[Cite as State v. Ortiz-Rojas, 2016-Ohio-5138.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 103688

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

ADALBERTO J. ORTIZ-ROJAS

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-15-593364-A 

BEFORE: S. Gallagher, P.J., Blackmon, J., and Laster Mays, J. 

RELEASED AND JOURNALIZED: July 28, 2016 
ATTORNEY FOR APPELLANT 

Michael H. Murphy 

20325 Center Ridge Road 

Suite 512 

Rocky River, Ohio 44116 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Marc Bullard 

Assistant Prosecuting Attorney 

Justice Center - 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
SEAN C. GALLAGHER, P.J.: 

{¶1} Adalberto J. Ortiz-Rojas appeals his 18-month prison sentence, following a 

guilty plea to the third-degree felony of trafficking, claiming that the trial court erred by 

not finding the presumption of a prison sentence, found in R.C. 2925.03(C)(4)(d), had 

been rebutted under R.C. 2929.13(D)(2). Ortiz-Rojas is not challenging any aspect of his 

guilty plea. We cannot review the single assignment of error as presented and, therefore, 

affirm the conviction. 

{¶2} A defendant enjoys only a limited right to appeal sentences under R.C. 

2953.08. State v. Marcum, Slip Opinion No. 2016-Ohio-1002, ¶ 22. For example, the 

defendant has the right to appeal any sentence consisting of the maximum term allowed 

for an offense, any prison sentence imposed for a fourth- or fifth-degree felony in certain 

situations, a sentence stemming from certain violent sex offenses, or any sentence that 

included an additional prison term imposed pursuant to R.C. 2929.14(B)(2)(a). R.C. 

2953.08(A); State v. Ongert, 8th Dist. Cuyahoga No. 103208, 2016-Ohio-1543, ¶ 8. 

None of those provisions apply to the current case. 

{¶3} The only other grounds to support an appeal of a final sentence is if the 

sentence is contrary to law. R.C. 2953.08(A)(4). A sentence is contrary to law if (1) the 

sentence falls outside the statutory range for the particular degree of offense, or (2) the 

trial court failed to consider the purposes and principles of felony sentencing set forth in 

R.C. 2929.11 and the sentencing factors in R.C. 2929.12. Id. at ¶ 9, citing State v. Price, 
8th Dist. Cuyahoga No. 103023, 2016-Ohio-591, ¶ 12; State v. Hinton, 8th Dist. 

Cuyahoga No. 102710, 2015-Ohio-4907, ¶ 10, citing State v. Smith, 8th Dist. Cuyahoga 

No. 100206, 2014-Ohio-1520. 

{¶4} A trial court need only consider the sentencing factors pursuant to R.C. 

2929.11 and 2929.12 and need not make findings in support of that consideration. 

Ongert at ¶ 12, citing State v. Karlowicz, 8th Dist. Cuyahoga No. 102832, 

2016-Ohio-925. A sentence within the bounds of the law cannot be deemed contrary to 

law because a defendant disagrees with the trial court’s discretion to individually weigh 

the sentencing factors. Id.; see also State v. D.S., 10th Dist. Franklin No. 15AP-790, 

2016-Ohio-2856, ¶ 15 (“Although appellant appears to disagree with the trial court’s 

analysis and application of the purposes and principles of sentencing set forth by R.C. 

2929.11 and the statutory factors set forth by R.C. 2929.12, such disagreement does not 

make a sentence that falls within the applicable statutory range contrary to law.”) As 

long as a trial court considered all sentencing factors, the sentence is not contrary to law, 

and the record therefore supports the sentence. Marcum at ¶ 23. 

{¶5} In this case, Ortiz-Rojas claims the trial court ignored mitigating factors he 

presented at the sentencing hearing for the purpose of rebutting the presumption of a 

prison sentence under R.C. 2929.13(D)(2).1

 Essentially, Ortiz-Rojas complains that the 

 1 R.C. 2929.13(D)(2) provides that notwithstanding the presumption that prison is necessary 

to comply with the sentencing principles and factors under R.C. 2929.11, the trial court may impose 

community control sanctions only if the trial court makes certain findings enumerated in that 

subdivision. 
trial court did not give greater weight to the factors he deemed more relevant — his lack 

of a felony criminal record and his remorse over his involvement in the crime, all of 

which were presented at the sentencing hearing. The weight given to any one sentencing 

factor is purely discretionary and rests with the trial court. All that R.C. 2929.11 and 

2929.12 require is for the trial court to consider the factors. Ongert at ¶ 10; State v. 

Montanez-Roldon, 8th Dist. Cuyahoga No. 103509, 2016-Ohio-3062, ¶ 10-11 (R.C. 

2953.08 precluded appellate review of the trial court’s discretion in weighing the 

consistency in sentencing principles under R.C. 2929.11(B) because the final sentence 

was within the applicable statutory range and the trial court expressly indicated it 

considered all the required statutory factors and principles).2

{¶6} The trial court in this case, at both the sentencing hearing and again in the 

final sentencing entry, expressly considered all factors at law before imposing the 

mid-range sentence for a third-degree felony offense. Further, R.C. 2929.13(D)(1) 

creates a presumption that a “prison term is necessary in order to comply with the 

purposes and principles of sentencing under section 2929.11 of the Revised Code.” The 

record in this case supports the statutorily authorized sentence, which is not otherwise 

 2 Panels from this court have gone so far as to conclude, albeit in the context 

of resolving a motion to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 

1396, 18 L.Ed.2d 493 (1967), that attempting to challenge the trial court’s 

discretion to weigh individual sentencing factors under R.C. 2929.11 and 2929.12 is 

wholly frivolous in situations in which the trial court, at the sentencing hearing and 

in the final entry of conviction, states that it “considered all required factors of law” 

before imposing a sentence within the applicable statutory range. State v. Torres, 

8th Dist. Cuyahoga No. 101769, 2015-Ohio-2038, ¶ 11; State v. Hayes, 8th Dist. 

Cuyahoga No. 103507, 2016-Ohio-2639, ¶ 19-20. 
contrary to law because the trial court expressly considered all of the required sentencing 

principles and factors. Marcum at ¶ 23. We cannot review the sentence. 

{¶7} We acknowledge that Ortiz-Rojas’s argument implicates R.C. 2929.13(D)(2) 

and that R.C. 2953.08(G)(2) provides that an appellate court may not modify, vacate, or 

otherwise alter a final sentence unless it clearly and convincingly finds in its review 

“[t]hat the record does not support the sentencing court’s findings under division (B) or 

(D) of 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.” (Emphasis omitted.) 

Marcum, Slip Opinion No. 2016-Ohio-1002, ¶ 9. Nevertheless, Ortiz-Rojas is not 

appealing the findings made pursuant to R.C. 2929.13(D)(2), but instead is appealing the 

lack of findings and the failure to impose community control sanctions instead of a prison 

term. Nothing in R.C. 2953.08(G)(2) authorizes this form of review. Findings are only 

required if the trial court imposed community control sanctions on a third-degree felony 

trafficking conviction in lieu of a prison sentence. The trial court in this case followed 

the presumption and imposed a mid-range prison term. 

{¶8} Ortiz-Rojas’s arguments are limited to reviewing the trial court’s discretion 

used in weighing the sentencing factors for which there is a statutory presumption that 

those factors weigh in favor of a prison term. There is no statutory basis for us to review 

this aspect of the sentencing in light of the presumption, and especially after all statutory 

obligations were satisfied when the trial court expressly considered all the required 

factors of law before imposing a mid-range sentence on a third-degree felony offense. 
Our review is limited, and Ortiz-Rojas is not claiming his sentence is otherwise contrary 

to law. R.C. 2953.08 specifically precludes review of the imposed sentence, and 

therefore, we must affirm. 

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 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. 

SEAN C. GALLAGHER, PRESIDING JUDGE 

PATRICIA ANN BLACKMON, J., and 

ANITA LASTER MAYS, J., CONCUR