[Cite as State v. Torres, 2020-Ohio-3906.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                    SANDUSKY COUNTY


State of Ohio                                    Court of Appeals Nos. S-19-044
                                                                       S-19-045
        Appellee
                                                 Trial Court Nos. 19 CR 433
v.                                                                19 CR 381

Dominic DL Torres                                DECISION AND JUDGMENT

        Appellant                                Decided: July 31, 2020

                                             *****

        Beth A. Tischler, Sandusky County Prosecuting Attorney,
        and Alexis M. Hotz, Assistant Prosecuting Attorney, for appellee.

        Brett A. Klimkowsky, for appellant.

                                             *****

        PIETRYKOWSKI, J.

        {¶ 1} This is a consolidated appeal from the judgments of the Sandusky County

Court of Common Pleas, convicting appellant following a guilty plea of one count of

robbery in violation of R.C. 2911.02(A)(3), a felony of the third degree, and one count of

carrying a concealed weapon in violation of R.C. 2923.12(A)(2) and (F)(1), a
misdemeanor of the first degree, and sentencing appellant to a total prison term of three

years. For the reasons that follow, we affirm.

                         I. Facts and Procedural Background

       {¶ 2} In case No. 19 CR 381, appellant was indicted on one count of carrying a

concealed weapon in violation of R.C. 2923.12(A)(2), a felony of the fourth degree. The

charge stemmed from an incident on April 21, 2019, during which appellant was found

carrying a loaded handgun concealed in his pocket.

       {¶ 3} In case No. 19 CR 433, the Sandusky County Grand Jury returned a three-

count indictment charging appellant with one count of robbery in violation of R.C.

2911.02(A)(2), a felony of the second degree, one count of felonious assault in violation

of R.C. 2903.11(A)(2), a felony of the second degree, and one count of obstructing

official business in violation of R.C. 2921.31(A), a felony of the fifth degree. The

charges arose from an incident on May 1, 2019, during which appellant and several other

individuals invited the victim to appellant’s residence to purchase drugs from the victim.

Thereafter, appellant and the others beat and robbed the victim, with one of the

individuals holding a knife to the victim’s cheek and threatening to kill him.

       {¶ 4} On July 22, 2019, appellant entered into an agreement with the state

whereby he agreed to plead guilty in case No. 19 CR 381 to the amended count of

carrying a concealed weapon in violation of R.C. 2923.12(A)(2) and (F)(1), a

misdemeanor of the first degree. In case No. 19 CR 433, appellant agreed to plead guilty

to the amended count of robbery in violation of R.C. 2911.02(A)(3), a felony of the third




2.
degree. In exchange for appellant’s guilty plea, the state agreed to dismiss the remaining

charges. After a plea colloquy, the trial court accepted appellant’s guilty plea, and

referred the matter to the probation department for preparation of a presentence

investigation report.

       {¶ 5} Sentencing was held on September 18, 2019. At the sentencing hearing,

counsel for appellant noted that appellant was only 18 years old, and that while he had a

lengthy juvenile history, a lot of appellant’s trouble has been caused by mental health

issues for which he is receiving social security disability. In addition, counsel asserted

that appellant was enrolled at Townsend Community School, and his anticipated

graduation was June 2020. Counsel urged the court to allow appellant to be able to finish

his high school career and earn a diploma, which would help him become a positive

contributor to society. Counsel further urged the court that if incarceration was

necessary, that it be local jail time, and that appellant would be placed on probation to

“open [his] eyes” to the seriousness of what was happening.

       {¶ 6} Appellant then spoke on his own behalf. Appellant admitted that he has

made mistakes, and expressed some contrition, but he also downplayed the incident, and

explained away his history of probation violations as just involving little things.

       {¶ 7} Thereafter, the trial court recounted appellant’s lengthy juvenile record,

which began when appellant was approximately nine years old, and which included 21

probation violations before the age of 18. The court recognized that its responsibility was

to protect the public from future crime and impose an appropriate punishment. In doing




3.
so, the court found that appellant was not amenable to community control, and the court

sentenced appellant to three years in prison on the count of robbery, and six months in

jail on the count of carrying a concealed weapon, with those sentences to be served

concurrently, for a total prison term of three years. Finally, the court impressed to

appellant that this was his chance to change the trajectory of his life, and that appellant’s

actions have led him to this point.

                                 II. Assignment of Error

       {¶ 8} Appellant has timely appealed his judgments of conviction, and now asserts

one assignment of error for our review:

              1. The Trial Court’s sentence of Dominic Torres (“Appellant”) is

       excessive and contrary to Ohio law.

                                         III. Analysis

       {¶ 9} We review the imposition of a felony sentence in accordance with R.C.

2953.08. State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 16.

R.C. 2953.08(G)(2) provides that an appellate court may increase, reduce, or otherwise

modify a sentence if it clearly and convincingly finds either of the following:

              (a) That the record does not support the sentencing court’s findings

       under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of

       section 2929.14, or division (I) of section 2929.20 of the Revised Code,

       whichever, if any, is relevant;

              (b) That the sentence is otherwise contrary to law.




4.
       {¶ 10} Here, the statutory findings under R.C. 2953.08(G)(2)(a) are not relevant,

thus appellant argues that his sentence is otherwise contrary to law under R.C.

2953.08(G)(2)(b). In Tammerine, we recognized that State v. Kalish, 120 Ohio St.3d 23,

2008-Ohio-4912, 896 N.E.2d 124, abrogated by State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, 59 N.E.3d 1231, still can provide guidance for determining whether a

sentence is clearly and convincingly contrary to law. Tammerine at ¶ 15. The Ohio

Supreme Court in Kalish held that where the trial court expressly stated that it considered

the purposes and principles of sentencing in R.C. 2929.11 as well as the factors listed in

R.C. 2929.12, properly applied postrelease control, and sentenced the defendant within

the statutorily permissible range, the sentence was not clearly and convincingly contrary

to law. Kalish at ¶ 18.

       {¶ 11} Appellant argues that the trial court did not sentence him in a manner

guided by the overriding purposes of felony sentencing set forth in R.C. 2929.11(A),

which provides,

       The overriding purposes of felony sentencing are to protect the public from

       future crime by the offender and others, to punish the offender, and to

       promote the effective rehabilitation of the offender using the minimum

       sanctions that the court determines accomplish those purposes without

       imposing an unnecessary burden on state or local government resources.

       To achieve those purposes, the sentencing court shall consider the need for

       incapacitating the offender, deterring the offender and others from future




5.
       crime, rehabilitating the offender, and making restitution to the victim of

       the offense, the public, or both.

       {¶ 12} In this case, the trial court did not expressly recite at the sentencing hearing

or in the sentencing entry that it considered the principles and purposes of sentencing

under R.C. 2929.11, or the seriousness and recidivism factors under R.C. 2929.12. “It is

well-recognized, however, that where the record is silent, there is a presumption that the

trial court gave proper consideration to these statutes.” State v. Shell, 6th Dist. Sandusky

No. S-19-015, 2020-Ohio-295, ¶ 19, citing State v. Adams, 37 Ohio St.3d 295, 297, 525

N.E.2d 1361 (1988). “[T]he issue before us is whether the record demonstrates that the

trial court considered R.C. 2929.11 and 2929.12 in imposing its sentence, not whether the

trial court expressly indicated that it did so.” Id., quoting State v. Sims, 6th Dist.

Sandusky No. S-13-037, 2014-Ohio-3515, ¶ 10.

       {¶ 13} Here, the record demonstrates that the trial court considered both statutes,

as evidenced by its acknowledgment that its responsibility is to “protect the public from

future crime and impose an appropriate punishment,” as well as its desire to impress upon

appellant the need to change his ways in light of his lengthy history of noncompliance

with probation. Therefore, we hold that appellant’s sentence is not clearly and

convincingly contrary to law.

       {¶ 14} This, however, does not end our analysis because the Ohio Supreme Court

has held that even where the sentence is not otherwise contrary to law, we may vacate or

modify the term if we find by “clear and convincing evidence that the record does not




6.
support the sentence” upon consideration of R.C. 2929.11 and 2929.12. Marcum, 146

Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, at ¶ 23.

       {¶ 15} To that end, appellant argues that the record does not support the sentence,

and that it is not the minimum sentence that would effectively rehabilitate him. In

support, appellant highlights that he is only 18 years old, and that he is working to pursue

his G.E.D. He also notes that he has previously been employed. Finally, appellant

emphasizes his mental health issues, and how they have contributed to his history of

misconduct. Appellant argues that a term of confinement in a local jail, and being placed

on probation with an order to receive mental health treatment, would allow him to

continue pursuing his education and employment, which would lead to him becoming a

productive member of society.

       {¶ 16} Upon our review, we do not find clear and convincing evidence that the

record does not support the sentence. Appellant began his problematic behavior when he

was only nine years old. Without interruption, he has continued such behavior

throughout his juvenile years, committing several additional offenses and approximately

21 probation violations. Appellant’s behavior has culminated in the commission of two

crimes before his nineteenth birthday, within several days of each other, the former of

which involved appellant’s possession of a loaded handgun, and the latter of which

involved a violent robbery wherein the victim was threatened with a knife. Appellant’s

conduct has demonstrated that probation has thus far been ineffective in reforming his

behavior, and there is now a clear need to protect society from future crimes committed




7.
by him. Therefore, we hold that the record supports the trial court’s 36-month prison

sentence upon consideration of R.C. 2929.11 and 2929.12.

       {¶ 17} Accordingly, appellant’s assignment of error is not well-taken.

                                     IV. Conclusion

       {¶ 18} For the foregoing reasons, we find that substantial justice has been done the

party complaining, and the judgments of the Sandusky County Court of Common Pleas

are affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                      Judgments affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Christine E. Mayle, J.                                     JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




8.
