[Cite as State v. Cruz, 2015-Ohio-3519.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

 WOOD COUNTY 

State of Ohio Court of Appeals No. WD-14-085 

 

 Appellee Trial Court No. 13 CR 493 

v. 

Anthony Cruz DECISION AND JUDGMENT

Appellant Decided: August 28, 2015 

* * * * * 

 Paul A. Dobson, Wood County Prosecuting Attorney, 

 Gwen Howe-Gebers, Chief Assistant Prosecuting Attorney, 

 and David T. Harold, Assistant Prosecuting Attorney, for appellee. 

 Lawrence A. Gold, for appellant. 

* * * * * 

 YARBROUGH, P.J. 

I. Introduction 

{¶ 1} Appellant, Anthony Cruz, appeals the judgment of the Wood County Court 

of Common Pleas, sentencing him to five years in prison following the acceptance of his 

guilty plea to one count of illegal use of a minor in nudity-oriented material or 

performance. We affirm. 
2.

II. Facts and Procedural Background 

{¶ 2} On September 19, 2013, appellant was indicted on two counts of illegal use 

of a minor in nudity-oriented material or performance in violation of R.C. 

2907.323(A)(1), felonies of the second degree. Appellant initially appeared at his 

arraignment and entered pleas of not guilty to the charges. However, following extensive 

plea negotiations with the state, appellant appeared before the court for a change of plea 

hearing on September 29, 2014, and entered a plea of guilty to one count of illegal use of 

a minor in nudity-oriented material or performance. At this time, the state offered the 

following factual basis to support appellant’s guilty plea: 

 [H]ad this case proceeded to trial, the State of Ohio would have 

called the necessary witnesses from the Perrysburg Police Department who 

would have testified that as a result of information that they received a 

forensic analysis of the defendant’s numerous mobile items, that being cell 

phones, iPhone, and other items were extracted from the defendant. As a 

result of that, there were items located on the phone wherein there were 

nude juvenile females who were located on the defendant’s phone where 

they were either sent to him or he photographed and made those 

photographs and videos of those victims. That both victims being 

identified, both juvenile victims being identified, as being less than 18 

years of age, all occurring in Perrysburg, Wood County, Ohio. 
3.

{¶ 3} The trial court accepted appellant’s guilty plea, ordered the preparation of a 

presentence investigation report, and continued the matter for sentencing. 

{¶ 4} Appellant’s sentencing hearing was held on November 17, 2014. At the 

outset, the court held a sex offender classification hearing and appellant was classified as 

a tier II sex offender. The court then proceeded to sentencing. According to the 

sentencing entry, the court “carefully reviewed” the record, oral statements, the 

presentence report, appellant’s relevant financial information, the purposes and principles 

of sentencing, and the relevant seriousness and recidivism factors. Additionally, the 

photographs for which appellant was convicted of the charged offense were presented at 

the sentencing hearing. Regarding the trial court’s consideration of the relevant statutory 

sentencing guidelines, the sentencing entry states the following: 

 The court noted that the overriding purposes of felony sentencing are 

to protect the public from future crime by the offender and to punish the 

offender using the minimum sanctions that the court determines accomplish 

those purposes without imposing an unnecessary burden on state or local 

government resources. The court further noted that in achieving those 

purposes, the sentencing court shall 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. The court further noted that a sentence must be 

commensurate with and not demeaning to the seriousness of the offender’s 
4.

conduct and its impact upon the victim, and consistent with sentences 

imposed for similar crimes committed by similar offenders. 

 The court reviewed the seriousness and recidivism factors and 

considered that the victim suffered serious psychological injury as a result 

of the offense and the offender had a history of criminal convictions. 

{¶ 5} Upon consideration of the foregoing, the court imposed a five-year prison 

sentence and ordered appellant to pay a $5,000 fine, along with all costs associated with 

the case. It is from this order that appellant now appeals, asserting the following 

assignment of error: 

 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. 

III. Analysis 

{¶ 6} In appellant’s sole assignment of error, he argues that his sentence is 

contrary to law in that the trial court failed to comply with the statutory sentencing 

guidelines set forth in R.C. 2929.11 and 2929.12. 

{¶ 7} We review felony sentences under the two-prong approach set forth in R.C. 

2953.08(G)(2). R.C. 2953.08(G)(2) provides that an appellate court may increase, 

reduce, modify, or vacate and remand a disputed sentence if it clearly and convincingly 

finds either of the following: 
5.

 (a) That the record does not support the sentencing court’s 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, 

whichever, if any, is relevant; 

 (b) That the sentence is otherwise contrary to law. 

{¶ 8} Here, appellant’s argument is limited to the second prong of R.C. 

2953.08(G)(2), namely that the sentence is contrary to law. Appellant concedes that his 

five-year sentence was within the permissible range for a felony of the second degree. 

However, he contends that the trial court failed to properly consider R.C. 2929.11 and 

2929.12 in fashioning his sentence. More particularly, appellant argues that the 

presentation of the offending photographs at the sentencing hearing was unduly 

inflammatory. We disagree. 

{¶ 9} In his appellate brief, appellant acknowledges that the photographs would 

have been admissible had the matter proceeded to trial. Further, reference to the 

photographs is conspicuously absent from the trial court’s sentencing entry, in which it 

stated that it considered the relevant statutory factors in fashioning appellant’s sentence. 

Moreover, the trial court’s entry demonstrates compliance with the mandates of R.C. 

2929.11 and 2929.12. 

{¶ 10} R.C. 2929.11 states, in relevant part: 

 (A) A court that sentences an offender for a felony shall be guided 

by the overriding purposes of felony sentencing. The overriding purposes 
6.

of felony sentencing are to protect the public from future crime by the 

offender and others and to punish 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 those purposes, the sentencing court shall 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. 

 (B) A sentence imposed for a felony shall be reasonably calculated 

to achieve the two overriding purposes of felony sentencing set forth in 

division (A) of this section, 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. 

{¶ 11} R.C. 2929.12 further requires a court to consider whether any aggravating 

or mitigating factors are present that would warrant a greater or lesser sentence. Relevant 

here, R.C. 2929.12 lists the following as an aggravating factor: “The victim of the 

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

offense.” 

{¶ 12} As noted above, the trial court expressly indicated its consideration of the 

overriding purposes of felony sentencing under R.C. 2929.11, as well as the seriousness 
7.

and recidivism factors under R.C. 2929.12. Regarding the seriousness and recidivism 

factors, the court found that appellant’s conduct caused serious psychological harm to the 

minor victims. Thus, we conclude that the trial court complied with the mandates of R.C. 

2929.11 and 2929.12. We further find no evidence to support appellant’s assertion that 

the trial court was unduly influenced by the presentation of the photographs at the 

sentencing hearing. Therefore, we find that appellant’s sentence was not contrary to law. 

{¶ 13} Accordingly, appellant’s sole assignment of error is not well-taken. 

IV. Conclusion 

{¶ 14} Based on the foregoing, the judgment of the Wood County Court of 

Common Pleas is affirmed. Costs are hereby assessed to appellant in accordance with 

App.R. 24. 

Judgment affirmed. 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Mark L. Pietrykowski, J. _______________________________ 

JUDGE 

Arlene Singer, J. 

_______________________________ 

Stephen A. Yarbrough, P.J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE 

This decision is subject to further editing by the Supreme Court of 

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported 

version are advised to visit the Ohio Supreme Court’s web site at: 

http://www.sconet.state.oh.us/rod/newpdf/?source=6.