[Cite as State v. Torres,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100106

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

ALPHER TORRES DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-12-568957

BEFORE: McCormack, J., Boyle, A.J., and Kilbane, J.

RELEASED AND JOURNALIZED: April 17, 2014 ATTORNEY FOR APPELLANT

Ruth R. Fischbein-Cohen 3552 Severn Rd., Suite 613 Cleveland, OH 44118

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

By: Brett Kyker Assistant County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 TIM McCORMACK, J.:

{¶1} Defendant-appellant, Alpher Torres, appeals his sentence for illegal use of a

minor in nudity-oriented material or performance, pandering sexually oriented matter

involving a minor, and possessing criminal tools. Finding no merit to the appeal, we

affirm.

Procedural History and Substantive Facts

{¶2} On November 29, 2012, the Cuyahoga County Grand Jury returned a

60-count indictment against Torres. The indictment stems from Torres’s use of

computer equipment in his residence to download, save, and share images of child

pornography between January 25, 2012, and March 9, 2012. Counts 1, 2, and 9 of the

indictment charged Torres with illegal use of a minor in nudity-oriented material or

performance in violation of R.C. 2907.323(A)(1). Counts 3 through 8 and Count 10

charged Torres with pandering sexually oriented matter involving a minor in violation

R.C. 2907.322(A)(2). Counts 11 through 48 charged Torres with pandering sexually

oriented matter involving a minor in violation R.C. 2907.322(A)(5). Counts 49 through

59 charged Torres with illegal use of a minor in nudity-oriented material or performance

in violation of R.C. 2907.323(A)(3). Count 60 charged Torres with possessing criminal

tools in violation of R.C. 2923.24. With the exception of Count 48, all counts carried a

forfeiture specification under R.C. 2941.1417(A). Torres pleaded not guilty to all

charges in the indictment. {¶3} On March 29, 2013, Torres appeared in open court with defense counsel

and entered a change of plea. Prior to the change of plea, the state outlined the proposed

plea agreement, including possible sentences, and stated that

as part and parcel to the plea agreement being offered here, the defendant

would have to agree that the offenses to which he would be entering a plea

of guilty are non-allied offenses. * * * [E]ach count pertains to a separate

and distinct file of child pornography, and the case law says that, as such,

these would be non-allied offenses.

{¶4} Defense counsel advised the court that he informed his client about the

consequences of a plea, specifically with respect to the rights he was waiving and any

potential penalties and the ranges of those penalties the court may impose. Counsel

stated that he believed Torres understood those rights and potential penalties, stating,

“We’ve gone over various hypotheticals and different scenarios. We’ve gone over what

could possibly happen if he were to go to trial, what could happen as a result of a plea. I

believe he does understand that.”

{¶5} Thereafter, the court inquired of Torres whether he understood what the

prosecutor had put on the record and what defense counsel had stated, to which Torres

responded in the affirmative. The court asked Torres if he had any questions, to which

he responded, “No, I do not.” The court then proceeded to explain the “huge range of

potential penalties * * * from probation to decades in prison,” stating that “[e]ach of these

felonies of the second degree ha[s] a maximum possibility of eight years * * * [s]o eight times 10 [counts] is 80 [years]. * * * [T]hat’s a huge amount of time just on those counts

alone.”

{¶6} In an effort to further ensure that Torres understood the nature of the case

and the potential penalties, the trial court continued to state that “technically the

maximum could be even more than 80, which is pretty much a life sentence, which, you

know, that’s a potential possibility. * * * [I]t’s a pretty big range, even on a plea. So

that’s why I like to talk to defendants about this.” Torres again advised the court that he

had no questions, stating “I told my attorney that I’m willing to take some responsibility

[for] my actions, and I trust my attorney a hundred percent.” The court then recessed for

a short time.

{¶7} Returning to the record and upon the court’s request, the state recited the

plea agreement once again, reiterating that “the defendant will stipulate that the offenses

to which he’s about to plead guilty are non-allied offenses.” In response to the court’s

inquiry, Torres indicated that he understood the plea agreement, the rights he was

waiving, and the potential penalties. He then pleaded guilty to Counts 1 through 38 and

Count 60 of the indictment. Torres also agreed to the forfeiture of the items named in

the forfeiture specification, including a Dell laptop computer, a Toshiba laptop computer,

an HP desktop computer, Western Digital external hard drives, and certain CDs and/or

DVDs. The remaining Counts 39 through 59 were dismissed.

{¶8} On June 18, 2013, the trial court held a sentencing hearing, during which

time the court received statements from Torres and defense counsel. The state also outlined the underlying facts of the case and read a victim impact statement from one of

the children identified in an image retrieved from Torres’s computer equipment. The

court subsequently sentenced Torres to seven years incarceration on each of Counts 1 and

2, concurrent; seven years incarceration on Counts 3 through 10, concurrent; fifteen

months incarceration on Counts 11 through 38, concurrent; and twelve months

incarceration on Count 60. The trial court ordered that Counts 1 and 2, Counts 3 through

10, Counts 11 through 38, and Count 60 be served consecutive to each other, for an

aggregate prison term of 16 years and three months in prison. The trial court also

ordered that Torres forfeit the items specified in his plea agreement. Finally, the court

notified Torres that he would be subject to a mandatory term of five years of postrelease

control and be labeled a Tier II sex offender.

Allied Offenses

{¶9} In his sole assignment of error, Torres claims that the trial court erred in not

determining whether the counts to which Torres pleaded guilty were allied offenses of

similar import. Specifically, he argues that despite the stipulation in the plea agreement

that the offenses were not allied offenses, the trial court had a duty to make its own

determination. We disagree.

{¶10} In State v. Underwood,

,

,

,

¶ 29, the Ohio Supreme Court addressed the trial court’s obligation to analyze allied

offenses where a defendant enters into a plea agreement: With respect to the argument that the merger of allied offenses will allow

defendants to manipulate plea agreements for a more beneficial result than

they bargained for, we note that nothing in this decision precludes the state

and a defendant from stipulating in the plea agreement that the offenses

were committed with separate animus, thus subjecting the defendant to

more than one conviction and sentence. When the plea agreement is silent

on the issue of allied offenses of similar import, however, the trial court is

obligated under R.C. 2941.25 to determine whether the offenses are allied,

and if they are, to convict the defendant of only one offense.

{¶11} Here, the plea agreement is not silent on the issue of allied offenses.

Rather, the record reflects, and the defendant concedes, that as part of his plea bargain,

Torres stipulated that the offenses to which he was pleading guilty were not allied

offenses of similar import, and he advised the court that he understood the nature of the

plea agreement and the potential penalties to which he could be subjected. Because the

parties stipulated that the offenses were not allied offenses, the trial court was not

obligated under R.C. 2941.25 to determine whether the offenses charged in Counts 1

through 38 and Count 60 were allied offenses. State v. Recob, 8th Dist. Cuyahoga No.

100012,

; State v. Mannarino, 8th Dist. Cuyahoga No. 98727,

; State v. Ward, 8th Dist. Cuyahoga No. 97219,

. The trial court therefore did not err in not making its own

determination regarding allied offenses at sentencing. {¶12} Torres’s assignment of error is overruled.

{¶13} 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, JUDGE

MARY J. BOYLE, A.J., and MARY EILEEN KILBANE, J., CONCUR