[Cite as State v. Galindo-Barjas,

.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 12 MA 37 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) VICTOR M. GALINDO-BARJAS ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 11 CR 833

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503

For Defendant-Appellant: Atty. Anthony Meranto Atty. Louis Defabio 4822 Market Street, Suite 220 Youngstown, Ohio 44512

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: February 5, 2013 [Cite as State v. Galindo-Barjas,

.] WAITE, J.

{¶1} Appellant Victor M. Galindo-Barjas appeals his felony sentence of two

consecutive four-year prison terms after pleading guilty to two counts of aggravated

vehicular assault, third degree felonies, and one count of operating a motor vehicle

under the influence of alcohol (“OMVI”), a first degree misdemeanor. The trial court

sentenced Appellant to less than the ten-year prison term recommended by the

prosecutor. Appellant argues that the court abused its discretion by basing its

sentence on the harm to victim when “serious physical harm” was already a part of

the definition of aggravated vehicular assault. Appellant argues that the court cannot

use an element of the crimes as a factor supporting consecutive sentences. In this

instance, we cannot agree. Even though “serious physical harm” is an element of

aggravated vehicular assault, there is a range of harm possible within the concept of

what constitutes “serious physical harm.” The court was permitted to consider the

kind and extent of harm to the victim as a basis for the sentence even though it forms

an element of the crime as well. Appellant's further assertion that the trial court failed

to consider any other relevant factor is mere speculation that is not supported by the

record.

{¶2} Appellant also contends that the imposition of consecutive sentences

was incorrect because the court did not give reasons to support consecutive

sentences. Appellant seems to be aware that, under the newly enacted sentencing

statutes, the trial court must make certain findings before imposing consecutive

sentences, but the law does not require the judge to articulate reasons in support of -2-

the findings. The record reflects that the court made the necessary findings. The

judgment of the trial court is affirmed.

{¶3} On July 25, 2011, Appellant was involved in a head-on car collision.

There were two people in the other vehicle, and they suffered severe injuries from the

accident. Appellant was intoxicated at the time. He was indicted on November 16,

2011. Appellant pleaded guilty to two counts of aggravated vehicular assault, R.C.

2903.08(A)(1)(a), a third degree felony, and one count of OMVI, R.C.

4511.19(A)(1)(a), a first degree misdemeanor. One of the terms of the plea was that

the prosecutor would recommend a ten-year prison term, signifying maximum

consecutive prison terms for the two felonies.

{¶4} On January 27, 2012, the trial court held a sentencing hearing. One of

the victims, Lauren Carissimi, testified at the hearing about the extent of her injuries.

She sustained a broken humerus bone, torn neck ligaments, and suffered radial

nerve palsy. (1/27/12 Tr., p. 4.) She testified that the accident “caused unspeakable,

unthinkable, unimaginable despair, pain, suffering, deep grief emotionally and

physically to me and everyone around me, and it is very difficult for me to put it into

words.” (1/27/12 Tr., p. 5.) She thought she was going to die. She was hospitalized

and endured surgery. She has had both physical and psychological therapy because

of the accident. She also stated that her boyfriend's injuries “were far worse than

mine.” (1/27/12 Tr., p. 4.) She requested imposition of the maximum possible

punishment for the crime. -3-

{¶5} The other victim, Bruce Alan Minnotti, Jr., testified that he has lasting

physical scars from his injuries, which included a broken elbow, broken pelvis,

dislocated ankle, broken bones in his foot, nerve and ligament damage, and

“indescribable pain.” (1/27/12 Tr., pp. 7-8.) He has a permanent limp, can no longer

run, cannot work, and spends much of his life in bed because of the accident. His

schooling has been set back at least one year due to the accident. He also

described the emotional and financial toll he has endured from the accident.

{¶6} The court sentenced Appellant to two prison terms of four years each

for the two felony counts, to be served consecutively, and 180 days in jail for OMVI,

to be served concurrently. The court included the statutory findings required to

impose consecutive prison terms as set forth in newly revised R.C. 2929.14(C)(4).

The court's judgment entry was filed January 31, 2012, and this timely appeal

followed.

ASSIGNMENT OF ERROR

THE TRIAL COURT’S SENTENCE OF TWO (2) CONSECUTIVE

FOUR (4) YEAR TERMS OF IMPRISONMENT WAS CONTRARY TO

LAW AND CONSTITUTED AN ABUSE OF DISCRETION.

{¶7} Appellant asserts two sentencing errors under this assignment. First,

he argues that the trial court abused its discretion by considering an element of the

crime as an aggravating sentencing factor. Appellant states that the trial court

imposed consecutive sentences based on the serious physical harm suffered by the

victims, even though “serious physical harm” is one of the elements of aggravated -4-

vehicular assault. Appellant contends that a court cannot use an essential element

of a crime as a factor to enhance a sentence beyond the minimum sentence.

Appellant also argues that the trial court failed to give reasons to support the

consecutive sentences, hence, concurrent sentences should be imposed. Neither

argument is persuasive.

{¶8} We review felony sentences using both the “clearly and convincingly

contrary to law” standard and the “abuse of discretion” standard. State v. Gratz, 7th

Dist. No. 08MA101,

; State v. Gray, 7th Dist. No. 07MA156, 2008-

Ohio-6591, ¶17. The reviewing court first determines whether the sentencing court

complied with all applicable rules and statutes in imposing the sentence to determine

whether the sentence is clearly and convincingly contrary to law. Gratz at ¶8, citing

State v. Kalish, 120 Ohio St .3d 23,

,

. Then,

if the sentence is not clearly and convincingly contrary to law, the reviewing court

must determine whether the sentencing court abused its discretion in applying the

factors in R.C. 2929.11, R.C. 2929.12, or any other applicable statute. Gratz at ¶8,

citing Kalish at ¶17.

{¶9} R.C. 2929.12(B) and (C) contain various factors that the trial court must

consider in determining whether a defendant's conduct is more or less serious than

conduct normally constituting the offense. The trial court is not confined only to the

factors listed in the statute and may consider “any other relevant factors”. R.C.

2929.12(B). Appellant contends that the only factor the trial court relied on in

sentencing is found in R.C. 2929.12(B)(2), namely, “[t]he victim of the offense -5-

suffered serious physical, psychological, or economic harm as a result of the

offense.” This assumption is not borne out by the record. The sentencing transcript

indicates that the trial judge considered the presentence investigation, the sentences

handed out in other similar cases, and “the factors contained in Section 2929 of the

Revised Code”. (1/27/12 Tr., p. 18.)

{¶10} Assuming for the sake of argument that the judge did consider only one

factor at sentencing, Appellant further contends that the court should not have relied

on serious physical harm to enhance the sentence because it is part of the definition

of the crime. Aggravated vehicular assault is defined in R.C. 2903.08(A) as:

No person, while operating or participating in the operation of a motor

vehicle, motorcycle, snowmobile, locomotive, watercraft, or aircraft,

shall cause serious physical harm to another person or another's

unborn in any of the following ways:

(1)(a) As the proximate result of committing a violation of division (A) of

section 4511.19 of the Revised Code or of a substantially equivalent

municipal ordinance; (Emphasis added.)

{¶11} Appellant submits that to enhance a sentence, the court must look to

some fact beyond or besides one which comprises a basic element of the crime. In

some instances, Appellant would be correct. He cites State v. Stroud, 7th Dist. No.

07 MA 91,

, in support. In Stroud, the defendant was convicted of

voluntary manslaughter. An element of the offense is that the defendant knowingly

caused the death of another. The trial court sentenced the defendant to the -6-

maximum prison term because he caused a death. We held that the trial court could

not have considered the crime the “worst form of the offense” based on the fact that a

life had been taken when this was a basic element of the offense itself. Id. at ¶48.

Every voluntary manslaughter involves a death. Thus, there must be something

more in the record to support a maximum prison term other than the fact that a life

had been taken.

{¶12} The crime with which Appellant is charged is not comparable to the

crime discussed in Stroud. There are no varying degrees of “death,” whereas

“serious physical harm” can take an endless variety of forms. In this case, the victims

almost died from their injuries, suffering multiple broken bones, nerve and ligament

damage, and unendurable pain. The damage is permanent, according to the

testimony of the victims. Any one injury to either of the victims could be treated as

serious physical harm: one broken bone; one torn ligament; or one cut requiring

surgery. The record indicates that the victims suffered multiple serious injuries. In

addition, the definition of the crime refers only to physical harm, whereas the

sentencing statute refers to physical, psychological or economic harm. R.C.

2929.12(B)(2). Thus, the sentencing statute is broader than the definition of

aggravated vehicular assault, and the court's review of the victim's psychological and

economic harm can be used to enhance the sentence without overlapping with a

basic element of the crime itself. For these reasons, we reject Appellant's argument.

{¶13} Moving on to the argument regarding whether the court properly

explained its reasons for imposing consecutive sentences, Appellant correctly posits -7-

that the law has recently changed in this area. Both parties agree that the newly

enacted version of R.C. 2929.14, effective September 30, 2011, applies to this case.

R.C. 2929.14(C)(4) states:

(4) If multiple prison terms are imposed on an offender for convictions

of multiple offenses, the court may require the offender to serve the

prison terms consecutively if the court finds that the consecutive service

is necessary to protect the public from future crime or to punish the

offender and that consecutive sentences are not disproportionate to the

seriousness of the offender's conduct and to the danger the offender

poses to the public, and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses while

the offender was awaiting trial or sentencing, was under a sanction

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the

Revised Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one

or more courses of conduct, and the harm caused by two or more of the

multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the

courses of conduct adequately reflects the seriousness of the offender's

conduct. -8-

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future

crime by the offender.

{¶14} Prior to 2006, Ohio sentencing law created presumptions that offenders

be given minimum, concurrent terms of incarceration. See former R.C. 2929.14(B),

2929.14(E)(4), 2919.19(B)(2), and 2929.41. These presumptions could be overcome

if the court made specific factual findings regarding the nature of the offense and the

need to protect the public. This judicial fact-finding was called into question by

Apprendi v. New Jersey,

,

,

(2000), and

Blakely v. Washington,

,

,

(2004), in

which the United States Supreme Court held that judicial fact-finding could infringe

upon a defendant's Sixth Amendment right to a jury trial because it invaded the fact-

finding function of the jury. In State v. Foster,

,

,

, the Ohio Supreme Court held that under Apprendi and Blakely, Ohio's

sentencing statutes that required a judge to make factual findings in order to increase

a sentence beyond presumptive minimum or concurrent terms unconstitutionally

infringed on the jury's function in violation of the Sixth Amendment. The Ohio

Supreme Court then severed those sections and held that courts have full discretion

to sentence within the applicable statutory range and likewise have discretion to

order sentences to be served consecutively. Id. at ¶99-100.

{¶15} The reasoning in Foster was partially called into question by Oregon v.

Ice,

,

,

(2009), in which the United States -9-

Supreme Court later ruled that neither Apprendi nor Blakely implicated a sentencing

judge's long-understood authority to order sentences to be served consecutively.

The Ohio Supreme Court later acknowledged that Foster erroneously applied

Apprendi and Blakely to ban judicial fact-finding in support of consecutive sentences,

but ruled that the Ice decision could not revive that which had previously been

severed as unconstitutional in Foster. See State v. Hodge,

, 2010-

Ohio-6320,

, paragraph two of the syllabus. In other words, the

former consecutive sentencing law contained in R.C. 2929.14(E)(4), which had been

declared unconstitutional and severed in Foster, remained severed and could not be

applied, regardless of the holding and analysis in Ice. Even after Ice, a trial court

retains “the discretion and inherent authority to determine whether a prison sentence

within the statutory range shall run consecutively or concurrently * * *.” State v.

Bates,

,

,

.

{¶16} However, the newly-enacted revision of the consecutive sentencing

statute has reestablished the requirement that the sentencing judge make certain

findings before imposing consecutive sentences. See, e.g., State v. Wilson, 8th Dist.

No. 97657,

(court must again state its findings to support

consecutive sentences at the sentencing hearing and in the judgment entry pursuant

to the new statute, citing State v. Comer,

,

,

, paragraph one of the syllabus.); State v. Just, 9th Dist. No. 12CA0002,

(court need not explain its reasons for making the

consecutive sentencing findings, as the new statute does not require it); State v. -10-

Stalnaker, 11th Dist. No. 2011-L-151,

, ¶15 (trial court must again

state the required findings on the record to impose consecutive sentences, but not its

reasons supporting those findings).

{¶17} Prior to Foster, the sentencing statutes required both findings and

reasons in support of those findings in order for a consecutive sentence to be

imposed. Foster eliminated both requirements. The recently enacted law is not

simply a reenactment of the pre-Foster statute, but is an entirely new law, and the

new law requires only that the court make certain findings.

{¶18} A court may impose consecutive sentences under R.C. 2929.14(C)(4) if

it makes the following findings: (1) consecutive service is necessary to protect the

public from future crime or to punish the offender and (2) that consecutive sentences

are not disproportionate to the seriousness of the offender's conduct and to the

danger the offender poses to the public, and (3) one of the following: (a) The

offender committed one or more of the multiple offenses while the offender was

awaiting trial or sentencing, was under a sanction imposed pursuant to section

2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release

control for a prior offense, or (b) at least two of the multiple offenses were committed

as part of one or more courses of conduct, and the harm caused by two or more of

the multiple offenses so committed was so great or unusual that no single prison term

for any of the offenses committed as part of any of the courses of conduct adequately

reflects the seriousness of the offender's conduct, or (c) the offender's history of -11-

criminal conduct demonstrates that consecutive sentences are necessary to protect

the public from future crime by the offender.

{¶19} The trial court made the necessary findings in this case and stated

them at the sentencing hearing (1/27/12 Tr., p. 19) and in the judgment entry. An

appellate court may only sustain an assignment of error challenging the imposition of

consecutive sentences under R.C. 2929.14 if the appellant shows that the judgment

was clearly and convincingly contrary to law. R.C. 2953.08(G). This record does not

support such a showing. The trial court followed the requirements of the new

sentencing law. Since the trial court need not explain its reasons for making its

findings, the absence of such reasons is not error. Appellant's argument regarding

consecutive sentences is unpersuasive.

{¶20} Because we have disposed of Appellant's two arguments in his sole

assignment of error, the assignment of error is overruled and the judgment of the trial

court is affirmed.

Donofrio, J., concurs.

DeGenaro, P.J., concurs.