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State v. Ruiz

December 4, 2008


Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-495687, JUDGMENT: AFFIRMED.

The opinion of the court was delivered by: Ann Dyke, J.


BEFORE: Dyke, J., Kilbane, P.J., and Boyle, J.

{¶1} Defendant-appellant, Juan Ruiz ("appellant") appeals his sentence from the Cuyahoga County Court of Common Pleas. For the reasons set forth below, we affirm.

{¶2} On August 10, 2007, appellant pled guilty to rape, in violation of R.C. 2907.02(A)(2), attempted aggravated murder, in violation of R.C. 2923.02/2903.01, with one- and three-year firearm specifications, having a weapon while under a disability, in violation of R.C. 2923.13, retaliation, in violation of R.C. 2921.05, and escape, in violation of R.C. 2921.34.

{¶3} On September 19, 2007, the trial court held a sentencing hearing. At the hearing, the facts introduced demonstrated that on or about February 16, 2007, appellant, upset that the victim had ended their relationship, forced his way into the victim's bedroom, held her by knife point, threatened the safety of her family, and then raped her.

{¶4} The victim informed the police of the rape and appellant was arrested and placed in the juvenile detention center. Shortly thereafter, he was released from the center under the control and supervision of the court pending trial. The court ordered electronic home detention and that he have no contact with the victim.

{¶5} On March 5, 2007, appellant, still under the supervision of the court, went to the victim's grandmother's home. When the victim exited the house, appellant, in retaliation for informing the authorities of the rape, approached her with a fully-loaded, sawed-off shotgun and shot her in the face. He then fled the scene, discarded the weapon, and returned home where he showered and threw his clothes in the trash. As a result of the shooting, the victim suffered severe and permanent injuries.

{¶6} After considering the facts presented, the trial court sentenced appellant to a prison term of 27 years. More specifically, appellant was sentenced to five years imprisonment for the rape conviction and ten years for the attempted aggravated murder conviction. A three-year sentence was also imposed for the one- and three-year firearm specifications, which were merged for purposes of sentencing and were ordered to be served prior to and consecutive to the underlying charge of attempted aggravated murder. Additionally, the trial court imposed a three-year sentence for the retaliation conviction, four years imprisonment for having a weapon while under a disability, and two years for the escape conviction. The court ordered that all these sentences be served consecutive, again for a total of 27 years imprisonment. Finally, the trial court imposed five years of postrelease control and appellant was classified as a sexually oriented offender.

{¶7} Appellant now appeals his sentence and submits one assignment of error for our review. Appellant's sole assignment of error states:

{¶8} "The trial court violated Mr. Ruiz's substantive due process rights under the Fourteenth Amendment to the United States Constitution and Article I, Section 16 of the Ohio Constitution when it imposed the maximum sentence for the attempted aggravated murder count, when it imposed more than the minimum sentences on three of the remaining counts, and when it required the sentences to be served consecutively."

{¶9} Here, appellant argues that the trial court violated his due process rights when it sentenced him pursuant to the Supreme Court of Ohio's decision holding in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. We find appellant's argument unpersuasive.

{¶10} In February of 2006, the Supreme Court of Ohio in Foster, supra, declared unconstitutional and severed those provisions of Ohio's felony sentencing statutes requiring "judicial fact-finding" before imposing more than minimum, maximum, or consecutive sentences. Id. at paragraphs one and three of the syllabus (declaring R.C. 2929.14(B), (C), and (E)(4) unconstitutional). The Foster Court further held that, "[a]fter the severance, judicial fact-finding is not required before a prison term can be imposed within the basic ranges of R.C. 2929.14(A) based upon a jury verdict or admission of the defendant" and "before imposition of consecutive prison terms." Id. at paragraphs two and three of the syllabus. Therefore, "trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences." Id. at paragraph seven of the syllabus.

{¶11} Appellant relies on the United States Supreme Court's decision in Hicks v. Oklahoma (1980), 447 U.S. 343, 100 S.Ct. 1117, 65 L.Ed.2d 175, and maintains that Senate Bill 2 created a liberty interest in the statutory presumption that the sentences imposed would consist of minimum, nonmaximum or concurrent terms. Thus, when the Supreme Court in Foster severed these provisions and afforded trial courts the discretion to impose any sentence within the ranges proffered in R.C. 2929.14(A) without using the statutorily prescribed ...

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