State v. Paulino

2016 Ohio 5553

• Court: Ohio Court of Appeals
• Decided: August 29, 2016
• Docket: 16CA0003-M
• Status: Published

Opinion

[Cite as State v. Paulino, 2016-Ohio-5553.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )

STATE OF OHIO C.A. No. 16CA0003-M

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE JESUS PAULINO COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO Appellant CASE No. 14CR0885

DECISION AND JOURNAL ENTRY

Dated: August 29, 2016

HENSAL, Judge.

{¶1} Jesus Paulino appeals his sentence for gross sexual imposition in the Medina

County Court of Common Pleas. For the following reasons, this Court affirms.

I.

{¶2} Mr. Paulino pleaded guilty to one count of gross sexual imposition, a felony of the

fourth degree. At sentencing, the court stated that “[t]here appears to be a presumption in favor

of prison in this matter due to the fact that this is a sex offense.” It proceeded to sentence Mr.

Paulino to 18 months imprisonment, the maximum amount for the offense. Mr. Paulino has

appealed, arguing that the trial court incorrectly stated that his offense carried a “presumption” of

prison.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT COMMITTED ERROR AS A MATTER OF LAW WHEN IT FOUND THAT THERE IS A STATUTORY PRESUMPTION OF PRISON 2

FOR A FOURTH-DEGREE FELONY CONVICTION OF OHIO REVISED CODE § 2907.05(A)(1).

{¶3} Mr. Paulino argues that the trial court made a legally incorrect statement at

sentencing when it said that his conviction carried a presumption of imprisonment. He also

argues that, even if the court did not misread the sentencing statutes, it abused its discretion when

it gave him the maximum prison term for the offense.

{¶4} The Ohio Supreme Court has recently explained that, in reviewing a felony

sentence under Revised Code Section 2953.08(G)(2), “an appellate court may vacate or modify a

felony sentence on appeal only if it determines by clear and convincing evidence” that (1) “the

record does not support the trial court’s findings under relevant statutes[,]” or (2) “the sentence is

otherwise contrary to law.” State v. Marcum, Slip Opinion No. 2016-Ohio-1002, ¶ 1. Clear and

convincing evidence is that “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 (1954),

paragraph three of the syllabus.

{¶5} Section 2907.05, which concerns the offense of gross sexual imposition, provides

that, in certain circumstances, “there is a presumption that a prison term shall be imposed for the

offense.” R.C. 2907.05(C)(2). The presumption applies if the offender violated Sections

2907.05(A)(4) or (B), which involve victims under the age of 12 or 13. Id. Mr. Paulino, on the

other hand, pleaded guilty to violating Section 2907.05(A)(1), which does not carry a

presumption of prison. Instead, Section 2929.13(B)(1)(b)(v) provides that a sentencing court

“has discretion to impose a prison term upon an offender who is convicted of or pleads guilty to

a felony of the fourth * * * degree * * * that * * * is a sex offense * * *.”

{¶6} Upon review of the appellate record, we note that the presentence investigation

(PSI) report has not been made part of the record. “It is the appellant’s responsibility to ensure 3

that the record on appeal contains all matters necessary to allow this Court to resolve the issues

on appeal.” State v. Yuncker, 9th Dist. Medina No. 14CA0068-M, 2015-Ohio-3933, ¶ 17, citing

App.R. 9. “[If] an appellant does not provide a complete record to facilitate our review, we must

presume regularity in the trial court’s proceedings and affirm.” State v. McGowan, 9th Dist.

Summit No. 27092, 2014-Ohio-2630, ¶ 6, quoting State v. Taylor, 9th Dist. Lorain Nos.

13CA010366, 13CA010367, 13CA010368, 13CA010369, 2014-Ohio-2001, ¶ 6.

{¶7} Because the appellate record is incomplete, we conclude that it is unnecessary to

determine if the trial court’s statement’s was incorrect. Without the context that the PSI report

might provide about the court’s statement, we cannot conclude that there is clear and convincing

evidence in the record that Mr. Paulino’s sentence is contrary to law. R.C. 2953.08(G)(2). Mr.

Paulino’s assignment of error is overruled.

III.

{¶8} Mr. Paulino’s assignment of error is overruled. The judgment of the Medina

County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 4

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

JENNIFER HENSAL FOR THE COURT

SCHAFER, J. CONCURS.

MOORE, P.J. CONCURS IN JUDGMENT ONLY.

APPEARANCES:

DONALD GALLICK, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting Attorney, for Appellee.