State v. Alarcon

2023 Ohio 4214

• Court: Ohio Court of Appeals
• Decided: November 22, 2023
• Docket: 112505
• Status: Published

Opinion

[Cite as State v. Alarcon, 2023-Ohio-4214.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 112505 v. :

ANTHONY ALARCON, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED; REMANDED RELEASED AND JOURNALIZED: November 22, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-21-666272-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Kevin R. Filiatraut, Assistant Prosecuting Attorney, for appellee.

Christopher M. Kelley, for appellant.

KATHLEEN ANN KEOUGH, P.J.:

Defendant-appellant, Anthony Alarcon, appeals from the sentence

imposed by the common pleas court following his guilty pleas. For the reasons that

follow, we affirm the trial court’s sentence but remand with instructions for the court to issue, nunc pro tunc, a sentencing entry that accurately reflects the sentence that

was imposed in open court on the record during the sentencing hearing.

I. Background

In December 2021, a Cuyahoga County Grand Jury indicted Alarcon

in a ten-count indictment that charged him with kidnapping, felonious assault, rape,

and attempted murder. All counts carried repeat violent offender and notice of prior

conviction specifications. Some counts also contained sexually violent predator

specifications and/or sexual motivation specifications.

The charges arose from offenses that occurred over three days after

the victim picked up Alarcon upon his release from prison and went to a hotel room

with him. Alarcon, who was jealous that the victim had communicated with other

inmates at the prison while he was confined there, punished the victim for her

disloyalty by physically assaulting and raping her, and then sending pictures of the

injured victim in bed with him to one of the inmates with whom the victim had

communicated and a video of him having sexual intercourse with the victim to some

of her family members. The victim managed to escape to the hotel lobby and call

the police after Alarcon eventually left the hotel room for a short time. At

sentencing, the victim told the judge that she did not think that she was going to

leave the hotel room alive.

After indictment, the court referred Alarcon for a competency

evaluation to determine his competency to stand trial. The competency report

detailed significant physical and sexual abuse suffered by Alarcon as a child while in foster care; diagnosed him with schizophrenia, post-traumatic stress disorder, and

polysubstance abuse; and determined that he was not competent to stand trial but

was restorable. The trial court then referred Alarcon to Northcoast Behavior

Healthcare for 20 days. After receiving psychiatric care, Alarcon was found to be

competent to stand trial. As in the initial competency report, the competency

restoration report noted that Alarcon was sexually and physically abused as a child

during foster care. The report further included a diagnosis of antisocial personality

disorder and noted that medication was necessary to address Alarcon’s aggression.

On the day of trial, Alarcon entered into a plea agreement with the

state whereby he pleaded guilty to amended Count 4, felonious assault in violation

of R.C. 2903.11(A)(1), a second-degree felony, with repeat violent offender and

sexual motivation specifications; amended Count 6, rape in violation of R.C.

2907.02(A)(2), a first-degree felony; amended Count 9, rape in violation of R.C.

2907.02(A)(2), a felony of the first degree; and amended Count 10, felonious assault

in violation of R.C. 2903.11(A)(1), a second-degree felony. As a condition of the plea

agreement, the parties stipulated that the offenses were not allied and would not

merge for sentencing.

The trial court sentenced Alarcon to six years’ incarceration on Count

4, an indefinite prison sentence of 11 to 16.5 on Counts 6 and 9, and 8 years on Count

10. (Tr. 103.)1 The court ordered Counts 6, 9, and 10 to be served concurrently but

1The journal entry of sentencing incorrectly states that the court sentenced Alarcon on Count 9 to a definite term of nine years’ incarceration and to six years on Count 10. Although these errors do not affect Alcaron’s total aggregate sentence, we remand this consecutive to Count 4, for an aggregate sentence of 17 to 22.5 years in prison. This

appeal followed.

II. Law and Analysis

A. Consecutive Sentences

In his first assignment of error, Alarcon challenges the trial court’s

imposition of consecutive sentences.

“In Ohio, sentences are presumed to run concurrent to one another

unless the trial court makes the required findings under R.C. 2929.14(C)(4).” State

v. Gohagan, 8th Dist. Cuyahoga No. 107948, 2019-Ohio-4070, ¶ 28. Trial courts

must therefore engage in the three-tiered analysis of R.C. 2929.14(C)(4) before

imposing consecutive sentences. Id. First, the trial court must find that consecutive

sentences are necessary to protect the public from future crime or to punish the

offender. Second, the trial court must find that consecutive sentences are not

disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public. R.C. 2929.14(C)(4). Third, the trial court must find

that at least one of the following applies:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.

matter with instructions for the trial court to issue, nunc pro tunc, a sentencing entry that accurately reflects the sentence imposed in open court at the sentencing hearing. See Owen v. Green, 8th Dist. Cuyahoga No. 111500, 2022-Ohio-3922, ¶ 8 (a nunc pro tunc entry may be used to correct a sentencing entry to reflect the sentence the trial court actually imposed on a defendant at a sentencing hearing). (b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct.

(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

A defendant can challenge consecutive sentences on appeal in two

ways. First, the defendant can argue that consecutive sentences are contrary to law

because the court failed to make the necessary findings required by R.C.

2929.14(C)(4). State v. Bolden, 8th Dist. Cuyahoga No. 110841, 2022-Ohio-2271,

¶ 26, citing R.C. 2953.08(G)(2)(b) and State v. Nia, 2014-Ohio-2527, 15 N.E.3d

892, ¶ 16 (8th Dist.). Second, the defendant can argue that the record does not

support the court’s findings made pursuant to R.C. 2929.14(C)(4). Bolden at id.,

citing R.C. 2953.08(G)(2)(a) and Nia at id.

Before imposing consecutive sentences in this case, the trial court

found that (1) consecutive terms are necessary to protect the public, (2) consecutive

terms are not disproportionate to the seriousness of Alarcon’s conduct and the

danger he poses to the public, and (3) Alarcon’s criminal history demonstrates that

consecutive terms are necessary to protect the public from any future crime. (Tr.

102.)

Alarcon concedes that the trial court made the requisite findings

under R.C. 2929.14(C)(4) but contends that the trial court’s disproportionality

finding is not supported by the record. Specifically, he asserts that in finding that consecutive sentences are not disproportionate to the seriousness of his conduct, the

trial court did not adequately consider that his conduct, although “troubling,” is

mitigated by his mental illness and the profound physical and sexual abuse he

suffered as a child while in foster care, as set forth in both expert competency

reports. Accordingly, he contends that the record does not support the trial court’s

disproportionality finding.

When reviewing consecutive sentences, “R.C. 2953.08(G)(2)(a)

directs the appellate court ‘to review the record, including the findings underlying

the sentence’ and to modify or vacate the sentence ‘if it clearly and convincingly finds

* * * that the record does not support the sentencing court’s findings’” under R.C.

2929.14(C)(4). State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d

659, ¶ 28, quoting R.C. 2953.08(G)(2)(a). We cannot make such a finding in this

case.

First, Alarcon’s mitigation argument improperly asks us to substitute

our judgment for that of the trial court and conclude that the trial court abused its

discretion by not finding that his mental illness and physical and sexual abuse as a

child outweighed the trial court’s finding that consecutive sentences are not

disproportionate to the seriousness of his conduct. But “[i]n reviewing the

imposition of consecutive sentences, a court of appeals is prohibited from

substituting its own judgment for that of the trial court.” State v. Liddy, 8th Dist.

Cuyahoga No. 110848, 2022-Ohio-1673, ¶ 14, citing State v. Gatewood, 8th Dist.

Cuyahoga No. 101271, 2015-Ohio-1288, ¶ 13. Furthermore, as this court explained in State v. Venes, 2013-Ohio-

1891, 992 N.E.2d 4453 (8th Dist.):

It is important to understand that the “clear and convincing” standard applied in R.C. 2953.08(G)(2) is not discretionary. In fact, R.C. 2953.08(G)(2) makes it clear that “[t]he appellate court’s standard for review is not whether the sentencing court abused its discretion.” As a practical consideration, this means that appellate courts are prohibited from substituting their judgment for that of the trial judge.

It is also important to understand that the clear and convincing standard used by R.C. 2953.08(G)(2) is written in the negative. It does not say that the trial judge must have clear and convincing evidence to support its findings. Instead, it is the court of appeals that must clearly and convincingly find that the record does not support the court’s findings. In other words, the restriction is on the appellate court, not the trial judge. That is an extremely deferential standard of review.

Id. at ¶ 13.

Our review demonstrates that the trial court’s disproportionality

finding is indeed supported by the record. First, despite Alarcon’s implied argument

that the trial court did not consider the experts’ findings regarding his mental health

and physical and sexual abuse, the record reflects that the trial court specifically

stated prior to sentencing that it had considered the entire record, including the

expert reports (tr. 98.) Second, the record indisputably demonstrates the brutality

of Alarcon’s conduct toward the victim. The record reflects that he sexually abused

the victim over what the court characterized as “72 hours of horror” and, as reflected

in nine photographs provided by the state at sentencing, beat her so badly that the

trial judge said he had never before seen such bruising to a woman’s body. Indeed,

the victim told the court at sentencing that the abuse was so bad she did not believe

she would leave the hotel room alive. In light of this record, we cannot clearly and convincingly find that the record does not support the court’s finding that

consecutive sentences are not disproportionate to the seriousness of Alcaron’s

conduct and the danger he poses to the public. The first assignment of error is

therefore overruled.

B. The Reagan Tokes Law

In his second assignment of error, Alarcon contends that the trial

court erred in sentencing him to an indefinite sentence under the Reagan Tokes Law

because the law violates constitutional guarantees of substantive and procedural due

process, the separation-of-powers doctrine, and the right to trial by jury. In State v.

Hacker, Slip Opinion No. 2023-Ohio-2535, the Ohio Supreme Court upheld the

constitutionality of the Reagan Tokes Law. Alarcon’s arguments do not present

novel issues nor any new theory challenging the constitutionality of the Reagan

Tokes Law left unaddressed by the Ohio Supreme Court’s decision in Hacker.

Accordingly, the second assignment of error is overruled.

Judgment affirmed; remanded for nunc pro tunc sentencing entry.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, PRESIDING JUDGE

MARY J. BOYLE, J., and SEAN C. GALLAGHER, J., CONCUR