State of Ohio v. Oreste Fuste Torres

On June 15, 2017, Oreste Fuste Torres was charged in a 67-count indictment

with two counts of engaging in a pattern of corrupt activity, violations of R.C.

2923.32(A)(1) and (B)(1), 59 counts of identity fraud, violations of R.C. 2913.49(B)(2)

and (I)(2), and six counts of forgery, violations of R.C. 2913.31(A)(3) and (C)(1)(b).

These charges arose from two incidents. The first incident occurred in November of

2016, when Torres was found to be in possession of suspicious electronic equipment and

numerous fraudulent credit cards and gift cards, which he attempted to pass off as his

own. The second incident occurred on May 29, 2017, when Torres attempted to make a

purchase at a Kroger store using a suspicious credit card. Law enforcement was

summoned to the store and Torres consented to a search of his trunk where officers

discovered “well over fifty” fraudulent Visa cards, MasterCards, and gift cards.

{¶ 3} Torres entered a plea of guilty to five counts of identity fraud (Counts 2 to 6)

and five counts of forgery (Counts 21 to 25) in exchange for dismissal of the remaining

counts. The trial court imposed a prison term of 12 months as to each count, with the

sentences imposed for Counts 2 through 6 to run consecutively to each other, the

sentences for Counts 21 through 25 to run consecutively to each other, and the sentences

imposed for Counts 2 through 6 to run concurrently to those imposed for Counts 21

through 25. This resulted in a total period of incarceration of five years.



3.

{¶ 4} Torres appealed and assigns a single error for our review:

Appellant’s sentence should be vacated due to the trial court’s

failure to comply with the specific directives of R.C. 2929.11 and 2929.12.

II. Law and Argument

{¶ 5} In his sole assignment of error, Torres argues that the trial court failed to

follow the directives of R.C. 2929.11 and 2929.12 when it sentenced him to a total period

of incarceration of five years. He also argues that his sentence was contrary to law

because the trial court determined that his past criminal record outweighed any

consideration for leniency.

{¶ 6} We review felony sentences under R.C. 2953.08(G)(2). An appellate court

will not modify or vacate a sentence unless it finds by clear and convincing evidence that

the sentence is contrary to law or that the record does not support any relevant findings

under “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.” State v. Marcum, 146

Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22; R.C. 2953.08(G)(2). “Clear and

convincing evidence is that measure or degree of proof which is more than a mere

‘preponderance of the evidence,’ but not to the extent of such certainty as is required

‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the

trier of facts a firm belief or conviction as to the facts sought to be established.” Marcum

at ¶ 22, citing Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph

three of the syllabus.

4.

{¶ 7} In determining whether a sentence is clearly and convincingly contrary to

law for purposes of R.C. 2953.08(G)(2)(b), we recognized in State v. Tammerine, 6th

Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 15, that State v. Kalish, 120 Ohio St.3d 23,

2008-Ohio-4912, 896 N.E.2d 124, provides guidance. In Kalish, the Ohio Supreme

Court held that where the trial court expressly states that it considered the purposes and

principles of sentencing set forth in R.C. 2929.11 and the seriousness and recidivism

factors listed in R.C. 2929.12, properly applies postrelease control, and sentences the

defendant within the statutorily-permissible range, the sentence is not clearly and

convincingly contrary to law. Kalish at ¶ 18.

{¶ 8} Torres does not challenge any findings under R.C. 2929.13(B) or (D),

2929.14(B)(2)(e) or (C)(4), or 2929.20(I).1 And while he argues that his sentence is

contrary to law, he acknowledges that it falls within the statutorily-permissible range.

Torres does not claim that postrelease control was not properly applied or that the court

failed to expressly state that it considered the purposes and principles of sentencing in

R.C. 2929.11 and the seriousness and recidivism factors listed in R.C. 2929.12. Rather,

he disputes that his sentence achieves the purposes and principles set forth in R.C.

2929.11, and he challenges the weight that the court assigned to the various factors it was

required to consider under R.C. 2929.12.

{¶ 9} An appellate court may review a sentence imposed solely after consideration

of the factors in R.C. 2929.11 and 2929.12 “under a standard that is equally deferential to

1 The court found that under R.C. 2929.14(C)(4), consecutive sentences were appropriate, and Torres does not claim error in the imposition of consecutive sentences.

5.

the sentencing court.” Marcum at ¶ 23. It may vacate or modify the sentence only if it

finds by clear and convincing evidence that it is not supported by the record. Id.

{¶ 10} Under R.C. 2929.11(A), the purposes of felony sentencing are “to protect

the public from future crime by the offender and others, to punish the offender, and to

promote the effective rehabilitation of the offender using the minimum sanctions that the

court determines accomplish those purposes without imposing an unnecessary burden on

state or local government resources.” To achieve these purposes, the sentencing court

must consider “the need for incapacitating the offender, deterring the offender and others

from future crime, rehabilitating the offender, and making restitution to the victim of the

offense, the public, or both.” R.C. 2929.11(A). The sentence imposed shall be

reasonably calculated to achieve the overriding purposes, “commensurate with and not

demeaning to the seriousness of the offender’s conduct and its impact upon the victim,

and consistent with sentences imposed for similar crimes committed by similar

offenders.” R.C. 2929.11(B).

{¶ 11} R.C. 2929.12 grants discretion to the trial court to determine the most

effective way to comply with the purposes and principles of sentencing, and it lists

general factors that the trial court must consider relating to the seriousness of the

offender’s conduct, the likelihood of recidivism, and, if applicable, the offender’s service

in the U.S. armed forces and whether the offender has an emotional, mental, or physical

condition traceable to that service that contributed to the commission of the offenses.

R.C. 2929.12(A) also permits the court to “consider any other factors that are relevant to

achieving those purposes and principles of sentencing.” “A sentencing court has broad

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discretion to determine the relative weight to assign the sentencing factors in R.C.

2929.12.” State v. Brimacombe, 195 Ohio App.3d 524, 2011-Ohio-5032, 960 N.E.2d

1042, ¶ 18 (6th Dist.).

{¶ 12} In its sentencing judgment entry, the trial court stated that it “considered

the record, oral statements, all victim impact statements, the pre-sentence report, * * * the

principles and purposes of sentencing under [R.C.] 2929.11[, and] the seriousness and

recidivism factors under [R.C.] 2929.12.” Moreover, at Torres’s sentencing hearing, the

trial court recited the principles and purposes of sentencing under R.C. 2929.11, and it

acknowledged that in fashioning a sentence, it is required to consider factors under R.C.

2929.12 relating to the seriousness of the offender’s conduct and the likelihood of

recidivism. It expressly determined that the more likely recidivism factors outweigh the

less likely factors and the more serious factors outweigh the less serious factors.

{¶ 13} These statements all demonstrate that the trial considered R.C. 2929.11 and

2929.12 as required. See State v. Kilgour, 3d Dist. Marion Nos. 9-16-04, 9-16-05, 2016

Ohio-7261, ¶ 14 (finding that similar language used by trial court demonstrated that it

properly considered R.C. 2929.11 and 2929.12). But Torres argues that the trial court

assigned insufficient weight to mitigating factors under R.C. 2929.12(D)(5)—such as his

genuine remorse and his cooperation with the officers investigating the case—and he

contends that the court ignored the directive in R.C. 2929.11(A) that it use the minimum

sanctions available.

{¶ 14} First, we observe that a trial court is not required to state the specific

statutory factors in R.C. 2929.11 and 2929.12 on which it relied. State v. Dash, 7th Dist.

7.

Mahoning No. 16 MA 0090, 2017-Ohio-9009, ¶ 8. And while remorse is a factor to be

weighed in a trial court’s sentencing determination, it is but one factor. State v. Cochran,

2d Dist. Clark No. 2016-CA-33, 2017-Ohio-217, ¶ 13. A trial court is free to conclude

that the defendant’s remorse is outweighed by his conduct in committing the offense. Id.

As an appellate court, we may not substitute our judgment for that of the trial judge even

if a different judge may have weighed the statutory factors differently. State v. Belew,

140 Ohio St.3d 221, 2014-Ohio-2964, 17 N.E.3d 515, ¶ 18, 24.

{¶ 15} Here, the state argued at the sentencing hearing that Torres’s conduct

caused serious economic harm to the victims that was of an ongoing nature. It also

argued that Torres has a substantial criminal history across multiple states, he has

multiple prior felony convictions for similar conduct, and he has served prison sentences

yet continues to reoffend. All of this information is confirmed by the presentence

investigation report, which the trial judge had at his disposal when sentencing Torres. To

that end, the trial court told Torres:

I hope you are being honest with me when you say you are done

with this life, but your past history doesn’t show me that, so we will see

how you do in prison, if you behave yourself well and if you take

advantage of classes and things that are available there, so good luck to

you.

{¶ 16} We find that the trial court properly considered R.C. 2929.11 and 2929.12,

and Torres has failed to show by clear and convincing evidence that his sentence is not

supported by the record.

8.

{¶ 17} Torres also complains that the trial court did not impose the minimum

sanction and failed to consider community control. The state maintains that the trial

court properly found that the minimum penalty for the offense was not warranted here. It

acknowledges that under certain circumstances, there is a presumption of community

control for non-violent fourth or fifth-degree felonies, but it maintains that that

presumption is limited and is inapplicable where, as here, the offenses are part of an

organized criminal activity, the offender has previously served a prison term, or where

there has been a plea to numerous felonies committed against multiple victims.

{¶ 18} Here, the court expressly found that Torres was not amenable to

community control. And as to the “minimum sanction,” R.C. 2929.11(A) requires the

trial court to impose “the minimum sanctions that the court determines accomplish those

purposes without imposing an unnecessary burden on state or local government

resources.” This does not mean that the court must impose the statutory minimum

sentence. To the contrary, “the trial court ha[s] full discretion to impose any sentence

within the authorized statutory range * * *.” State v. Connors, 2d Dist. Montgomery No.

26721, 2016-Ohio-3195, ¶ 6. Given that multiple victims were involved, and given that

Torres has continued to reoffend despite having served various periods of imprisonment

and probation for similar offenses, we find no error in the trial court’s conclusion. See,

e.g., State v. Allison, 2017-Ohio-7720, 97 N.E.3d 1043, ¶ 24, 28 (8th Dist.) (affirming

non-minimum sentence where, despite appellant’s mental disabilities, remorse, and good

behavior while awaiting trial, appellant had criminal history and demonstrated inability to

comply with terms of probation in the past).

9.

{¶ 19} We find Torres’s assignment of error not well-taken.

We find Torres’s sole assignment of error not well-taken. The trial court

properly considered the purposes and principles of sentencing under R.C. 2929.11 and

the seriousness and recidivism factors under R.C. 2929.12, and Torres presented no clear

and convincing evidence that his sentence was not supported by the record. We affirm

the January 31, 2018 judgment of the Ottawa County Court of Common Pleas. The costs

of this appeal are assessed to Torres under App.R. 24.