[Cite as State v. Quinonez, 2011-Ohio-4915.]


          Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 95759




                                    STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.


                                      FRANK QUINONEZ

                                                     DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-468743

        BEFORE: Jones, J., Sweeney, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                      September 8, 2011
ATTORNEY FOR APPELLANT

Jonathan N. Garver
4403 St. Clair Avenue
The Brownhoist Building
Cleveland, Ohio 44103


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Luke Mahoney
Assistant Prosecuting Attorney
The Justice Center, 8 Floor
                     ht




1200 Ontario Street
Cleveland, Ohio 44113




LARRY A. JONES, J.:

       {¶ 1} Defendant-appellant, Frank Quinonez, appeals his convictions for failure to

comply with the order or signal of a police officer and vandalism.         For the reasons that

follow, we affirm.

                                     Procedural History and Facts

       {¶ 2} In 2005, Quinonez was charged in Case No. CR-468743 with felonious assault,

failure to comply with the order or signal of a police officer, and vandalism.   He was charged
in a separate but related case, Case No. CR-469210, with aggravated robbery, assault, grand

theft of a motor vehicle, and passing a bad check.            Quinonez failed to appear at his

arraignment and the court issued a capias for his arrest.        Quinonez was apprehended and

arraigned in December 2008.

         {¶ 3} In August 2010, a bench trial began in Case No. CR-468743, which is the subject

of this appeal.   The following pertinent evidence was adduced at trial.

         {¶ 4} On June 23, 2005, officers of the Brecksville Police Department received a

bulletin to be on the lookout for a 2006 Mercedes Benz CLS500 that had been stolen from a

car dealership in North Olmsted.     The information the police received was that a man, later

identified as Quinonez, had stolen the car off the dealership’s lot after trying to buy it with a

counterfeit check.

         {¶ 5} Brecksville Police Department corrections officer John Zipay testified he first

spotted Quinonez traveling eastbound on Route 82.          He stated he got a good look at the

driver and was able to identify Quinonez in court.     Because Zipay was not a police officer at

the time, he did not try to pull the car over but rather followed it until the police arrived on the

scene.    Officer Ken Septaric was the first officer to join the pursuit.       During the chase,

Officer Septaric was able to pull his zone car in front of Quinonez.          Officer Christopher

Grimm drove his zone car behind Quinonez, in an attempt to box the car in on a bridge.

Quinonez drove off, hitting both Officer Septaric’s zone car and a minivan.           The minivan
was driven by a mother who had her two young children inside and the crash caused $4,000

worth of damage to her car.    Septaric’s zone car was also disabled by the collision.

       {¶ 6} Officer Grimm followed Quinonez for approximately one mile.                 Quinonez

reached speeds greater than 90 m.p.h. and the officer abandoned his pursuit of the stolen car,

citing safety reasons.

       {¶ 7} Quinonez continued driving eastbound on Route 82 and ended up driving

southbound on Interstate 77.        Sergeant Bruce Lowery of the Tuscarawas Sheriff’s

Department testified that he received a bulletin and began to follow Quinonez on the highway.

 He chased Quinonez for approximately an hour before an officer from Holmes County was

able to run the stolen car into a ditch, and then detain and arrest Quinonez.   Sargeant Lowery

also identified Quinonez as the driver of the stolen Mercedes.

       {¶ 8} The trial court convicted Quinonez of failure to comply with the order or signal

of a police officer and vandalism, but acquitted him of felonious assault.

       {¶ 9} The trial court sentenced Quinonez to five years for failure to comply and 18

months for vandalism, to be served consecutively to each other and to a nine-year sentence

imposed in Case No. CR-469210.          Quinonez’s conviction in Case No. CR-469210 was

recently affirmed on appeal.           State v. Quinonez, Cuyahoga App. No. 95783,

2011-Ohio-3064.

       {¶ 10} Quinonez now appeals his convictions for failure to comply and vandalism,
raising the following assignments of error for our review:

       “I. Appellant’s convictions for failure to comply and vandalism are against the
       manifest weight of the evidence.

       “II.   The trial court abused its discretion by imposing maximum consecutive terms of

       imprisonment for failure to comply and vandalism.

       “III. The trial court committed prejudicial error by failing to make findings required
       to impose consecutive sentences.”

                           Manifest Weight and Sufficiency of the Evidence

       {¶ 11} In his first assignment of error, Quinonez contends that his convictions are

against the weight of the evidence because there was not enough evidence that he was the

driver of the stolen car and, if he was the driver, the state did not present sufficient evidence

that he acted knowingly.

       {¶ 12} In determining whether a conviction is against the manifest weight of the

evidence an appellate court “must review the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of witnesses and determine whether, in

resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.”

State v. Otten (1986), 33 Ohio App.3d 339, 340, 515 N.E.2d 1009.

       {¶ 13} A weight of the evidence challenge indicates that a greater amount of credible

evidence supports one side of the issue than supports the other. State v. Thompkins, 78 Ohio
St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541.         Further, when reversing a conviction on the

basis that the conviction was against the manifest weight of the evidence, the appellate court

sits as the “thirteenth juror” and disagrees with the factfinder’s resolution of the conflicting

testimony.      Id. Therefore, this court’s “discretionary power to grant a new trial should be

exercised only in the exceptional case in which the evidence weighs heavily against the

conviction.”     State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717; see, also,

Otten, at id.

        {¶ 14} Our review of the evidence at trial shows that his convictions were not against

the manifest weight of the evidence.             Quinonez claims that he was a victim of

misidentification.    But there was no evidence presented at trial that anyone other than

Quinonez was driving the car.        Police officers from Brecksville Police and Tuscarawas

Sheriff’s Department identified Quinonez as the man who was driving the stolen car.        Officer

Septaric testified that he received information to be on the lookout for a Frank Quinonez, who

stole a car off a dealer lot in North Olmsted.    The officer testified that Quinonez was initially

identified because he left his drivers license at the dealership.      Former corrections officer

John Zipay testified that he first saw Quinonez driving on Route 82.      He saw Quinonez as the

suspect passed him, gave a physical description of him to police, and identified him through

his BMV photo on the day of the incident.        Zipay further identified Quinonez in court as the

man he saw driving the stolen car.      Sargeant Lowery testified that he pursued Quinonez for
over an hour before Quinonez was stopped and arrested.         Lowery     identified Quinonez in

court as the man pulled from the stolen car.

       {¶ 15} The evidence presented at trial showed that Quinonez led multiple police

departments on a lengthy high-speed chase that culminated in him crashing the stolen car into

a ditch.   Quinonez was identified shortly after he stole the car and several hours later in

another part of the state.   He led police on a high-speed chase, crashed into a patrol car and a

minivan, causing damage to both vehicles and endangered the lives of many.          Based on the

testimony presented at trial, we find that this is not an exceptional case in which the evidence

weighs heavily against conviction.

       {¶ 16} Within this assignment of error, Quinonez also argues that his conviction for

vandalism was not supported by sufficient evidence because there was no evidence presented

that he acted knowingly.     We disagree.

       {¶ 17} In a sufficiency challenge, this court does not evaluate witness credibility. State

v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶79. Rather, in a

sufficiency review, we determine whether the state has presented adequate evidence on each

element of the offense to allow the case to go to the jury. Thompkins at 386.         Sufficiency

of the evidence is a legal standard that tests whether the evidence introduced at trial is legally

sufficient to support a verdict.   Id.   We examine the evidence in the light most favorable to

the state and conclude whether any rational trier of fact could have found that the state proved,
beyond a reasonable doubt, all of the essential elements of the crime. State v. Jenks (1991),

61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.      In essence, sufficiency is

a test of adequacy.    Whether the evidence is legally sufficient to sustain a verdict is a

question of law. Thompkins at id.

       {¶ 18} R.C. 2909.05(B)(1)(a), which governs the crime of vandalism, states that “[n]o

person shall knowingly cause physical harm to property that is owned or possessed by another,

when * * * [t]he property is used by its owner or possessor in the owner’s or possessor’s

profession, business, trade, or occupation, and the value of the property or the amount of

physical harm involved is five hundred dollars or more * * *.”

       {¶ 19} Upon review, the state presented sufficient evidence that Quinonez acted

knowingly. “A person acts knowingly, regardless of his purpose, when he is aware that his

conduct will probably cause a certain result or will probably be of a certain nature.”      R.C.

2901.22(B).   The testimony at trial established that Quinonez rammed his car into the police

car, causing significant damage to the cruiser, in his successful attempt to avoid capture by the

Brecksville police.   Therefore, the State presented sufficient evidence to convict him of

vandalism.

       {¶ 20} The first assignment of error is overruled.

                                              Sentencing

       {¶ 21} In his second and third assignments of error, Quinonez challenges his sentence.
       {¶ 22} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the

Ohio Supreme Court addressed the standard for reviewing felony sentencing. See, also, State

v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. Appellate courts must apply the

following two-step approach: “First, they must 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.”   Kalish at ¶26.

       {¶ 23} Thus, in the first step of our analysis, we review whether the sentence is

contrary to law as required by R.C. 2953.08(G).       As the Kalish court noted, post- Foster,

“trial courts have full discretion to impose a prison sentence within the statutory range and are

no longer required to make findings and give reasons for imposing maximum, consecutive or

more than the minimum sentence.”        Id. at ¶11; Foster, paragraph seven of the syllabus.

The Kalish court declared that although Foster eliminated mandatory judicial fact-finding, it

left R.C. 2929.11 and 2929.12 intact. Kalish at ¶13.       As a result, the trial court must still

consider these statutes when imposing a sentence.    Id., citing State v. Mathis, 109 Ohio St.3d

54, 2006-Ohio-855, 846 N.E.2d 1, at ¶38.

       {¶ 24} R.C. 2929.11(A) provides:

       “[A] court that sentences an offender for a felony shall be guided by the overriding
       purposes of felony sentencing[,] * * * to protect the public from future crime by the
       offender and others and to punish the offender. 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.”

       {¶ 25} R.C. 2929.12 provides a nonexhaustive list of factors a trial court must consider

when determining the seriousness of the offense and the likelihood that the offender will

commit future offenses.

       {¶ 26} The Kalish court noted that R.C. 2929.11 and 2929.12 are not fact-finding

statutes like R.C. 2929.14. Kalish at ¶17.      Rather, they “serve as an overarching guide for

trial judges to consider in fashioning an appropriate sentence.”   Id.   Thus, “[i]n considering

these statutes in light of Foster, the trial court has full discretion to determine whether the

sentence satisfies the overriding purposes of Ohio’s sentencing structure.”   Id.

       {¶ 27} Quinonez argues the trial court erred in sentencing him to consecutive sentences

without making findings under R.C. 2929.14(E)(4).        In doing so, he relies on the United

States Supreme Court’s decision in Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172

L.Ed.2d 517, arguing that Ice retroactively reinstates the consecutive-sentencing statutes

requiring fact-finding that were excised in Foster.

       {¶ 28} The Ohio Supreme Court expressly rejected this argument in State v. Hodge,

128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768.       In Hodge, the Supreme Court held that

Oregon v. Ice does not revive Ohio’s former consecutive-sentencing statutory provisions, R.C.

2929.14(E)(4) and 2929.41(A), which were held unconstitutional in Foster.           “Because the
statutory provisions are not revived, trial judges are not obligated to engage in judicial

fact-finding prior to imposing consecutive sentences unless the General Assembly enacts new

legislation requiring that findings be made.”       Hodge at ¶39.     See, also, State v. Torres,

Cuyahoga App. No. 95646, 2011-Ohio-350.

       {¶ 29} It is undisputed that Quinonez’s sentence is not contrary to law.      Quinonez was

convicted of violating R.C. 2921.331(B), which provides that “[n]o person shall operate a

motor vehicle so as willfully to elude or flee a police officer after receiving a visible or audible

signal from a police officer to bring the person’s motor vehicle to a stop.”        A violation of

R.C. 2921.331(B) is a felony of the third degree if the jury or judge as trier of fact finds by

proof beyond a reasonable doubt that “[t]he operation of the motor vehicle by the offender

caused a substantial risk of serious physical harm to persons or property.”                    R.C.

2921.331(C)(5).

       {¶ 30} Moreover, R.C. 2921.331(D) provides that “[i]f an offender is sentenced

pursuant to division (C)(4) or (5) of this section for a violation of division (B) of this section,

and if the offender is sentenced to a prison term for that violation, the offender shall serve the

prison term consecutively to any other prison term or mandatory prison term imposed upon the

offender.” (Emphasis added.)

       {¶ 31} Thus, because the trial court found Quinonez guilty of violating R.C.

2921.331(B) and R.C. 2921.331(C)(5) as charged in the indictment, the trial court was
required to run his sentence for vandalism consecutive to his sentence for failure to comply.

       {¶ 32} Finally, in its sentencing entry the trial court indicated that it considered R.C.

2929.11 and all factors as required by law.      On these facts, we conclude that Quinonez’s

sentence was not contrary to law.

       {¶ 33} Having satisfied the first step, we next consider whether the trial court abused its

discretion. Kalish at ¶4, 19.       An abuse of discretion is “more than an error of law or

judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.”

Id. at ¶19, citing Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.

       {¶ 34} We find no abuse of discretion in imposing six-and-a-half years imprisonment

under the circumstances presented in the instant case.   The evidence presented at trial showed

that after stealing a car from a local dealership, Quinonez led multiple police departments on a

high-speed chase with speeds in excess of 90 m.p.h.      During the pursuit, he ran into a police

cruiser, disabling it, and a minivan with a woman and two young children inside, causing

extensive damage to the van.

       {¶ 35} The second and third assignments of error are overruled.

       Accordingly, judgment is affirmed.

       It is ordered that appellee recover of appellant 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
conviction having been affirmed, any bail pending appeal is terminated.

Case remanded to the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




LARRY A. JONES, JUDGE

JAMES J. SWEENEY, P.J., and
SEAN C. GALLAGHER, J., CONCUR.
