[Cite as State v. Rubalcava, 2016-Ohio-8171.]




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


State of Ohio                                       Court of Appeals No. L-16-1070

          Appellee                                  Trial Court No. CR0201302499

v.

Antonio Rubalcava                                   DECISION AND JUDGMENT

          Appellant                                 Decided: December 16, 2016

                                                *****

          Julia R. Bates, Lucas County Prosecuting Attorney, and
          Patricia S. Wardrop, Assistant Prosecuting Attorney, for appellee.

          Tim A. Dugan, for appellant.

                                                *****

          SINGER, J.

          {¶ 1} Appellant, Antonio Rubalcava, appeals the March 16, 2016 judgment of the

Lucas County Court of Common Pleas convicting him of trafficking in heroin and

possession of cocaine, both felonies of the fifth degree. For the reasons that follow, we

affirm.
                                   Assignment of Error

       {¶ 2} Appellant sets forth the following assignment of error:

              1) Appellant’s sentence is contrary to law.

                                 Background Facts

       {¶ 3} On March 7, 2013, Toledo police executed a search warrant at appellant’s

residence. During the search, officers seized paraphernalia used for packaging and

selling narcotics, as well as two “baggies” of suspected narcotics located on appellant’s

person. The baggies contained small amounts of cocaine and heroin.

       {¶ 4} On September 4, 2013, appellant was indicted on possession of heroin in

violation of R.C. 2925.11, a felony of the fifth degree; trafficking in heroin in violation of

R.C. 2925.11, a felony of the fifth degree; possession of cocaine in violation of R.C.

2925.11, a felony of the fifth degree; and trafficking in heroin in violation of R.C.

2925.03, a felony of the fifth degree. Appellant failed to appear for his scheduled

arraignment date and a capias was issued.

       {¶ 5} Appellant was arrested on the capias on February 8, 2016. On February 10,

2016, arraignment was held and a not guilty plea was entered. On February 26, 2016,

appellant entered guilty pleas to trafficking in heroin and possession of cocaine, each

felonies of the fifth degree. The court accepted appellant’s pleas and found him guilty.

A presentence investigation (PSI) was ordered and sentencing was scheduled for

March 16, 2016.




2.
       {¶ 6} At sentencing, the court summarized appellant’s PSI and gave an overview

of appellant’s criminal history. Appellant was sentenced to nine months incarceration for

trafficking in heroin and three years community control for possession of cocaine.

Appellant was also sentenced to three years discretionary postrelease control on both

counts.

       {¶ 7} It is from this judgment appellant now timely appeals.

                                     Standard of Review

       {¶ 8} We review felony sentences under a two-prong approach. R.C. 2953.08(G)(2)

provides that an appellate court may increase, reduce, modify, or vacate and remand a

disputed 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; or (b) That the sentence is otherwise contrary

       to law.

See State v. Behrendt, 6th Dist. Lucas No. L-15-1135, 2016-Ohio-969, ¶ 6; see also State

v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23.

       {¶ 9} Here, appellant challenges his imposed sentence as “contrary to law,”

arguing generally and with one specific ground. Therefore, we first address the general

argument and then the more specific argument.




3.
                                  A. “Contrary to Law”

       {¶ 10} A sentence is not clearly and convincingly contrary to law where the trial

court considers the purposes and principles of sentencing under R.C. 2929.11 along with

the seriousness and recidivism factors under R.C. 2929.12, properly applies postrelease

control, and imposes a sentence within the statutory range. See State v. Craig, 6th Dist.

Wood No. WD-14-061, 2015-Ohio-1479, ¶ 9.

                                  i. Postrelease Control
       {¶ 11} “Any sentence to a prison term for a felony of the * * * fifth degree that is

not subject to division (B)(1) or (3) of this section shall include a requirement that the

offender be subject to a period of post-release control of up to three years after the

offender’s release from imprisonment.” See R.C. 2967.28(C).

       {¶ 12} Here, the trial court imposed two, three-year discretionary terms of

postrelease control upon appellant in accordance with R.C. 2967.28(C).

       {¶ 13} Specifically, the March 18, 2016 sentencing entry stated, “[i]t is further

ORDERED the [appellant] is subject to up to 3 years discretionary post-release control as

to count 2, up to 3 years discretionary post-release control as to count 3, after the

[appellant]’s release from imprisonment pursuant to R.C. 2967.28 and 2929.14.”

       {¶ 14} Consequently, the trial court properly applied postrelease control upon

appellant and his sentence is not contrary to law on that basis.




4.
                                   ii. Statutory Range

       {¶ 15} R.C. 2929.14(A)(5) provides a statutory range for a fifth-degree felony as

6 to 12 months.

       {¶ 16} Here, appellant was sentenced to nine months incarceration for his fifth-

degree felony, trafficking in heroin conviction. This sanction is within the statutory

range. See, e.g., State v. Mennifield, 5th Dist. Richland No. 15-CA-15, 2015-Ohio-4660,

¶ 43 (defendant sentenced to 12 months incarceration for fifth-degree felony).

       {¶ 17} Accordingly, the trial court properly imposed sentence within the statutory

range and his sentence is not contrary to law on that basis.

                       iii. Principles and Purposes of Sentencing

       {¶ 18} R.C. 2929.11(A) pertinently provides, “[t]he 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.” It follows, “the sentencing court shall

consider the need for incapacitating the offender, deterring the offender and others from

future crime, rehabilitating the offender, and making restitution to the victim of the

offense, the public, or both.” See R.C. 2929.11(A); see also Craig, 6th Dist. Wood No.

WD-14-061, 2015-Ohio-1479, at ¶ 10.

       {¶ 19} A felony sentence, therefore, “shall be reasonably calculated to achieve the

two overriding purposes * * * set forth in [R.C. 2929.11(A)], commensurate with and not

demeaning to the seriousness of the offender’s conduct and its impact upon the victim,




5.
and consistent with sentences imposed for similar crimes committed by similar

offenders.” See R.C. 2929.11(B); Craig at ¶ 10.

          {¶ 20} Here, at the March 16, 2016 sentencing hearing, the trial court did not

impose the maximum prison term and the court rationalized its sentence based on its

attempt to punish appellant for his long history of drug and theft crimes. The trial court

stated:

                 So ever since you’ve been an adult, it’s been theft, drugs, theft,

          drugs. You’re the only one that put a stop to it. So the sentence I gave you

          could have been longer given your history, two prior felonies, ten

          misdemeanors. Could have been a longer sentence to the penitentiary, but I

          hope that this combination of punishment and then later treatment is going

          to be what gets you finally to do what you need to do to make yourself feel

          better about yourself.

          {¶ 21} Consequently, the finding under R.C. 2929.11 is supported by the record

and appellant has failed to show clearly and convincingly that the sentence is contrary to

law on that basis.

                           iv. Seriousness and Recidivism Factors

          {¶ 22} R.C. 2929.12(A) pertinently provides, “a court that imposes a sentence

under this chapter upon an offender for a felony has discretion to determine the most

effective way to comply with the purposes and principles of sentencing.”




6.
         {¶ 23} In this determination, “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.”

State v. Kronenberg, 8th Dist. Cuyahoga No. 101403, 2015-Ohio-1020, ¶ 26. “The

factors include: (1) the physical, psychological, and economic harm suffered by the

victim, (2) the defendant’s prior criminal record, (3) whether the defendant shows any

remorse, and (4) any other relevant factors.” Id., citing R.C. 2929.12(B) and (D); see

also Behrendt, 6th Dist. Lucas No. L-15-1135, 2016-Ohio-969, at ¶ 8-9.

         {¶ 24} A sentencing court is not required to use any specific language or make

specific findings to demonstrate that it considered the applicable seriousness and

recidivism factors. See State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000).

         {¶ 25} Here, the trial court referenced appellant’s PSI, violation of bond

conditions, and 12 plus years of crimes (including 2 felonies and 10 misdemeanors).

Therefore, we cannot say the trial court committed reversible error when imposing the

ordered sanctions.

         {¶ 26} Accordingly, appellant’s general “contrary to law” argument is not well-

taken.

                                   v. Community Control

         {¶ 27} In addition to the general “contrary to law” argument, appellant specifically

argues the trial court erred when it found him not amenable to community control for




7.
trafficking in heroin but amenable to community control for possession of heroin, as both

crimes happened simultaneously.

       {¶ 28} R.C. 2929.15(A)(1) states, “[i]f in sentencing an offender for a felony the

court is not required to impose a prison term, a mandatory prison term, or a term of life

imprisonment upon the offender, the court may directly impose a sentence that consists of

one or more community control sanctions[.]”

       {¶ 29} “The fact that two or more offenses grew out of the same course of conduct

does not create a presumption that the same punishment should be imposed for each of

them.” State v. Burns, 2d Dist. Greene No. 05-CA-0106, 2006-Ohio-2666, ¶ 11. A trial

court has discretion and is authorized to impose a combination of sanctions. See, e.g.,

State v. Santiago, 8th Dist. Cuyahoga No. 102433, 2015-Ohio-4674, ¶ 13-16.

       {¶ 30} Here, the trial court had discretion to find appellant amenable to

community control on one count and not the other. Consequently, appellant’s sentence is

not contrary to law on that basis, and his sole assignment of error is not well-taken.

                                        Conclusion

       {¶ 31} The judgment of the Lucas County Court of Common Pleas is affirmed.

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


                                                                        Judgment affirmed.




8.
                                                                      State v. Rubalcava
                                                                      C.A. No. L-16-1070




       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
Arlene Singer, J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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