State v. Paulino

2017 Ohio 15

• Court: Ohio Court of Appeals
• Decided: January 5, 2017
• Docket: 104198
• Status: Published

Opinion

[Cite as State v. Paulino, 2017-Ohio-15.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 104198

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

EDWIN H. PAULINO DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-595446-A

BEFORE: McCormack, P.J., E.T. Gallagher, J., and Celebrezze, J.

RELEASED AND JOURNALIZED: January 5, 2017 ATTORNEY FOR APPELLANT

Edward M. Heindel 400 Terminal Tower 50 Public Square Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor

By: Carl Sullivan Assistant County Prosecutor 9th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 TIM McCORMACK, P.J.:

{¶1} Defendant-appellant Edwin Paulino appeals from the judgment of the

Cuyahoga County Court of Common Pleas following a guilty plea. For the reasons that

follow, we affirm.

{¶2} Paulino was charged in a 70-count indictment as follows: Count 1 —

pandering sexually oriented matter involving a minor, in violation of

R.C. 2907.322(A)(2); Counts 2-50 — pandering sexually oriented matter involving a

minor, in violation of R.C. 2907.322(A)(1); Counts 51-69 — illegal use of a minor in

nudity-oriented material or performance, in violation of R.C. 2907.323(A)(1); and Count

70 — possessing criminal tools, in violation of R.C. 2923.24(A). The indictment stems

from a Peer to Peer Investigation where Paulino shared child pornography with

investigators from the Internet Crimes Against Children Task Force. The charges relate

to multiple events on different days.

{¶3} On December 16, 2015, Paulino pleaded guilty to Counts 2-50, pandering

sexually oriented matter involving a minor, and Count 70, possessing criminal tools. The

state agreed to dismiss the remaining counts. Prior to sentencing, Paulino obtained new

counsel and moved the court to withdraw his guilty plea. Following a hearing, the trial

court denied Paulino’s motion. Thereafter, the court dismissed Count 70, finding the

count infirm, and sentenced Paulino on Counts 2-50 to 6 years in prison on each count, to

be served concurrently. The court also imposed a $10,000 fine on Count 2. {¶4} Paulino now appeals his conviction, raising the following assignments of

error:

I. The trial court erred when it denied Paulino’s presentence motion to withdraw [his] guilty plea.

II. The trial court erred at sentencing when it did not consider the presentence investigation report as required by [R.C. 2919.19(B)(1)].

III. The trial court erred when it found that Paulino had not overcome the

presumption of a prison sentence as stated in R.C. 2929.13(D)(1) and

(2).

Guilty Plea

{¶5} In his first assignment of error, Paulino contends that the trial court erred

when it denied his motion to withdraw his guilty plea. In support, Paulino claims that he

voiced “genuine concerns” regarding his actual innocence and his computer had not been

analyzed to determine whether the pornographic images had, in fact, been discovered on

his computer.

{¶6} Crim.R. 32.1 governs withdrawals of guilty pleas and provides as follows:

“A motion to withdraw a plea of guilty or no contest may be made only before sentence is

imposed; but to correct manifest injustice the court after sentence may set aside the

judgment of conviction and permit the defendant to withdraw his or her plea.”

Generally, a presentence motion to withdraw a guilty plea should be freely granted. State

v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). It is well established, however,

that a defendant does not have an absolute right to withdraw a guilty plea prior to sentencing. The trial court must, therefore, hold a hearing in order to determine whether

there is a “reasonable and legitimate basis for the withdrawal of the plea.” Id.

{¶7} The decision whether to grant or deny a motion to withdraw a guilty plea is

entirely within the sound discretion of the trial court, and we will not alter the trial court’s

decision absent a showing of an abuse of that discretion. Xie at paragraph two of the

syllabus; State v. Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863 (8th Dist.1980),

syllabus. “‘Unless it is shown that the trial court acted unjustly or unfairly, there is no

abuse of discretion.’” Peterseim at 213, 214, quoting Barker v. United States, 579 F.2d

1219, 1223 (10th Cir.1978).

{¶8} A trial court does not abuse its discretion in denying a motion to withdraw a

guilty plea where the following occurs: (1) the accused is represented by highly

competent counsel; (2) the accused was afforded a full hearing, pursuant to Crim.R. 11,

before he entered the plea; (3) when, after the motion to withdraw is filed, the accused is

given a complete and impartial hearing on the motion; and (4) the record reveals that the

court gave full and fair consideration to the plea withdrawal request. Peterseim at

paragraph three of the syllabus. Additional factors this court has considered include

whether the motion was made in a reasonable time; whether the motion states specific

reasons for withdrawal; whether the accused understood the nature of the charges and the

possible penalties; and whether the accused was perhaps not guilty or had a complete

defense. State v. Benson, 8th Dist. Cuyahoga No. 83178, 2004-Ohio-1677, ¶ 8-9. {¶9} Here, the record demonstrates that Paulino was represented by highly

competent counsel during the plea bargain. Paulino’s attorney successfully negotiated a

plea agreement that resulted in the dismissal of the charges contained in Counts 1 and

51-69. Paulino faced a maximum sentence of 393 years without the benefit of a plea

agreement. As a result of the agreement, however, Paulino received a prison sentence of

six years. Furthermore, Paulino’s counsel ensured that Paulino also consult with an

immigration attorney prior to accepting any plea, because Paulino is a noncitizen of the

United States and possibly subject to deportation. Additionally, Paulino confirmed

during his plea hearing that he was satisfied with the representation of both his

immigration attorney and trial counsel. Finally, at the hearing on Paulino’s motion to

withdraw, the trial court emphasized that it found Paulino’s counsel to be highly

competent.

{¶10} Next, the record shows that Paulino was afforded a full Crim.R. 11 hearing

before he entered his plea and that he understood the nature of the charges and the

possible penalties.

{¶11} Our review of the plea hearing reflects that the trial court engaged in a

thorough Crim.R. 11 colloquy, explaining to Paulino each of the constitutional rights he

would be waiving by pleading guilty. The court provided Paulino an opportunity to ask

the court any questions he may have, and Paulino repeatedly indicated that he understood.

The court also described the offenses and advised Paulino about the possible penalties,

including the maximum sentence, and the consequences of a plea, including deportation. Paulino advised the court that no threats or promises had been made. At no time did

Paulino indicate to the trial court that he did not understand the matters of which he was

advised. Nor was there evidence of confusion or hesitation at the hearing. Finally, the

trial court found that Paulino “knowingly, voluntarily, with a full understanding of his

rights, entered his change of plea.” A trial court’s adherence to Crim.R. 11, raises a

presumption that a plea is voluntarily entered. State v. Elliott, 8th Dist. Cuyahoga No.

103472, 2016-Ohio-2637, ¶ 25; State v. Spence, 8th Dist. Cuyahoga No. 54880, 1989

Ohio App. LEXIS 167, 3 (Jan. 19, 1989).

{¶12} A review of the record also shows that the motion to withdraw the guilty

plea was made in a reasonable time, the motion stated specific reasons for withdrawal,

and the trial court carefully considered the motion in a complete and impartial hearing.

{¶13} The scope of a hearing on a defendant’s motion to withdraw a plea should

reflect the substantive merit of the motion; bold assertions without evidentiary support do

not merit the scrutiny that substantiated allegations would merit. State v. Hall, 8th Dist.

Cuyahoga No. 55289, 1989 Ohio App. LEXIS 1602, 2-3 (Apr. 27, 1989). The scope of

the hearing is within the sound discretion of the trial court. State v. Bosby, 8th Dist.

Cuyahoga No. 94466, 2011-Ohio-599, ¶ 10.

{¶14} In his motion to withdraw his guilty plea, with the assistance of new

counsel, Paulino claimed that he is innocent of the charges, that there was no evidence on

his computer that would support the charges, and that he was denied an opportunity to conduct a forensic review of the hardware containing the allegedly incriminating

evidence against him.

{¶15} At the withdrawal hearing, the court heard from Paulino’s new counsel, who

conceded that, prior to the hearing on Paulino’s motion to withdraw, the trial court

provided an opportunity for counsel and his client to review the evidence in the case and

obtain a forensic expert to review the materials allegedly on Paulino’s computer.

Defense counsel advised the court that the expert confirmed that the evidence supporting

Paulino’s convictions — images and videos — were, in fact, present on the hard drive of

Paulino’s computer. Counsel advised the court that, regardless of the information

confirmed by the expert, Paulino maintains his innocence. Counsel further advised the

court that his client claims that he was not adequately informed of the nature of the

charges and possible defenses and that his plea was not knowing and voluntary.

{¶16} Thereafter, the court heard from the state, which submitted that Paulino had

highly competent counsel, he was given a full Crim.R. 11 hearing, and the prosecutor and

prior defense counsel had met numerous times regarding the discovery in the matter and

Paulino’s immigration consequences. The state submitted that Paulino knowingly and

voluntarily entered a guilty plea and his new claim of innocence is a mere change of

heart, with no evidence in support of his claimed innocence.

{¶17} At this time, the court addressed Paulino, who claimed that he “didn’t really

know what was going on” at the time of the plea hearing, and he explained that he was

expecting “a good outcome.” Paulino further stated that “after a day or two I was thinking, what did I try to do, that I have 51 counts of things that I have never really done

and nobody can prove [it].” Finally, Paulino maintained that he “didn’t even know what

kind of hard drive” supported the charges against him and that his laptop was clean.

Defense counsel offered clarification, stating that the forensic expert confirmed that the

pornographic evidence was discovered on Paulino’s hard drive, not the laptop. The

prosecutor further explained that there was a clerical error on the indictment regarding the

serial number that was associated with the laptop.

{¶18} Prior to making a ruling, the court recalled its thorough Crim.R. 11

colloquy, marking the transcripts of the plea hearing as an exhibit. In particular, the

court noted that the following matters were addressed: the potential maximum sentence;

likely deportation; no threats or promises made; Paulino had no questions for the court;

and there was no language barrier, because he spoke fluent English. Having reviewed

the plea hearing, the court found that Paulino was given a full and fair hearing and

Paulino entered a knowing plea. The court also determined that Paulino was represented

by highly competent counsel. Finally, the court noted that Paulino’s new claim of

innocence is merely a bold assertion, without support, that he is not guilty; however, at

the time of his scheduled trial, Paulino maintained that he was guilty.

{¶19} Where a defendant does not assert his innocence at the plea colloquy, he is

presumed to understand that a guilty plea is a complete admission of guilt. State v. Lee,

8th Dist. Cuyahoga No. 99796, 2014-Ohio-205, ¶ 8, citing State v. Griggs, 103 Ohio

St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, syllabus. Moreover, a mere change of heart regarding a guilty plea and the possible sentence is insufficient justification for the

withdrawal of a guilty plea. Elliott, 8th Dist. Cuyahoga No. 103472, 2016-Ohio-2637, at

¶ 30. “[A] defendant’s protestations of innocence alone are not sufficient grounds for

vacating a plea that was voluntarily, knowingly, and intelligently entered.” Id., citing

State v. Minifee, 8th Dist. Cuyahoga No. 99202, 2013-Ohio-3146, ¶ 27.

{¶20} After considering statements from counsel and the entire record, the trial

court denied Paulino’s motion to vacate his plea. The court found, however, that Count

70, relating to Paulino’s laptop, was infirm, and the court struck the count from Paulino’s

plea.

{¶21} In light of the above, we find the record demonstrates that Paulino was

represented by highly competent counsel, he was given a full Crim.R. 11 hearing before

entering a plea, he was afforded a complete and impartial hearing on his motion, and the

trial court gave full and fair consideration to the plea withdrawal request. Additionally,

there is no evidence in the record that the trial court acted unjustly or unfairly.

Therefore, the trial court did not abuse its discretion in denying Paulino’s motion to

withdraw his guilty plea.

{¶22} Paulino’s first assignment of error is overruled.

Presentence Investigation Report

{¶23} In his second assignment of error, Paulino contends that the trial court erred

when it failed to consider the presentence investigative report (“PSI”) prior to imposing

sentence. {¶24} Crim.R. 32.2 provides that “[i]n felony cases the court shall, and in

misdemeanor cases the court may, order a presentence investigation and report before

imposing community control sanctions or granting probation.” See also R.C.

2951.03(A)(1) (“no person who has been convicted of or pleaded guilty to a felony shall

be placed under a community control sanction until a written presentence investigation

report has been considered by the court.”) Both Crim.R. 32.2 and R.C. 2951.03(A)(1)

“place[] an unavoidable duty on the trial court to obtain a presentence investigation report

in every felony case in which a prison sentence is not imposed.” State v. Amos, 140 Ohio

St.3d 238, 2014-Ohio-3160, 17 N.E.3d 528, ¶ 15. The duty to obtain a presentence

investigation report, therefore, “exists only when a trial court imposes a sentence of

community control.” State v. McDuffie, 8th Dist. Cuyahoga No. 100826,

2015-Ohio-3223, ¶ 5, citing Amos; State v. Kinser, 8th Dist. Cuyahoga No. 101409,

2015-Ohio-684 (finding no duty to obtain a PSI where the trial court imposes a prison

term).

{¶25} Here, the trial court did not impose community control sanctions. Rather,

the court imposed a prison term of six years on each count. The court, therefore, had no

duty to order a PSI.

{¶26} Regardless, the court ordered a PSI in this case. And the record

demonstrates that the court did, in fact, consider the PSI prior to imposing a sentence. In

considering the relevant sentencing factors under R.C. 2929.12, the court noted “positive

things” about Paulino, such as the fact that Paulino has had steady employment and has tested negative for drug use. Such information had necessarily come from the PSI.

Moreover, just before addressing court costs, the court stated that “Mr. Paulino indicated

in his PSI that he does own his own home. He can pay the court costs, as well.”

{¶27} Accordingly, Paulino’s second assignment of error is overruled.

Presumption of Prison

{¶28} In his third assignment of error, Paulino alleges that the trial court erred

when it found that Paulino had not overcome the presumption of prison.

{¶29} When reviewing felony sentences, the reviewing court does not review the

sentence for an abuse of discretion. R.C. 2953.08(G)(2); see also State v. Marcum, 146

Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231. Rather, we may increase, reduce,

modify a sentence, or vacate and remand for resentencing if we clearly and convincingly

find that the record does not support the sentencing court’s statutory findings, if

applicable, or the sentence is contrary to law. State v. Wenmoth, 8th Dist. Cuyahoga No.

103520, 2016-Ohio-5135, ¶ 12, citing R.C. 2953.08(G)(2).

{¶30} 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. Pawlak, 8th Dist. Cuyahoga No. 103444,

2016-Ohio-5926, ¶ 58. Where specific findings are not required, and a sentence is

imposed “solely after consideration of the factors in R.C. 2929.11 and 2929.12,” a

reviewing court “may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the

record does not support the sentence.” Marcum at ¶ 23.

{¶31} 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 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 on the victim, and

consistent with sentences imposed for similar crimes by similar offenders.” R.C.

2929.11(B).

{¶32} 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. The 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 “[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). {¶33} Here, Paulino was convicted of pandering sexually oriented matter involving

a minor, in violation of R.C. 2907.322(A)(1), which is a felony of the second degree.

Second-degree felony convictions carry with them a presumption in favor of prison. See

State v. Friday, 8th Dist. Cuyahoga No. 102774, 2015-Ohio-4909, ¶ 10. R.C.

2929.13(D)(1) provides that for such a felony, “it is presumed that a prison term is

necessary in order to comply with the purposes and principles of sentencing under [R.C.

2929.11].”

{¶34} Under certain circumstances, however, a trial court may depart from that

presumption:

[T]he sentencing court may impose a community control sanction or a combination of community control sanctions instead of a prison term on an offender for a felony of the first or second degree * * * for which a presumption in favor of a prison term is specified as being applicable if it makes both of the following findings:

(a) A community control sanction or a combination of community control sanctions would adequately punish the offender and protect the public from future crime, because the applicable factors under [R.C. 2929.12] indicating a lesser likelihood of recidivism outweigh the applicable factors under that section indicating a greater likelihood of recidivism. (b) A community control sanction or a combination of community

control sanctions would not demean the seriousness of the offense,

because one or more factors under [R.C. 2929.12] that indicate that

the offender’s conduct was less serious than conduct normally

constituting the offense are applicable, and they outweigh the

applicable factors under that section that indicate that the offender’s

conduct was more serious than conduct normally constituting the

offense.

R.C. 2929.13(D)(2).

{¶35} Accordingly, in order to overcome the presumption of prison, the trial court

must make both of the above findings. State v. Reid, 8th Dist. Cuyahoga No. 103186,

2016-Ohio-7475, ¶ 15, citing State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846

N.E.2d 1, paragraph one of the syllabus. The finding requirements of R.C.

2929.13(D)(2) are “only implicated where the court concludes that the presumption of

prison has been rebutted by the relevant seriousness and recidivism factors of R.C.

2929.12.” Reid at ¶ 16. Where the trial court determined, however, that the defendant

has not overcome the presumption, “the trial court had no obligation to support its

enforcement of the presumption of a prison term with findings on the record.” Id. at ¶

17.

{¶36} In this case, Paulino does not claim that the trial court did not make

sufficient findings. Rather, he essentially disagrees with how the court weighed and considered the statutory factors, and he argues that the court should have found the

presumption of prison had been overcome.

{¶37} The trial court has a mandatory duty to “consider” the statutory factors under

R.C. 2929.11 and 2929.12, and the court is not required to engage in any factual findings

under R.C. 2929.11 or 2929.12. State v. Combs, 8th Dist. Cuyahoga No. 99852,

2014-Ohio-497, ¶ 52; State v. Bement, 8th Dist. Cuyahoga No. 99914, 2013-Ohio-5437, ¶

17. “While trial courts must carefully consider the statutes that apply to every felony

case, it is not necessary for the trial court to articulate its consideration of each individual

factor as long as it is evident from the record that the principles of sentencing were

considered.” State v. Gonzalez, 8th Dist. Cuyahoga No. 102579, 2015-Ohio-4765, ¶ 6,

citing State v. Roberts, 8th Dist. Cuyahoga No. 89236, 2008-Ohio-1942, ¶ 10. This court

has held that a trial court’s statement in its sentencing entry that it considered the required

statutory factors, without more, is sufficient to fulfill a sentencing court’s obligations

under R.C. 2929.11 and 2929.12. Gonzalez at ¶ 7.

{¶38} Here, the record demonstrates that the trial court considered R.C. 2929.11

and 2929.12. Prior to imposing sentence, the court noted the principles and purposes of

felony sentencing and advised Paulino of its duty to fashion a sentence that is

“commensurate with and not demeaning to the seriousness of the conduct and its impact

on the child victims here and the community.” The court also considered the “more

serious” factors, stating:

You had multiple, multiple images and videos of children being sexually exploited. And that is harmful to everyone in the community, whether a person is the perpetrator or here the onlooker. It may be in distance, in time and place and such, but using a computer, as you did, you were the onlooker to a child being victimized. And that’s harmful and it corrodes the safety net that we ought to afford our children in the community.

Additionally, the court noted that there were no factors indicating Paulino’s likelihood of

reoffending, and it found “positive things” about Paulino, such as his steady employment

and testing negative for drugs.

{¶39} Ultimately, however, the court considered “everything together” and

imposed prison. In specifically noting the presumption of prison, the court determined

that “more than the minimum” was warranted because of the sheer number of videos, the

child exploitation, the harm to the community, and the fact that the offenses occurred over

a span of one year. Finally, the trial court stated in its sentencing entry that it considered

the required statutory factors.

{¶40} To the extent Paulino disagrees with the court’s consideration of the

sentencing factors or the greater weight it gave to the “more serious” factors than the

mitigating factors, we have no jurisdiction for review. See State v. Switzer, 8th Dist.

Cuyahoga No. 102175, 2015-Ohio-2954, ¶ 12. The trial court has the “‘discretion to

determine the weight to assign a particular statutory factor.’” Id., quoting State v. Arnett,

88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000); see also R.C. 2929.12(A). As our

standard of review is not whether the sentencing court abused its discretion, we have no

jurisdiction to consider whether the court abused its discretion in how it applied R.C.

2929.11 and 2929.12. Switzer; State v. Szakacs, 8th Dist. Cuyahoga No. 101787,

2015-Ohio-1382. Under the circumstances in this case, our review is limited to a determination of whether the sentence is contrary to law. See Marcum, 146 Ohio St.3d

516, 2016-Ohio-1002, 59 N.E.3d 1231. And a defendant’s disagreement with the trial

court’s discretion and the manner in which it weighed each factor does not make a

sentence contrary to law. State v. Ongert, 8th Dist. Cuyahoga No. 103208,

2016-Ohio-1543, ¶ 14; State v. D.S., 10th Dist. Franklin No. 15AP-790, 2016-Ohio-2856,

¶ 15.

{¶41} In light of the foregoing, we find that the trial court considered all of the

relevant statutory factors, and Paulino has not demonstrated by “clear and convincing

evidence that the record does not support the sentence.” Marcum at ¶ 23. Accordingly,

Paulino’s sentence was not contrary to law.

{¶42} Paulino’s third assignment of error is overruled.

{¶43} Judgment affirmed.

It is ordered that appellee recover of appellant 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 conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

__________________________________________ TIM McCORMACK, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and FRANK D. CELEBREZZE, JR., J., CONCUR