[Cite as State v. Ybarra, 2012-Ohio-3309.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                           CASE NO. 12-11-13

        v.

BENJAMIN YBARRA,                                      OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Putnam County Common Pleas Court
                            Trial Court No. 2011 CR 50

                                      Judgment Affirmed

                              Date of Decision: July 23, 2012




APPEARANCES:

        Christopher R. Bucio for Appellant

        Todd C. Schroeder for Appellee
Case No. 12-11-13


SHAW, P.J.

      {¶1} Defendant-appellant     Benjamin    Ybarra   (“Ybarra”)    appeals   the

December 6, 2011 judgment of the Putnam County Court of Common Pleas

sentencing Ybarra to three years in prison following Ybarra’s guilty plea to Child

Endangering in violation of R.C. 2919.22(A), a felony of the third degree.

      {¶2} The facts relevant to this appeal are as follows. On May 11, 2011,

Ms. Cole took her three-year-old daughter, “Jane Doe,” to St. Rita’s Ambulatory

Care Center in Glandorf.     Jane Doe was treated for injuries consisting of a

fractured skull, a broken right wrist, a fractured right femur, a small tear in her

vaginal area, and a bruise along her buttocks. Based upon the injuries, medical

personnel from St. Rita’s called the police, advising the police that they were

treating a child who had potentially been abused. Brian Siefker of the Putnam

County Sherriff’s Office responded.

      {¶3} Officer Siefker learned from medical staff that Jane Doe stated Ybarra

had tried to choke her and kick her. Officer Siefker learned from Ms. Cole that

Ybarra and Ms. Cole were dating and that they had been living together since

March of 2011. After speaking with medical staff, Ms. Cole and Jane Doe,

Officer Siefker photographed Jane Doe’s injuries. Officer Siefker then went to the

residence of Ybarra and Ms. Cole to interview Ybarra. At the residence, Officer

Siefker advised Ybarra that Ybarra was a registered sex offender and that he was


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still registered under a different address than that of Ms. Cole’s where he had

purportedly been staying since March. Ybarra was then taken to the Sheriff’s

Office for an interview.

       {¶4} On June 17, 2011, Ybarra was indicted for one count of Child

Endangering with allegations of serious physical harm to a child as a result of

abuse, in violation of R.C. 2919.22(B), a felony of the second degree, and Failure

to Register as a Sex Offender, in violation of R.C. 2950.99, a felony of the fourth

degree.

       {¶5} On October 28, 2011, pursuant to a written agreement, Ybarra agreed

to plead guilty to the amended charge of Child Endangering in violation of R.C.

2919.22(A), a felony of the third degree rather than a felony of the second degree

as indicted, and the State agreed to dismiss the remaining charge of Failure to

Register as a Sex Offender. In addition, the State agreed to recommend a sentence

of community control sanctions.

       {¶6} On October 28, 2011, the court held a change-of-plea hearing wherein

Ybarra’s guilty plea was accepted. A sentencing hearing was set for November

30, 2011.

       {¶7} On November 30, 2011, Ybarra’s sentencing hearing was held. At the

sentencing hearing, the State recommended a sentence of community control and

then Ybarra, his attorney and Ms. Cole all made statements regarding the


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underlying incident that led to the charges in this case. Ybarra and Ms. Cole

maintained that Jane Doe’s injuries resulted from a fall on a playground.

       {¶8} Despite the State and Ybarra’s recommendation of a sentence of

community control, the court imposed a four-year prison sentence on Ybarra. Just

after the court announced Ybarra’s four-year sentence, a sidebar was conducted at

the bench. Following the sidebar, the court stated that under the newly revised

sentencing statute that went into effect in September of 2011, the maximum

sentence for Ybarra’s crime was three years. The court then vacated the four year

sentence and imposed a prison term of three years rather than four years.

       {¶9} On December 6, 2011, the court filed its “Judgment Entry of

Sentence.”   It is from this judgment that Ybarra appeals, asserting the following

assignments of error for our review.

                   ASSIGNMENT OF ERROR I
       THE TRIAL COURT’S SENTENCE IS NOT SUPPORTED BY
       THE RECORD AND IS CONTRARY TO LAW.

                 ASSIGNMENT OF ERROR II
       THE TRIAL COURT FAILED TO ADVISE THE
       DEFENDANT OF HIS TERMS OF COMMUNITY
       CONTROL.

                             First Assignment of Error

       {¶10} In Ybarra’s first assignment of error, he argues that his sentence was

not supported by the record. Specifically, Ybarra argues that the trial court did not

make required statutory findings to support giving Ybarra a maximum sentence,

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that the trial court considered the victim’s statements in passing sentence, which,

he claims, were not contained in the record, and that the trial court considered the

dismissed charge of Failure to Register as a Sex Offender in determining Ybarra’s

sentence.

        {¶11} An appellate court must conduct a meaningful review of the trial

court’s sentencing decision. State v. Daughenbaugh, 3d Dist. No. 16-07-07, 2007-

Ohio-5774, ¶ 8, citing State v. Carter, 11th Dist. No. 2003-P0007, 2004-Ohio-

1181. A meaningful review means “that an appellate court hearing an appeal of a

felony sentence may modify or vacate the sentence and remand the matter to the

trial court for re-sentencing if the court clearly and convincingly finds that the

record does not support the sentence or that the sentence is otherwise contrary to

law.”    Daughenbaugh at ¶ 8, citing Carter, 2004-Ohio-1181, at ¶ 44; R.C.

2953.08(G).    Clear and convincing evidence is “[t]he measure or degree of proof

that will produce in the mind of the trier of fact a firm belief or conviction as to the

allegations sought to be established. It is intermediate, being more than a mere

preponderance, but not to the extent of such certainty as required beyond a

reasonable doubt as in criminal cases. It does not mean clear and unequivocal.” In

re Estate of Haynes, 25 Ohio St.3d 101, 103-104 (1986).

        {¶12} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, ¶ 97, the

Supreme Court of Ohio stated that “[t]rial courts [now] have full discretion to


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Case No. 12-11-13


impose a prison sentence within the statutory range and are no longer required to

make findings or give their reasons for imposing maximum, consecutive, or more

than the minimum sentences.” Id. at paragraph seven of the syllabus. In fact, the

Court in Foster specifically found that

        [t]he following sections, because they either create presumptive
       minimum or concurrent terms or require judicial fact-finding to
       overcome the presumption, have no meaning now that judicial
       findings are unconstitutional: R.C. 2929.14(B), 2929.19(B)(2),
       and 2929.41. These sections are severed and excised in their
       entirety, as is R.C. 2929.14(C), which requires judicial fact-
       finding for maximum prison terms[.]

Id. at ¶ 97.

       {¶13} Although the trial court is given full discretion in sentencing

pursuant to Foster, the trial court must still consider the overriding purposes of

felony sentencing, which are to protect the public from future crimes by the

offender and to punish the offender. R.C. 2929.11(A); State v. Scott, 3d Dist. No.

6-07-17, 2008-Ohio-86, ¶ 49, citing State v. Foust, 3d Dist. No. 3-07-11, 2007-

Ohio-5767, ¶ 27.     Additionally, “[a] sentence imposed for a felony shall be

reasonably calculated to achieve the two overriding purposes of felony sentencing

* * * commensurate with and not demeaning to the seriousness of the offender's

conduct and its impact upon the victim, and consistent with sentences imposed for

similar crimes committed by similar offenders.” R.C. 2929.11(B).




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        {¶14} Ybarra first argues that his sentence was improper because the trial

court gave him a maximum sentence without making “required” statutory

findings.      Ybarra cites the severed portions of R.C. 2929.14(C), and R.C.

2929.19(B)(2)(d) in support of his argument.                     Pursuant to the Ohio Supreme

Court’s holding in Foster, the court was not required to make findings to support

his maximum sentence. Ybarra’s three-year sentence for his third degree felony

offense of Child Endangering was within the statutorily permissible range under

the new sentencing guidelines. See R.C. 2919.22(A); R.C. 2929.14(A)(3)(b).

        {¶15} Moreover, not only was Ybarra’s sentence within the statutory

permissible range under the new sentencing guidelines, but the court also did state

at the sentencing hearing that it had reviewed the “principals (sic) and purposes of

incarceration under R.C. 2929.13.”1 (Tr. at 15). Furthermore, at the sentencing

hearing the court reviewed on the record its reasoning for sentencing Ybarra to

three years in prison citing Ybarra’s criminal history2 and citing that Ybarra’s

version of the events from the underlying crime was not credible.3 (Tr. at 12-15).


1
  The specific reference to Endangering Children in R.C. 2929.13 can be found at R.C. 2929.13(F)(16).
2
  The court’s review of Ybarra’s criminal history showed that Ybarra had a Driving Under Suspension
charge in 1998, a Theft charge in 1999, a Probation Violation in 1999, a Receiving Stolen Property charge
in in 1999, a second Probation Violation charge in 1999 wherein Ybarra made inappropriate sexual
comments at an individual’s school, a Corruption of a Minor charge in 2000 resulting from sexual acts that
occurred with a 13 year old, a Disorderly Conduct and a Failure to Appear as a result of “jump[ing]” bond
and taking the girl to Texas, a Disorderly Conduct and an Assault charge in 2001, a Driving Under
Suspension charge in 2005, and an OVI reduced to reckless operation in 2010. (Tr. at 12-13).
3
  Ybarra claimed that the victim’s injuries occurred from her falling off a piece of playground equipment.
Ybarra felt that he was “guilty of not giving her medical treatment as soon as the incident happened.” (Tr.
at 6). The court found this not to be credible finding that the child’s injuries were not consistent with
Ybarra’s version of events. (Tr. at 14-15).

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      {¶16} In addition to the reasoning articulated at the sentencing hearing, in

the “Judgment Entry of Sentence” the trial court stated that it “ha[d] considered

the record, oral statements, any victim impact statements, and the pre-sentence

investigation report prepared, as well as the principles and purposes of sentencing

under Ohio Revised Code Section 2929.11 & 2929.12.” (Doc. 44). As the trial

court reviewed its reasoning at the sentencing hearing and recounted what it had

considered in the judgment entry, we find no error in sentencing Ybarra based

upon the record.

      {¶17} Ybarra next argues that his sentence was improper because the trial

court improperly relied on the child victim’s out of court statements to determine

Ybarra’s sentence. After examining the record, we find that the trial court’s

references to any statements of the victim are contained in the following statement

taken from the sentencing hearing:

      THE COURT: Well, Mr. Ybarra, my conclusion is that you are
      misrepresenting what happened here. My conclusion is that
      you’re the one that’s responsible for this. My conclusion is that
      the injuries do not match what are (sic) your version of what
      happened. I do not believe you have any credibility. I do not
      believe any of the statements that you have made, either in the
      statements to law enforcement, to the officer who did the
      investigation, or to the court today. When the child was brought
      in, she had a broken wrist, a fractured right thigh, and a
      fractured skull. There were injuries to face, left foot, throat, left
      buttock, cheek, chin and right knee. The victim stated that you
      tried to choke her and kick her, but you had some other version
      of events. Your continued statements about the origin of this
      trauma simply don’t match the injuries here.

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    (Tr. at 15).

          {¶18} Here, the trial court made reference to the child’s injuries, which

were contained in the record in the police report attached to the criminal

complaint, in the affidavit attached to a search warrant issued to search some of

Ybarra’s property, and in the pre-sentencing investigation report.4 The reference

that “the victim stated that [Ybarra] tried to choke her” is also contained in the

police report and the victim’s statement that Ybarra had tried to choke and kick

her was contained in the pre-sentencing investigation report.5                           All of these

statements of the victim that were mentioned by the trial court at the hearing were

thus contained in the record and could properly be considered by the trial court in

passing sentence.

           {¶19} Furthermore, given the fact that none of these allegedly improper

statements of the trial court were mentioned in the “Judgment Entry of Sentence”

it is not even clear how much weight, if any, was given to these particular facts.

The degree of Ybarra’s felony and Ybarra’s criminal history alone could have

justified Ybarra’s sentence.            Therefore we find that the statements were not

improper, and even discounting these statements, Ybarra’s sentence was still

justified in the record.


4
  These documents are not numbered but they are all contained within the record provided to this court for
review.
5
  There is also at least one reference in Ybarra’s “Motion in Limine of J.L.’s Statements to Medical
Personnel” to the victim’s claims of Ybarra kicking her. (Doc. 30).

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      {¶20} Ybarra next argues that the trial court improperly considered

Ybarra’s dismissed charge of Failure to Register as a Sex Offender when

determining Ybarra’s sentence. At the outset of analyzing this argument, we note

that the dismissed charge was not mentioned at all in the court’s “Judgment Entry

of Sentence.” (Doc. 44). When reviewing the transcript from the sentencing

hearing, we find the following passages are the only references the court made to

Ybarra’s dismissed charge of Failure to Register as a Sex Offender.

      THE COURT: Did you know that [Ybarra] was not to be
      residing at this residence, that he wasn’t registered at that
      residence?

      MS. COLE: As far as registration, I don’t know how that goes
      because I don’t know anything about all that.

      ***

      [THE COURT:] Then the within charges that were originally
      charged as an endangering children, a felony of the second
      degree, was reduced to a felony of the third degree, as well as a
      failure to register charge for the fact that you were not residing
      at the residence that you were supposed to be residing and
      registered at; is that correct?

      [Ybarra:] Yes, Your honor.

      [THE COURT:] Your version of events, Mr. Ybarra, include
      that there were supposedly two incidents, one on a Friday and
      one on a Sunday; is that correct, with this child?

(Tr. at 9-10, 13).
       {¶21} The preceding testimony represents the totality of the court’s

reference to Ybarra’s dismissed charge of Failure to Register as a Sex Offender at


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the sentence hearing. There is nothing in these statements to suggest the trial court

was doing anything more than testing the credibility of Ms. Cole who was

speaking on behalf of Ybarra at his sentencing hearing, or that the court was doing

anything more than clarifying the charges against Ybarra. Based upon the plain

language, we do not find that the trial court improperly relied on the dismissed

case in passing sentence.

       {¶22} For the foregoing reasons, Ybarra’s first assignment of error is

overruled.

                            Second Assignment of Error

       {¶23} In Ybarra’s second assignment of error, he argues that the trial court

failed to advise him of the terms of his community control. Specifically, Ybarra

argues that:

       when a trial court sentences a defendant to community control
       sanctions, the court must advise the defendant that if the
       conditions are violated, the court may impose a longer term
       under the same sanction, a more restrictive sanction, or a prison
       term. Furthermore, the court is required to advise the
       defendant of the specific prison term that will be imposed for
       violation of community control sanctions.

(Appt. Br. at 4).

       {¶24} Despite Ybarra’s arguments, Ybarra was not sentenced to community

control and community control was not part of his sentence.              (Doc. 44).




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Therefore, there was no error in the trial court’s “failure” to advise Ybarra of

anything related to community control sanctions.

       {¶25} If Ybarra had intended to argue that the trial court did not properly

advise him of his post-release control, that argument would also fail. Ybarra was

notified in his written plea-agreement, at the sentencing hearing, and in the

“Judgment Entry on Sentencing” that following his prison term he “may be subject

to a discretionary period of post-release control for three (3) years under the terms

and conditions as determined by the Adult Parole Authority.” (Doc. 40); (Tr. at

15-16); (Doc. 44). As post-release control is discretionary in his case up to three

years, the court’s instruction was proper.      See R.C. 2967.28.      Accordingly,

Ybarra’s second assignment of error is overruled.

       {¶26} For the foregoing reasons Ybarra’s assignments of error are

overruled and the judgment of the Putnam County Court of Common pleas is

affirmed.

                                                                Judgment Affirmed

PRESTON and ROGERS, J.J., concur.

/jlr




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