[Cite as State v. Gonzales, 2011-Ohio-4415.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 96058
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
ROSELIO GONZALES DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-535203
BEFORE: Rocco, J., Stewart, P.J., and Cooney, J.
RELEASED AND JOURNALIZED: September 1, 2011 2
-i-
ATTORNEYS FOR APPELLANT
Robert L. Tobik Cuyahoga County Public Defender
BY: John T. Martin Assistant Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
BY: Jennifer A. Driscoll Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶ 1} After pleading guilty to two counts of gross sexual imposition
(“GSI”) committed upon a child victim, defendant-appellant Roselio Gonzales
appeals from his sexual offender classification and from the ten-year sentence
he received for his convictions. 3
{¶ 2} Gonzales presents three assignments of error. He argues his
sexual offender classification is incorrect, the trial court failed to engage in a
proportionality analysis prior to sentencing him, and the trial court failed to
make the necessary findings and to provide reasons for imposing consecutive
terms.
{¶ 3} Upon a review of the record, Gonzales’s first assignment of error
has merit; it is clear the parties misunderstood the effect of his plea on his
sexual offender classification. However, Gonzales never brought the issue of
sentence proportionality to the trial court’s attention; thus, he waived the
argument he presents in his second assignment of error. In addition, in State
v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, the Ohio
Supreme Court rejected the argument Gonzales presents in his third
assignment of error, and Gonzales’s sentence is within statutory limits,
consequently, his third assignment of error also lacks merit.
{¶ 4} This case, therefore, is reversed in part, affirmed in part, and
remanded for the trial court to conduct a new sexual offender classification
hearing. The trial court is required under R.C. 2950.01(F)(1)(c) to classify
Gonzales as a Tier II offender.
{¶ 5} Gonzales originally was indicted in this case on two counts of
kidnapping in violation of R.C. 2905.01(A)(4) and two counts of GSI in 4
violation of R.C. 2907.05(A)(4). The two victims were alleged to be under the
age of thirteen, and all of the counts contained a sexually violent predator
specification. The kidnapping counts also contained sexual motivation
specifications.
{¶ 6} Eventually, Gonzales and the state entered into a plea agreement.
The prosecutor informed the trial court that, in exchange for Gonzales’s guilty
pleas to the GSI counts, the state would amend the indictment to dismiss the
sexually violent predator specifications from those counts, and would dismiss
the kidnapping charges. The prosecutor mistakenly told the trial court that
Gonzales would be a “Tier III sexual offender.”
{¶ 7} The trial court asked the prosecutor if that classification was “by
agreement,” and the prosecutor responded, “No. That’s due to the statute.”
Defense counsel indicated the prosecutor’s representations were “correct.”
{¶ 8} The trial court thereupon engaged Gonzales in a colloquy.
Gonzales indicated he understood that his guilty pleas to two third-degree
felonies could subject him to possible punishments “from one to five years in
yearly increments” on both, and that he “would be classified as a Tier III
offender.” The trial court accepted Gonzales’s pleas.
{¶ 9} The sentencing and classification hearing took place a month later.
By that time, the trial court had obtained a presentence report, and the 5
prosecutor had filed a sentencing memorandum. The prosecutor requested
the court to impose the maximum term possible “under the law.”
{¶ 10} After listening to Gonzales, his defense counsel, the parents of one
of the victims, and the prosecutor, the trial court imposed consecutive terms of
five years on each count. The court further advised Gonzales that he was
classified as “a Tier III offender,” and informed him of those registration
requirements.
{¶ 11} Gonzales filed an appeal from his classification and sentences, and
presents the following three assignments of error.
{¶ 12} “I. Pursuant to R.C. 2950.01, the offense of Gross Sexual
Imposition in violation of R.C. 2907.05(A)(4) is a Tier II offense and
the Defendant’s Tier III classification is incorrect.
{¶ 13} “II. The trial court failed to adequately ensure that its
total sentence was proportionate to sentences being given to
similarly situated offenders who have committed similar offenses.
{¶ 14} “III. Appellant’s consecutive sentences are contrary to
law and violative of due process because the trial court failed to
make and articulate the findings and reasons necessary to justify it.”
{¶ 15} Gonzales argues in his first assignment of error that the trial court
improperly classified him as a “Tier III” sexual offender. He contends, in 6
light of the amendments to his indictment made by the state, the relevant
statutory provision mandates a “Tier II” classification. His argument has
merit.
{¶ 16} Pursuant to R.C. 2950.01(F)(1)(c), Gonzales’s conviction for
violation of R.C. 2907.05(A)(4) requires a “Tier II” classification. The state
deleted the sexually violent predator specifications from the counts to which
he entered his guilty pleas. Had Gonzales pleaded guilty to the two counts of
GSI with those specifications attached, he would “automatically” have been
classified as a “Tier III” offender pursuant to R.C. 2950.01(G)(6), but he did
not.
{¶ 17} The transcript of the plea hearing, moreover, clearly reflects that
Gonzales’s acquiescence to the classification was due to a mistake, rather than
due to the plea agreement itself. State v. Powell, 188 Ohio App.3d 232,
2010-Ohio-3247, 955 N.E.2d 85; cf., State v. Grate, Trumbull App. No.
2008-T-0058, 2009-Ohio-4452, ¶44.
{¶ 18} Under these circumstances, Gonzales’s first assignment of error is
sustained.
{¶ 19} In his second assignment of error, Gonzales argues the trial court
failed to engage in the proportionality analysis required by R.C. 2929.11. His
argument is rejected. 7
{¶ 20} This court previously has held that in order to support a
contention that a sentence is disproportionate to sentences imposed upon
other offenders, the defendant must raise this issue before the trial court and
present some evidence, however minimal, in order to provide a starting point
for analysis and to preserve the issue for appeal. State v. Edwards, Cuyahoga
App. No. 89081, 2007-Ohio-6068. In this case, although the state submitted a
sentencing memorandum to the court, Gonzales did not even mention the
issue of proportionality at his sentencing hearing. Consequently, he waived
the issue on appeal. State v. Jordan, Cuyahoga App. No. 91869,
2009-Ohio-3078, ¶17.
{¶ 21} Gonzales’s second assignment of error, accordingly, also is
overruled.
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[Cite as State v. Gonzales, 2011-Ohio-4415.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 96058
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
ROSELIO GONZALES DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-535203
BEFORE: Rocco, J., Stewart, P.J., and Cooney, J.
RELEASED AND JOURNALIZED: September 1, 2011 2
-i-
ATTORNEYS FOR APPELLANT
Robert L. Tobik Cuyahoga County Public Defender
BY: John T. Martin Assistant Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
BY: Jennifer A. Driscoll Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶ 1} After pleading guilty to two counts of gross sexual imposition
(“GSI”) committed upon a child victim, defendant-appellant Roselio Gonzales
appeals from his sexual offender classification and from the ten-year sentence
he received for his convictions. 3
{¶ 2} Gonzales presents three assignments of error. He argues his
sexual offender classification is incorrect, the trial court failed to engage in a
proportionality analysis prior to sentencing him, and the trial court failed to
make the necessary findings and to provide reasons for imposing consecutive
terms.
{¶ 3} Upon a review of the record, Gonzales’s first assignment of error
has merit; it is clear the parties misunderstood the effect of his plea on his
sexual offender classification. However, Gonzales never brought the issue of
sentence proportionality to the trial court’s attention; thus, he waived the
argument he presents in his second assignment of error. In addition, in State
v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, the Ohio
Supreme Court rejected the argument Gonzales presents in his third
assignment of error, and Gonzales’s sentence is within statutory limits,
consequently, his third assignment of error also lacks merit.
{¶ 4} This case, therefore, is reversed in part, affirmed in part, and
remanded for the trial court to conduct a new sexual offender classification
hearing. The trial court is required under R.C. 2950.01(F)(1)(c) to classify
Gonzales as a Tier II offender.
{¶ 5} Gonzales originally was indicted in this case on two counts of
kidnapping in violation of R.C. 2905.01(A)(4) and two counts of GSI in 4
violation of R.C. 2907.05(A)(4). The two victims were alleged to be under the
age of thirteen, and all of the counts contained a sexually violent predator
specification. The kidnapping counts also contained sexual motivation
specifications.
{¶ 6} Eventually, Gonzales and the state entered into a plea agreement.
The prosecutor informed the trial court that, in exchange for Gonzales’s guilty
pleas to the GSI counts, the state would amend the indictment to dismiss the
sexually violent predator specifications from those counts, and would dismiss
the kidnapping charges. The prosecutor mistakenly told the trial court that
Gonzales would be a “Tier III sexual offender.”
{¶ 7} The trial court asked the prosecutor if that classification was “by
agreement,” and the prosecutor responded, “No. That’s due to the statute.”
Defense counsel indicated the prosecutor’s representations were “correct.”
{¶ 8} The trial court thereupon engaged Gonzales in a colloquy.
Gonzales indicated he understood that his guilty pleas to two third-degree
felonies could subject him to possible punishments “from one to five years in
yearly increments” on both, and that he “would be classified as a Tier III
offender.” The trial court accepted Gonzales’s pleas.
{¶ 9} The sentencing and classification hearing took place a month later.
By that time, the trial court had obtained a presentence report, and the 5
prosecutor had filed a sentencing memorandum. The prosecutor requested
the court to impose the maximum term possible “under the law.”
{¶ 10} After listening to Gonzales, his defense counsel, the parents of one
of the victims, and the prosecutor, the trial court imposed consecutive terms of
five years on each count. The court further advised Gonzales that he was
classified as “a Tier III offender,” and informed him of those registration
requirements.
{¶ 11} Gonzales filed an appeal from his classification and sentences, and
presents the following three assignments of error.
{¶ 12} “I. Pursuant to R.C. 2950.01, the offense of Gross Sexual
Imposition in violation of R.C. 2907.05(A)(4) is a Tier II offense and
the Defendant’s Tier III classification is incorrect.
{¶ 13} “II. The trial court failed to adequately ensure that its
total sentence was proportionate to sentences being given to
similarly situated offenders who have committed similar offenses.
{¶ 14} “III. Appellant’s consecutive sentences are contrary to
law and violative of due process because the trial court failed to
make and articulate the findings and reasons necessary to justify it.”
{¶ 15} Gonzales argues in his first assignment of error that the trial court
improperly classified him as a “Tier III” sexual offender. He contends, in 6
light of the amendments to his indictment made by the state, the relevant
statutory provision mandates a “Tier II” classification. His argument has
merit.
{¶ 16} Pursuant to R.C. 2950.01(F)(1)(c), Gonzales’s conviction for
violation of R.C. 2907.05(A)(4) requires a “Tier II” classification. The state
deleted the sexually violent predator specifications from the counts to which
he entered his guilty pleas. Had Gonzales pleaded guilty to the two counts of
GSI with those specifications attached, he would “automatically” have been
classified as a “Tier III” offender pursuant to R.C. 2950.01(G)(6), but he did
not.
{¶ 17} The transcript of the plea hearing, moreover, clearly reflects that
Gonzales’s acquiescence to the classification was due to a mistake, rather than
due to the plea agreement itself. State v. Powell, 188 Ohio App.3d 232,
2010-Ohio-3247, 955 N.E.2d 85; cf., State v. Grate, Trumbull App. No.
2008-T-0058, 2009-Ohio-4452, ¶44.
{¶ 18} Under these circumstances, Gonzales’s first assignment of error is
sustained.
{¶ 19} In his second assignment of error, Gonzales argues the trial court
failed to engage in the proportionality analysis required by R.C. 2929.11. His
argument is rejected. 7
{¶ 20} This court previously has held that in order to support a
contention that a sentence is disproportionate to sentences imposed upon
other offenders, the defendant must raise this issue before the trial court and
present some evidence, however minimal, in order to provide a starting point
for analysis and to preserve the issue for appeal. State v. Edwards, Cuyahoga
App. No. 89081, 2007-Ohio-6068. In this case, although the state submitted a
sentencing memorandum to the court, Gonzales did not even mention the
issue of proportionality at his sentencing hearing. Consequently, he waived
the issue on appeal. State v. Jordan, Cuyahoga App. No. 91869,
2009-Ohio-3078, ¶17.
{¶ 21} Gonzales’s second assignment of error, accordingly, also is
overruled.
{¶ 22} In his third assignment of error, Gonzales argues that the trial
court failed to make the necessary required findings to justify the imposition of
consecutive sentences. Gonzales recognizes that the Ohio Supreme Court
excised those statutory provisions that required judicial fact-finding before
imposing consecutive sentences in State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-856, 845 N.E.2d 470. Nevertheless, he argues that the United
States Supreme Court decision in Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct.
711, 172 L.Ed.2d 517, abrogated Foster. 8
{¶ 23} Gonzales concedes, however, as he must, that the Ohio Supreme
Court recently rejected this argument and held that trial courts are not
obligated to engage in judicial fact-finding prior to imposing consecutive
sentences. State v. Burrell, Cuyahoga App. No. 95512, 2011-Ohio-2533, ¶22,
citing Hodge. This court is bound to follow decisions of the Ohio Supreme
Court. Battig v. Forshey (1982), 7 Ohio App.3d 72, 454 N.E.2d 168, paragraph
three of the syllabus.
{¶ 24} Accordingly, Gonzales’s third assignment of error also is
{¶ 25} Gonzales’s convictions and sentences are affirmed. His sexual
offender classification is reversed, and this case is remanded for a hearing for
the limited purpose of notifying Gonzales that his convictions cause him to be
classified as a “Tier II” offender. It is ordered that appellee and appellant
share 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.
Case remanded to the trial court for execution of sentence. 9
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
_______________________________________ KENNETH A. ROCCO, JUDGE
MELODY J. STEWART, P.J., and COLLEEN CONWAY COONEY, J., CONCUR