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State of Ohio v. Michael J. Cemino

November 4, 2011

STATE OF OHIO PLAINTIFF-APPELLEE
v.
MICHAEL J. CEMINO DEFENDANT-APPELLANT



(Criminal appeal from Common Pleas Court) T.C. NO. 10CR2336

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

Cite as State v. Cemino,

OPINION

{¶1} On August 6, 2010, Defendant-appellant Michael Cemino was indicted for felonious assault, kidnapping, and rape of his wife and one count of kidnapping a child under the age of thirteen. Cemino pled guilty to felonious assault, and the remaining counts were dismissed. The trial court sentenced Cemino to six years in prison. Cemino appeals his sentence. I

{¶2} Cemino's First Assignment of Error:

{¶3} "THE TRIAL COURT ERRED AND ACTED CONTRARY TO LAW IN ITS SENTENCING OF MICHAEL J. CEMINO AS IT FAILED TO PROPERLY CONSIDER THE RECORD AND ALL MITIGATING FACTORS IN R.C. 2929.11 AND 2929.12."

{¶4} In his first assignment of error, Cemino argues that the trial court abused its discretion in imposing a six-year prison sentence without considering the overriding purposes of felony sentencing set forth in R.C. 2929.11 or the seriousness and recidivism factors enumerated in R.C. 2929.12. Specifically, Cemino insists that the trial court abused its discretion by relying on evidence not in the record in finding that the victim had suffered from vision and hearing loss, when "the medical records reflected the victim suffered only facial contusions and no other serious injuries."

{¶5} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶13, the Ohio Supreme Court set forth a two-step procedure for reviewing felony sentences. First, "an appellate court must ensure that the trial court has adhered to all applicable rules and statutes in imposing the sentence. As a purely legal question, this is subject to review only to determine whether it is clearly and convincingly contrary to law, the standard found in R.C. 2953.08(G). If on appeal the trial court's sentence is, for example, outside the permissible statutory range, the sentence is clearly and convincingly contrary to law." Id. at ¶¶14-15. "If this first step is satisfied, the second step requires that the trial court's decision be reviewed under an abuse-of-discretion standard." Id. An abuse of discretion means that the trial court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. "[I]n the felony sentencing context, '[a]n abuse of discretion can be found if the sentencing court unreasonably or arbitrarily weighs the factors in R.C. 2929.11 and R .C. 2929.12.'" State v. Hardin-Moore, Montgomery App. No. 24237, 2011-Ohio-4666, ¶14, quoting State v. Jordan, Columbiana App. No. 09 CO 31, 2010-Ohio-3456, ¶12.

{¶6} "After [State v.] Foster, [109 Ohio St.3d 1, 2006-Ohio-856,] trial courts are not required to make any findings or give reasons before imposing any sentence within the authorized statutory range, including maximum, consecutive, or more than minimum sentences, Foster, syllabus at ¶ 7. Courts, nevertheless, are still required to comply with the sentencing laws unaffected by Foster, such as R.C. 2929.11 and 2929.12 which require consideration of the purposes and principles of felony sentencing and the seriousness and recidivism factors. State v. Mathis, 109 Ohio St.3d 54, 846 N.E.2d 1, 2006-Ohio-855. However, a sentencing court does not have to make any specific findings to demonstrate its consideration of those general guidance statutes. Foster at ¶ 42; State v. Lewis, Greene App. No. 06 CA 119, 2007-Ohio-6607. And, where the record is silent, a presumption exits that the trial court has considered the factors. State v. Adams (1988), 37 Ohio St.3d 295, 297, 525 N.E.2d 1361. Further, where a criminal sentence is within statutory limits, an appellate court should accord the trial court the presumption that it considered the statutory mitigating factors. State v. Taylor (1992), 76 Ohio App.3d 835, 839, 603 N.E.2d 401; State v. Crouse (1987), 39 Ohio App.3d 18, 20, 528 N.E.2d 1283. Consequently, the appellant has an affirmative duty to show otherwise." State v. Ramey, Clark App. No. 2010 CA 19, 2011-Ohio-1288, ¶47.

{¶7} Cemino was convicted of Felonious Assault, in violation of R.C. 2903.11(A)(1), a felony of the second degree, which carries a possible prison term of two to eight years. R.C. 2929.14(A)(2). The trial court imposed a six-year sentence, which falls within the prescribed statutory range.

{¶8} The trial court afforded defense counsel and the prosecutor an opportunity to be heard, and the court allowed Cemino to make a statement before imposing sentence. Although not required to do so, the trial court offered an extensive explanation at the sentencing hearing for imposing a six-year sentence on Cemino. The court explained, "You did something ugly, nasty, despicable and disgusting to [your wife] * * * And you need to think about how disgusting your behavior is." The court read from the victim's letter to the court, in which the victim expressed her mental turmoil over her husband's actions. Cemino's wife explained that she has vision and hearing loss, and scars in her throat, which the trial court believed to be true in light of the nature of the beating Cemino inflicted upon his wife. The court stated that Cemino's behavior demonstrates that he is a man who belongs in prison; he is "a man who does not know control."

{¶9} The court also explained that Cemino's actions demonstrate an escalation in violence over time, stating "I find as a matter of law that his behavior escalates in violence, beginning with the abduction of a little girl who was caught before anything or - - or he was found out and he was caught before anything happened and then we escalate and go into this terrible, terrible action that occurred on that night." Cemino had misdemeanor convictions for criminal damaging and driving under the influence, and he had been released from prison on an unrelated conviction for attempted abduction just the week before the felonious assault.

{¶10} Cemino contends that the trial court abused its discretion by making a factual error when the court found that the victim suffered from permanent vision and hearing loss. Cemino made no explicit objection to his sentence, although he did ask the trial court for an explanation of why it imposed a six-year sentence. We will view this as sufficient to have preserved Cemino's right to appeal his sentence.

{ΒΆ11} In support of his claim that the trial court abused its discretion, Cemino insists that the medical records from the night of the assault indicate that the victim "had facial contusions and no other serious injuries." However, as the State points out, those were not the only medical records, nor were facial contusions the only evidence of injury to the victim. There were photographs not only of the facial contusions, but also of cuts to the victim's mouth and the inside of her throat, as well as cuts and ...


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