Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Elizondo

Court of Appeals of Ohio, Fifth District, Fairfield

May 30, 2017

STATE OF OHIO Plaintiff-Appellee
v.
DUSTIN J. ELIZONDO Defendant-Appellant

         Appeal from the Fairfield County Court of Common Pleas, Case No. 2013-CR- 0494

          For Plaintiff-Appellee: GREGG MARX, FAIRFIELD CO. PROSECUTOR, JOSHUA S. HORACECK.

          For Defendant-Appellant: SARAH M. SCHREGARDUS, KURA, WILFORD, & SCHREGARDUS, CO., L.P.A.

          JUDGES: Hon. Patricia A. Delaney, P.J. Hon. John W. Wise, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          Delaney, P.J.

         {¶1} Appellant Dustin J. Elizondo appeals from the May 18, 2016 Judgment Entry of Sentence after Re-Sentencing of the Fairfield County Court of Common Pleas. Appellee is the state of Ohio.

         FACTS AND PROCEDURAL HISTORY[1]

         {¶2} On October 18, 2013, appellant was charged by indictment with three counts of attempted murder in violation of R.C. 2903.02 and 2923.02, three counts of felonious assault in violation of R.C. 2903.11, five counts of kidnapping in violation of R.C. 2905.01, one count of abduction in violation of R.C. 2905.02, three counts of domestic violence in violation of R.C. 2912.25, and one count of assault in violation of R.C. 2903.13. These charges arose from incidents involving appellant and his live-in girlfriend over a four-hour period.

         {¶3} A bench trial commenced on January 29, 2014, and the trial court found appellant guilty as charged. By judgment entry of sentence filed February 19, 2014, the trial court determined the three counts of attempted murder were not allied offenses, determined the felonious assault counts, the kidnapping counts, the abduction count, and two of the domestic violence counts merged with each other and with the attempted murder counts, and merged the remaining domestic violence count and the assault count, but did not merge them with the other counts. Appellee elected sentencing on the three attempted murder counts and the merged domestic violence/assault count. The trial court sentenced appellant to seven years on each of the attempted murder counts, to be served consecutively, and one hundred thirty days in jail on the domestic violence/assault count, to be served consecutively, for a total sentence of twenty-one years in prison plus one hundred thirty days in jail.

         {¶4} Upon direct appeal from his convictions and sentence, appellant argued his convictions for three counts of attempted murder were against the manifest weight of the evidence. We disagreed, noting "[a] fair reading of the strangulation incidents could lead one to the conclusion that there were actually six incidents of strangulation." State v. Elizondo, 5th Dist. Fairfield No. 14-CA-20, 2015-Ohio-1109, appeal not allowed, 143 Ohio St.3d 1499, 2015-Ohio-4468, 39 N.E.3d 1270');">39 N.E.3d 1270');">39 N.E.3d 1270');">39 N.E.3d 1270 [Elizondo I].

         {¶5} On June 15, 2015, appellant filed an application to reopen his appeal, claiming ineffective assistance of counsel in failing to assign as error the improper imposition of consecutive sentences. By judgment entry filed August 28, 2015, we granted the application and reopened the appeal on the following limited issue: "appellate counsel was ineffective for failing to cite as error the trial court's failure to make the requisite findings to impose consecutive sentences under R.C. 2929.14(C)(4) at the sentencing hearing and trial counsel's failure to object to the claimed error." (Emphasis in original). State v. Elizondo, 5th Dist. Fairfield No. 14-CA-20, 2016-Ohio-774');">2016-Ohio-774');">2016-Ohio-774');">2016-Ohio-774 [Elizondo II].

         {¶6} In Elizondo II, we concluded the trial court did not meet the requirements of R.C. 2929.14(C)(4) and State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659 in imposing consecutive sentences. We vacated the sentence and remanded the matter to the trial court for rehearing on the issue of consecutive sentencing. Elizondo II, 2016-Ohio-774');">2016-Ohio-774');">2016-Ohio-774');">2016-Ohio-774 at ¶ 9.

         {¶7} The trial court conducted a resentencing hearing on May 12, 2016 and imposed a sentence of seven years each upon counts one through three (attempted murder) and a term of 130 days upon count fifteen (domestic violence). The sentences upon counts one through three are to be served consecutively to each other and the sentence upon count fifteen is to be served concurrently, for a total aggregate prison term of 21 years.

         {¶8} On the record at the re-sentencing hearing, the trial court noted "this was a horrible incident" and "was a use of incredible force on numerous occasions that jeopardized the health and safety of [the victim] * * *." T. 19. The incident occurred over a four-hour ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.