[Cite as State v. Cuevas, 2012-Ohio-3156.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97832




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                        JUAN CUEVAS
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-549476

        BEFORE: Sweeney, P.J., Rocco, J., and Keough, J.

        RELEASED AND JOURNALIZED:                     July 12, 2012
ATTORNEY FOR APPELLANT

Nate N. Malek, Esq.
29025 Bolingbrook Road
Cleveland, Ohio 44124

ATTORNEYS FOR APPELLEE

William D. Mason, Esq.
Cuyahoga County Prosecutor
By: James D. May, Esq.
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
JAMES J. SWEENEY, P.J.:

       {¶1} Defendant-appellant Juan Cuevas (“defendant”) appeals his five-year prison

sentence for convictions related to his involvement in a car theft operation.         After

reviewing the facts of the case and pertinent law, we affirm.

       {¶2} On November 14, 2011, defendant pled guilty to conspiracy in violation of

R.C. 2923.01(A)(1), three counts of receiving stolen property in violation of R.C.

2913.51(A), and a motor vehicle certificate of title offense in violation of R.C.

4505.19(A)(2).      On December 13, 2011, the court sentenced defendant to five years in

prison for conspiracy, which is a second-degree felony, 18 months for each count of

receiving stolen property, which is a fourth-degree felony, and one year for the certificate

of title offense, which is an unspecified felony.    The court ran defendant’s sentences

concurrently for an aggregate sentence of five years in prison.

       {¶3} Defendant appeals and raises two assignments of error.

       {¶4} I. “The trial court erred when it failed to consider the mitigating factors set

forth by ORC 2929.12.”

       {¶5} II. “The trial court abused its discretion when it disregarded Appellant’s

medical history.”

       {¶6} Specifically, in defendant’s first assignment of error, he argues that the

court “failed to consider [defendant’s] mental health when issuing its sentence.”

Because this is the same issue raised in defendant’s second assignment of error, we

review assignments of error one and two together.
        {¶7} The Ohio Supreme Court set forth the standard for reviewing felony

sentencing in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. See

also State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. Kalish, in a

plurality decision, held that appellate courts must apply a two-step approach when

analyzing alleged error in a trial court’s sentencing.

        First, they must examine the sentencing court’s compliance with all
        applicable rules and statutes in imposing the sentence to determine whether
        the sentence is clearly and convincingly contrary to law. If this first prong is
        satisfied, the trial court’s decision shall be reviewed under an
        abuse-of-discretion standard.

Id. at ¶ 4.

        {¶8} Defendant’s five-year sentence for a second-degree felony, 18-month

sentence for a fourth-degree felony, and one-year sentence for an unspecified felony are

within the statutory range. See R.C. 2929.14(A). The court stated that it “considered

the seriousness and recidivism factors and purposes and principles of Senate Bill 2.”

Additionally, the court properly applied postrelease control.       Under the first prong of

Kalish, the court complied with the applicable rules and statutes, and defendant’s

sentence is not contrary to law.

        {¶9} Turning to the second step of the Kalish analysis, we review whether the

court acted within its discretion when it sentenced defendant to an aggregate of five years

in prison.    “The term ‘abuse of discretion’ connotes more than an error of law or of

judgment; it implies that the court’s attitude is unreasonable, arbitrary, or

unconscionable.” State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
       {¶10}   Pursuant to R.C. 2929.12(C)(4), the court, when sentencing a felony

offender, shall take into consideration, if applicable, that “[t]here are substantial

grounds to mitigate the offender’s conduct, although the grounds are not enough to

constitute a defense.”

       {¶11}   Defendant argues that

       it appears from the transcript of the sentencing hearing that the trial court
       refused to consider [defendant’s] mental health status.            Although
       [defendant’s] mental health status would not be enough to constitute a
       defense, the severity of his condition should absolutely be considered as a
       mitigating factor.

       {¶12}    According to the record, in May 2011, defendant was one of 35 people

charged in a 257 count secret indictment based on a car theft operation spanning over four

years and involving hundreds of stolen vehicles.        In June 2011, defendant sought

medical treatment for mental health issues.    On December 8, 2011, defendant filed a

sentencing memorandum with the court in which he detailed his mental health problems.

Defendant allegedly began to suffer from depression with psychotic features in the

summer of 2010.      After seeking treatment in the summer of 2011, defendant was

prescribed an antidepressant and antipsychotic medication.   Defendant’s medical records

from June 14, 2011 through December 3, 2011 were also made part of the record.

       {¶13}   Defendant’s presentence investigation report suggested a low risk of

recidivism, and defendant has no prior criminal history. Defense counsel requested that

the court impose community control sanctions as defendant’s sentence in the instant case.

 However, the State provided information from the investigating police officer who

ranked defendant as the number two offender, out of the 35 charged in this investigation,
as far as culpability was concerned.     Therefore, the State recommended that the court

impose prison time, although it did not “press the court for any particular [number of]

years.”

       {¶14}     Also included in the record is a letter from defendant’s psychiatrist and a

letter from the pastor of defendant’s church.      The court questioned the authenticity of

these letters, because, as the court stated, neither were written on letterhead, “[b]oth facts

I find are unusual.”    Defense counsel responded that they were provided by email.

       {¶15}    The court stated the following at the sentencing hearing:

       I’ve considered the seriousness and recidivism factors, purposes and
       principles of Senate Bill 2. Frankly, this case is an unusual one. The
       amount of damage to the community is shocking. Scores of stolen cars,
       countless people’s lives destructed by crime. Finding the money for
       buying a new car, dealing with the insurance company.

       People bought cars from you and your fellows on Craigslist that were not
       properly titled, mistitled. We have countless police officer time involved
       and most of the defendants pled guilty to probationable offenses.
       However, your crime warrants a prison sentence.

       {¶16}    Defendant faced a maximum of ten and one-half years in prison for the

offenses to which he pled guilty, and our review of the record shows that the court took

into consideration the mitigating factors outlined above when sentencing defendant to

five years in prison.   “Absent an abuse of discretion on the part of the trial court, a court

of appeals may not substitute its judgment for [that] of the * * * trial court.” Pons v.

Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993).

       {¶17}     Accordingly, we cannot say that the court abused its discretion, and

defendant’s first and second assignments of error are overruled.

       {¶18}    Judgment affirmed.
      It is ordered that appellee recover of appellant its 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.




JAMES J. SWEENEY, PRESIDING JUDGE

KENNETH A. ROCCO, J., and
KATHLEEN ANN KEOUGH, J., CONCUR
