State v. Caraballo

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State v. Caraballo

State: Ohio

Court: Ohio Southern District Court

Docket No: 2012-Ohio-5725

Case Date: 12/06/2012

Plaintiff: State

Defendant: Caraballo

Preview:[Cite as State v. Caraballo, 2012-Ohio-5725.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97915
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
VIRGEN CARABALLO
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-551566
BEFORE:    Rocco, J., Sweeney, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED:    December 6, 2012
-i-

ATTORNEY FOR APPELLANT
R. Brian Moriarty
R. Brian Moriarty, L.L.C.
2000 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY:    Katherine Mullin
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶1}   Defendant-appellant   Virgen   Caraballo   appeals   from   her
convictions and the consecutive sentences imposed after she pleaded guilty in
the  Cuyahoga  County  Court  of  Common  Pleas  to  seven  counts  of  patient
abuse in violation of R.C. 2903.34(A)(1).
{¶2} Caraballo presents five assignments of error.    She claims the trial
court failed to provide clear information during her plea hearing concerning
the maximum penalties involved, thus, the court should not have accepted
her pleas.    She also claims the trial court abused its discretion in failing to

grant her a continuance of her sentencing hearing and in determining that
the presentence investigation report was inaccurate with respect to the issue
of whether the victim suffered physical harm.    She asserts the trial court did
not act in an impartial manner in sentencing her, and further asserts that the
maximum  and  consecutive  sentences  imposed  are  disproportionate  to  the
sentences imposed on other similarly situated offenders.
{¶3}  Because  a  review  of  the  record  does  not  support  Caraballo’s
arguments, her    assignments of error are overruled.    Caraballo’s convictions
and sentences are affirmed.
{¶4} Caraballo was originally indicted in this case in July 2011 on 13
counts of patient abuse.    Each count named the same victim, and the counts
included a range of dates for the offenses beginning on April  8,  2011, until
May 15, 2011.
{¶5} After several pretrial hearings, the parties notified the trial court
that a plea agreement had been reached.    The plea hearing took place on
December 1, 2011.
{¶6} As outlined by the prosecutor, in exchange for Caraballo’s guilty
pleas  to  seven  separate  counts  and  her  agreement  to  relinquish  her
state-tested nursing assistant license, the state would dismiss the other six
counts.     The  prosecutor  noted  that,  pursuant  to  the  new  sentencing
provisions in effect, Caraballo was “eligible for mandatory probation if in fact

requirements are met,” but, “the Court may impose a prison term pursuant to
[R.C.] 2929.13(B)(1)(c) and (B)(1)(b) if certain conditions or requirements are
met.
* * * ”
{¶7}  After  these  representations,  the  trial  court  conducted  a  careful
colloquy.    The court noted that the potential penalties included:
a possible period of incarceration.    You are eligible for mandatory
probation, but I don’t know what [the court] will do, but you could
receive anywhere between six and twelve months — I should say
six and eighteen months on any one of these counts.
(Emphasis added.)
{¶8} Caraballo answered, “Yes,” when the trial court asked her if she
understood.    The court also informed her that, if she were sent to prison,
Caraballo “might be subject to * * * post-release control * * * for a period up
to three years.”    The court described the possible consequences should she
violate postrelease control, satisfied itself that Caraballo had no questions,
then asked for her pleas.    Caraballo entered guilty pleas.    The trial court
referred her for a presentence investigation report and set January 9, 2012,
as the date for the sentencing hearing.
{¶9} The record reflects both the prosecutor and defense counsel filed
sentencing  memoranda  on  January  6,  2012.    When  Caraballo’s  case  was
called for sentencing, her attorney requested a continuance.    Defense counsel
informed  the  trial  court  that  he  had  received  the  state’s  sentencing

memorandum only the night before and, at that time, discovered the state
attached an expert report.
{¶10} Prior to deciding the issue, the trial court listened to arguments
from both the prosecutor and defense counsel.    The court then denied defense
counsel’s motion to continue the sentencing hearing, but struck the expert’s
report from the state’s brief.
{¶11}  The  prosecutor  proceeded  to  recommend  that  the  trial  court
impose  a  prison  term  on  Caraballo  for  her  convictions.    The  prosecutor
asserted that Caraballo inflicted physical harm on the victim and supported
this position by displaying a video that showed the basis for the charges that
had been brought against Caraballo.
{¶12} The trial court subsequently heard from the victim’s son, who told
the  court  that  his  suspicions  about  the  care  his  mother  received  at  the
nursing  facility  had  been  aroused  when  he  observed  bruises  on  her  body.
Over defense counsel’s objection, the victim’s son produced a photograph that
depicted a contusion on the victim’s left cheek.
{¶13}  When  Caraballo  addressed  the  trial  court,  her  first  comments
included the declaration that the situation had been “very hard for [her],” and
that the victim  “fought all the time.”    Caraballo could not explain why the
video showed no such action on the victim’s part.

{¶14}  The  trial  court  described  for  the  record  some  of  Caraballo’s
behaviors  as  demonstrated  on  the  video.     The  court  then  stated  that,
although  Caraballo’s  defense  counsel  requested  probation,  persons  who
treated infirm people in such a manner needed to be “disciplined.”
{¶15} The trial court continued,
This Court is satisfied that based upon what the Court viewed in
the  video,  which  was  [the  victim]  being  thrown,  being  roughly
handled,  being  pushed  in  the  face,  being  turned  upside-down,
being thrown into a corner, sheets being pulled from underneath
her, being thrown to the side, * * * that [the bruise] could have
resulted from the physical harm that was caused to her * * * .
{¶16}  The  trial  court  found  that  Caraballo  physically  harmed  the
victim, that Caraballo’s actions constituted “some of the worst conduct” that
the court had seen, that consecutive sentences were necessary to protect the
public from future crimes and to punish the offender, that Caraballo’s actions
occurred as a course of continuous criminal conduct, and that prison terms
were  “not disproportionate to the seriousness of defendant’s conduct and to
the  danger  that  the  offender  poses  to  the  public.”     After  stating  these
findings,  the  trial  court  imposed  consecutive  terms  of  eighteen months on
each count.
{¶17} Caraballo presents the following five assignments of error in this
appeal.
I. The trial court did not comply with Crim.R. 11 and Defendant’s
plea was not knowingly, intelligently, and voluntarily made.

II.    The trial court erred and/or abused its discretion in refusing
to grant a continuance so that defense counsel could rebut the
state’s  sentencing  memorandum  and/or  argument  of  physical
harm.
III.                                                                                    The  trial  court  erred  and/or  abused  its  discretion  in
overruling  the  pre-sentence  investigation  report  and  finding
physical harm was involved in this case.
IV.     The  Defendant  was  denied  a  fair  sentencing  hearing
resulting in a violation of her due process rights.
V.    The trial court erred in imposing a term of incarceration that
is not proportionate to similarly situated offenders.
{¶18} In her first assignment of error, Caraballo claims that the trial
court violated Crim.R. 11(C) at her plea hearing.    She argues that using the
word  “mandatory”  in  informing  her  that  she  might  be  eligible  to  receive
community  control  sanctions  rather  than  prison  was  so  “confusing”  as  to
render  her  plea  invalid.     She  further  argues,  without  citation  to  any
authority,  that  the  trial  court  neglected  to  describe  all                       “the  additional
penalties  and  options  available  for  the  Adult  Parole  Authority”  when
discussing  postrelease  control  at  the  plea  hearing.    Upon  a  review  of  the
record, this court finds that her arguments lack merit.
{¶19}  Pursuant  to  Crim.R.  11(C),  a  trial  court  must  make  certain
advisements prior to accepting a defendant’s guilty plea in order to ensure
that the plea is knowing, intelligent, and voluntary.    State v. Engle, 74 Ohio
St.3d                                                                                   525,                                                            660  N.E.2d  450  (1996).    These  advisements  are  divided  into

constitutional rights and nonconstitutional rights.    State v. Griggs, 103 Ohio
St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51.
{¶20} The constitutional rights are: (1) a jury trial; (2) confrontation of
witnesses;  (3) compulsory process;  (4) proof of the defendant’s guilt by the
state     beyond  a  reasonable  doubt  at  trial;  and                                    (5)  the  right  against
self-incrimination.    Crim.R.  11(C)(2)(c); State v. Veney,  120 Ohio St.3d  176,
2008-Ohio-5200,  897  N.E.2d  621,  ¶  19-21.    Because  the  trial  court  must
strictly comply with these requirements, if it fails, the defendant’s guilty plea
is  invalid.    Veney  at  ¶  31;  State  v.  Ballard,  66  Ohio  St.2d  473,  477,  423
N.E.2d 115 (1981).
{¶21}  The  nonconstitutional  rights  of  which  the  defendant  must  be
informed  are:                                                                             (1)  the  nature  of  the  charges;            (2)  the  maximum  penalty
involved, which includes, if applicable, an advisement on postrelease control;
(3)  if  applicable,  that  the  defendant  is  not  eligible  for  the  imposition  of
community control sanctions; and (4) that the court may proceed directly to
judgment and sentencing.    Crim.R. 11(C)(2)(a)(b); Veney at ¶ 10-13; State v.
Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 19-26.
{¶22} The trial court must substantially comply with the mandates of
Crim.R. 11 with respect to nonconstitutional rights.    Griggs, 103 Ohio St.3d
85, 2004-Ohio-4415, 814 N.E.2d 51, at ¶ 12, citing State v. Nero, 56 Ohio St.3d
106, 564 N.E.2d 474 (1990).                                                                “Substantial compliance means that under the

totality  of  the  circumstances  the  defendant  subjectively  understands  the
implications of  [her] plea and the rights  [s]he is waiving.”    Veney at  ¶  15,
quoting  Nero  at  108.    A  defendant  who  challenges  her  guilty  plea  on  the
basis that the trial court’s advisement of nonconstitutional rights was not in
substantial  compliance  with  Crim.R.                                                 11(C)(2)(a)(b)  must  also  show  a
prejudicial effect, i.e., that the plea would not have been entered.    Veney at ¶
15, citing Nero at 108.
{¶23} R.C. 2929.13, as amended by H.B. 86, sets forth the penalties for
fourth and fifth degree felonies, and provides in relevant part as follows:
(B)(1)(a)  Except  as  provided  in  division                                          (B)(1)(b)  of  this
section, if an offender is convicted of or pleads guilty to a felony of
the fourth or fifth degree that is not an offense of violence, the
court shall sentence the offender to a community control sanction
of at least one year’s duration if all of the following apply:
(i)  The  offender  previously  has  not  been  convicted  of  or
pleaded guilty to a felony offense or to an offense of violence that
is  a misdemeanor and that the offender committed within two
years prior to the offense for which sentence is being imposed.
(ii)  The  most  serious  charge  against  the  offender  at  the  time  of
sentencing is a felony of the fourth or fifth degree.
(iii) If the court made a request of the department of rehabilitation and
correction  pursuant  to  division                                                     (B)(1)(c)  of  this  section,  the  department,
within the forty-five-day period specified in that division, provided the court
with the names of, contact information for, and program details of one or
more community control sanctions of at least one year’s duration that are
available for persons sentenced by the court.

(b) The court has discretion to impose a prison term upon an offender
who is convicted of or pleads guilty to a felony of the fourth or fifth degree
that is not an offense of violence if any of the following apply:
(i) The offender committed the offense while having a firearm on or
about the offender’s person or under the offender’s control.
(ii)  The  offender  caused  physical  harm  to  another  person  while
committing the offense. * * *
(2)    If division (B)(1) of this section does not apply, except as provided
in division  (B)(3),  (E)[pertaining to drug offenses],  (F)[pertaining to certain
listed  offenses],  or                                                                       (G)[pertaining  to  OVI  offenses]  of  this  section,  in
sentencing  an  offender  for  a  felony  of  the  fourth  or  fifth  degree,  the
sentencing court shall determine whether any of the following apply:
(a)    In committing the offense, the offender caused physical harm to a
person.
(3)(a)    If the court makes a finding described in division (B)(2)(a), * * *
of  this  section  and  if  the  court,  after  considering  the  factors  set  forth  in
section  2929.12 of the Revised Code, finds that a prison term is consistent
with the purposes and principles of sentencing set forth in section 2929.11 of
the Revised Code and finds that the offender is not amenable to an available
community control sanction, the court shall impose a prison term upon the
offender.
(b) Except as provided in division (E), (F), or (G) of this section, if the
court  does  not  make  a  finding  described in division  (B)(2)(a)  *  *  * of this
section  and  if  the  court,  after  considering  the  factors  set  forth  in  section
2929.12  of  the  Revised  Code,  finds  that  a  community  control  sanction  or
combination of community control sanctions is consistent with the purposes
and principles of sentencing set forth in section 2929.11 of the Revised Code,
the  court  shall  impose  a  community  control  sanction  or  combination  of
community control sanctions upon the offender.                                               (Emphasis added.)1
1 Given the morass that constitutes R.C. 2929.13, as amended by H.B. 86, it is no surprise

{¶24} Caraballo was charged with patient abuse in violation of R.C. 2903.34(A)(1).
According to R.C.  2903.34(A)(1), an employee of a nursing facility shall not  “[c]ommit
abuse against a resident or patient of the facility
*  *  *  .” In R.C.  2903.33(B),  “abuse” is defined as  “knowingly causing physical harm or
recklessly causing serious physical harm to a person by physical contact with the person *
* * .”    R.C. 2901.01(A)(9) defines an “offense of violence” to mean, in pertinent part, “an
offense, other than a traffic offense,
* * * committed purposely or knowingly, and involving physical harm to persons or a risk
of serious physical harm to persons * * * .”                                                        (Emphasis added.)
{¶25} Because R.C.  2929.13(B) was the only section of the sentencing
statutes  that  applied  to  R.C.                                                                   2903.34(A)(1),  neither  community  control
sanctions  nor  a  prison  sentence  was  “mandatory”  for  Caraballo’s  crimes.
Compare State v. Dunn,  9th Dist. No.  13093,  1987 Ohio App. LEXIS  9074
(Oct. 7, 1987).    The use of the term “mandatory” by the prosecutor and the
trial court in informing Caraballo about the possibility of the imposition of
community control sanctions was, therefore, inartful at best.
{¶26} However, in context, all the information Caraballo received at the
plea hearing concerning the potential penalties she faced upon entering guilty
that there appeared to be some initial confusion during the plea and sentencing hearings as to
what potential penalties applied to Caraballo’s offenses.   Clarification of R.C.  2929.13 by the
legislature would be helpful to ensure its proper application in future cases.

pleas  was  conditional;  thus,  there  was  “partial  compliance”  with  Crim.R.
11(C).    State v.    Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462,
¶  32.    Caraballo  neither  asked  any  questions  nor  indicated  she  had  any
confusion about the possibility that she could receive a prison sentence.    The
record also reflects that the trial court provided Caraballo with an adequate
explanation of applicable postrelease control requirements.    State v. Poole,
8th Dist. No. 96921, 2012-Ohio-2622, ¶ 11.    Furthermore, Caraballo obtained
the dismissal of nearly half of the charges by entering her guilty pleas.
{¶27} Under these circumstances, the totality of circumstances supports
a  conclusion  that  Caraballo  subjectively  understood  the  consequences  of
entering her guilty pleas, and, further, that Caraballo cannot demonstrate
that she would not have entered her pleas if the word “mandatory” had not
been  used  by  the  trial  court.     State  v.  Anderson,                              8th  Dist.  No.                  92576,
2010-Ohio-2085; compare State v.    Hollobaugh, 5th Dist.    No.                         11-AP-0006,
2012-Ohio-2620;  State v. Bryant,  4th Dist.    No.                                      11CA19,  2012-Ohio-3189;
State  v.  Farley,                                                                       1st  Dist.  No.     C-0100478,   2002-Ohio-1142.     Her  first
assignment of error, consequently, is overruled.2
2 Caraballo was represented by counsel during the plea negotiations and at
the  plea  and  sentencing  hearings.     As  this  court  has  previously  stated,      “[a]
defendant has a right to effective assistance of counsel in considering plea offers
and * * * is entitled to accurate information allowing [her] to compare the plea offer
with the outstanding charges.”   State v. Jeffries,  8th Dist. No.  78070,  2001 Ohio
App. LEXIS 2875, at *7 (June 28, 2001); see also State v. Simmons, 8th Dist. No.
91062, 2009-Ohio-2028, ¶ 27 (“A guilty plea is not voluntary if it is the result of

{¶28} Caraballo argues in her second assignment of error that the trial
court should have granted her motion for a continuance of the sentencing
hearing.    She contends her defense to the allegations the state made in its
sentencing memorandum was compromised because she did not receive the
memorandum in a timely manner.
{¶29}                                                                                     “The  grant  or  denial  of  a  continuance  is  a  matter  which  is
entrusted to the broad, sound discretion of the trial judge.                              [Therefore, an]
appellate court must not reverse the denial of a continuance unless there has
been  an  abuse  of  discretion.”    State  v.  Unger,  67  Ohio  St.2d  65,  67,  423
N.E.2d 1078 (1981), citing Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841,
11 L.Ed.2d  921  (1964); State v. Bayless,  48 Ohio St.2d  73,  101,  357 N.E.2d
1035  (1976).    An  abuse  of  discretion  “implies  that  the  court’s  attitude  is
ineffective assistance of counsel”), citing State v. Masterson,  8th Dist. No.  90505,
2008-Ohio-4704.    It is impossible to determine from the trial court record what
Caraballo’s counsel  told her,  prior to her guilty  pleas, regarding the maximum
sentence she could receive for the seven counts of patient abuse to which she pled
guilty.    If Caraballo’s counsel improperly advised Caraballo that the court was
required to impose a mandatory community control sanction and did not inform her
that she could be sentenced to a possible prison term of six to eighteen months on
each count, Caraballo could have a viable claim for ineffective assistance of counsel.
See, e.g., Jeffries at *7-8 (when accompanied by prejudice, defense counsel’s failure
to properly inform defendant of potential penalties in connection with a plea offer
could    support a claim for ineffective assistance of counsel);    State v. Bray,  7th
Dist. No. 04 MA 27, 2005-Ohio-2117, ¶ 40-44 (assistance of counsel may have been
ineffective where defense counsel failed to inform defendant of potential complicity
conviction during plea negotiations).   Because it would require evidence outside the
trial court record, any such claim should be raised in a petition for postconviction
relief.   See, e.g., State v. Reed, 8th Dist. No. 91767, 2009-Ohio-2264, ¶ 33.

unreasonable, arbitrary or unconscionable.”    State v. Adams,  62 Ohio St.2d
151, 157, 404 N.E.2d 144 (1980).
{¶30} The Ohio Supreme Court has stated that the following facts can
be considered when determining whether the trial court should have granted
a motion for a continuance: “the length of delay requested, prior continuances,
inconvenience, the reasons for the delay, whether the defendant contributed
to the delay, and other relevant factors.”    State v. Landrum,  53 Ohio St.3d
107, 115, 559 N.E.2d 710 (1990) (Emphasis added.)
{¶31} The record in this case reveals that the reason defense counsel
gave as the basis for the motion was the fact that the state had attached the
report  of  a  previously  undisclosed  expert  to  its  sentencing  memorandum.
The  trial  court  thereupon  permitted  defense  counsel  time  to  review  the
expert’s report.
{¶32}  Afterward,  defense  counsel  requested  the  trial  court  to  strike
from  the  state’s  sentencing  memorandum  any  and  all  references  to  the
expert’s  report.     The  trial  court  granted  this  request,  thus  rendering
Caraballo’s motion for a continuance moot.    The trial court further informed
the  parties  that  it  would  not  rely  on  the  sentencing  memoranda.     The
transcript  of  the  sentencing  hearing  demonstrates  defense  counsel  was

satisfied with this result and made no further reference to any need for a
continuance.    Under these circumstances, no abuse of discretion occurred.
{¶33} Accordingly, Caraballo’s second assignment of error is overruled.
{¶34} In her third assignment of error, Caraballo argues that the trial
court  acted  improperly  in  rejecting one of the conclusions set forth in the
presentence investigation report, viz., that the victim incurred  “no physical
harm.”    Caraballo also claims that, in concluding otherwise, the trial court
relied upon improper evidence, viz., the photograph produced by the victim’s
son.
{¶35} At the time of Caraballo’s sentencing hearing, R.C. 2929.19 stated
in relevant part:
(A)  The  court  shall  hold  a  sentencing  hearing  before
imposing a sentence under this chapter upon an offender who was
convicted of or pleaded guilty to a felony * * *.    At the hearing,
the offender, the prosecuting attorney, the victim or the victim’s
representative in accordance with section 2930.14 of the Revised
Code * * * may present information relevant to the imposition of
sentence in the case. * * *
(B) (1) At the sentencing hearing, the court, before imposing sentence,
shall consider the record, any information presented at the hearing by any
person pursuant to division (A) of this section, and, if one was prepared, the
presentence  investigation  report  made  pursuant  to  section  2951.03  of  the
Revised Code or Criminal Rule 32.2, and any victim impact statement made
pursuant to section 2947.051 of the Revised Code.

{¶36}  Notably, the statute requires the trial court to  “consider” the presentence
report,  not  to  accept  all  of  it  as  true.    State  v.  Mayor,                                7th  Dist.  No  07  MA  177,
2008-Ohio-7011.     As  previously  stated,  Caraballo  pleaded  guilty  to  seven  counts  of
patient abuse, and “abuse” is, by definition, the causing of                                         “physical harm” to the victim.
R.C.  2903.33(B).    The  trial court did not act improperly, therefore, in coming to the
conclusion  that  the  presentence investigation report was not entirely accurate in this
respect.
{¶37}  In any event, the record of the sentencing hearing demonstrates that the
state introduced into evidence a video that depicted some of the treatment the victim
received at Caraballo’s hands.    Based upon this evidence, the court concluded that the
victim  certainly  sustained  some  physical  harm.    State  v.    Witt,  8th  Dist.  No.  94800,
2011-Ohio-336.    In light of the video and all the other factors the trial court considered, if
the  introduction  of  the  photograph  as  evidence  of  physical  harm  was  error  at  all,  it
constituted harmless error.    State v. Ball, 11th Dist. No. 2009-A-0054, 2009-Ohio-999.
{¶38} Caraballo’s third assignment of error is overruled.
{¶39} Caraballo argues in her fourth and fifth assignments of error that the trial
court’s conduct and comments during the sentencing hearing demonstrate the proceeding
was so unfair as to deny Caraballo her right to due process of law.    She supports this
argument  by  claiming  that  the  court’s  ultimate  decision  to  impose  maximum  and
consecutive terms for her convictions constitutes disproportionate punishment.

{¶40} Recently, in State v. Balta, 8th Dist. No. 97755, 2012-Ohio-3462,
¶  7,  this  court  noted  the  following  as  the  appropriate  standard  of  review  of  a  felony
sentence:
Appellate courts must first “examine the sentencing court’s compliance
with all applicable rules and statutes in imposing the sentence to determine
whether the sentence is clearly and convincingly contrary to law.” [State v.]
Kalish, [120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124] at ¶ 4.    If this
first prong is satisfied, then we review the trial court’s decision under an
abuse-of-discretion standard.    Id.    To constitute an abuse of discretion, the
ruling  must  be  unreasonable,  arbitrary  or  unconscionable.    Blakemore  v.
Blakemore, 5 Ohio St.3d 217, 5 Ohio B. 481, 450 N.E.2d 1140 (1983).
{¶41}  As  in  Balta,  Caraballo  must  acknowledge  that  the  trial  court
complied with all applicable rules and statutes in imposing sentence in this
case.    The  trial  court  considered  the  presentence  investigation  report,  the
circumstances surrounding Caraballo’s convictions, the video, and Caraballo’s
statement in her own behalf; Caraballo essentially blamed the  78-year-old
victim, who suffered from dementia, for being insufficiently cooperative.    The
sentence imposed for each of Caraballo’s convictions was within the statutory
limits.    In addition, the trial court made the necessary findings to impose
consecutive terms.    Id. at ¶ 8-11.
{¶42} Caraballo failed to raise the issue of proportionality in the trial
court.    Thus, neither the trial court nor this court has any “starting point for
analysis” of her assertion on appeal that her total sentence did not comply

with R.C. 2929.11(B), and she waived the issue for appellate review.    State v.
Cooper,                                                                                          8th Dist. No. 93308, 2010-Ohio-1983, ¶ 24.
{¶43} The record reflects that, in explaining her reasoning process in
deciding the appropriate sentences to impose, the trial judge referred to the
fact that the victim’s age was approximately her own.    The judge indicated
that this fact made her much more aware of the seriousness of Caraballo’s
crimes.    Although Caraballo argues the trial court’s reference was improper,
the Ohio Supreme Court addressed a similar argument in State v.    Arnett, 88
Ohio St.3d 208, 215, 724 N.E.2d 793 (2000), as follows:
This  court  has  held  that  the  individual  decisionmaker  has  the
discretion  to  determine  the  weight  to  assign  a  particular  statutory  factor.
State v. Fox (1994), 69 Ohio St.3d 183, 193, 631 N.E.2d 124, 132, citing State
v. Mills (1992), 62 Ohio St.3d 357, 376, 582 N.E.2d 972, 978.    A discretionary
decision  necessitates  the  exercise  of  personal  judgment,  and  we  have
determined that when making such judgments, the sentencing court “is not
required to divorce itself from all personal experiences and make [its] decision
in a vacuum.”    State v. Cook (1992), 65 Ohio St.3d 516, 529, 605 N.E.2d 70,
84, citing Barclay v. Florida (1983), 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d
1134.                                                                                            For  this  reason,  we  have  previously  permitted  a  judge  in  a
death-penalty case to refer, during sentencing, to a personal friend of his who
was murdered.    Id.
{¶44} The record of this case reflects Caraballo committed her crimes while in a
position of trust.    Caraballo abused the helpless victim over a period of time.    Moreover,
Caraballo made affirmative efforts to conceal her actions, so she could continue her abuse
without  detection.     Balta,                                                                   8th  Dist.     No.                                                     97755,   2012-Ohio-3462.     Finally,  when

brought to account for her actions, Caraballo displayed insincere remorse, blaming the
victim for being insufficiently cooperative with Caraballo’s “care.”
{¶45}  A  review  of  the  entire  sentencing  hearing  that  took  place  in  this  case,
therefore, fails to demonstrate that the trial court conducted itself in an unfair manner.
Accordingly, Caraballo’s fourth and fifth assignments of error are overruled.
{¶46} Caraballo’s convictions and sentences are affirmed.
It is ordered that appellee recover from 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 convictions having
been affirmed, any bail pending appeal is terminated.    Case remanded to the trial court
for execution of sentences.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
KENNETH A. ROCCO, JUDGE
JAMES J. SWEENEY, P.J., CONCURS;
SEAN C. GALLAGHER, J., DISSENTS
(SEE ATTACHED OPINION)

SEAN C. GALLAGHER, J., DISSENTING:
{¶47} I do not fault the trial judge, the prosecutor, defense counsel, or
Caraballo for the confusion raised by this case.    The responsibility rests with
the legislature that chose to amend a statute to include the term “mandatory
probation”  when  in  fact  a  finding  of  “physical  harm”  precludes  such  an
outcome.     The  fact  that  we  would  tell  someone  that  she  is  eligible  for
“mandatory probation” but also tell her that she can be sent to prison does not
lend  clarity  to  the  plea  and  sentencing  process.    The  resulting  confusion
makes the plea suspect.    For these reasons, I respectfully dissent.

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