohio St.3d 221, 2016-Ohio-2970, ¶ 1, citing Marcum at ¶ 7.

       {¶ 14} After thoroughly reviewing the record, we find no error in the trial court's

decision to sentence appellant to five years in prison for his offense, and not to community

control. The record plainly reveals that appellant's sentence is not clearly and convincingly

contrary to law because the trial court properly considered the principles and purposes of

R.C. 2929.11, as well as the factors listed in R.C. 2929.12, imposed the required mandatory

three-year postrelease control term, and sentenced appellant within the permissible statutory

range for a second-degree felony in accordance with R.C. 2929.14(A)(2). In its sentencing

entry, the trial court specifically stated it considered the principles and purposes of

sentencing and weighed the recidivism and seriousness factors before imposing appellant's

prison sentence.

       {¶ 15} The record further supports the trial court's sentencing decision.          R.C.

2953.08(G)(2)(a) provides that an appellate court may reverse a felony sentence if the record

does not support the trial court's findings under R.C. 2929.13(D). In the case at bar, the only

relevant findings would be the findings a trial court is required to make under R.C.

2929.13(D)(2) in concluding that the presumption for a prison term is rebutted and that a

community control sanction does not demean the seriousness of the offense and adequately

punishes the offender. However, R.C. 2929.13(D)(2) does not require a sentencing court to

make findings of any sort where, as here, the court sentences the offender to a prison term in

accordance with the presumption set forth in R.C. 2929.13(D)(1).
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       {¶ 16} Here, although appellant expressed remorse, apologized, and accepted

responsibility for his actions, the record supports the trial court's determination that

sentencing appellant to prison and not to community control was commensurate with the

seriousness of appellant's conduct, necessary to punish appellant, and necessary to protect

the public from future crime by appellant. The record shows, and the trial court noted,

appellant's extensive juvenile criminal record, his "short" criminal record as an adult likely a

consequence of his youth, the senseless nature of the crime, and the harm suffered by the

victims. The sentencing entry further indicates the trial court considered whether community

control was appropriate under R.C. 2929.13 and found that appellant was not amenable to

community control.

       {¶ 17} We do not condone the trial court's unfortunate statement at the plea hearing

that appellant would be sentenced to a prison term and the implication the court would not

consider a community control sanction, notwithstanding that a prison term was presumptive,

but not necessary. However, the record reflects that the trial court did consider whether

community control was appropriate as the sentencing entry reflects a finding that appellant

was not amenable to community control. The record supports this finding based upon

appellant's extensive and continuous record of unlawful behavior beginning in July 2012 and

continuing to the time of the instant offense; his obvious failure to respond positively to the

multiple rehabilitative interventions and punitive sanctions previously ordered; and his

repeated unsuccessful compliance with previous court orders and probationary sanctions.

Thus, the record not only supports the trial court's determination that community control was

not appropriate, it also supports the mid-range five-year prison term imposed by the trial

court. Pursuant to the extremely deferential clear and convincing evidence standard of R.C.

2953.08(G), we do not find the sentence contrary to law or unsupported by the record.



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                 IV. Immigration Status as a Sentencing Consideration.

        {¶ 18} Unless, as appellant suggests, the trial court's consideration of his immigration

status or citizenship tainted the sentencing decision, the sentence should be affirmed.

        {¶ 19} Appellant first argues that the trial court's consideration of his citizenship or

immigration status violates R.C. 2929.11(C), which provides, "A court that imposes a

sentence upon an offender for a felony shall not base the sentence upon the race, ethnic

background, gender, or religion of the offender."

        {¶ 20} There is no indication in the record that the trial court considered appellant's

citizenship as a sentencing factor. The only mention of appellant's citizenship occurred when

defense counsel advised the trial court at the outset of the plea hearing that appellant was

not a United States citizen and when consequently, the trial court provided appellant with the

R.C. 2943.031 advisement. During the plea hearing, the trial court briefly indicated its

intention to impose a prison sentence because of the presumption for a prison term and

because appellant was "not here legally."

        {¶ 21} Appellant equates immigration status with citizenship, but the two are clearly

distinct. The United States Supreme Court recognizes this distinction. See United States

Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 101 S.Ct. 453 (1980) (race and national origin

are suspect classifications for equal protection analysis); Plyler v. Doe, 457 U.S. 202, 102

S.Ct. 2382 (1982) (undocumented aliens are not a suspect classification). See also United

States v. Gomez, 797 F.2d 417, 419 (7th Cir.1986) ("That constitutional respect for all

persons within the territorial jurisdiction is without regard to any differences of race, of color,

or of nationality. That does not mean, however, that the court for sentencing purposes after

the defendant has entered a plea of guilty to a drug violation may not properly take note of

the defendant's illegal alien status from a country with a known reputation for illegal drug

activity").
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       {¶ 22} This same distinction applies to the proscription of R.C. 2929.11(C) which bars

a trial court from considering race and ethnic background when sentencing an offender. A

person's race and ethnic background is entirely separate from the person's immigration

status. But see State v. Vaughn Hardware, 8th Dist. Cuyahoga No. 93639, 2010-Ohio-4346

(finding that trial court's comments made at sentencing in relation to the offender's

immigration status were improper under R.C. 2929.11[C] and consequently remanding for a

de novo sentencing hearing).

       {¶ 23} As noted above, the United States Supreme Court has recognized that

immigration status is not a suspect classification. Plyler, 102 S.Ct. at 2398. Therefore, a

rational relationship analysis applies in determining whether the trial court's consideration of

appellant's immigration status violated his right to substantive due process or equal

protection:

              [A] classification neither involving fundamental rights nor
              proceeding along suspect lines is accorded a strong presumption
              of validity. Such a classification cannot run afoul of the Equal
              Protection Clause if there is a rational relationship between the
              disparity of treatment and some legitimate governmental
              purpose.

(Citations omitted.) Heller v. Doe, 509 U.S. 312, 319-320, 113 S.Ct. 2637 (1993).

       {¶ 24} The state cites Trujillo v. State, 304 Ga.App. 849, 698 S.E.2d 350 (2010), for

the proposition that a trial court may properly consider a criminal defendant's status as an

illegal alien in formulating an appropriate sentence. In that case, the trial judge cited an

illegal alien's inability to be legally employed, his consequent lack of income to satisfy

financial sanctions, and idle time as the reasons he considered Trujillo's immigration status at

sentencing.    These reasons disclose the rational relationship between an offender's

immigration status and a sentencing decision. Additionally, an undocumented alien, by his

illegal presence in the United States, shows a disrespect for the law, which itself is rationally


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related to sentencing. In the case at bar, while the trial court did not articulate the issue as

clearly as the trial judge did in Trujillo ("how can I put someone illegally back out into the

public"), it is apparent that the court was referring to the practicalities of placing an

undocumented alien on community control. Furthermore, the trial court's sentencing decision

was not solely based upon appellant's immigration status, but also upon his extensive

criminal record, the senseless nature of the crime, and the harm suffered by the victims. In

fact, the trial court never mentioned appellant's immigration status during the sentencing

hearing.

        {¶ 25} In this regard the United States Court of Appeals for the Seventh Circuit has

held,

              Nor need the sentencing judge shut his eyes to the reality of the
              factual situation before him and pretend that the defendant is not
              an illegal alien from Colombia who has pleaded guilty to a drug
              violation. There can be no dispute but that the sentencing judge
              has wide discretion in considering all reliable and pertinent
              information which might reasonably bear on the sentencing
              decision.

Gomez, 797 F.2d at 419.

        {¶ 26} In Trujillo, the Georgia court of appeals addressed whether the trial judge

violated Trujillo's constitutional rights to due process and equal protection by considering his

illegal alien status in denying him probation and sentencing him to prison. In its analysis, the

court of appeals noted the trial judge's concerns that because of his illegal alien status,

Trujillo could not legally be employed, a standard term of probation, and thus would have no

income to pay a fine and would have idle time. The court of appeals upheld Trujillo's prison

sentence, finding

              the trial court did not violate Trujillo's constitutional rights by
              considering his illegal alien status a relevant factor in formulating
              an appropriate sentence. Indeed, the trial court would have been
              remiss had it ignored the practical realities presented by Trujillo's
              immigration status and the obstacles that it would have
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              presented to Trujillo's ability to comply with the imposed
              conditions of probation.

(Citations omitted.) Trujillo, 304 Ga.App. at 853-854. The court of appeals also noted that

courts in California, Colorado, the District of Columbia, Indiana, Maine, and Oregon have all

considered immigration status to be a proper and relevant sentencing factor. Id.

       {¶ 27} Appellant also argues his prison sentence is contrary to law because the trial

court failed to consider the applicable sentencing guidelines because of his immigration

status. Specifically, appellant argues that (1) he was eligible for community control because

the trial court could have imposed community control sanctions if it found that the

presumption for a prison term was rebutted upon making the findings required by R.C.

2929.13(D)(2); and (2) the trial court was therefore required but failed to determine "the

appropriateness of imposing a financial sanction pursuant to [R.C.] 2929.18 or a sanction of

community service pursuant to [R.C.] 2929.17 as the sole sanction for the offense." See

R.C. 2929.13(A).

       {¶ 28} This argument has no merit because it is based upon the flawed premise that

appellant was eligible for community control. That community control could have been

imposed if the trial court found the presumption of a prison term was rebutted does not make

appellant eligible for community control. It is only after a trial court finds that the presumption

for a prison term is rebutted that a defendant becomes eligible for consideration of a

community control sanction. The trial court's remarks at the sentencing hearing and its

statement in the sentencing entry that appellant was not amenable to community control

pursuant to R.C. 2929.13 make clear that the trial court did not find that the presumption for a

prison term was rebutted.

                                        V. Conclusion.

       {¶ 29} For the reasons stated in this opinion, we find that appellant's sentence is not


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clearly and convincingly contrary to law because the trial court properly considered the

principles and purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12,

imposed the required mandatory three-year postrelease control term, and sentenced

appellant within the permissible statutory range for a second-degree felony in accordance

with R.C. 2929.14(A)(2).

       {¶ 30} We further find that the record supports the trial court's sentencing decision.

Although appellant apologized and expressed remorse for his actions, the record supports

the trial court's determination that sentencing appellant to a five-year prison term and not to a

lesser prison term or community control was commensurate with the seriousness of

appellant's conduct, necessary to punish appellant, and necessary to protect the public from

future crime by appellant.

       {¶ 31} Finally, we find that the trial court's consideration of appellant's immigration

status did not violate appellant's right to equal protection and due process or R.C.

2929.11(C).

       {¶ 32} Judgment affirmed.


       RINGLAND and HENDRICKSON, JJ., concur.




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