[Cite as State v. Garza, 2012-Ohio-200.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                     CLARK COUNTY

STATE OF OHIO                                     :
                                                  :      Appellate Case No. 2011-CA-20
        Plaintiff-Appellee                        :
                                                  :      Trial Court Case No. 10-CR-860
v.                                                :
                                                  :
LUIS GARZA                                 :      (Criminal Appeal from
                                                  :      (Common Pleas Court)
        Defendant-Appellant                :
                                                  :
                                               ...........

                                               OPINION

                             Rendered on the 20th day of January, 2012.

                                               ...........

ANDREW R. PICEK, Atty. Reg. #0082121, Clark County Prosecutor’s Office, 50 East
Columbia Street, 4th Floor, Post Office Box 1608, Springfield, Ohio 45501
      Attorney for Plaintiff-Appellee

LUCAS WILDER, Atty. Reg. #0074057, 120 West Second Street, 400 Liberty Tower, Dayton,
Ohio 45402
       Attorney for Defendant-Appellant

                                                       .............

HALL, J.

        {¶ 1} Luis Garza appeals from his conviction and sentence on one count of discharging

a firearm on or near prohibited premises, to wit: a road, in violation of R.C. 2923.162(A)(3), a
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third-degree felony. In his sole assignment of error, Garza contends the trial court abused its

discretion in sentencing him to two years in prison.

       {¶ 2} The record reflects that Garza pled guilty to discharging a firearm on or near

prohibited premises in exchange for the State’s dismissal of two other charges, felonious

assault (with specifications) and improper handling of a firearm in a motor vehicle. We do not

have a transcript of the plea hearing conducted on February 11, 2011, but it was noted on the

plea form, “PSI limited to maximum of 2 yrs.” Plea of Guilty filed February 16, 2011. In the

transcript of the sentencing hearing the prosecutor stated: “The State has agreed that the prison

sentence, if any, would be limited to two years.” (T. 3). The case proceeded to a sentencing

hearing on March 1, 2011. After considering a pre-sentence investigation (PSI) report, hearing

from Garza, and listening to arguments from counsel, the trial court imposed a two-year prison

sentence.

       {¶ 3} Ordinarily, agreed sentences are not reviewable on appeal. R.C. 2953.08(D)(1)

states: “A sentence imposed upon a defendant is not subject to review under this section if

the sentence is authorized by law, has been recommended jointly by the defendant and the

prosecution in the case, and is imposed by a sentencing judge.” But, the record does not

clearly reveal whether this was an agreed sentence as contemplated by the statute. Moreover,

although we have previously held that sentencing within an agreed range of years can be an

“agreed sentence,” State v. Carson, 2d Dist. Montgomery App. No. 20285, 2004–Ohio–5809,

¶ 20, 31, we hesitate to extend the “agreed sentence” definition to include one where the court

must exercise its discretion whether to place a defendant on community control or to impose a

prison term. Therefore we will review the defendant’s argument.
                                                                                             3


       {¶ 4} On appeal, Garza challenges the trial court’s decision to impose a prison term

rather than placing him on community control. “When reviewing felony sentences, an

appellate court must first determine whether the sentencing court complied with all applicable

rules and statutes in imposing the sentence, including R.C. 2929.11 and 2929.12, in order to

find whether the sentence is contrary to law. * * * If the sentence is not clearly and

convincingly contrary to law, the trial court’s decision in imposing the term of imprisonment

must be reviewed under an abuse of discretion standard.” State v. Bowshier, 2d Dist. Clark

App. No. 08-CA-58, 2009-Ohio-3429, ¶ 6.

       {¶ 5} Here Garza makes no argument that his two-year sentence is contrary to law. He

asserts only that the trial court abused its discretion by sending him to prison instead of

placing him on community control. We disagree. Based on the record before it, the trial court

acted well within its discretion in imposing a prison sentence. Garza’s conviction stemmed

from his exchange of gunfire with another man, Abimael Cruz, on a road. The shooting

occurred outside a bar following an argument inside. A police report, which the trial court

considered as part of the PSI report, indicated that Garza followed Cruz outside the bar,

approached Cruz’s vehicle with a handgun, and broke Cruz’s car window. Cruz then drove

away, as the two men exchanged gunshots. Some witnesses told police they did not see who

was shooting. Others stated that they saw Garza firing a handgun at Cruz’s car as it drove

away. The vehicles driven by Cruz and Garza that night both sustained gunshot damage.

       {¶ 6} The trial court also considered Garza’s generally positive employment, school

performance, and family life. It acknowledged receiving two letters on his behalf. Taking into

account “all these facts and the nature of the offenses,” the trial court found a two-year prison
                                                                                           4


sentence warranted.

       {¶ 7} In his brief, Garza suggests that a prison sentence is inconsistent with the

purposes of felony sentencing. He also claims the statutory “seriousness” and “recidivism”

factors militate against a prison term. Finally, he argues that imposing a prison sentence will

place an unnecessary burden on government resources. These arguments fail to persuade us

that the trial court abused its discretion in declining to impose a community control sanction.

Nothing about the facts of Garza’s offense suggest the trial court abused its discretion by

imposing a two-year prison term (which was three years less than the statutory maximum for a

third-degree felony). Even if it is true, as Garza alleges, that most of the statutory

“seriousness” and “recidivism” factors weigh in his favor, that does not mandate a

community-control sanction. A trial court “is not required to find a majority of the factors or

any particular number of factors in order to impose a sentence greater than the minimum

sentence. The court merely needs to demonstrate thoughtful consideration of the sentence,

including pertinent statutory factors.” State v. Curran, 166 Ohio App.3d 206,

2006-Ohio-773, 850 N.E.2d 81, ¶ 32. The trial court satisfied that obligation here, and its

two-year prison sentence does not constitute an abuse of discretion.

       {¶ 8} Garza’s assignment of error is overruled, and the judgment of the Clark County

Common Pleas Court is affirmed.

                                           ........

GRADY, P.J., and FROELICH, J., concur

Copies mailed to:

Andrew R. Picek
Lucas Wilder
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Hon. Richard J. O’Neill
