State v. Cedeno-Guerrero

2019 Ohio 4580

• Court: Ohio Court of Appeals
• Decided: November 7, 2019
• Docket: 108097
• Status: Published

Opinion

[Cite as State v. Cedeno-Guerrero, 2019-Ohio-4580.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 108097 v. :

SANTOS CEDENO-GUERRERO, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: November 7, 2019

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-617546-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Fallon Radigan, Assistant Prosecuting Attorney, for appellee.

Charles Ruiz-Bueno Co., L.P.A., and J. Charles Ruiz- Bueno, for appellant.

KATHLEEN ANN KEOUGH, J.:

Defendant-appellant, Santos Cedeno-Guerrero, appeals his

convictions. For the reasons that follow, we affirm. In June 2017, Cedeno-Guerrero was named in a four-count

indictment charging him with one count of rape with a furthermore clause that the

victim was less than ten years old; two counts of gross sexual imposition; and one

count of kidnapping with a sexual motivation specification.

On September 18, 2018, Cedeno-Guerrero pleaded guilty to one count

of gross sexual imposition, and an amended count of rape in violation of R.C.

2907.02(A)(2), which reduced the sentence from a life sentence to a definite

sentence of three to eleven years. All other counts were nolled by the state. The trial

court sentenced him to a total prison term of ten years — ten years for the rape

offense and 36 months for the gross sexual imposition charge; the sentences were

ordered to be served concurrently.

Cedeno-Guerrero now appeals, raising two assignments of error.

I. Interpreter Credentials

In his first assignment of error, Cedeno-Guerrero contends that the

trial court committed plain error by sentencing him without certifying on the record

the credentials of the interpreter.

First, where no objection is raised, it has been held that such failure

results in a waiver to challenge the qualifications of the interpreter and adequacy of

the translation. See, e.g., State v. Newcomb, 10th Dist. Franklin Nos. 03AP-404 and

03AP-961, 2004-Ohio-4099, ¶ 22. Notwithstanding any waiver argument, we

review for plain error, which must have been an “obvious” defect in the proceedings that affected the defendant’s “substantial rights.” Crim.R. 52(B). We find no plain

error.

Cedeno-Guerrero’s primary language is Spanish; accordingly, a

Spanish-speaking interpreter was utilized in the case. Prior to Cedeno-Guerrero

entering into a plea of guilty pursuant to the plea agreement, the trial court pursuant

to Sup.R. 88, placed the interpreter under oath, inquired about her credentials, and

found that she was properly certified. No objection was raised by counsel.

Thereafter, Cedeno-Guerrero entered pleas of guilty pursuant to the plea agreement.

The matter was continued for sentencing for the preparation of a presentence-

investigation report.

In November 2018, at sentencing, a Spanish-speaking interpreter was

also utilized; however, the interpreter was not the same one that translated for

Cedeno-Guerrero during his plea. Although the interpreter was placed under oath,

the record does not reflect that the trial court inquired about the credentials. No

objection was raised by the parties.

During sentencing, the trial court noted that during Cedeno-

Guerrero’s interview in preparation of the presentencing report, he indicated

(through the use of an interpreter) that he did not commit the acts he pleaded to,

but only pleaded based on legal advice that “it is hard to beat the word of a child,”

and that he pleaded just “to get this case over with.” (Tr. 35-36.) As a result, the

trial court wanted to discuss this development with the parties. Cedeno-Guerrero

confirmed that he, in fact, made this statement. This caused concern for the court and it specifically questioned him whether he wanted to withdraw his plea.

According to the record, Cedeno-Guerrero did “not want to withdraw [his] plea.”

(Tr. 36.) Both defense counsel and the state did not believe any further clarification

was needed. (Tr. at id.) However, defense counsel asked for time to confer with

Cedeno-Guerrero. Following this off-the-record discussion, the trial court stated

that the reason it asked if additional clarification was needed regarding Cedeno-

Guerrero’s statement was based on the legal differences in attempting to withdraw

a plea prior to or after sentencing. The trial court thoroughly explained to Cedeno-

Guerrero the difference and asked whether he understood that difference. Cedeno-

Guerrero stated he understood and still wished to proceed with sentencing. (Tr. 37-

38.)

On appeal, Cedeno-Guerrero does not challenge that he did not enter

a knowing, intelligent, and voluntary plea, but argues that the lack of verification or

certification of the interpreter somehow inhibited his ability to withdraw his plea

and caused him to not understand the sentence that would be imposed. We fail to

see the connection.

R.C. 2311.14, Evid.R. 604, and Sup.R. 88 govern the appointment of

and certification requirements for foreign language interpreters. They provide

under what circumstances a court should appoint a foreign language interpreter for

either a party or witness. R.C. 2311.14(A); Sup.R. 88(A). Subsection (D) of Sup.R.

88 “provides a hierarchy for preferred candidates: (1) a Supreme Court of Ohio

certified foreign language interpreter; (2) a provisionally-qualified foreign language interpreter; (3) a language-skilled foreign language interpreter; and (4) telephonic

interpreter.” State v. Gaspareno, 2016-Ohio-990, 61 N.E.3d 550, ¶ 63 (3d Dist.),

citing Sup.R. 88(D)(1)-(4). The court shall administer an oath or affirmation to a

foreign language interpreter that the interpreter will make an accurate and true

interpretation. R.C. 2311.14(B); Sup.R. 88(I).

In this case, Cedeno-Guerrero has failed to establish how he was

prejudiced by the trial court’s failure to certify the interpreter’s credentials. He does

not contend that he was unable to communicate with or understand the interpreter’s

translation, or that this lack of certification prevented him from understanding the

sentence imposed. As recognized by the Tenth District, “the sentencing hearing is

procedurally distinct from the trial phase of the proceedings since concerns related

to the adversarial process are not present at sentencing.” State v. Barrie, 2016-

Ohio-5640, 70 N.E.3d 1092, ¶ 42 (10th Dist.), citing State v. Dunbar, 3d Dist. Allen

No. 1-92-12, 1992 Ohio App. LEXIS 5567 (Nov. 5, 1992). Although Cedeno-Guerrero

entered a plea rather than have a trial, the same procedural concerns are present,

and we note that during the plea stage, the trial court certified the qualifications and

credentials of the interpreter.

At sentencing when he was specifically asked, Cedeno-Guerrero

unequivocally stated he did not want to withdraw his plea, and wanted to proceed

with sentencing. Additionally, despite the assertions made during the presentence

interview, Cedeno-Guerrero did not file any formal request to withdraw his plea

prior to sentencing. Moreover, Cedeno-Guerrero has presented no evidence or even made

any assertion that the interpreter at sentencing was in fact not qualified or lacked

the appropriate credentials or certifications. Additionally, Cedeno-Guerrero has not

presented any evidence that the interpreter did not adequately or properly translate

the proceedings or that he misunderstood the translations given by the interpreter.

Finally, the record reflects that at no time did Cedeno-Guerrero or his counsel

indicate that he did not understand the proceedings. Accordingly, Cedeno-Guerrero

has failed to overcome his burden of showing an obvious error in the proceedings.

See, e.g., Gaspareno, 2016-Ohio-990, 61 N.E.3d 550 (trial court’s failure to qualify

the credentials of the interpreter did not rise to the level of plain error because

defendant did not present evidence that the interpreter was not qualified). Any

error, if at all, does not rise to the level of plain error.

The first assignment of error is overruled.

II. Excessive Sentence

Cedeno-Guerrero contends in his second assignment of error that the

trial court committed prejudicial error by sentencing him to an excessive prison

term.

We review felony sentencing using the standard of review set forth in

R.C. 2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d

1231, ¶ 22. R.C. 2953.08(G)(2) provides we may either increase, reduce, modify, or

vacate a sentence and remand for resentencing where we clearly and convincingly

find that either the record does not support the sentencing court’s findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is

otherwise contrary to law.

As long as the sentence is within the statutory range for the offense,

and the court considers both the purposes and principles of felony sentencing set

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

2929.12, a trial court’s imposition of a any prison term, even a maximum prison

term, for a felony conviction is not contrary to law. State v. Woodard, 8th Dist.

Cuyahoga No. 106300, 2018-Ohio-2402, ¶ 35; State v. Keith, 8th Dist. Cuyahoga

Nos. 103413 and 103414, 2016-Ohio-5234, ¶ 10, 16.

R.C. 2929.11(A) provides that a sentence imposed for a felony shall be

reasonably calculated to achieve the two overriding purposes of felony sentencing:

(1) to protect the public from future crime by the offender and others, and (2) to

punish the offender using the minimum sanctions that the court determines will

accomplish those purposes. 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 by similar

offenders.” R.C. 2929.11(B).

The sentencing court must consider the seriousness and recidivism

factors set forth in R.C. 2929.12 in determining the most effective way to comply

with the purposes and principles of sentencing set forth in R.C. 2929.11. State v.

Hodges, 8th Dist. Cuyahoga No. 99511, 2013-Ohio-5025. R.C. 2929.12 provides a

nonexhaustive list of factors a trial court must consider when determining the seriousness of the offense and the likelihood that the offender will commit future

offenses.

R.C. 2929.11 and 2929.12 are not fact-finding statutes and thus, the

trial court is not required to use particular language or make specific findings on the

record regarding its consideration of those factors. State v. Wilson, 129 Ohio St.3d

214, 2011-Ohio-2669, 951 N.E.2d 381; State v. Jones, 8th Dist. Cuyahoga No. 99759,

2014-Ohio-29. Consideration of the appropriate factors can be presumed unless the

defendant affirmatively demonstrates otherwise. Jones at ¶ 13, citing State v.

Stevens, 1st Dist. Hamilton No. C-130278, 2013-Ohio-5218. “Moreover, a trial

court’s statement in its sentencing journal entry that it considered the required

statutory factors is sufficient to fulfill a trial court’s obligations under R.C. 2929.11

and 2929.12.” State v. Sutton, 8th Dist. Cuyahoga Nos. 102300 and 102302, 2015-

Ohio-4074, ¶ 72, citing State v. Clayton, 8th Dist. Cuyahoga No. 99700, 2014-Ohio-

112.

In this case, Cedeno-Guerrero’s ten-year prison sentence is not

contrary to law. A violation of R.C. 2907.02(A)(2), rape, is a felony of the first degree

that carries a possible punishment of three to eleven years, and a violation of R.C.

2907.05(A)(4), gross sexual imposition, is a felony of the third degree that carries a

possible punishment of twelve to sixty months in prison. R.C. 2929.14(A)(1) and

(3)(a). Accordingly, the trial court’s imposition of a 36-month sentence on the gross

sexual imposition charge, to run concurrently with a ten-year prison sentence on the

rape offense, is within the statutory range and thus, not contrary to law. Cedeno-Guerrero contends on appeal that his sentence does not

comport with the purposes and principles of felony sentencing pursuant to R.C.

2929.11 because he lacks a criminal record and is now subject to deportation due to

his conviction. Accordingly, he contends that a minimum sanction would have been

appropriate to protect the public from any future crime he may commit.

Although the state requested that the trial court impose a maximum,

consecutive prison sentence, the trial court found that the R.C. 2929.14(C)(4) factors

were not met to satisfy the imposition of consecutive sentences. However, the

record clearly reflects that the trial court fully considered the purposes and

principles of sentencing pursuant to R.C. 2929.11 and the seriousness and recidivism

factors in R.C. 2929.12 in ordering Cedeno-Guerrero to serve a ten-year prison

sentence.

The trial court carefully explained its considerations, including why

the maximum sentence was not appropriate, by highlighting Cedeno-Guerrero’s

lack of criminal history and his immigration status, but also that the minimum

sentence was not appropriate due to the nature of the crime and Cedeno-Guerrero’s

position of trust with the nine-year-old victim and the victim’s family. The trial court

stated it considered all the statements made by the parties and noted Cedeno-

Guerrero’s “heartfelt” statement. Nothing in the record indicates that the sentence

was excessive. Accordingly, Cedeno-Guerrero has failed to demonstrate that his

sentence is clearly and convincingly not supported by the record. The second

assignment of error is overruled. 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

conviction having been affirmed, any bail pending 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, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and EILEEN A. GALLAGHER, J., CONCUR