State v. Gomez

2022 Ohio 3195

Opinion

[Cite as State v. Gomez, 2022-Ohio-3195.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. Patricia A. Delaney, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : -vs- : : Case No. 2022-CA-0016 TEVIN D. GOMEZ : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Richland County Court of Common Pleas, Case No. 2020- CR-0768

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: September 12, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

GARY BISHOP WILLIAM. T. CRAMER Prosecuting Attorney 470 Olde Worthington Road, Ste. 200 BY: PHILLIP D. BOGDANOFF Westerville, OH 43082 Special Prosecuting Attorney 38 South Park Street, 2nd Floor Mansfield, OH 44902 Richland County, Case No. 2022-CA-0016 2

Gwin, P.J.

{¶1} Appellant Tevin Gomez appeals his sentence from the Richland County

Court of Common Pleas. Appellee is the State of Ohio.

Facts & Procedural History

{¶2} In January of 2021, appellant was indicted on fifty-two (52) counts of

pandering obscenity involving a minor, felonies of the fourth degree, in violation of R.C.

2907.321(A)(5) and R.C. 2907.321(C), and four counts of illegal use of a minor in nudity-

oriented material, in violation of R.C. 2907.323(A)(3) and (B), felonies of the fifth degree.

{¶3} The trial court held a plea hearing on September 22, 2021. Appellant

withdrew his not guilty pleas, and pled guilty to all of the counts in the indictment. The

court ordered a pre-sentence investigation and a sex offender risk assessment. Appellant

was released on bond while he was awaiting sentencing. However, on November 24,

2021, appellant was arrested for violating the terms and conditions of his bond.

{¶4} The trial court held a sentencing hearing on January 7, 2022.

{¶5} The trial court stated it reviewed and considered the purposes and

principles under R.C. 2929.11, the factors in R.C. 2929.12, the pre-sentence

investigation, a sex offender risk assessment profile, a psychological examination of

appellant, the arguments of the parties, and a compliance report made by pre-trial

supervision stating that appellant was not compliant with the terms and conditions of his

electronic monitoring release.

{¶6} Counsel for appellant argued appellant is not a pedophile, but has been

diagnosed as a hyper-sexed individual who has a sex and porn addiction that can be

treated with counseling and cognitive behavioral treatment. Counsel for appellant Richland County, Case No. 2022-CA-0016 3

acknowledged that while he was prepared to argue for community control, after appellant

violated the terms and conditions of his bond, that would likely not be available. Thus, he

requested a reasonable prison sentence. Counsel noted appellant has no felony

conviction history, appellant was sexually abused as a child himself, and has always

maintained employment.

{¶7} Appellant apologized for violating the terms and conditions of his bond.

Appellant stated he knows it was wrong to download the images, but said he would never

actually harm a child.

{¶8} Counsel for the State of Ohio reviewed the facts surrounding the indictment

in this case. The Internet Crimes Against Children Task Force detected pornographic

material from a Yahoo e-mail account registered to appellant. The Shelby Police

Department was notified, and initiated an investigation. The Yahoo e-mail account

registered to appellant was used to download and send child pornography. The police

department executed a search warrant at the home where appellant was staying. They

recovered electronic devices that contained pornographic material. The officers also

discovered multiple sealed Ziploc bags containing used female underwear. Each bag

had a name and date on them.

{¶9} Counsel for appellee also detailed the circumstances surrounding the

revocation of appellant’s bond. Appellant’s probation officer was also present at the

sentencing hearing, and explained the bond violations. Family members of appellant

contacted pre-trial services with concerns about what appellant had in the basement of

the home where he was staying. One of the conditions of appellant’s release was that he

was not allowed to have access to any device that he could use to access the internet, Richland County, Case No. 2022-CA-0016 4

including a cell phone, tablet, or computer. When the probation officer went to where

appellant was staying, he found multiple electronic devices, including three cell phones

and two laptops. The laptops were hidden behind a TV mounted on a cinder block wall.

The probation officer also found youth underwear in Ziploc bags, hidden in cat litter

containers. Appellant claimed he was using the underwear as examples for making his

own line of children’s underwear. Family members living with appellant reported appellant

had an encrypted e-mail account. Additionally, though one of the conditions for release

on bond was that appellant was not allowed to possess or drink alcohol, the probation

officer found alcohol among appellant’s belongings. Counsel for appellee argued for a

significant prison sentence.

{¶10} The trial court stated it was concerned about appellant’s violations of his

electronic monitoring conditions. The court further had concerns about the number of

images found in this case, the nature of the images, the child victims found in the images,

and the possession of the children’s underwear. The court noted appellant’s prior

convictions were related to drug abuse and OVI’s, and his risk assessment for alcohol

abuse is in the “problem range.”

{¶11} The trial court sentenced appellant to 12 months on each of fourth-degree

felonies, and 6 months on each of the fifth-degree felonies, with Counts 1 through 19 and

41 through 56 run concurrently, and Counts 20 through 40 run consecutively. The court

sentenced appellant to a total prison sentence of twenty years.

{¶12} For the portion of the sentence in which the trial court ran the sentences

consecutively, the court stated as follows: Richland County, Case No. 2022-CA-0016 5

The reason I think some need to be run consecutively is because I believe

it’s necessary to protect the public, to punish the offender, it’s not

disproportionate to the seriousness of the conduct or the danger he poses

to the public, and because in this case at least two or more of the multiple

offenses were committed as part of one or more courses of conduct and

that the harm caused by the two or more multiple offenses was so great or

unusual that no single prison term would adequately reflect the seriousness

of his conduct and that his criminal history --- and I know he doesn’t have a

felony history, but he does have juvenile adjudications and he does have

misdemeanors. And he’s only 27, but he does have quite a few

adjudications as a juvenile, five or six, and about that many misdemeanors.

And those together, you’re talking 10, 11, or 12 prior offenses – his criminal

history and the number of charges in this case, it’s necessary to protect the

public and punish the offender.

{¶13} The trial court entered a sentencing judgment entry on January 11, 2022.

In the judgment entry, the trial court found consecutive sentences are necessary to

protect the public from future crime or to punish the offender, and consecutive sentences

are not disproportionate to the seriousness of the offender’s conduct and to the danger

the offender poses to the public, and because: 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; and the offender’s history of criminal Richland County, Case No. 2022-CA-0016 6

conduct demonstrates that consecutive sentences are necessary to protect the public

from future crime by the offender.

{¶14} The judgment entry states as follows: “the following sentences will be

served concurrently: Counts 1 through 19, and 41 through 56; and the following

sentences will be served consecutively: Counts 20 through 40, for a total prison sentence

of 20 years.”

{¶15} Appellant appeals the judgment entry of the Richland County Court of

Common Pleas, and assigns the following as error:

{¶16} “I. BY CLEAR AND CONVINCING EVIDENCE, THE RECORD DOES NOT

SUPPORT CONSECUTIVE SENTENCES AMOUNTING TO AN AGGREGATE PRISON

TERM OF TWENTY YEARS.

{¶17} “II. THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE

SENTENCES AMOUNTING TO AN AGGREGATE PRISON TERM OF TWENTY-ONE

YEARS WHEN THE COURT’S STATED INTENTION WAS TO MERELY IMPOSE AN

AGGREGATE PRISON TERM OF TWENTY YEARS.”

I.

{¶18} In his first assignment of error, appellant argues the trial court erred in

sentencing him to consecutive sentences.

{¶19} R.C. 2929.14(C)(4) addresses consecutive sentences. That section states:

(4) If multiple prison terms are imposed on an offender for convictions of

multiple offenses, the court may require the offender to serve the prison

terms consecutively if the court finds that the consecutive service is

necessary to protect the public from future crime or to punish the offender Richland County, Case No. 2022-CA-0016 7

and that consecutive sentences are not disproportionate to the seriousness

of the offender’s conduct and to the danger the offender poses to the public,

and if the court also finds any of the following:

(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.

(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 protection the public from future

crime by the offender.

{¶20} When imposing consecutive sentences, a trial court must state the required

findings at the sentencing hearing. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-

3177, 16 N.E.3d 659. Because a court speaks through its journal, the court should also

incorporate its statutory findings into the sentencing entry. Id. However, a word-for-word

recitation of the language of the statute is not required. Id. As long as the reviewing court

can discern the trial court engaged in the correct analysis and can determine the record

contains evidence to support the findings, consecutive sentences should be upheld. Id. Richland County, Case No. 2022-CA-0016 8

{¶21} Appellant concedes that the trial court made the requisite statutory findings

to impose consecutive sentences at the sentencing hearing and in the sentencing entry

under R.C. 2929.14(C)(4). However, appellant argues the record does not support such

findings. Appellant asserts a single prison term would adequately reflect the seriousness

of the offenses because there is no indication appellant was actively abusing children or

that he disseminated any child pornography beyond his own email accounts. Further,

that appellant’s adult criminal history was minimal, and appellant had a history of being

abused himself, which should provide the basis for psychiatric treatment as the first option

for protecting the public.

{¶22} During the sentencing hearing, the trial court considered the purposes and

principles of sentencing under R.C. 2929.11, the seriousness and recidivism factors in

R.C. 2929.12, the pre-sentence investigation, a SAQ risk assessment profile, a

psychological examination of appellant, the arguments of the parties, and the testimony

and compliance report made by pre-trial services. The trial court found consecutive

sentences were necessary to protect the public, to punish appellant, were not

disproportionate to the crimes he committed, and the harm caused by the multiple

offenses was so great or unusual that no single prison term would adequately reflect the

seriousness of this conduct. The trial court specifically noted appellant’s criminal history,

the number of charges in this case all involving child victims, and the fact that appellant’s

bond was revoked while he was awaiting sentencing for having hidden electronic devices,

an encrypted e-mail address, and having Ziploc baggies containing youth panties hidden

in cat litter containers. Richland County, Case No. 2022-CA-0016 9

{¶23} We find the trial court’s sentencing on the charges complies with all

applicable rules and sentencing statutes. Upon our review of the record of the sentencing

hearing and the judgment entry, the trial court engaged in the appropriate analysis and

made the requisite findings. We cannot say that we clearly and convincingly find that the

trial court’s order for consecutive service was not supported by the R.C. 2929.14(C)

factors or that it was contrary to law. The sentence was supported by the record.

Appellant’s first assignment of error is overruled.

II.

{¶24} In appellant’s second assignment of error, he argues the trial court

inadvertently imposed twenty-one years in prison, despite an intent to impose twenty

years. Because the judgment entry states “counts 20 through 40” should be run

consecutively, the court actually imposed a total prison term of twenty-one years because

“counts 20 through 40” includes twenty-one counts. Appellant asks this Court to amend

the sentencing entry.

{¶25} Appellee agrees the trial court erred when ordering counts 20 through 40 to

be served consecutively instead of counts 21 through 40 to be served consecutively.

However, appellee contends the nature of the error can be corrected through a nunc pro

tunc judgment entry from the trial court.

{¶26} A supplemental record was submitted to this Court. On June 21, 2022, the

parties made a joint motion to the trial court to amend the sentencing entry to properly

reflect a sentence of twenty years, as opposed to the twenty-one years imposed in the

sentencing entry. The parties, “agree[d] that this issue is best corrected with a nunc pro Richland County, Case No. 2022-CA-0016 10

tunc entry and suggest[ed] that [the trial court] impose counts 1 through 20 and 41 through

56 concurrently, and counts 21 through 40 consecutively.”

{¶27} On June 24, 2022, the trial court issued a nunc pro tunc sentencing entry.

The entry is identical to the January 11, 2022 judgment entry, except that it states

“concurrently as to Counts 1 through 20 and Counts 41 through 56” and “consecutively

as to Counts 21 through 40, for a total prison sentence of 20 years.”

{¶28} Based upon the nunc pro tunc entry issued by the trial court on June 24,

2022, we find appellant’s second assignment of error moot.

{¶29} Based on the foregoing, appellant’s first assignment of error is overruled.

Appellant’s second assignment of error is moot.

{¶30} Appellant’s sentence from the Richland County Court of Common Pleas is

affirmed.

By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur