[Cite as State v. Chavez, 2017-Ohio-8417.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      GREENE COUNTY

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   Appellate Case No. 2017-CA-26
                                                   :
 v.                                                :   Trial Court Case No. 2016-CR-540
                                                   :
 SAUL C. CHAVEZ, SR., aka SAUL C.                  :   (Criminal Appeal from
 CHAVEZ-COMACHO                                    :   Common Pleas Court)
                                                   :
         Defendant-Appellant                       :

                                              ...........

                                             OPINION

                          Rendered on the 3rd day of November, 2017.

                                              ...........

NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Assistant Prosecuting Attorney, Greene
County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio 45385
      Attorney for Plaintiff-Appellee

JAY B. CARTER, Atty. Reg. No. 0041295, 111 West First Street, Suite 519, Dayton, Ohio
45402
      Attorney for Defendant-Appellant

                                             .............




TUCKER, J.
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       {¶ 1} Defendant-appellant    Saul    Chavez,     Sr.    appeals     his   seven-

year sentence after he pled guilty to one count of endangering children. He argues

that the trial court failed to afford the mother of the victim an opportunity to make a

statement at the sentencing hearing, and that his sentence, therefore, must be

reversed. For the reasons that follow, we affirm.



                            I. Facts and Procedural History

       {¶ 2} On September 26, 2016, Beavercreek Police Department Detective John

Bondy responded to Dayton Children’s Hospital regarding an injury to a two-month old

infant boy. It was determined that the child had presented to the hospital with traumatic

brain injury. The child had retinal hemorrhaging in both eyes, seizures, a fractured

femur, and a subdural hematoma. The child had to undergo at least one craniotomy, or

surgical opening of the skull.

       {¶ 3} Following an investigation, Chavez was indicted on one count of endangering

children in violation of R.C. 2919.22(B)(1), and one count of endangering children in

violation of R.C. 2919.22(A). Chavez filed a motion to suppress statements made to the

police. Following a hearing, the motion was overruled. Subsequently, Chavez and the

State entered into a plea agreement. Chavez agreed to plead guilty to Count I of the

indictment, endangering children in violation of R.C. 2919.22(B)(1). In exchange, the

State agreed to dismiss the remaining count.        No agreement was reached as to

disposition. Chavez entered a plea of guilty on February 15, 2017.

       {¶ 4} A sentencing hearing was conducted on March 31, 2017. Defense counsel
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addressed the court stating that he had spoken to the victim’s mother, who he noted was

present in the courtroom for sentencing, and that she informed him she did not request

incarceration and that she is “pleased with the child’s progress and development.”

Counsel also noted that the latest medical records for the child indicate that the child is

“on target both developmentally and clinically.” Chavez also addressed the court to

indicate his remorse for the offense.

       {¶ 5} The trial court indicated that it had reviewed the medical records to which

defense counsel alluded, and noted that while those records indicate that the child is

within “normal range,” the records did not provide a prognosis. The trial court imposed

a seven-year sentence. Chavez appeals.



                                        II. Analysis

       {¶ 6} Chavez’s sole assignment of error states as follows:

       THE TRIAL COURT ERRED IN FAILING TO AFFORD THE VICTIM’S

       MOTHER AN OPPORTUNITY TO CLARIFY THE RELEVANT INJURIES

       AND PROGNOSIS IN A VICTIM IMPACT STATEMENT, IN FAILING TO

       PROPERLY CONSIDER THE VICTIM’S MEDICAL RECORDS, AND, IN

       THE ABSENCE OF COMPLETE INFORMATION, INACCURATELY

       WEIGHED       THE     SENTENCING         FACTORS      WHEN       IMPOSING

       SENTENCE.

       {¶ 7} Chavez contends that the trial court did not properly weigh the appropriate

sentencing factors when imposing the seven-year prison term because it did not give the

victim’s mother the opportunity to address the court regarding the victim’s current medical
                                                                                          -4-


condition and because it did not properly consider the victim’s current medical records

when weighing the sentencing factors.

       {¶ 8} In reviewing challenges to sentence-terms for felony offenses, appellate

courts must apply the standard of review set forth in R.C. 2953.08(G)(2), rather than an

abuse of discretion standard. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002,

59 N.E.3d 1231, ¶ 7, 9. Under the standard set forth in that statute, an appellate court

may increase, reduce, or modify a sentence, or it may vacate the sentence and remand

for resentencing, only if it “clearly and convincingly” finds either (1) that the record does

not support certain specified findings or (2) that the sentence imposed is contrary to law.

Id. at ¶ 22, 23.

       {¶ 9} “Clear and convincing evidence is that measure or degree of proof which is

more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty

as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in

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

established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph

three of the syllabus.

       {¶ 10} We begin with Chavez’s claim that the trial court was required to give the

mother of the victim, as the representative of the minor child, an opportunity to address

the court regarding her satisfaction with the child’s progress. In support of this claim,

Chavez relies upon R.C. 2930.14(A), which states that a trial court shall permit a crime

victim to make a statement before the court imposes a sentence upon the defendant.

The victim’s “statement shall be considered by the court along with other factors that the

court is required to consider in imposing sentence.” R.C. 2930.14(B).
                                                                                            -5-


       {¶ 11} First, even though Chavez contends the victim’s mother wanted to address

the court, there is nothing in the transcript or record to support such a claim. Neither the

mother nor defense counsel informed the court that she wanted to make a statement.

       {¶ 12} Second, even if the victim’s mother desired to make a statement, we would

find no error that benefits Chavez. “The victim impact statement ‘is not for the benefit of

the defendant but rather to be sure the court considers the impact of causing physical

harm upon the victim when the court imposes * * * sentence.’ ” State v. Ridenour, 128

Ohio App.3d 134, 136-137, 713 N.E.2d 1140 (9th Dist. 1998), quoting State v. Johnson,

9th Dist. Summit No. 12157, 1985 WL 4654, * 4 (Dec. 18, 1985). Instead, “[t]he purpose

of a victim impact statement is to help apprise the sentencing authority of the actual harm

inflicted upon the victim and the victim's family by the crime.” Id. at 136. “The failure of

a trial court to allow a victim impact statement does not afford a defendant any grounds

for relief.” Id. at 137. “The failure of any person or entity to provide a right, privilege, or

notice to a victim under this chapter does not constitute grounds for declaring a mistrial

or new trial, for setting aside a conviction or sentence, * * * or for granting postconviction

release to a defendant * * *.” Id., quoting R.C. 2930.19(C).

       {¶ 13} We further find that the trial court did not otherwise err in sentencing. A

trial court “has full discretion to impose any sentence within the authorized statutory

range, and the court is not required to make any findings or give its reasons for imposing

maximum or more than minimum sentences.” State v. King, 2013–Ohio–2021, 992

N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial court must

consider the statutory criteria that apply to every felony offense, including those set out in

R.C. 2929.11 and R.C. 2929.12. State v. Leopard, 194 Ohio App.3d 500, 2011–Ohio–
                                                                                         -6-

3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio St.3d 54, 2006–

Ohio–855, 846 N.E.2d 1, ¶ 38.

       {¶ 14} R.C. 2929.11(A) provides that the “overriding purposes 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.”   R.C. 2929.11(B) requires that, in addition to achieving these goals, a

sentence must be “commensurate with and not demeaning to the seriousness of the

offender's conduct and its impact upon the victim.”

       {¶ 15} R.C. 2929.12 provides a non-exhaustive list of factors the court must

consider in determining the relative seriousness of the underlying crime and the likelihood

that the defendant will commit another offense in the future. The factors include (1) the

physical, psychological, and economic harm suffered by the victim; (2) whether the

defendant's relationship with the victim facilitated the offense; (3) whether the defendant

shows any remorse; and (4) any other relevant factors.

       {¶ 16} Chavez pled guilty to a second-degree felony which carries a presumption

of a prison term under R.C. 2929.13(D)(1).1 The trial court clearly stated that it had

considered the principles and purposes of sentencing, as well as the seriousness and

recidivism factors set forth in R.C. 2929.11 and R.C. 2929.12. It is clear that the physical

harm caused to the infant was serious. Further, the victim’s relationship to Chavez

facilitated the offense. The seven-year prison term is within the range set forth in R.C.

2929.14(A)(2).   Further, the trial court did state that it had considered the updated


1
 The trial court in this case specifically found that the presumption for prison was not
rebutted because community control sanctions would demean the seriousness of the
offense. R.C. 2929.13(D)(2)(b).
                                                                                        -7-


medical reports submitted by Chavez, and the court was made aware that the victim’s

mother was “satisfied” with the child’s progress. While the trial court did note that the

medical reports did not give a prognosis for the court, we find no error in such a finding.

The trial court is permitted to consider any factors it finds relevant when determining the

seriousness of the crime. R.C. 2929.12(B).

       {¶ 17} We conclude that the sentence conferred upon Chavez is not contrary to

the law and is supported by the facts in the record.    Accordingly, the sole assignment

of error is overruled.



                                     III. Conclusion

       {¶ 18} Chavez’s sole assignment of error being overruled, the judgment of the trial

court is affirmed.



                                     .............



HALL, P.J., concurs.

DONOVAN, J., concurring:

       {¶ 19} I agree with the outcome on this record. Nevertheless, in my view R.C.

2930.19(C) would not prevent a defendant from requesting a sentencing hearing where

a pre-sentence investigation report contains false or inaccurate information regarding the

victim of an offense. Hence, neither Ridenour nor Johnson should preclude a Defendant

from exercising his due process rights to dispute such misinformation.

       {¶ 20} R.C. 2951.03 allows the trial court to review or disregard an alleged factual
                                                                                       -8-


inaccuracy in a pre-sentence investigation report if the defendant alleges at sentencing

that the report is inaccurate. R.C. 2951.03(B)(5). See generally State v. Sexton, 3d Dist.

Union No. 14-13-25, 2015-Ohio-934, ¶ 85.

      {¶ 21} I find no prejudice on this record and concur with an affirmance.




Copies mailed to:

Nathaniel R. Luken
Jay B. Carter
Hon. Michael A. Buckwalter
