State v. Poveda

2025 Ohio 1075

• Court: Ohio Court of Appeals
• Decided: March 28, 2025
• Docket: C-240496
• Status: Published

Opinion

[Cite as State v. Poveda, 2025-Ohio-1075.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-240496 TRIAL NO. B-2302656 Plaintiff-Appellee, :

vs. : OPINION LUIS GUTIERREZ POVEDA, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: March 28, 2025

Connie M. Pillich, Hamilton County Prosecuting Attorney, and John D. Hill, Jr., Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Bryan R. Perkins, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

CROUSE, Judge.

{¶1} In this appeal, we are asked to determine whether the trial court

improperly considered defendant-appellant Luis Gutierrez Poveda’s immigration

status when imposing a maximum sentence for the offense of rape. We hold that it did

not.

{¶2} Because the trial court did not improperly consider Poveda’s

immigration status, and because our appellate review does not permit this court to

independently weigh the factors in R.C. 2929.12 to determine whether the imposed

sentence was supported by the record, we find Poveda’s challenge to the trial court’s

imposition of the maximum sentence to be without merit and we affirm the trial

court’s judgment.

I. Factual and Procedural History

{¶3} Poveda and the victim of his offense, K.C., worked together at a cigar

factory in Nicaragua before separately coming to the United States. Upon arriving in

the United States, they both settled in Cincinnati, and K.C. moved into Poveda’s home.

One night, while under the influence of alcohol, Poveda made advances toward K.C.

She refused his advances, and he raped her.

{¶4} Poveda was indicted on four counts of rape in violation of R.C.

2907.02(A)(2), all of which were felonies of the first degree, and one fourth-degree

felony count of gross sexual imposition in violation of R.C. 2907.05(A)(1). Poveda pled

guilty to one count of rape and the remaining charges were dismissed.

{¶5} At the sentencing hearing, the trial court stated that it had reviewed the

victim-impact statement, the presentence investigation report, and Poveda’s

sentencing memorandum. It listed the purposes of felony sentencing and

acknowledged that, in imposing sentence, it was to be guided by the sentencing factors

2 OHIO FIRST DISTRICT COURT OF APPEALS

in the Revised Code. The court told Poveda, “I see your conduct,” and it noted that the

victim suffered serious physical and psychological harm. The court found that Poveda

had been in a position of trust with the victim and that his relationship with her

facilitated the offense, as she had been living in his house as a household member.

{¶6} The court then noted that Poveda was “in the country as an asylum

seeker, that [he] abandoned that, making [him] an illegal resident of the United

States.” The court further noted that although Poveda showed genuine remorse, it

could not imagine a “more worse form of the offense.”

{¶7} The trial court imposed a maximum, indefinite sentence of 11 years to

16 years and six months of imprisonment. Poveda now appeals.

II. Sentencing

{¶8} In a single assignment of error, Poveda argues that the trial court erred

by imposing the maximum possible prison sentence.

{¶9} Pursuant to R.C. 2953.08(G)(2), we may only modify or vacate a felony

sentence if we clearly and convincingly find that the record does not support the trial

court’s sentencing findings under certain specified divisions, including “division (B)

or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division

(I) of section 2929.20 of the Revised Code,” or if we find that the sentence is otherwise

contrary to law. See State v. Truesdell, 2024-Ohio-5376, ¶ 72 (1st Dist.).

{¶10} Poveda argues that a review of the seriousness and recidivism factors in

R.C. 2929.12 establishes that the imposition of the maximum sentence was not

supported by the record. But reviewing and weighing the factors in R.C. 2929.12

exceeds the permissible bounds of our appellate review. An appellate court cannot

vacate or modify a sentence under R.C. 2953.08(G)(2)(b) “based on its view that the

sentence is not supported by the record under R.C. 2929.11 and 2929.12.” State v.

3 OHIO FIRST DISTRICT COURT OF APPEALS

Jones, 2020-Ohio-6729, ¶ 39; accord State v. Smith, 2024-Ohio-2187, ¶ 14 (1st Dist.).

{¶11} In a similar vein, Poveda takes issue with the trial court’s statement that

his behavior was the “worse form” of the offense. He argues both that his sentence was

contrary to law because this was not a proper factor for the trial court’s consideration

and that the record does not support this determination.

{¶12} With respect to the former argument, we hold that the trial court

properly considered whether Poveda’s conduct was the worst form of the offense

pursuant to the directives of R.C. 2929.12(B), which require the trial court to consider

whether “the offender’s conduct is more serious than conduct normally constituting

the offense.” See State v. Mincey, 2018-Ohio-662, ¶ 43 (1st Dist.) (holding that the

trial court’s statements at sentencing, including that the offender “committed ‘the

worst possible offense,’” demonstrated that the court considered the factors in R.C.

2929.11 and 2929.12). With respect to Poveda’s latter argument, we cannot vacate or

modify his sentence based on the trial court’s determination that his behavior

constituted the worst form of the offense because we are not permitted to

independently review and weigh the factors in R.C. 2929.12. Jones at ¶ 39; Smith at ¶

14.

{¶13} Poveda last argues that his sentence was contrary to law because the

trial court improperly considered his immigration status when imposing sentence. In

support of this assertion, he relies on the trial court’s statement at the sentencing

hearing that he was “an illegal resident of the United States.” He argues that his

immigration status was a consideration extraneous to those permitted by R.C. 2929.11

and 2929.12.

{¶14} In State v. Mateo, 2002-Ohio-6852, ¶ 5 (1st Dist.), this court held that

an offender’s “illegal-alien status may have had some bearing as an ‘other relevant

4 OHIO FIRST DISTRICT COURT OF APPEALS

factor’ under R.C. 2929.12.” In Mateo, we ultimately reversed the appellant’s sentence

after holding that the trial court had ignored the applicable felony-sentencing statutes

providing that there was a presumption of community control for the offense that

Mateo had committed and had sentenced Mateo to prison “merely because of his

status as an illegal alien.” Id. at ¶ 5, 7-8.

{¶15} Here, the trial court did not sentence Poveda to prison merely because

of his immigration status. Rather, Poveda’s immigration status was one of many

considerations that the trial court relied on when imposing sentence, including the

nature of the offense, Poveda’s relationship with K.C., and the effect of the offense on

K.C. Unlike Mateo, the trial court did not ignore the relevant sentencing guidelines or

statutes when electing to impose a maximum sentence. Compare id. at ¶ 7. The trial

court’s reference to Poveda’s immigration status was also tied to statements that the

trial court had made earlier in the sentencing hearing, in which it had informed Poveda

that he was likely to be deported after serving his sentence.

{¶16} We find no error in the trial court’s reference of Poveda’s immigration

status at sentencing, and we hold that the trial court did not err in imposing a

maximum sentence. Poveda’s assignment of error is overruled, and the judgment of

the trial court is accordingly affirmed.

Judgment affirmed.

KINSLEY, P.J., and NESTOR, J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.