State v. Vasquez

2011 Ohio 978

Opinion

[Cite as State v. Vasquez, 2011-Ohio-978.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Julie A. Edwards, J. Hon. Patricia A. Delaney, J. -vs- Case No. 10-COA-021 JOSEPH VASQUEZ

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Ashland County Court of Common Pleas, Case No. 10-CRI-039

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 2, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RAMONA FRANCSCONI ROGERS DOUGLAS A. MILHOAN Ashland County Prosecutor P.O. Box 347 307 Orange Street Middlebranch, Ohio 44652 Ashland, Ohio 44805

PAUL T. LANGE Assistant Prosecuting Attorney 307 Orange Street Ashland, Ohio 44805 Ashland County, Case No. 10-COA-021 2

Hoffman, P.J.

{¶1} Defendant-appellant Joseph Vasquez appeals his sentence entered by

the Ashland County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} In December of 2009, Appellant opened a business banking account at

Farmers & Savings Bank in Ashland, Ohio. Appellant deposited a minimal amount of

cash into the account, and a check from a closed checking account from Key Bank.

The Key Bank account had been closed since May of 2008. Appellant then withdrew a

large sum of money from the check and deposited the remaining amount into the

business banking account. Appellant proceeded to deposit two more checks from the

closed key Bank account into the Farmers & Savings Bank account. When employees

of Farmers & Savings Bank contacted Appellant, he did not return the call or return to

the bank.

{¶3} In January of 2010, Appellant opened a business banking account at First

Merit Bank in Ashland, Ohio. Appellant deposited a check from the Farmers & Savings

account into the First Merit account. Again, Appellant withdrew a large cash sum from

the check, and deposited the remaining amount into the First Merit account. Appellant

repeated this conduct on multiple occasions.

{¶4} Thereafter, Appellant opened a business banking account at Home

Savings Bank in Ashland, Ohio. Similarly, Appellant accepted a large sum of money

from a deposited check on a closed account, and deposited the remaining amount into

the account. Appellant continued in this course of conduct. Ashland County, Case No. 10-COA-021 3

{¶5} As a result, Appellant entered a plea of guilty to and was convicted of five

counts of theft, felonies of the fifth degree, in the Ashland County Court of Common

Pleas Case Number 10CRI039. Appellant was also convicted of three counts of theft,

all felonies of the fifth degree, in the Ashland County Court of Common Pleas, Case

Number 10CRI004. The trial court sentenced Appellant to ten months in prison on each

count, with an aggregate prison term of thirty months.

{¶6} Appellant now appeals, assigning as sole error:

{¶7} “I. THE IMPOSITION OF A PRISON SENTENCE IN THIS CASE

IMPOSES AN UNNECESSARY BURDEN ON STATE RESOURCES.”

{¶8} Based on the record, the transcript of the sentencing hearing and the

subsequent judgment entry, this Court cannot find the trial court acted unreasonably,

arbitrarily, or unconscionably, or that the trial court violated appellant's rights to due

process under the Ohio and United States Constitutions in its sentencing. Further, the

sentence in this case is not so grossly disproportionate to the offense as to shock the

sense of justice in the community.

{¶9} In his assignment of error, Appellant contends his sentence violates the

general assembly's intent to minimize the unnecessary burden on state and local

government resources.

{¶10} In State v. Ober (Oct. 10, 1997), Greene App. No. 97CA0019, the Second

District considered this same issue. In rejecting the argument, the court stated,

{¶11} “Ober is correct that the ‘sentence shall not impose an unnecessary

burden on state or local government resources.’ R.C. 2929.19(A). According to criminal

law experts, this resource principle ‘impacts on the application of the presumptions also Ashland County, Case No. 10-COA-021 4

contained in this section and upon the exercise of discretion.’ Griffin & Katz, Ohio

Felony Sentencing Law (1996-97), 62. Courts may consider whether a criminal sanction

would unduly burden resources when deciding whether a second-degree felony

offender has overcome the presumption in favor of imprisonment because the resource

principle is consistent with the overriding purposes and principles of felony sentencing

set forth in R.C.2929.11. Id.”

{¶12} The Ober court concluded,

{¶13} “[a]lthough resource burdens may be a relevant sentencing criterion, R.C.

2929.13(D) does not require trial courts to elevate resource conservation above the

seriousness and recidivism factors. Imposing a community control sanction on Ober

may have saved state and local government funds; however, this factor alone would not

usually overcome the presumption in favor of imprisonment.” Id.

{¶14} R.C. 2929.13 governs sentencing guidelines for various specific offenses

and degrees of offenses. Subsection (A) states, in pertinent part:

{¶15} “Except as provided in division (E), (F), or (G) of this section and unless a

specific sanction is required to be imposed or is precluded from being imposed pursuant

to law, a court that imposes a sentence upon an offender for a felony may impose any

sanction or combination of sanctions on the offender that are provided in sections

2929.14 to 2929.18 of the Revised Code. The sentence shall not impose an

unnecessary burden on state or local government resources.”

{¶16} As we noted in State v. Ferenbaugh, Ashland App. No. 03COA038, 2004-

Ohio-977 at paragraph 7, “[t]he very language of the cited statute grants trial courts

discretion to impose sentences. Nowhere within the statute is there any guideline for Ashland County, Case No. 10-COA-021 5

what an ‘unnecessary burden’ is.” Moreover, in State v. Shull, Ashland App. No.2008-

COA-036, 2009-Ohio-3105, this Court reviewed a similar claim. We found although

burdens on State resources may be a relevant sentencing criteria as set forth in R.C.

2929.13, state law does not require trial courts to elevate resource conservation above

seriousness and recidivism factors, Shull, at paragraph 22, citing State v. Ober (October

10, 1997), Greene App. No. 97CA0019, 1997 WL 624811.

{¶17} Upon review, we do not find the sentence imposed was an unnecessary

burden on state resources. The sole assignment of error is overruled.

By: Hoffman, P.J.

Edwards, J. and

Delaney, J. concur

s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS

s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY Ashland County, Case No. 10-COA-021 6

IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : JOSEPH VASQUEZ : : Defendant-Appellant : Case No. 10-COA-021

For the reasons stated in our accompanying Opinion, the judgment of the

Ashland County Court of Common Pleas is affirmed. Costs to Appellant.

s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY