State v. Diaz, Unpublished Decision (6-28-2006)

2006 Ohio 3282
CourtOhio Court of Appeals
DecidedJune 28, 2006
DocketC.A. No. 05CA008795.
StatusUnpublished
Cited by25 cases

This text of 2006 Ohio 3282 (State v. Diaz, Unpublished Decision (6-28-2006)) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Diaz, Unpublished Decision (6-28-2006), 2006 Ohio 3282 (Ohio Ct. App. 2006).

Opinion

DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: {¶ 1} Appellant, Shawn Diaz, appeals from his sentence in the Lorain County Court of Common Pleas. This Court affirms.

I.
{¶ 2} On March 11, 2004, Appellant was indicted on twenty-five counts, including gross sexual imposition, endangering children, disseminating matter harmful to juveniles, and rape. Prior to trial, the State dismissed ten of the charges. The remaining fifteen charges were tried to a jury and Appellant was found guilty on every count. Appellant appealed to this Court and we reversed the trial court's imposition of the sexually violent predator specification pursuant to the Ohio Supreme Court's decision in State v. Smith, 104 Ohio St.3d 106,2004-Ohio-6238, at ¶ 32. See State v. Diaz, 9th Dist. No. 04CA008573, 2005-Ohio-3108, at ¶ 8. Accordingly, we remanded the matter to the trial court for resentencing.

{¶ 3} The trial court resentenced Appellant on August 19, 2005. Appellant received life sentences, with the possibility of parole after ten years, on both rape charges. Additionally, as a result of multiple, maximum sentences, Appellant received an aggregate sentence of 54 years, which was to run consecutively to the life sentences. Appellant timely appealed from his resentencing, raising three assignments of error for review.

II.
ASSIGNMENT OF ERROR I
"THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT SENTENCED [APPELLANT] TO CONSECUTIVE MAXIMUM SENTENCES BECAUSE IT VIOLATED HIS RIGHT TO TRIAL BY JURY GUARANTEED BY THE 6TH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION."

{¶ 4} In his first assignment of error, Appellant contends that the trial court erred in sentencing him under unconstitutional sentencing guidelines. As Appellant failed to raise the constitutionality of the sentencing guidelines in the trial court, on appeal he has argued that the trial court committed plain error. This Court disagrees.

{¶ 5} Pursuant to Crim.R. 52(B), a plain error that affects a substantial right may be noticed by an appellate court despite not having been brought to the attention of the trial court. The Ohio Supreme Court has explained that a reversible plain error requires that: "(1) there must be an error, i.e., a deviation from a legal rule; (2) the error must be plain, which means that it must be an obvious defect in the trial proceedings; and (3) the error must have affected substantial rights, which means that the trial court's error must have affected the outcome of the trial." (Emphasis and internal quotations omitted.) State v.Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, at ¶ 62, quotingState v. Barnes (2002), 94 Ohio St.3d 21, 27. Notice of a plain error is taken with the utmost caution and only to prevent a manifest miscarriage of justice. Ohio v. Bray, 9th Dist. No. 03CA008241, 2004-Ohio-1067, at ¶ 12. Therefore, this Court will not reverse the trial court decision unless it has been established that the trial court's outcome would have clearly been different but for the alleged error. Id.

{¶ 6} In accordance with State v. Foster, 109 Ohio St.3d 1,2006-Ohio-856, this Court recognizes that the trial court sentenced Appellant under guidelines which were unconstitutional. Appellant, however, has failed to establish that his sentence would have been different but for the error.

{¶ 7} Foster altered this Court's standard of review which was previously a clear and convincing error standard. State v.Windham, 9th Dist. No. 05CA0033, 2006-Ohio-1544, at ¶ 11. Accordingly, this Court reviews appellant's sentence utilizing an abuse of discretion standard. Id. at ¶ 12. An abuse of discretion is more than an error in judgment or law; it implies an attitude on the part of the trial court that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983),5 Ohio St.3d 217, 219. Furthermore, when applying the abuse of discretion standard, an appellate court may not substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd. (1993),66 Ohio St.3d 619, 621.

{¶ 8} The Foster Court noted that "there is no mandate for judicial fact-finding in the general guidance statutes. The court is merely to `consider' the statutory factors." Foster at ¶ 42. Therefore, post-Foster, trial courts are still required to consider the general guidance factors contained in R.C. 2929.11 and R.C. 2929.12 in their sentencing decisions. A review of the record indicates that the trial court's decision to impose maximum, consecutive sentences took into account those statutory factors.

{¶ 9} Appellant was married to the mother of several of the victims. Thus, his position of authority enabled him to commit several of the offenses. R.C. 2929.12(B)(6). Further, Appellant's convictions involved seven victims. The victims' ages were 6 (two victims), 7, 8, 9, 10, and 15. Based upon the explicit testimony given by the child victims, the trial court clearly considered that the physical and mental injuries the victims suffered were exacerbated by their ages. R.C. 2929.12(B)(1). Additionally, the testimony given by the victims unequivocally establishes that psychological harm has resulted from the offenses. R.C.2929.12(B)(2). Appellant also had a lengthy history of criminal convictions. R.C. 2929.12(D)(2). Accordingly, based upon the heinous nature of the offenses for which Appellant was convicted, the numerous child victims, Appellant's use of his position of authority, and his lengthy criminal history, we cannot say that the trial court abused its discretion when it imposed maximum, consecutive sentences upon Appellant. Appellant's first assignment of error is overruled.

ASSIGNMENT OF ERROR II
"THE TRIAL COURT ERRED IN CLASSIFYING [APPELLANT]

A SEXUAL PREDATOR UNDER § 2950.09."

{¶ 10} In his second assignment of error, Appellant argues that the trial court erred in finding that he was a sexual predator. We disagree.

{¶ 11} R.C. 2950.01

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2006 Ohio 3282, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-diaz-unpublished-decision-6-28-2006-ohioctapp-2006.