State v. Hernandez

2017 Ohio 4157

Opinion

[Cite as State v. Hernandez, 2017-Ohio-4157.] STATE OF OHIO, BELMONT COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 16 BE 0008 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) ARTURO DIAZ HERNANDEZ ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 15 CR 217

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee: Atty. Daniel P. Fry Belmont County Prosecutor Atty. Kevin Flanagan Chief Assistant Prosecuting Attorney 147-A West Main Street St. Clairsville, Ohio 43950

For Defendant-Appellant: Atty. Zachary T. Zilai 409 Walnut Street Martins Ferry, Ohio 43935

Arturo Diaz Hernandez, Pro se #723-675 15708 McConnelsville Road Caldwell, Ohio 43724

JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Carol Ann Robb Dated: June 5, 2017 [Cite as State v. Hernandez, 2017-Ohio-4157.] WAITE, J.

{¶1} Appellant Arturo Diaz Hernandez appeals from his sentence following a

Crim.R. 11 plea agreement he entered into in the Belmont County Common Pleas

Court. Appellant’s counsel filed a no merit brief requesting leave to withdraw. A

review of the record reveals there are no appealable issues. Thus, Appellant’s

appointed counsel’s motion to withdraw is granted and the judgment of the trial court

is affirmed.

Factual and Procedural History

{¶2} The following facts were derived from the record and are not in dispute.

On September 12, 2015 at approximately 6:30 p.m., Appellant attempted to pass

three cars on a two-lane highway in a no-passing zone. Appellant moved into the

lane with oncoming traffic to begin attempting to pass the cars, and ultimately struck

a vehicle in the oncoming lane head-on. Appellant stopped his vehicle and

approached the other wrecked car, but then fled on foot. He was later discovered

lying in a ditch approximately one-half mile from the crash site. At the scene of the

crash, police discovered a few full bottles of beer and several empty ones in

Appellant’s vehicle. The other vehicle had four passengers who sustained various

serious injuries. The driver, Avery Coss, age 30, suffered a broken leg. Front

passenger Amanda Woods, age 22, suffered a collapsed lung, lacerated spleen and

broken right wrist. Passenger A.C., age 8, suffered lacerations to his face and a

contusion on his lung and passenger J.W., age 4, suffered abdominal contusions.

{¶3} After being discovered by police, Appellant was taken to the St.

Clairsville, Ohio Police Department and was given a breath test. Appellant tested at -2-

.238 BAC, or nearly three times the legal alcohol limit. He was charged with three

counts of aggravated vehicular assault, in violation of R.C. 2903.08(A)(1)(a) and

(B)(1)(a); driving while under the influence, in violation of R.C. 4511.19(A)(1)(h); and

operating a motor vehicle without a valid operator’s license, in violation of R.C.

4510.11(B).

{¶4} On February 1, 2016, Appellant entered a guilty plea. Through a

certified interpreter, Appellant indicated that he fully understood his plea agreement,

had been fully informed of both his constitutional and nonconstitutional rights, and

that he was entering his plea voluntarily. (2/1/16 Tr., pp. 5-15.) Appellant pleaded to

one count of aggravated vehicular assault, a felony of the second degree, in violation

of R.C. 2903.08(A)(1); and one count of operating a vehicle while under the

influence, in violation of R.C. 4511.19(A)(1)(h). The remaining counts in the

indictment were nolled.

{¶5} On March 4, 2016, a sentencing hearing was held. Another certified

interpreter was present during the proceedings. Counsel for Appellant stated that he

had reviewed with Appellant what would happen and advised that he had submitted a

sentencing memorandum requesting a three-year term of imprisonment. The trial

court sentenced Appellant to eight years of incarceration. Appellant filed this timely

appeal.

No Merit Brief

{¶6} Appellate counsel seeks to withdraw from representation after reviewing

the record and finding no potentially meritorious arguments for appeal. This filing of a

no merit brief is made pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, -3-

18 L.E.2d 493 (1967). This Court has addressed this no merit brief in State v. Toney,

23 Ohio App.2d 203, 262 N.E.2d 419 (7th Dist.1970). In Toney, this Court

established the procedure to be undertaken when appellate counsel wishes to

withdraw from a case based upon a frivolous appeal.

3. Where a court-appointed counsel, with long and extensive

experience in criminal practice, concludes that the indigent's appeal is

frivolous and that there is no assignment of error which could be

arguably supported on appeal, he should so advise the appointing court

by brief and request that he be permitted to withdraw as counsel of

record.

4. Court-appointed counsel's conclusions and motion to withdraw as

counsel of record should be transmitted forthwith to the indigent, and

the indigent should be granted time to raise any points that he chooses,

pro se.

5. It is the duty of the Court of Appeals to fully examine the

proceedings in the trial court, the brief of appointed counsel, the

arguments pro se of the indigent, and then determine whether or not

the appeal is wholly frivolous.

***

7. Where the Court of Appeals determines that an indigent's appeal is

wholly frivolous, the motion of court-appointed counsel to withdraw as -4-

counsel of record should be allowed, and the judgment of the trial court

should be affirmed.

Id. at syllabus.

{¶7} Appellate counsel filed a no merit brief in this matter on July 28, 2016.

On September 16, 2016, Appellee filed a reply brief in the matter. On October 26,

2016, this Court issued a judgment entry informing Appellant of counsel’s no merit

brief and granting him 30 days to file his own written brief. On November 18, 2016,

Appellant filed a pro se brief.

{¶8} The no merit brief filed by appointed appellate counsel identifies one

potential issue for appeal: whether the trial court erred in sentencing Appellant to the

maximum sentence for his first felony offense. In reviewing this possible appellate

argument, counsel concludes it has no merit and the appeal is frivolous.

{¶9} Toney requires that we independently review Appellant’s case for

issues that could possibly be raised on appeal. As indicated, appointed appellate

counsel has identified one such issue. To the extent that they can be ascertained

from Appellant’s pro se brief, he has also identified certain issues.

Maximum Sentence

{¶10} Looking first at counsel’s potential issue, in order to challenge a

maximum sentence, an appellate court must establish by clear and convincing

evidence that the record does not support the findings of the trial court or that the

sentence is otherwise contrary to law. State v. Marcum, 146 Ohio St.3d 516, 2016-

Ohio-1002, 59 N.E.3d 1231, ¶ 1. Thus, we may increase, reduce, modify, or vacate

and remand for resentencing if we clearly and convincingly find that the record does -5-

not support the sentencing court’s statutory findings, if applicable, or if the sentence

is contrary to law. State v. Grier, 7th Dist. No. 15 MA 0085, 2016-Ohio-8036, ¶ 9.

{¶11} A sentence is contrary to law if the sentence falls outside the statutory

range for the particular degree of offense or if the trial court fails to consider the

purposes and principles of felony sentencing set forth in R.C. 2929.11 and the

sentencing factors set forth in R.C. 2929.12. State v. Shaw, 7th Dist. No. 15 BE

0065, 2017-Ohio-1259.

{¶12} R.C. 2929.11(A) provides that the overriding purposes of felony

sentencing are (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

to accomplish those purposes without imposing an unnecessary burden on state or

local government resources. Further, the sentence imposed shall be “commensurate

with and not demeaning to the seriousness of the offender's conduct and its impact

upon the victim, and consistent with sentences imposed for similar crimes committed

by similar offenders.” R.C. 2929.11(B).

{¶13} R.C. 2929.12 provides a nonexhaustive list of sentencing factors the

trial court must consider when determining the seriousness of the offense and the

likelihood that the offender will commit future offenses. A court that imposes a felony

sentence has the discretion to determine the most effective way to comply with the

purposes and principles of sentencing. R.C. 2929.12(A). The factors a trial court

may consider include the “more serious” factors, such as “[t]he physical or mental

injury suffered by the victim of the offense due to the conduct of the offender was

exacerbated because of the physical or mental condition or age of the victim” and -6-

“[t]he victim of the offense suffered serious physical, psychological, or economic

harm as a result of the offense.” R.C. 2929.12(B)(1) and (2). The court may also

consider the “less serious” factors, any recidivism factors, and any mitigating factors

listed in R.C. 2929.12(C)-(F).

{¶14} Here, Appellant entered a plea of guilty to one count of aggravated

vehicular assault, a felony of the second degree, in violation of R.C. 2903.08(A)(1);

and one count of operating a vehicle while under the influence, in violation of R.C.

4511.19(A)(1)(h). The maximum prison sentence for this felony offense is eight

years. R.C. 2929.14(A)(2). Moreover, pursuant to R.C. 2929.13(F), it is presumed

that prison is necessary to comply with the purposes and principles of sentencing.

Therefore, the sentence was in accordance with the statutory range.

{¶15} At the sentencing hearing, the trial court noted that it had considered

R.C. 2929.11, R.C. 2929.12, the presentence investigation report, defense counsel’s

sentencing memorandum, and the victim impact statements. (3/4/16 Tr., pp. 8-9.)

The trial court highlighted certain facts, including that Appellant had fled the scene,

had a 0.238 blood alcohol content, and had inflicted serious injuries on the victims.

None of the victims testified at the hearing, but the trial court quoted portions of the

submitted statements which included, inter alia: “[h]e ran like a coward", "[n]ot even

asking any help from bystanders if we were even alive", "[m]y face hurt and I could

feel blood running from it", and "[m]y daughter [was] yelling for me," and “[my

daughter] was terrified and crying.” Id. at 11.

{¶16} The sentencing entry also sets forth the trial court’s findings regarding

Appellant’s sentence: -7-

1. Defendant has a history of criminal convictions including Two

Counts of Disturbing the Peace (one count charged as Domestic

Violence), DUS, No Operator’s License, and Failure to Appear;

2. Four victims suffered serious injuries as a result of Defendant’s

actions;

3. Defendant had not expressed remorse until the sentencing hearing;

and

4. Defendant had no insurance and no license.

In accord with R.C. §2929.12 (C) and (E), which suggests that

recidivism is less likely, the Court finds:

The Court finds that no additional mitigating factors that exist which

suggest that recidivism is less likely.

The Court further finds that the Defendant has not previously served

time in prison for criminal offenses.

(3/4/16 J.E., p. 2.)

{¶17} In his pro se brief, Appellant contends that his sentence is contrary to

law because the trial court was limited in its ability to impose the maximum sentence

on a first time felony offender. This is not an accurate statement for the offenses to

which Appellant pleaded guilty. In fact, it is presumed that prison is necessary to

comply with the purposes and principles of sentencing R.C. 2929.13(F). -8-

{¶18} The record before us reveals the trial court strictly complied with making

the requisite findings under R.C. 2929.11 and .12 both at the sentencing hearing and

in its sentencing entry. Furthermore, the sentence is within the permissible statutory

range for the offenses. Thus, there is nothing in the record before us to provide clear

and convincing evidence that the record does not support Appellant’s sentence.

{¶19} In sum, the potential assignment of error raised by appointed appellate

counsel and Appellant himself in his pro se brief before us are without merit and our

own independent review of the record reveals no appealable issues. The conviction

and sentence is affirmed and counsel’s motion to withdraw is granted.

Donofrio, J., concurs.

Robb, P.J., concurs.