[Cite as State v. Magallanes, 2019-Ohio-1284.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 13-18-34

        v.

JULIAN MAGALLANES,                                        OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Seneca County Common Pleas Court
                            Trial Court No. 18 CR 0014

                                      Judgment Affirmed

                              Date of Decision: April 8, 2019




APPEARANCES:

        Henry Schaefer for Appellant

        Rebeka Beresh for Appellee
Case No. 13-18-34




PRESTON, J.

       {¶1} Defendant-appellant, Julian Magallanes (“Magallanes”), appeals the

September 17, 2018 judgment of sentence of the Seneca County Court of Common

Pleas. For the reasons that follow, we affirm.

       {¶2} This case arises from an August 22-23, 2017 incident in which

Magallanes digitally penetrated S.G., his girlfriend’s four-year-old daughter. On

January 24, 2018, the Seneca County Grand Jury indicted Magallanes on two

counts: Count One of rape in violation of R.C. 2907.02(A)(1)(b), (B), a first-degree

felony, and Count Two of gross sexual imposition in violation of R.C.

2907.05(A)(4), (C)(2), a third-degree felony. (Doc. No. 1). On February 13, 2018,

Magallanes appeared for arraignment and entered pleas of not guilty to the counts

of the indictment. (Doc. No. 9).

       {¶3} On July 30, 2018, under a negotiated plea agreement, Magallanes

withdrew his pleas of not guilty and entered a plea of guilty to Count Two of the

indictment. (Doc. Nos. 47, 48). In exchange, the State agreed to recommend

dismissal of Count One. (Id.). The trial court accepted Magallanes’s guilty plea,

found him guilty, and ordered a presentence investigation (“PSI”). (Doc. No. 48).

       {¶4} On September 14, 2018, the trial court sentenced Magallanes to a

mandatory term of 60 months in prison on Count Two. (Doc. No. 51). The trial


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court also granted the State’s motion for the dismissal of Count One of the

indictment and dismissed the same. (Doc. Nos. 49, 50). On September 17, 2018,

the trial court filed its judgment entry of sentence. (Doc. No. 51).

       {¶5} Magallanes filed his notice of appeal on October 11, 2018. (Doc. No.

58). He raises one assignment of error.

                               Assignment of Error

       The trial court erred when it sentenced Appellant to the
       maximum prison sentence term.

       {¶6} In his assignment of error, Magallanes argues that the trial court erred

in sentencing him to 60 months in prison. Specifically, Magallanes argues that “the

weakness of the State’s case does not warrant a maximum term of incarceration.”

(Appellant’s Reply Brief at 2).

       {¶7} “Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence

‘only if it determines 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.’” State v. Nienberg, 3d Dist. Putnam Nos. 12-16-15 and

12-16-16, 2017-Ohio-2920, ¶ 8, quoting State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, ¶ 1. “Clear and convincing evidence is that ‘“which will produce

in the mind of the trier of facts a firm belief or conviction as to the facts sought to

be established.”’” Id., quoting Marcum at ¶ 22, quoting Cross v. Ledford, 161 Ohio

St. 469 (1954), paragraph three of the syllabus.

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       {¶8} “‘Trial courts have full discretion to impose any sentence within the

statutory range.’” State v. Smith, 3d Dist. Seneca No. 13-15-17, 2015-Ohio-4225, ¶

9, quoting State v. Noble, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶ 9, citing

State v. Saldana, 3d Dist. Putnam No. 12-12-09, 2013-Ohio-1122, ¶ 20. As a third-

degree felony, gross sexual imposition carries a sanction of 12 to 60 months’

imprisonment. R.C. 2907.05(A)(4), (C)(2) (Jan. 1, 2008) (current version at R.C.

2907.05(A)(4), (C)(2) (Mar. 22, 2019)); R.C. 2929.14(A)(3) (Oct. 17, 2017)

(current version at R.C. 2929.14(A)(3) (Mar. 22, 2019)).

       {¶9} The trial court sentenced Magallanes to 60 months in prison on Count

Two. As such, Magallanes’s sentence falls within the statutory range. “‘[A]

sentence imposed within the statutory range is “presumptively valid” if the [trial]

court considered applicable sentencing factors.’” Nienberg at ¶ 10, quoting State v.

Maggette, 3d Dist. Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 31, quoting State v.

Collier, 8th Dist. Cuyahoga No. 95572, 2011-Ohio-2791, ¶ 15.

       {¶10} “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.’” Smith at ¶ 10, quoting R.C. 2929.11(A) (Sept. 30, 2011) (current version

at R.C. 2929.11(A) (Oct. 29, 2018)). “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


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restitution to the victim of the offense, the public, or both.’” Id., quoting R.C.

2929.11(A) (Sept. 30, 2011) (current version at R.C. 2929.11(A) (Oct. 29, 2018)).

“Meanwhile, R.C. 2929.11(B) states that felony sentences must be ‘commensurate

with and not demeaning to the seriousness of the offender’s conduct and its impact

upon the victim’ and also be consistent with sentences imposed in similar cases.”

Id., quoting R.C. 2929.11(B) (Sept. 30, 2011) (current version at R.C. 2929.11(B)

(Oct. 29, 2018)). “In accordance with these principles, the trial court must consider

the factors set forth in R.C. 2929.12(B)-(E) relating to the seriousness of the

offender’s conduct and the likelihood of the offender’s recidivism.” Id., citing R.C.

2929.12(A).

       {¶11} Here, it is clear from the record that the trial court sentenced

Magallanes after considering the purposes of felony sentencing set out in R.C.

2929.11(A) and the R.C. 2929.12(B)-(E) factors relating to the seriousness of

Magallanes’s conduct and the likelihood of his recidivism. At the sentencing

hearing, the trial court stated that it “considered the principles and purposes of

sentencing under R.C. 2929.11” and “balanced the seriousness and recidivism

factors under 2929.12.” (Sept. 14, 2018 Tr. at 36). Moreover, in its judgment entry

of sentence, the trial court stated that it considered “the principles and purposes of

sentencing under Ohio Revised Code Section 2929.11, and has balanced the

seriousness and recidivism factors under Ohio Revised Code Section 2929.12.”


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(Doc. No. 51). See Maggette at ¶ 32 (“A trial court’s statement that it considered

the required statutory factors, without more, is sufficient to fulfill its obligations

under the sentencing statutes.”), citing State v. Abrams, 8th Dist. Cuyahoga No.

103786, 2016-Ohio-4570, ¶ 14, citing State v. Payne, 114 Ohio St.3d 502, 2007-

Ohio-4642, ¶ 18.

       {¶12} However, Magallanes contends that the trial court’s decision to

impose a 60-month sentence is unsupported by the record or otherwise contrary to

law because of the “weakness of the State’s case.” Magallanes argues that although

the State lacked sufficient evidence to secure a conviction at trial, because the “small

risk of facing life imprisonment [was] outweighed by the certainty of facing a lesser

sentence,” he accepted the negotiated plea agreement to avoid the possibility of

being convicted of rape. (Appellant’s Brief at 5-7). “[Magallanes] does not argue

that the plea was entered into unknowingly or involuntarily, but that the weakness

of the State’s case does not warrant a maximum term of incarceration.” (Appellant’s

Reply Brief at 1-2).

       {¶13} We find Magallanes’s arguments to be without merit.               Because

Magallanes pleaded guilty to gross sexual imposition, the strength of the State’s

evidence against him is immaterial. “A plea of guilty is a complete admission of

guilt.” State v. Kuhner, 154 Ohio App.3d 457, 2003-Ohio-4631, ¶ 4 (3d Dist.),

citing Crim.R. 11(B)(1). “‘By entering a plea of guilty, the accused is not simply


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stating that he did the discrete acts described in the indictment; he is admitting guilt

of a substantive crime.’” State v. Kitzler, 3d Dist. Wyandot No. 16-02-06, 2002-

Ohio-5253, ¶ 12, quoting State v. Barnett, 73 Ohio App.3d 244, 248 (2d Dist.1991),

quoting United States v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757 (1989).

       {¶14} Moreover, it is questionable whether the strength of the State’s case

would ever be relevant to a trial court’s determination of a defendant’s sentence. In

addition to those factors enumerated in R.C. 2929.12(B)-(F), the statute provides

that trial courts “may consider any other factors that are relevant to achieving [the]

purposes and principles of [felony] sentencing.” R.C. 2929.12(A). While “strength

of the State’s evidence” is not a factor listed in R.C. 2929.12(B)-(F), Magallanes

seems to suggest that the trial court should consider weaknesses in the State’s case

as an “other factor” militating toward imposing a more lenient sentence. However,

by the time a trial court proceeds to sentence a defendant, the defendant has already

been found guilty of a crime following either a guilty plea, a no contest plea, or a

trial. Therefore, by the time a trial court is in a position to impose a sentence, the

State’s evidence has been deemed by the trier of fact to be sufficiently persuasive

to support a conviction beyond a reasonable doubt or it has been made irrelevant to

the determination of the defendant’s guilt by operation of the defendant’s guilty or

no contest plea.




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       {¶15} Furthermore, Magallanes’s sentence is supported by the record. It is

undisputed that S.G. was four years old when her grandmother found her blood-

soaked underwear which prompted concern among S.G.’s family. (PSI at 4-5). See

R.C. 2929.12(B)(1). S.G. was examined by medical professionals specializing in

sexual assault who came to the conclusion that S.G. sustained bruising and tearing

to her vaginal area that was not self-inflicted or accidental. (PSI at 4, 16-17). S.G.

identified Magallanes as the perpetrator and described Magallanes fondling and

digitally penetrating her vaginal area while she sat on his lap.        (Id. at 4-6).

Moreover, Magallanes, who was in a relationship with S.G.’s mother at the time of

the incident, was in a position of trust with the victim. See R.C. 2929.12(B)(6). In

fact, S.G.’s mother testified that she was cooking dinner in the next room when the

incident occurred and that S.G.’s two sisters, who were both minors, were also

present in other parts of the home when the incident occurred. (Sept. 14, 2018 Tr.

at 17-18). Additionally, Magallanes’s friends and family members testified that he

has been around “hundreds of kids” and was often in a position of trust or authority

with the children, such as a coach. (Id. at 6-7).

       {¶16} Moreover, the trial court heard testimony that immediately following

the incident, Magallanes put his hands over S.G.’s mouth to keep her from

screaming out in pain and whispered in her ear, “Don’t tell anyone.” (Id. at 26).

The trial court also heard testimony that Magallanes followed S.G. around the house


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on the evening of the incident to ensure that she would not tell her mother or sisters

what Magallanes had done and engaged in intimidating contact with S.G., including

pushing her down the stairs. (Id. at 26-27).

       {¶17} At the sentencing hearing, the trial court also heard testimony

regarding the ongoing physical, mental, and emotional effect the incident has had

on S.G., including testimony that she will no longer sleep alone and “has become

very emotional, angry, scared, worried, frustrated, and fearful.” (Id. at 28). See

R.C. 2929.12(B)(2). In addition to the continuing emotional and mental impact the

incident has had on S.G., the trial court heard testimony that S.G. suffers from

ongoing physical and gynecological issues, the full extent of which will not be

known until S.G. undergoes puberty. (Sept. 14, 2018 Tr. at 31). S.G.’s mother

described the impact of the incident on S.G. by stating that “[i]t has forever changed

her life and taken her childhood away.” (Id.).

       {¶18} Finally, the record reflects that the trial court considered evidence

suggesting that Magallanes is not likely to commit future crimes. At the sentencing

hearing, Magallanes’s family members and friends offered testimony of the strength

of Magallanes’s character and his kind and helpful nature. (Id. at 4-7). In addition,

Magallanes made an expression of contrition at the sentencing hearing, stating “I

would just like to say that, * * * for everybody involved[,] I apologize for the * * *

whole situation and how everything has come together. * * * I have nothing but * *


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* full remorse, and I apologize for anything following this situation.” (Id. at 3-4).

See R.C. 2929.12(E)(5). The record also suggests that Magallanes has a limited

criminal history; however, Magallanes was convicted of violating a protection order

related to the victim in the instant case. (Sept. 14, 2018 Tr. at 8-9, 13-14); (PSI at

20-21). See R.C. 2929.12(E)(3).

       {¶19} Ultimately, “‘[a] sentencing court has broad discretion to determine

the relative weight to assign the sentencing factors in R.C. 2929.12,’” and here, the

trial court afforded more weight to the aggravating factors presented than to the

mitigating factors. Smith, 2015-Ohio-4225, at ¶ 15, quoting State v. Brimacombe,

195 Ohio App.3d 524, 2011-Ohio-5032, ¶ 18 (6th Dist.), citing State v. Arnett, 88

Ohio St.3d 208, 215 (2000).

       {¶20} In conclusion, the trial court properly considered the purposes and

principles of felony sentencing and applied the relevant R.C. 2929.12 factors.

Furthermore, Magallanes’s sentence is within the statutory range. Therefore, there

is not clear and convincing evidence that Magallanes’s sentence is unsupported by

the record or that his sentence is otherwise contrary to law. See Nienberg, 2017-

Ohio-2920, at ¶ 23.

       {¶21} Magallanes’s assignment of error is overruled.




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       {¶22} 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

ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.

/jlr




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