[Cite as State v. Ortiz-Rojas, 2016-Ohio-5138.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103688




                                       STATE OF OHIO
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                         ADALBERTO J. ORTIZ-ROJAS
                                                        DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-593364-A

        BEFORE: S. Gallagher, P.J., Blackmon, J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: July 28, 2016
ATTORNEY FOR APPELLANT

Michael H. Murphy
20325 Center Ridge Road
Suite 512
Rocky River, Ohio 44116


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Marc Bullard
Assistant Prosecuting Attorney
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, P.J.:

       {¶1} Adalberto J. Ortiz-Rojas appeals his 18-month prison sentence, following a

guilty plea to the third-degree felony of trafficking, claiming that the trial court erred by

not finding the presumption of a prison sentence, found in R.C. 2925.03(C)(4)(d), had

been rebutted under R.C. 2929.13(D)(2). Ortiz-Rojas is not challenging any aspect of his

guilty plea. We cannot review the single assignment of error as presented and, therefore,

affirm the conviction.

       {¶2} A defendant enjoys only a limited right to appeal sentences under R.C.

2953.08. State v. Marcum, Slip Opinion No. 2016-Ohio-1002, ¶ 22. For example, the

defendant has the right to appeal any sentence consisting of the maximum term allowed

for an offense, any prison sentence imposed for a fourth- or fifth-degree felony in certain

situations, a sentence stemming from certain violent sex offenses, or any sentence that

included an additional prison term imposed pursuant to R.C. 2929.14(B)(2)(a). R.C.

2953.08(A); State v. Ongert, 8th Dist. Cuyahoga No. 103208, 2016-Ohio-1543, ¶ 8.

None of those provisions apply to the current case.

       {¶3} The only other grounds to support an appeal of a final sentence is if the

sentence is contrary to law. R.C. 2953.08(A)(4). A sentence is contrary to law if (1) the

sentence falls outside the statutory range for the particular degree of offense, or (2) the

trial court failed to consider the purposes and principles of felony sentencing set forth in

R.C. 2929.11 and the sentencing factors in R.C. 2929.12. Id. at ¶ 9, citing State v. Price,
8th Dist. Cuyahoga No. 103023, 2016-Ohio-591, ¶ 12; State v. Hinton, 8th Dist.

Cuyahoga No. 102710, 2015-Ohio-4907, ¶ 10, citing State v. Smith, 8th Dist. Cuyahoga

No. 100206, 2014-Ohio-1520.

       {¶4} A trial court need only consider the sentencing factors pursuant to R.C.

2929.11 and 2929.12 and need not make findings in support of that consideration.

Ongert at ¶ 12, citing State v. Karlowicz, 8th Dist. Cuyahoga No. 102832,

2016-Ohio-925. A sentence within the bounds of the law cannot be deemed contrary to

law because a defendant disagrees with the trial court’s discretion to individually weigh

the sentencing factors. Id.; see also State v. D.S., 10th Dist. Franklin No. 15AP-790,

2016-Ohio-2856, ¶ 15 (“Although appellant appears to disagree with the trial court’s

analysis and application of the purposes and principles of sentencing set forth by R.C.

2929.11 and the statutory factors set forth by R.C. 2929.12, such disagreement does not

make a sentence that falls within the applicable statutory range contrary to law.”) As

long as a trial court considered all sentencing factors, the sentence is not contrary to law,

and the record therefore supports the sentence. Marcum at ¶ 23.

       {¶5} In this case, Ortiz-Rojas claims the trial court ignored mitigating factors he

presented at the sentencing hearing for the purpose of rebutting the presumption of a

prison sentence under R.C. 2929.13(D)(2).1 Essentially, Ortiz-Rojas complains that the


       1
          R.C. 2929.13(D)(2) provides that notwithstanding the presumption that prison is necessary
to comply with the sentencing principles and factors under R.C. 2929.11, the trial court may impose
community control sanctions only if the trial court makes certain findings enumerated in that
subdivision.
trial court did not give greater weight to the factors he deemed more relevant — his lack

of a felony criminal record and his remorse over his involvement in the crime, all of

which were presented at the sentencing hearing. The weight given to any one sentencing

factor is purely discretionary and rests with the trial court. All that R.C. 2929.11 and

2929.12 require is for the trial court to consider the factors. Ongert at ¶ 10; State v.

Montanez-Roldon, 8th Dist. Cuyahoga No. 103509, 2016-Ohio-3062, ¶ 10-11 (R.C.

2953.08 precluded appellate review of the trial court’s discretion in weighing the

consistency in sentencing principles under R.C. 2929.11(B) because the final sentence

was within the applicable statutory range and the trial court expressly indicated it

considered all the required statutory factors and principles).2

       {¶6} The trial court in this case, at both the sentencing hearing and again in the

final sentencing entry, expressly considered all factors at law before imposing the

mid-range sentence for a third-degree felony offense.             Further, R.C. 2929.13(D)(1)

creates a presumption that a “prison term is necessary in order to comply with the

purposes and principles of sentencing under section 2929.11 of the Revised Code.” The

record in this case supports the statutorily authorized sentence, which is not otherwise


       2
         Panels from this court have gone so far as to conclude, albeit in the context
of resolving a motion to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967), that attempting to challenge the trial court’s
discretion to weigh individual sentencing factors under R.C. 2929.11 and 2929.12 is
wholly frivolous in situations in which the trial court, at the sentencing hearing and
in the final entry of conviction, states that it “considered all required factors of law”
before imposing a sentence within the applicable statutory range. State v. Torres,
8th Dist. Cuyahoga No. 101769, 2015-Ohio-2038, ¶ 11; State v. Hayes, 8th Dist.
Cuyahoga No. 103507, 2016-Ohio-2639, ¶ 19-20.
contrary to law because the trial court expressly considered all of the required sentencing

principles and factors. Marcum at ¶ 23. We cannot review the sentence.

       {¶7} We acknowledge that Ortiz-Rojas’s argument implicates R.C. 2929.13(D)(2)

and that R.C. 2953.08(G)(2) provides that an appellate court may not modify, vacate, or

otherwise alter a final sentence unless it clearly and convincingly finds in its review

“[t]hat the record does not support the sentencing court’s findings under division (B) or

(D) of 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.” (Emphasis omitted.)

Marcum, Slip Opinion No. 2016-Ohio-1002, ¶ 9.            Nevertheless, Ortiz-Rojas is not

appealing the findings made pursuant to R.C. 2929.13(D)(2), but instead is appealing the

lack of findings and the failure to impose community control sanctions instead of a prison

term. Nothing in R.C. 2953.08(G)(2) authorizes this form of review. Findings are only

required if the trial court imposed community control sanctions on a third-degree felony

trafficking conviction in lieu of a prison sentence. The trial court in this case followed

the presumption and imposed a mid-range prison term.

       {¶8} Ortiz-Rojas’s arguments are limited to reviewing the trial court’s discretion

used in weighing the sentencing factors for which there is a statutory presumption that

those factors weigh in favor of a prison term. There is no statutory basis for us to review

this aspect of the sentencing in light of the presumption, and especially after all statutory

obligations were satisfied when the trial court expressly considered all the required

factors of law before imposing a mid-range sentence on a third-degree felony offense.
Our review is limited, and Ortiz-Rojas is not claiming his sentence is otherwise contrary

to law.   R.C. 2953.08 specifically precludes review of the imposed sentence, and

therefore, we must affirm.

       It is ordered that appellee recover from appellant costs herein taxed.     The

court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



SEAN C. GALLAGHER, PRESIDING JUDGE

PATRICIA ANN BLACKMON, J., and
ANITA LASTER MAYS, J., CONCUR
