[Cite as State v. Chavez, 2017-Ohio-8417.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2017-CA-26 : v. : Trial Court Case No. 2016-CR-540 : SAUL C. CHAVEZ, SR., aka SAUL C. : (Criminal Appeal from CHAVEZ-COMACHO : Common Pleas Court) : Defendant-Appellant :
...........
OPINION
Rendered on the 3rd day of November, 2017.
NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Assistant Prosecuting Attorney, Greene County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee
JAY B. CARTER, Atty. Reg. No. 0041295, 111 West First Street, Suite 519, Dayton, Ohio 45402 Attorney for Defendant-Appellant
.............
TUCKER, J. -2-
{¶ 1} Defendant-appellant Saul Chavez, Sr. appeals his seven-
year sentence after he pled guilty to one count of endangering children. He argues
that the trial court failed to afford the mother of the victim an opportunity to make a
statement at the sentencing hearing, and that his sentence, therefore, must be
reversed. For the reasons that follow, we affirm.
I. Facts and Procedural History
{¶ 2} On September 26, 2016, Beavercreek Police Department Detective John
Bondy responded to Dayton Children’s Hospital regarding an injury to a two-month old
infant boy. It was determined that the child had presented to the hospital with traumatic
brain injury. The child had retinal hemorrhaging in both eyes, seizures, a fractured
femur, and a subdural hematoma. The child had to undergo at least one craniotomy, or
surgical opening of the skull.
{¶ 3} Following an investigation, Chavez was indicted on one count of endangering
children in violation of R.C. 2919.22(B)(1), and one count of endangering children in
violation of R.C. 2919.22(A). Chavez filed a motion to suppress statements made to the
police. Following a hearing, the motion was overruled. Subsequently, Chavez and the
State entered into a plea agreement. Chavez agreed to plead guilty to Count I of the
indictment, endangering children in violation of R.C. 2919.22(B)(1). In exchange, the
State agreed to dismiss the remaining count. No agreement was reached as to
disposition. Chavez entered a plea of guilty on February 15, 2017.
{¶ 4} A sentencing hearing was conducted on March 31, 2017. Defense counsel -3-
addressed the court stating that he had spoken to the victim’s mother, who he noted was
present in the courtroom for sentencing, and that she informed him she did not request
incarceration and that she is “pleased with the child’s progress and development.”
Counsel also noted that the latest medical records for the child indicate that the child is
“on target both developmentally and clinically.” Chavez also addressed the court to
indicate his remorse for the offense.
{¶ 5} The trial court indicated that it had reviewed the medical records to which
defense counsel alluded, and noted that while those records indicate that the child is
within “normal range,” the records did not provide a prognosis. The trial court imposed
a seven-year sentence. Chavez appeals.
II. Analysis
{¶ 6} Chavez’s sole assignment of error states as follows:
THE TRIAL COURT ERRED IN FAILING TO AFFORD THE VICTIM’S
MOTHER AN OPPORTUNITY TO CLARIFY THE RELEVANT INJURIES
AND PROGNOSIS IN A VICTIM IMPACT STATEMENT, IN FAILING TO
PROPERLY CONSIDER THE VICTIM’S MEDICAL RECORDS, AND, IN
THE ABSENCE OF COMPLETE INFORMATION, INACCURATELY
WEIGHED THE SENTENCING FACTORS WHEN IMPOSING
SENTENCE.
{¶ 7} Chavez contends that the trial court did not properly weigh the appropriate
sentencing factors when imposing the seven-year prison term because it did not give the
victim’s mother the opportunity to address the court regarding the victim’s current medical -4-
condition and because it did not properly consider the victim’s current medical records
when weighing the sentencing factors.
{¶ 8} In reviewing challenges to sentence-terms for felony offenses, appellate
courts must apply the standard of review set forth in R.C. 2953.08(G)(2), rather than an
abuse of discretion standard. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002,
59 N.E.3d 1231, ¶ 7, 9. Under the standard set forth in that statute, an appellate court
may increase, reduce, or modify a sentence, or it may vacate the sentence and remand
for resentencing, only if it “clearly and convincingly” finds either (1) that the record does
not support certain specified findings or (2) that the sentence imposed is contrary to law.
Id. at ¶ 22, 23.
{¶ 9} “Clear and convincing evidence is that measure or degree of proof which is
more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty
as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph
three of the syllabus.
{¶ 10} We begin with Chavez’s claim that the trial court was required to give the
mother of the victim, as the representative of the minor child, an opportunity to address
the court regarding her satisfaction with the child’s progress. In support of this claim,
Chavez relies upon R.C. 2930.14(A), which states that a trial court shall permit a crime
victim to make a statement before the court imposes a sentence upon the defendant.
The victim’s “statement shall be considered by the court along with other factors that the
court is required to consider in imposing sentence.” R.C. 2930.14(B). -5-
{¶ 11} First, even though Chavez contends the victim’s mother wanted to address
the court, there is nothing in the transcript or record to support such a claim. Neither the
mother nor defense counsel informed the court that she wanted to make a statement.
{¶ 12} Second, even if the victim’s mother desired to make a statement, we would
find no error that benefits Chavez. “The victim impact statement ‘is not for the benefit of
the defendant but rather to be sure the court considers the impact of causing physical
harm upon the victim when the court imposes * * * sentence.’ ” State v. Ridenour, 128
Ohio App.3d 134, 136-137, 713 N.E.2d 1140 (9th Dist. 1998), quoting State v. Johnson,
9th Dist. Summit No. 12157, 1985 WL 4654, * 4 (Dec. 18, 1985). Instead, “[t]he purpose
of a victim impact statement is to help apprise the sentencing authority of the actual harm
inflicted upon the victim and the victim's family by the crime.” Id. at 136. “The failure of
a trial court to allow a victim impact statement does not afford a defendant any grounds
for relief.” Id. at 137. “The failure of any person or entity to provide a right, privilege, or
notice to a victim under this chapter does not constitute grounds for declaring a mistrial
or new trial, for setting aside a conviction or sentence, * * * or for granting postconviction
release to a defendant * * *.” Id., quoting R.C. 2930.19(C).
{¶ 13} We further find that the trial court did not otherwise err in sentencing. A
trial court “has full discretion to impose any sentence within the authorized statutory
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[Cite as State v. Chavez, 2017-Ohio-8417.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2017-CA-26 : v. : Trial Court Case No. 2016-CR-540 : SAUL C. CHAVEZ, SR., aka SAUL C. : (Criminal Appeal from CHAVEZ-COMACHO : Common Pleas Court) : Defendant-Appellant :
...........
OPINION
Rendered on the 3rd day of November, 2017.
NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Assistant Prosecuting Attorney, Greene County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee
JAY B. CARTER, Atty. Reg. No. 0041295, 111 West First Street, Suite 519, Dayton, Ohio 45402 Attorney for Defendant-Appellant
.............
TUCKER, J. -2-
{¶ 1} Defendant-appellant Saul Chavez, Sr. appeals his seven-
year sentence after he pled guilty to one count of endangering children. He argues
that the trial court failed to afford the mother of the victim an opportunity to make a
statement at the sentencing hearing, and that his sentence, therefore, must be
reversed. For the reasons that follow, we affirm.
I. Facts and Procedural History
{¶ 2} On September 26, 2016, Beavercreek Police Department Detective John
Bondy responded to Dayton Children’s Hospital regarding an injury to a two-month old
infant boy. It was determined that the child had presented to the hospital with traumatic
brain injury. The child had retinal hemorrhaging in both eyes, seizures, a fractured
femur, and a subdural hematoma. The child had to undergo at least one craniotomy, or
surgical opening of the skull.
{¶ 3} Following an investigation, Chavez was indicted on one count of endangering
children in violation of R.C. 2919.22(B)(1), and one count of endangering children in
violation of R.C. 2919.22(A). Chavez filed a motion to suppress statements made to the
police. Following a hearing, the motion was overruled. Subsequently, Chavez and the
State entered into a plea agreement. Chavez agreed to plead guilty to Count I of the
indictment, endangering children in violation of R.C. 2919.22(B)(1). In exchange, the
State agreed to dismiss the remaining count. No agreement was reached as to
disposition. Chavez entered a plea of guilty on February 15, 2017.
{¶ 4} A sentencing hearing was conducted on March 31, 2017. Defense counsel -3-
addressed the court stating that he had spoken to the victim’s mother, who he noted was
present in the courtroom for sentencing, and that she informed him she did not request
incarceration and that she is “pleased with the child’s progress and development.”
Counsel also noted that the latest medical records for the child indicate that the child is
“on target both developmentally and clinically.” Chavez also addressed the court to
indicate his remorse for the offense.
{¶ 5} The trial court indicated that it had reviewed the medical records to which
defense counsel alluded, and noted that while those records indicate that the child is
within “normal range,” the records did not provide a prognosis. The trial court imposed
a seven-year sentence. Chavez appeals.
II. Analysis
{¶ 6} Chavez’s sole assignment of error states as follows:
THE TRIAL COURT ERRED IN FAILING TO AFFORD THE VICTIM’S
MOTHER AN OPPORTUNITY TO CLARIFY THE RELEVANT INJURIES
AND PROGNOSIS IN A VICTIM IMPACT STATEMENT, IN FAILING TO
PROPERLY CONSIDER THE VICTIM’S MEDICAL RECORDS, AND, IN
THE ABSENCE OF COMPLETE INFORMATION, INACCURATELY
WEIGHED THE SENTENCING FACTORS WHEN IMPOSING
SENTENCE.
{¶ 7} Chavez contends that the trial court did not properly weigh the appropriate
sentencing factors when imposing the seven-year prison term because it did not give the
victim’s mother the opportunity to address the court regarding the victim’s current medical -4-
condition and because it did not properly consider the victim’s current medical records
when weighing the sentencing factors.
{¶ 8} In reviewing challenges to sentence-terms for felony offenses, appellate
courts must apply the standard of review set forth in R.C. 2953.08(G)(2), rather than an
abuse of discretion standard. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002,
59 N.E.3d 1231, ¶ 7, 9. Under the standard set forth in that statute, an appellate court
may increase, reduce, or modify a sentence, or it may vacate the sentence and remand
for resentencing, only if it “clearly and convincingly” finds either (1) that the record does
not support certain specified findings or (2) that the sentence imposed is contrary to law.
Id. at ¶ 22, 23.
{¶ 9} “Clear and convincing evidence is that measure or degree of proof which is
more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty
as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph
three of the syllabus.
{¶ 10} We begin with Chavez’s claim that the trial court was required to give the
mother of the victim, as the representative of the minor child, an opportunity to address
the court regarding her satisfaction with the child’s progress. In support of this claim,
Chavez relies upon R.C. 2930.14(A), which states that a trial court shall permit a crime
victim to make a statement before the court imposes a sentence upon the defendant.
The victim’s “statement shall be considered by the court along with other factors that the
court is required to consider in imposing sentence.” R.C. 2930.14(B). -5-
{¶ 11} First, even though Chavez contends the victim’s mother wanted to address
the court, there is nothing in the transcript or record to support such a claim. Neither the
mother nor defense counsel informed the court that she wanted to make a statement.
{¶ 12} Second, even if the victim’s mother desired to make a statement, we would
find no error that benefits Chavez. “The victim impact statement ‘is not for the benefit of
the defendant but rather to be sure the court considers the impact of causing physical
harm upon the victim when the court imposes * * * sentence.’ ” State v. Ridenour, 128
Ohio App.3d 134, 136-137, 713 N.E.2d 1140 (9th Dist. 1998), quoting State v. Johnson,
9th Dist. Summit No. 12157, 1985 WL 4654, * 4 (Dec. 18, 1985). Instead, “[t]he purpose
of a victim impact statement is to help apprise the sentencing authority of the actual harm
inflicted upon the victim and the victim's family by the crime.” Id. at 136. “The failure of
a trial court to allow a victim impact statement does not afford a defendant any grounds
for relief.” Id. at 137. “The failure of any person or entity to provide a right, privilege, or
notice to a victim under this chapter does not constitute grounds for declaring a mistrial
or new trial, for setting aside a conviction or sentence, * * * or for granting postconviction
release to a defendant * * *.” Id., quoting R.C. 2930.19(C).
{¶ 13} We further find that the trial court did not otherwise err in sentencing. A
trial court “has full discretion to impose any sentence within the authorized statutory
range, and the court is not required to make any findings or give its reasons for imposing
maximum or more than minimum sentences.” State v. King, 2013–Ohio–2021, 992
N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial court must
consider the statutory criteria that apply to every felony offense, including those set out in
R.C. 2929.11 and R.C. 2929.12. State v. Leopard, 194 Ohio App.3d 500, 2011–Ohio– -6-
3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio St.3d 54, 2006–
Ohio–855, 846 N.E.2d 1, ¶ 38.
{¶ 14} R.C. 2929.11(A) provides that the “overriding purposes of felony sentencing
are to protect the public from future crime by the offender and others and to punish the
offender using the minimum sanctions that the court determines accomplish those
purposes.” R.C. 2929.11(B) requires that, in addition to achieving these goals, a
sentence must be “commensurate with and not demeaning to the seriousness of the
offender's conduct and its impact upon the victim.”
{¶ 15} R.C. 2929.12 provides a non-exhaustive list of factors the court must
consider in determining the relative seriousness of the underlying crime and the likelihood
that the defendant will commit another offense in the future. The factors include (1) the
physical, psychological, and economic harm suffered by the victim; (2) whether the
defendant's relationship with the victim facilitated the offense; (3) whether the defendant
shows any remorse; and (4) any other relevant factors.
{¶ 16} Chavez pled guilty to a second-degree felony which carries a presumption
of a prison term under R.C. 2929.13(D)(1).1 The trial court clearly stated that it had
considered the principles and purposes of sentencing, as well as the seriousness and
recidivism factors set forth in R.C. 2929.11 and R.C. 2929.12. It is clear that the physical
harm caused to the infant was serious. Further, the victim’s relationship to Chavez
facilitated the offense. The seven-year prison term is within the range set forth in R.C.
2929.14(A)(2). Further, the trial court did state that it had considered the updated
1 The trial court in this case specifically found that the presumption for prison was not rebutted because community control sanctions would demean the seriousness of the offense. R.C. 2929.13(D)(2)(b). -7-
medical reports submitted by Chavez, and the court was made aware that the victim’s
mother was “satisfied” with the child’s progress. While the trial court did note that the
medical reports did not give a prognosis for the court, we find no error in such a finding.
The trial court is permitted to consider any factors it finds relevant when determining the
seriousness of the crime. R.C. 2929.12(B).
{¶ 17} We conclude that the sentence conferred upon Chavez is not contrary to
the law and is supported by the facts in the record. Accordingly, the sole assignment
of error is overruled.
III. Conclusion
{¶ 18} Chavez’s sole assignment of error being overruled, the judgment of the trial
court is affirmed.
HALL, P.J., concurs.
DONOVAN, J., concurring:
{¶ 19} I agree with the outcome on this record. Nevertheless, in my view R.C.
2930.19(C) would not prevent a defendant from requesting a sentencing hearing where
a pre-sentence investigation report contains false or inaccurate information regarding the
victim of an offense. Hence, neither Ridenour nor Johnson should preclude a Defendant
from exercising his due process rights to dispute such misinformation.
{¶ 20} R.C. 2951.03 allows the trial court to review or disregard an alleged factual -8-
inaccuracy in a pre-sentence investigation report if the defendant alleges at sentencing
that the report is inaccurate. R.C. 2951.03(B)(5). See generally State v. Sexton, 3d Dist.
Union No. 14-13-25, 2015-Ohio-934, ¶ 85.
{¶ 21} I find no prejudice on this record and concur with an affirmance.
Copies mailed to:
Nathaniel R. Luken Jay B. Carter Hon. Michael A. Buckwalter