[Cite as State v. Saracco-Rios, 2016-Ohio-7192.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                           MADISON COUNTY




STATE OF OHIO,                                     :
                                                        CASE NOS. CA2016-02-011
        Plaintiff-Appellee,                        :              CA2016-03-014

                                                   :           OPINION
    - vs -                                                      10/3/2016
                                                   :

ALDO SAUL SARACCO-RIOS,                            :

        Defendant-Appellant.                       :



      CRIMINAL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS
                           Case No. CRI20150123



Stephen J. Pronai, Madison County Prosecuting Attorney, Rachel M. Price, 59 North Main
Street, London, Ohio 43140, for plaintiff-appellee

Shannon M. Treynor, 63 North Main Street, P.O. Box 735, London, Ohio 43140, for
defendant-appellant



        S. POWELL, J.

        {¶ 1} Defendant-appellant, Aldo Saul Saracco-Rios, appeals from his conviction in

the Madison County Court of Common Pleas after he pled guilty to one count of possession

of drugs. For the reasons outlined below, we affirm.

        {¶ 2} On October 15, 2015, the Madison County Grand Jury returned an indictment

charging Saracco-Rios with one count of possession of drugs in violation of R.C. 2925.11(A),

a first-degree felony. The charge arose after Saracco-Rios attempted to sell 124 grams of
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heroin to an undercover officer at a gas station located in Madison County. It is undisputed

that at the time of his arrest, Saracco-Rios was a 24-year-old Mexican citizen who had

recently graduated from a Mexican university with a degree in law.

       {¶ 3} On January 21, 2016, Saracco-Rios entered a guilty plea to the charged

offense of one count of possession of drugs. After accepting Saracco-Rios' plea, the trial

court referred the matter for a presentence investigation report ("PSI"). Thereafter, on

February 16, 2016, the trial court held a sentence hearing and sentenced Saracco-Rios to

serve a mandatory term of nine years in prison, ordered him to pay the mandatory minimum

fine of $10,000, and imposed a mandatory five-year postrelease control term. The trial court

also suspended Saracco-Rios' driver's license for a period of five years. Saracco-Rios then

moved the trial court to reconsider its sentencing decision, which the trial court denied.

       {¶ 4} Saracco-Rios now appeals from his conviction, raising two assignments of error

for review.

       {¶ 5} Assignment of Error No. 1:

       {¶ 6} COUNSEL FOR THE DEFENDANT/APPELLANT WAS INEFFECTIVE FOR

FAILING TO REQUEST THE COURT FOR A COMPLETE OR PARTIAL WAIVER OF THE

MANDATORY FINE BASED UPON THE DEFENDANT'S INDIGENCE.

       {¶ 7} In his first assignment of error, Saracco-Rios argues he received ineffective

assistance of counsel when his trial counsel did not "call the [trial court's] attention" to the

issue of whether he had the present or future ability to pay the mandatory minimum $10,000

fine that was imposed. We disagree.

       {¶ 8} Pursuant to R.C. 2929.18(B)(1), the trial court is obligated to impose mandatory

fines when the offender commits certain drug-related felonies. State v. Johnson, 12th Dist.

Butler No. CA2011-11-212, 2014-Ohio-3776, ¶ 10. As relevant here, this includes a first-

degree felony offense of possession of drugs in violation of R.C. 2925.11(A). However, the
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statute further provides that (1) "if an offender alleges in an affidavit filed with the court prior

to sentencing that the offender is indigent and unable to pay the mandatory fine," and (2) "if

the court determines the offender is an indigent person and is unable to pay the mandatory

fine described in this division," the court shall not impose such a mandatory fine.

       {¶ 9} Ohio courts, including this court, have held that the failure to file an affidavit

alleging an offender's indigency and inability to pay a mandatory fine constitutes ineffective

assistance of counsel only "'when the record shows a reasonable probability that the trial

court would have found the defendant indigent and unable to pay the fine had the affidavit

been filed.'" Johnson at ¶ 11, quoting State v. Gilmer, 6th Dist. Ottawa No. OT-01-015, 2002

WL 737060, *2 (Apr. 26, 2002). Yet, even then, the filing of an affidavit of indigency by an

offender does not automatically entitle the offender to a waiver of the mandatory fine. State

v. Bolden, 12th Dist. Preble No. CA2003-03-007, 2004-Ohio-184, ¶ 35. Rather, "[t]he burden

is upon the offender to affirmatively demonstrate that he or she is indigent and is unable to

pay the mandatory fine." (Emphasis sic.) State v. Gipson, 80 Ohio St.3d 626, 635 (1998).

       {¶ 10} According to R.C. 2929.19(B)(5), before imposing a financial sanction, including

a mandatory fine under R.C. 2929.18(B)(1), "the court shall consider the offender's present

and future ability to pay the amount of the sanction or fine." There are no express factors

that must be considered or specific findings that must be made regarding the offender's

ability to pay. State v. Dandridge, 12th Dist. Butler No. CA2003-12-330, 2005-Ohio-1077, ¶

6. However, there must be some evidence in the record to show that the trial court acted in

accordance with the legislative mandate that it consider the offender's present or future ability

to pay. State v. Lang, 12th Dist. Brown No. CA2011-03-007, 2011-Ohio-5742, ¶ 12, citing

State v. Adkins, 144 Ohio App.3d 633, 647 (12th Dist.2001). This can be shown through the

trial court's use of a PSI, which often provides financial and personal information of the

offender, in order to aid the trial court in making its determination. Johnson, 2014-Ohio-3776
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at ¶ 12, citing State v. Simms, 12th Dist. Clermont No. CA2009-02-005, 2009-Ohio-5440, ¶ 9.

       {¶ 11} After a thorough review of the record, we find the record contains ample

evidence indicating the trial court considered Saracco-Rios' present and future ability to pay

the mandatory minimum $10,000 fine that was imposed. As noted above, it is undisputed

that at the time of his arrest, Saracco-Rios was 24-year-old Mexican citizen who had recently

graduated from a Mexican university with a degree in law. Yet, despite being educated in the

law, the PSI indicates Saracco-Rios had instead started his own lawn care and painting

business that earned him between $2,000 to $3,000 a month, a portion of which he would

send to his mother and sister in Mexico. The PSI also indicated Saracco-Rios had never

been fired from any prior employment, had no prior criminal record, and that he had

considered himself in a good financial condition prior to his arrest.

       {¶ 12} As part of the sentencing hearing, the trial court noted that it had reviewed and

considered the PSI in fashioning its sentence, specifically noting "that Mr. Saracco-Rios is a

well-educated man, and, in fact, was trained to be a lawyer." In addition, as part of its

sentencing entry, the trial court explicitly stated that it had "reviewed the [PSI] and heard

statements in mitigation presented by [Saracco-Rios] and his counsel." As can be seen,

there was ample evidence in the record to indicate the trial court properly considered

Saracco-Rios' present and future ability to pay the mandatory minimum $10,000 fine that was

imposed. Therefore, because Saracco-Rios has failed to demonstrate that the trial court

failed to consider his present and future ability to pay, it cannot be said that Saracco-Rios'

trial counsel provided ineffective assistance by not "call[ing] the [trial court's] attention" to that

issue. Accordingly, Saracco-Rios' first assignment of error lacks merit and is overruled.

       {¶ 13} Assignment of Error No. 2:

       {¶ 14} THE COURT ABUSED ITS DISCRETION IN SENTENCING THE

DEFENDANT, A FIRST TIME, NON-VIOLENT OFFENDER, TO A DETERMINATE TERM

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OF NINE YEARS IN THE PENITENTIARY.

       {¶ 15} In his second assignment of error, Saracco-Rios argues the trial court abused

its discretion by sentencing him to serve a mandatory nine-year prison term. We disagree.

       {¶ 16} Contrary to Saracco-Rios' claim, an appellate court does not review a trial

court's sentencing decision for an abuse of discretion. State v. Julious, 12th Dist. Butler No.

CA2015-12-224, 2016-Ohio-4822, ¶ 8, citing State v. Marcum, Slip Opinion No. 2016-Ohio-

1002, ¶ 10. Rather, as with all felony sentences, we review this sentence under the standard

of review set forth in R.C. 2953.08(G)(2). State v. Crawford, 12th Dist. Clermont No.

CA2012-12-088, 2013-Ohio-3315, ¶ 6. Pursuant to that statute, an appellate court may

modify or vacate a sentence only if the appellate court finds by clear and convincing evidence

that "the record does not support the trial court's findings under relevant statutes [addressed

within R.C. 2953.08(G)(2)] or that the sentence is otherwise contrary to law." Marcum at ¶ 1.

       {¶ 17} Even in those cases where the sentence imposed does not require any of the

statutory findings specifically addressed within R.C. 2953.08(G)(2), an appellate court will

nevertheless review those sentences "under a standard that is equally deferential to the

sentencing court." Marcum at ¶ 23. "That is, an appellate court may vacate or modify any

sentence that is not clearly and convincingly contrary to law only if the appellate court finds

by clear and convincing evidence that the record does not support the sentence." Id. Thus,

this court may "increase, reduce, or otherwise modify a sentence only when it clearly and

convincingly finds that the sentence is (1) contrary to law or (2) unsupported by the record."

State v. Brandenburg, Slip Opinion No. 2016-Ohio-2970, ¶ 1, citing Id. at ¶ 7.

       {¶ 18} We find no error in the trial court's decision to sentence Saracco-Rios to serve

a mandatory nine-year prison term. As the record reveals, Saracco-Rios' sentence is not

clearly and convincingly contrary to law because the trial court properly considered the

purposes and principles of R.C. 2929.11, as well as the factors listed in R.C. 2929.12,
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imposed the required mandatory five-year postrelease control term, and ordered him to serve

a sentence that fell within the permissible statutory range for a first-degree felony. See R.C.

2929.14(A)(1) ("[f]or a felony of the first degree, the prison term shall be three, four, five, six,

seven, eight, nine, ten, or eleven years"). As this court has stated previously, a sentence is

not clearly and convincingly contrary to law where the trial court "considers the principles and

purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly imposes

postrelease control, and sentences the defendant within the permissible statutory range."

State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-Ohio-2890, ¶ 8.

       {¶ 19} The record also supports the trial court's sentencing decision. Specifically, the

record indicates Saracco-Rios attempted to sell 124 grams of heroin to an undercover officer

for hire or as part of an organized criminal activity. Saracco-Rios admitted as much in the

PSI, which indicated he "would make 300 for the risk." As the trial court properly noted,

pursuant to R.C. 2929.12(B)(7), this indicates Saracco-Rios' conduct was more serious than

the conduct normally constituting the offense. The record also indicates that Saracco-Rios

had a history of substance abuse and admitted use of marijuana, cocaine, and alcohol.

Therefore, because we find Saracco-Rios' sentence was not clearly and convincingly

contrary to law, and because the record fully supports the trial court's sentencing decision,

Saracco-Rios' second assignment of error is also without merit and overruled.

       {¶ 20} Judgment affirmed.


       M. POWELL, P.J., and HENDRICKSON, J., concur.




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