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State v. Perez

Court of Appeals of Ohio, Third District, Defiance

February 20, 2018

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
ORLANDO PEREZ, JR., DEFENDANT-APPELLANT.

         Appeal from Defiance County Common Pleas Court Trial Court No. 16 CR 12613

          Eric Allen Marks for Appellant

          Russell R. Herman for Appellee

          OPINION

          ZIMMERMAN, J.

         {¶1} Defendant-appellant, Orlando Perez, Jr. ("Perez"), appeals the January 24, 2017 judgment entry of the Defiance County Common Pleas Court imposing consecutive sentences after he pled guilty to two counts of trafficking in cocaine. For the reasons set forth below, we affirm the judgment of the trial court.

         {¶2} On July 21, 2016, Perez was indicted on four criminal charges in Defiance County: Count One, Trafficking in Cocaine, in violation of R.C. 2925.03(A)(1)(C)(4)(f), a felony of the first degree; Count Two, Trafficking in Cocaine, in violation of R.C. 2925.03(A)(1)(C)(4)(g), a felony of the first degree; Count Three, Trafficking in Cocaine, in violation of R.C. 2925.03(A)(1)(C)(4)(g), a felony of the first degree; and Count Four, Engaging in a Pattern of Corrupt Activity, in violation of R.C. 2923.32(A)(1)(B)(1), a felony of the first degree. Major Drug Offender ("MDO") Specifications, in violation of R.C. 2941.1410(A) were contained in Counts Two and Three. Count Three also contained Forfeiture Specifications (of money in a drug case and automobile in a drug case), in violation of R.C. 2941.1417(A). (Doc 2).

         {¶3} At his arraignment on January 26, 2016, Perez entered a plea of not guilty on all charges. (Doc. 9). On November 23, 2016 the trial court conducted a change of plea hearing. At the hearing, Perez entered pleas of guilty to Counts One and Three of the indictment, with the State dismissing the MDO specification in both counts. (Doc. 16). Perez also pled guilty to the Forfeiture Specification in Count Three. (Id.) However, the record is silent as to the dismissal of Count Two and Four. The trial court accepted Perez's guilty pleas and ordered a Pre-Sentence Investigation. Id. A sentencing hearing was held in the trial court on January 23, 2017 wherein Perez was sentenced to a seven-year prison term for each count (one and three), with the terms to be served consecutive, for an aggregate prison term of fourteen years. (Doc. 17). Perez filed a motion for leave to file delayed notice of appeal on July 31, 2017 and we granted that request on September 8, 2017. Perez appeals the sentencing entry of the trial court, filed January 24, 2017, raising the following sole assignment of error.

         ASSIGNMENT OF ERROR

         THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SEVEN-YEAR PRISON TERMS FOR AN AGGREGATE TERM OF FOURTEEN YEARS.

         {¶4} In his sole assignment of error, Perez argues that the trial court erred in imposing consecutive prison terms. Specifically, Perez contends that the trial court failed to make the required factual findings on the record before imposing consecutive sentences and questions whether a finding of proportionality can be inferred from the trial court's findings.

         Standard of Review

         {¶5} A sentence imposed by a trial court will not be disturbed absent a showing by clear and convincing evidence that the sentence is unsupported by the record; the procedure of the sentencing statutes was not followed or there was not a sufficient basis for the imposition of a prison term; or that the sentence is contrary to law. State v. Ward, 3d Dist. Crawford No. 3-17-02, 2017-Ohio-8518. See R.C. 2953.08(G).

         Analysis

         {¶6} Before consecutive sentences may be imposed, the trial court is required to make findings in accordance with R.C. 2929.14. First, the sentencing court must find that consecutive sentences are "necessary to protect the public" or to "punish the offender". R.C. 2929.14(C)(4). Second, the sentencing court must find that consecutive sentences are "not disproportionate to the seriousness of the offender's conduct and to the danger he poses to the public". Id. And finally, the sentencing court must find the existence of one of the three following circumstances: (a) the offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing * * * or was under post-release control for a prior offense; (b) * * * the harm caused by * * * the multiple offenses was so great or unusual that no single prison term for any of the offenses committed as part of a single course of conduct adequately reflects the seriousness of the offender's conduct; (c) the offender's history of criminal conduct ...


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