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State v. Torres

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 16, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
ANGELO TORRES DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-605128-A

          ATTORNEY FOR APPELLANT Brett F. Murner

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor Khalilah A. Lawson Mary M. Dyczek Assistant County Prosecutors

          BEFORE: Kilbane, J., E.A. Gallagher, P.J., and S. Gallagher, J.

          JOURNAL ENTRY AND OPINION

          MARY EILEEN KILBANE, JUDGE

         {¶1} This accelerated appeal is brought pursuant to App.R. 11.1 and Loc.R. 11.1.

         {¶2} Defendant-appellant Angelo Torres ("Torres"), appeals from the sentence imposed upon his guilty plea to one count of carrying a concealed weapon. For the reasons set forth below, we affirm.

         {¶3} In April 2016, Torres was charged with carrying a concealed weapon and improperly handling firearms in a motor vehicle. Both counts carried a forfeiture of a weapon specification. The charges arise from a traffic stop conducted by a Cleveland Metroparks Ranger at Edgewater Park. The ranger pulled Torres over for failing to use his turn signal. The ranger smelled marijuana from Torres's car. The ranger then used a canine, and it alerted the ranger to marijuana in the ashtray. The ranger also found a loaded gun in the glove box.

         {¶4} Pursuant to a plea agreement, Torres pled guilty to carrying concealed weapons, a felony of the fourth degree, with the accompanying specification.[1] The improperly handling firearms in a motor vehicle count was nolled. The matter proceeded to sentencing, where the trial court imposed a 12-month prison term for Torres's offense.

         {¶5} Torres now appeals, assigning the following error for our review.

         Assignment of Error

         The trial court erred in imposing a prison sentence.

          {¶6} Within his single assignment of error, Torres asserts that the trial court erred in ordering him to serve a prison term without making an explicit finding under R.C. 2929.13(B)(1)(b). Torres also argues that the trial court erred in imposing a prison sentence based upon judicial fact-finding barred by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

         {¶7} In reviewing felony sentences, appellate courts must apply the standard of review set forth in R.C. 2953.08(G)(2). State v. Marcum,146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ΒΆ 1. Under R.C. 2953.08(G)(2), an appellate court may increase, reduce, or modify a sentence, or it may vacate the sentence and remand for resentencing, only if it clearly and convincingly finds either (1) the record does not support certain specified findings or (2) the sentence imposed ...


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