The Akron Legal News

Maximum sentence upheld for man with long criminal record

ANNIE YAMSON
Special to the Legal News
Published: September 18, 2014

A panel of judges in the 9th District Court of Appeals recently affirmed the judgment of the Medina County Court of Common Pleas, which sentenced a defendant to a maximum prison term after he violated the terms of his community control.

Mark Fernandez was indicted in July 2012 on one count of third-degree felony robbery.

Following a guilty verdict, the trial court sentenced Fernandez to three years of community control with “intensive supervision.”

Fernandez was also classified as a high risk offender.

At his sentencing hearing, the Medina County court informed Fernandez that he would be sentenced to five years in prison if he violated the terms of his supervision.

The next year, Fernandez failed to report to his probation officer and a warrant was issued for his arrest.

A few months later, he was charged with two community control violations for absconding from supervision and for being charged with theft in Cuyahoga County.

Fernandez was subsequently ordered to serve three years in prison, a sentence which he appealed arguing that the trial court failed to consider the proper sentencing factors and the purposes of felony sentencing.

“Where the trial court does not put on the record its consideration of Sections 2929.11 and 2929.12 of the Ohio Revised Code, it is presumed that the trial court gave proper consideration to those statutes,” wrote Judge Beth Whitmore on behalf of the court of appeals.

According to Fernandez, the record contained no evidence that the trial court considered the statutes, but the appellate panel held that he could not “overcome the presumption” that the trial court did, in fact, comply with the principles and purposes of felony sentencing.

Judge Whitmore noted that Fernandez had admitted his violations of community control at the time of his hearing and that the trial court had notified him that he would be sent to prison for any violations.

Transcripts of the proceedings indicate Fernandez, when asked if he had anything to say, informed the trial court, “You said there was five years hanging over my head. I believe the last time we determined it was three, not five.”

At his plea hearing, it was determined that Fernandez’s maximum sentence would be three years.

The trial court then went on to note that Fernandez had “five active warrants, including a warrant out of Mercer County out of Pennsylvania, out of Ontario, out of Ohio, out of Stark County and Summit County.”

“The court, therefore, was aware that Fernandez had prior convictions, been classified as a high risk offender by the probation department, admitted to two community control violations, absconded from supervision and spent over three months on the run, impermissibly left the state while on community control, had five active warrants covering various counties, including one from out of state, and appeared to show no remorse for his violations,” wrote Judge Whitmore.

The sheer amount of information available to the trial court only served to bolster the presumption that it considered the proper sentencing factors before imposing a maximum penalty, according to the appellate panel.

Fernandez’ sentence is not contrary to law, Judge Whitmore concluded.

In a brief concurring opinion, Presiding Judge Eve Belfance noted that a sentencing judge is not required to make findings or give reasons before imposing a maximum sentence.

“In this case, the record reflects that the trial court had before it and considered information relevant to the trial court’s mandatory considerations under R.C. 2929.11 and 2929.12,” wrote Judge Belfance.

Judge Jennifer Hensal also concurred.

The case is cited State v. Fernandez, 2014-Ohio-3651.

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