State v. Ayala

2025 Ohio 743

• Court: Ohio Court of Appeals
• Decided: March 6, 2025
• Docket: 113944
• Status: Published

Opinion

[Cite as State v. Ayala, 2025-Ohio-743.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 113944 v. :

EMILIO AYALA, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 6, 2025

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-23-685315-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Kristen Hatcher and Tyler W. Blair, Assistant Prosecuting Attorneys, for appellee.

Joseph V. Pagano, for appellant.

EILEEN A. GALLAGHER, A.J.:

Emilio Ayala (“Ayala”) appeals his 23-year prison sentence that was

imposed after he pled guilty to various sex offenses. For the reasons that follow, we

affirm the trial court’s judgment. I. Facts and Procedural History

On October 2, 2023, Ayala was charged in a ten-count indictment with

rape, gross sexual imposition and kidnapping involving three child-victims who

were all under the age of 13 when the offenses took place.

On April 10, 2024, Ayala pled guilty to two counts of rape in violation

of R.C. 2907.02(A)(2), one count of gross sexual imposition in violation of R.C.

2907.05(A)(4) and one count of sexual battery in violation of R.C. 2907.03(A)(1).

Ayala’s plea involved three different victims.

On May 10, 2024, the court sentenced Ayala to nine years in prison for

each of the rape convictions, five years in prison for gross sexual imposition and five

years in prison for sexual battery. The court ran the prison sentences for each rape

conviction and the gross sexual imposition conviction consecutively to one another

and concurrently to the prison sentence for sexual battery, for an aggregate prison

term of 23 years.

Ayala appeals and raises the following assignments of error for our

review:

I. Appellant’s sentence is contrary to law because the record does not support the imposition of consecutive sentences.

II. Appellant was deprived of his right to due process and effective assistance of counsel under the Sixth Amendment to the United States Constitution and Art. I, § 10 of the Ohio Constitution. II. Law and Analysis

a. Felony Sentencing

i. Standard of Review

R.C. 2953.08(G)(2) provides, in part, that when reviewing felony

sentences, if this court “clearly and convincingly” finds that (1) “the record does not

support the sentencing court’s findings under . . . (C)(4) of section 2929.14 . . . ” or

(2) “the sentence is otherwise contrary to law,” then we may conclude that the court

erred in sentencing. See also State v. Marcum, 2016-Ohio-1002. In State v. Jones,

2020-Ohio-6729, ¶ 39, the Ohio Supreme Court clarified that R.C. 2953.08(G)(2)

“does not provide a basis for an appellate court to modify or vacate a sentence based

on its view that the sentence is not supported by the record under R.C. 2929.11 and

2929.12.”

A sentence is not clearly and convincingly contrary to law “where the

trial court considers the purposes and principles of sentencing under R.C. 2929.11

as well as the seriousness and recidivism factors listed in R.C. 2929.12, properly

applies postrelease control, and sentences a defendant within the permissible

statutory range.” State v. A.H., 2013-Ohio-2525, ¶ 10 (8th Dist.).

Pursuant to R.C. 2929.11(A), the three overriding purposes of felony

sentencing are “to protect the public from future crime by the offender and others,”

“to punish the offender” and “to promote the effective rehabilitation of the offender

using the minimum sanctions that the court determines accomplish those purposes

without imposing an unnecessary burden of state or local government resources.” Additionally, the sentence imposed shall be “commensurate with and not

demeaning to the seriousness of the offender’s conduct and its impact on the victim,

and consistent with sentences imposed for similar crimes committed by similar

offenders.” R.C. 2929.11(B).

Furthermore, in imposing a felony sentence, “the court shall consider

the factors set forth in [R.C. 2929.12(B) and (C)] relating to the seriousness of the

conduct [and] the factors provided in [R.C. 2929.12(D) and (E)] relating to the

likelihood of the offender’s recidivism . . . .” R.C. 2929.12. However, this court has

held that “[a]lthough the trial court must consider the principles and purposes of

sentencing as well as the mitigating factors, the court is not required to use

particular language or make specific findings on the record regarding its

consideration of those factors.” State v. Carter, 2016-Ohio-2725, ¶ 15 (8th Dist.).

ii. Consecutive Sentences

“[T]o impose consecutive terms of imprisonment, a trial court is

required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing

hearing and incorporate its findings into its sentencing entry . . . .” State v. Bonnell,

2014-Ohio-3177, ¶ 37. Pursuant to R.C. 2929.14(C)(4), the court must find

consecutive sentences are “necessary to protect the public from future crime or to

punish the offender,” “not disproportionate to the seriousness of the offender’s

conduct and to the danger the offender poses to the public” and at least one of the

following three factors: (a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction . . ., or was under postrelease control for a prior offense.

(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.

R.C. 2953.08(G)(2), which guides our review of consecutive felony

sentences, “compels appellate courts to modify or vacate sentences if they find by

clear and convincing evidence that the record does not support any relevant findings

under . . . (C)(4) of section 2929.14[.]” Marcum, 2016-Ohio-1002, at ¶ 22. See also

State v. Roberts, 2017-Ohio-9014, ¶ 10 (8th Dist.) (“[i]f the court made the required

findings in order to impose consecutive sentences, we must affirm those sentences

unless we ‘clearly and convincingly’ find that the record does not support the court’s

findings,” quoting R.C. 2953.08(G)(2)); State v. Venes, 2013-Ohio-1891, ¶ 19 (8th

Dist.).

In Ayala’s first assignment of error, he concedes that the court made

“the rote findings required by the statute” at his sentencing hearing. However, Ayala

argues that the “record does not support the findings that consecutive sentences are

necessary to protect the public from future crime or that the 23-year prison sentence

is not disproportionate to [the] seriousness of [his] conduct.” Specifically, Ayala

argues that “the court failed to consider known mitigatory evidence” consisting of Cuyahoga County Division of Children and Family Services’ (“CCDCFS”) records

about Ayala.

To support this argument, Ayala cites this court’s opinion in State v.

McClarin, 2019-Ohio-5343 (8th Dist.). In McClarin, the defendant was charged

with ten counts of rape and four counts of kidnapping involving four child-victims

who were under 13 years old at the time of the offenses. Id. at ¶ 3. During discovery,

the trial court conducted an in camera review of “potentially exculpatory” records

from CCDCFS. Id. at ¶ 4. Subsequently, McClarin pled guilty to seven counts of

rape and was sentenced to 40 years in prison. Id. at ¶ 4, 9.

McClarin appealed his sentence to this court, arguing that the “trial

court erred in failing to inquire about exculpatory evidence that was noted by

defense counsel but never discussed in detail.” Id. at ¶ 1. McClarin’s argument was

based on the trial court’s consideration of “the purposes and principles of sentencing

set forth in R.C. 2929.11 and the seriousness and recidivism factors outlined in R.C.

2929.12.” Id. at ¶ 10. This court overruled McClarin’s assignment of error, finding

that “the [trial] court was aware of the ‘potentially exculpatory evidence’ and that

the court considered the relevant sentencing factors required by R.C. 2929.11 and

2929.12.” Id. at ¶ 16.

McClarin was decided before the Ohio Supreme Court limited

appellate review of felony sentencing in State v. Jones, 2020-Ohio-6729, ¶ 39, which

held that R.C. 2953.08(G)(2) “does not provide a basis for an appellate court to

modify or vacate a sentence based on its view that the sentence is not supported by the record under R.C. 2929.11 and 2929.12.” McClarin did not appeal the

consecutive nature of his prison sentence pursuant to R.C. 2929.14. Therefore, we

find McClarin inapplicable to this case.

We review Ayala’s consecutive sentences under the standard set forth

in R.C. 2929.14(C).

The court made the following findings on the record at Ayala’s

sentencing hearing regarding consecutive sentences:

I am imposing consecutive terms, and I’m making findings pursuant to 2929.14(C), that it is necessary to punish you by imposing consecutive terms, and that consecutive terms are not disproportionate to the seriousness of your conduct and not disproportionate to the danger you pose to the public. 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 committed was so great or unusual that no single prison term for any of the offenses committed as part of any course of conduct would adequately reflect the seriousness of your conduct.

In this case, Ayala argues that the record does not support the court’s

finding that consecutive sentences were necessary to protect the public nor does the

record support the court’s finding that consecutive sentences were not

disproportionate to the seriousness of Ayala’s conduct.

The prosecutor spoke at the sentencing hearing and stated that one of

the victims disclosed “to a social worker at school” that Ayala had raped her when

she was seven years old. The timing of the disclosure came about when she saw that

Ayala “had a newborn child.” Once this victim came forward, the other two victims

also disclosed that Ayala sexually abused them when they were children. Detective Kristi Harvey of the Solon Police Department read into the

record letters from two of the victims. The first victim wrote that the “suffering and

emotional pain I experienced as a result of [Ayala] raping me has affected me since

I was seven years old.” She further wrote that she “kept this secret for seven years.”

She wrote that she “felt fear for that child” who was in Ayala’s care and she “found

out that [she] was not the only victim in [her] family.” This victim felt “anxious,

depressed, afraid” and had “trouble sleeping . . . every day of [her] life.”

The second victim referred to Ayala as “the person who stole my

childhood . . . .” The second victim wrote that Ayala “has continued his life as if

nothing ever happened. But what he did was everything to me. This person took

away my innocence when I was only five. I can’t remember a single moment of living

as a carefree child.” The second victim “battled severe trust issues, anxiety,

depression, and a lack of love and respect for” herself. According the second victim’s

letter, “[b]ecause this happened at the hands of a family member” she “struggle[s]

to trust anyone.”

Defense counsel also spoke at Ayala’s sentencing hearing, “outlin[ing]

several factors . . . that could indicate concurrent sentences . . . .” Defense counsel

stated that Ayala “accepted responsibility for his conduct at pretty much the earliest

opportunity” by pleading guilty on April 10, 2024, after a plea offer was made to him

on April 9, 2024. Defense counsel noted that some of Ayala’s “conduct” occurred

when “he himself was a juvenile.” According to defense counsel, Ayala did not have

a “criminal history” aside from these offenses. “This is not someone who has continued to go out and [wreak] havoc in the community.” Defense counsel stated

that Ayala “has been consistently employed” and “has been a responsible member

of the community who provides for himself and his loved ones.” Defense counsel

also stated that “the documents that we were able to review” from CCDCFS indicate

“physical and sexual abuse [of Ayala] by his biological father.”

The court found that “[t]hese offenses were going on” for “years and

years and years.” The court noted that the offenses to which Ayala pled guilty

occurred from 2008 to 2016 and that the “victims would say that” Ayala was likely

to reoffend. The court found that Ayala “devastated these families” and that the

victims “were little kids. . . . Defenseless. Couldn’t do anything. You had them . . .

terrified, traumatized, and you stole their innocence, as cliché as it sounds.” The

court continued:

So when it comes to the seriousness of your conduct pretty much every sentencing factor that is statutorily to be considered applies. It’s your relationship with the victims that facilitated the offense. You were in a position . . . of trust where you should have been looking out for these kids. The harm is extremely significant. You heard about it. I read about it in the letters. You heard about it here today in court. And there’s no prison term that can take away what happened. If only there were.

Upon review, we find that, by clear and convincing evidence, the

record supports the trial court’s findings under R.C. 2929.14(C)(4). One of the

victim’s letters that was read into the record stated that she “feared” for Ayala’s

newborn child, which weighs in favor of the court’s finding that consecutive

sentences are necessary to protect the public from future crime by Ayala. This statement also weighs in favor of the court’s finding that consecutive sentences are

not disproportionate to the danger Ayala poses to the public. Both victims’ letters

speak to the seriousness of Ayala’s conduct, which the court found was not

disproportionate to sentencing him to consecutive prison terms. Additionally,

statements made at the sentencing hearing show that the three victims were

between five and 11 years old when Ayala sexually abused them, which supports the

court’s finding that Ayala committed the offenses as part of a course of conduct. The

two victim letters spoke of the “emotional pain” and devastation Ayala caused, which

supports the court’s finding that the “harm caused by two or more of the multiple

offenses so committed was so great or unusual” that consecutive sentences were

warranted. See, e.g., State v. Walker, 2024-Ohio-1781 (8th Dist.) (affirming

consecutive sentences after the defendant pled guilty to multiple counts of raping

sisters, who were “minors” at the time, over a 14-year span). In Walker, the trial

court stated the following to support its imposition of consecutive sentences:

Regardless of your age, Mr. Walker, for you to have the desire, the ability to force sexual relations upon children increases the recidivism factors relevant to these offenses. It doesn’t matter how old you are. This can never happen again to anyone else.

...

You know what, quite frankly, your lack of criminal history is reflective of you keeping it in the house. You took it out on these girls in your house in your care. You didn’t have to go out and rape people in the community because you had them at home.

Id. at ¶ 18.

Accordingly, Ayala’s first assignment of error is overruled. b. Ineffective Assistance of Counsel

To succeed on a claim of ineffective assistance of counsel, a defendant

must establish that his or her attorney’s performance was deficient and that the

defendant was prejudiced by the deficient performance. Strickland v. Washington,

466 U.S. 668 (1984). However, “a court need not determine whether counsel’s

performance was deficient before examining the prejudice suffered by the defendant

as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to

grade counsel’s performance.” Id. at 697. See also State v. Bradley, 42 Ohio St.3d

136 (1989).

In Ayala’s second assignment of error, he argues that he received

ineffective assistance of trial counsel when his attorney “failed to properly present

mitigatory evidence for the trial court’s consideration at sentencing.” Specifically,

Ayala argues that his trial counsel “was ineffective by failing to ensure all this

mitigatory evidence was properly provided to the court for consideration and also

for not including it as part of the record.”

First, we note that “mitigatory evidence” is not an express factor to be

considered under R.C. 2929.14(C)(4) when imposing consecutive sentences.

Second, the Ohio Supreme Court has held that the “decision to forgo the

presentation of additional mitigating evidence does not itself constitute proof of

ineffective assistance of counsel.” State v. Keith, 79 Ohio St.3d 514, 536 (1997).1

1 We note that Keith is a death penalty case in which the Ohio Supreme Court held

that “we implicitly recognized,” in State v. Johnson, 24 Ohio St.3d 87, 91 (1986), “that the presentation of mitigating evidence” in the penalty phase of a capital murder trial “is a Third, it is undisputed that the mitigating evidence that Ayala refers

to in this assignment of error was not made part of the record in the trial court and,

thus, is not part of the record on appeal. “It is well settled that ‘[a]ppellate review is

strictly limited to the record.’” State v. Moon, 2014-Ohio-108, ¶ 12 (8th Dist.),

quoting State v. Ellis, 2009-Ohio-4359, ¶ 6 (8th Dist.). “A reviewing court cannot

add material to the appellate record and then decide the appeal on the basis of the

new material.” Moon at ¶ 12. See also State v. Curtis, 2008-Ohio-916, ¶ 8 (8th Dist.)

(holding that “when allegations of ineffective assistance of counsel hinge on facts not

appearing in the record, the proper remedy is a petition for postconviction relief

rather than direct appeal”).

Fourth, as to the prejudice prong of an ineffective assistance of

counsel claim, Ayala summarily argues in his appellate brief that “[i]f the [trial]

court had considered the records, it is reasonably probable that a lesser sentence

would have been imposed.” However, Ayala also argues in his appellate brief that,

because the mitigating evidence is not part of the record, he “is deprived [of] a full

and fair appellate review that would otherwise rightfully consider whether the

[mitigating evidence] would have had any reasonable probability of changing the

sentence the trial court imposed . . . .” In other words, Ayala has failed to show how

his trial counsel’s performance prejudiced him in this case.

Accordingly, Ayala’s second assignment of error is overruled.

matter of trial strategy.” Keith at 530. On appeal, Ayala does not cite to a case where “mitigating evidence” was specifically at issue in the sentencing phase of a nondeath penalty proceeding, and our research revealed no such case as well. Judgment affirmed.

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

convictions having been affirmed, any bail pending appeal is terminated.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

______________________________________ EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE

LISA B. FORBES, J., and KATHLEEN ANN KEOUGH, J., CONCUR