[Cite as State v. Mejias, 2012-Ohio-5447.]


                                    COURT OF APPEALS
                                MUSKINGUM COUNTY, OHIO
                                FIFTH APPELLATE DISTRICT




STATE OF OHIO                                :     JUDGES:
                                             :     Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                   :     Hon. Sheila G. Farmer, J.
                                             :     Hon. John W. Wise, J.
-vs-                                         :
                                             :
RAYMOND MEJIAS                               :     Case No. CT2012-0026
                                             :
        Defendant-Appellant                  :     OPIN ION




CHARACTER OF PROCEEDING:                           Appeal from the Court of Common
                                                   Pleas, Case No. CR88-0076



JUDGMENT:                                          Affirmed




DATE OF JUDGMENT:                                  November 19, 2012




APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

RON WELCH                                          DENNIS C. BELLI
27 North Fifth Street                              Two Miranova Place
Zaneville, OH 43701                                Suite 710
                                                   Columbus, OH 43215-7052
Muskingum County, Case No. CT2012-0026                                               2

Farmer, J.

       {¶1}   On June 29, 1988, the Muskingum County Grand Jury indicted appellant,

Raymond Mejias, on one count of murder in violation of R.C. 2903.02. Said charge

arose from the stabbing death of Jeffrey Harris following an altercation. Appellant was

arrested almost twenty-three years later on an outstanding warrant.

       {¶2}   On March 5, 2012, appellant pled guilty to one count of voluntary

manslaughter in violation of R.C. 2903.03. By sentencing entry filed April 5, 2012, the

trial court sentenced appellant to ten years in prison.

       {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

       {¶4}   "THE TRIAL COURT'S DECISION TO SENTENCE DEFENDANT-

APPELLANT TO A TEN-YEAR PRISON TERM FOR THE OFFENSE OF VOLUNTARY

MANSLAUGHTER, BASED ENTIRELY ON THE FACT THAT HIS ACTIONS CAUSED

THE VICTIM'S DEATH, DEPRIVED HIM OF HIS RIGHTS UNDER THE DUE

PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT AND RESULTED IN A

SENTENCE THAT IS CLEARLY AND CONVINCINGLY CONTRARY TO LAW."

                                             II

       {¶5}   "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT GAVE NO

WEIGHT TO THE 'LESS SERIOUS' AND 'NOT LIKELY' TO REOFFEND FACTORS

UNDER R.C. 2929.12 (C) AND (E), AND INSTEAD SENTENCED DEFENDANT-

APPELLANT TO A TEN YEAR PRISON FOR VOLUNTARY MANSLAUGHTER BASED

ENTIRELY ON THE FACT THAT HIS ACTIONS CAUSED THE VICTIM'S DEATH."
Muskingum County, Case No. CT2012-0026                                                  3


                                           I, II

      {¶6}   Appellant claims the trial court erred in sentencing him to ten years in

prison for voluntary manslaughter as the trial court based the sentence solely on an

element of the offense and the sentence was an abuse of discretion. We disagree.

      {¶7}   In State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, ¶ 4, the Supreme

Court of Ohio set forth the following two-step approach in reviewing a sentence:



             In applying Foster [State v., 109 Ohio St.3d 1, 2006–Ohio–856] to

      the existing statutes, appellate courts must apply a 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 shall be reviewed under an

      abuse-of-discretion standard.



      {¶8}   In order to find an abuse of discretion, we must determine the trial court's

decision was unreasonable, arbitrary or unconscionable and not merely an error of law

or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).

      {¶9}   Although the Foster court eliminated mandatory judicial fact-finding, it left

intact R.C. 2929.11 and 2929.12. These statutes "serve as an overarching guide for

trial judges to consider in fashioning an appropriate sentence. In considering these

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

sentence satisfies the overriding purpose of Ohio's sentencing structure." Kalish, at ¶
Muskingum County, Case No. CT2012-0026                                                  4


17. In its sentencing entry filed April 5, 2012, the trial court noted it considered "the

record, all statements, any victim impact statement, the pre-sentence report prepared,

the plea recommendation in this matter, as well as the principles and purposes of

sentencing under Ohio Revised Code §2929.11 and its balance of seriousness and

recidivism factors under Ohio Revised Code §2929.12."

      {¶10} Under the first step of Kalish, we are to review whether the sentence is

clearly and convincingly contrary to law. Appellant entered a negotiated plea of guilty to

one count of voluntary manslaughter in the first degree and the trial court sentenced

appellant to ten years in prison. Felonies of the first degree are punishable by "three,

four, five, six, seven, eight, nine, ten, or eleven years." R.C. 2929.14(A)(1). The trial

court sentenced appellant within the permissible range.

      {¶11} Appellant argues the trial court's decision was based solely on the fact that

a life was taken, which is an element of the offense and therefore unlawful. State v.

Sims, 4th Dist. No. 10CA17, 2012-Ohio-238; State v. Stroud, 7th Dist. No. 07 MA 91,

2008-Ohio-3187.     To substantiate this argument, appellant points to the following

statement made by the trial court during sentencing:



             THE COURT: Mr. Mejias, I think it's clear that following this you've

      done a lot of things really well, and I believed everything you told me in the

      courtroom today. Problem is, your actions directly led to the death of Mr.

      Harris and you can't take that back. You can't undo that. That's - - that's

      done. I mean, he's gone. From that moment forward he wasn't around
Muskingum County, Case No. CT2012-0026                                                5


       and it was your actions that caused that and that's why the sentence is as

       is.



April 2, 2010 T. at 22.



       {¶12} We note this statement was made at the conclusion of the sentencing

hearing after the trial court had already imposed sentence. It was made in response to

defense counsel's objection to the sentence on the grounds that it was an abuse of

discretion. Id. at 21-22.

       {¶13} In determining a sentence, the trial court factored in the state's position

which was the following:



              The Court is well aware of the factors for sentencing, so the State

       will not go into each individual factor. However, the State would submit

       that many of these factors were already considered by the State during

       the course of plea negotiations.

              The State would submit that the punishment should not be reduced

       further than what has already been considered, given the nature of the

       facts of this case. And while Defense counsel has represented through

       the sentencing memorandum that there would have been a vigorous

       defense presented regarding self-defense, the facts that gave rise to that

       were something that the State had considered in coming to a resolution.
Muskingum County, Case No. CT2012-0026                                                 6

Id. at 4-5.



       {¶14} The state noted that although appellant had lived a law-abiding life for the

past twenty-two years as a fugitive, he did so with the threat that any criminal conduct

could cause him to be arrested on the original murder charge. Id. at 5. The state

recommended the maximum sentence of eleven years in prison. Id.

       {¶15} Thereafter, the trial court asked the prosecutor for an explanation of the

circumstances surrounding the offense and the prosecutor stated the following:



              A large group of people gathered for a party at 1222 West Main. It

       was the home of an individual known by the name of Maurice Jones. At

       some point after the party began Mr. Mejias, as well as a female, were

       sitting on the steps when a Jeffrey L. Harris arrived at the home and

       approached Mr. Mejias.      There was an argument that began which

       eventually turned into a physical altercation. Mr. Harris and Mr. Mejias

       had ended up in a corner of a porch.       Mr. Harris - - witnesses differ

       whether or not punches were thrown or there was tussling. At that point,

       Mr. Harris was stabbed. Witnesses saw Mr. Mejias stab Mr. Harris. Mr.

       Harris staggered backwards.     He was stabbed in the abdomen area.

       Clutching his abdomen area he went out into the yard, fell into the yard

       onto a parked vehicle that was there. Mr. Mejias then jumped over the rail

       of the porch which was right there and fled the scene.
Muskingum County, Case No. CT2012-0026                                                    7

Id. at 15-16.



       {¶16} The trial court further inquired into the fact that appellant was not the

initial aggressor. Id. at 18.

       {¶17} Although the trial court was not required to give findings as determined in

State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, the trial court stated, "[a]dditionally, I

have numerous letters from the victim's family and friends. I read every letter, every

word of every letter with that, also. There's been a big loss from that side of the family.

There's no question." Id. at 20.

       {¶18} At the change of plea hearing, the trial court ordered a presentence

investigation. March 5, 2012 T. at 12. It is included in the record filed under seal. A

review of the presentence investigation report by this court lends nothing additional to

what was presented in mitigation.

       {¶19} Appellant received a negotiated reduced charge, from murder to voluntary

manslaughter, and less than the maximum sentence. The record does not support

appellant's argument that the sentence was based solely on the death of the victim.

       {¶20} Upon review, we find the ten year prison sentence was neither unlawful

nor was it an abuse of discretion.

       {¶21} Assignments of Error I and II are denied.
Muskingum County, Case No. CT2012-0026                                       8


      {¶22} The judgment of the Court of Common Pleas of Muskingum County, Ohio

is hereby affirmed.

By Farmer, J.

Delaney, P.J. and

Wise, J. concur.




                                    _______________________________




                                    _______________________________




                                    _______________________________


                                                 JUDGES

SGF/sg 1026
[Cite as State v. Mejias, 2012-Ohio-5447.]


                 IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO                                  :
                                               :
        Plaintiff-Appellee                     :
                                               :
-vs-                                           :       JUDGMENT ENTRY
                                               :
RAYMOND MEJIAS                                 :
                                               :
        Defendant-Appellant                    :       CASE NO. CT2012-0026




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Muskingum County, Ohio is affirmed. Costs

to appellant.




                                               _______________________________



                                               _______________________________



                                               _______________________________

                                                           JUDGES
