[Cite as State v. Maltos , 2019-Ohio-4900.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT HURON COUNTY

State of Ohio Court of Appeals No. H-18-023 Appellee Trial Court No. CRI 2018-0508

v. Seferino Juan Maltos DECISION AND JUDGMENT Appellant Decided: November 27, 2019

* * * * * James Joel Sitterly, Huron County Prosecuting Attorney, and Melissa A. Angst, Assistant Prosecuting Attorney, for appellee

. Thomas J. McGuire, for appellant.

* * * * * OSOWIK, J. {¶ 1} This is an appeal from a November 9, 2018 judgment of the Huron County of Common Pleas, sentencing appellant to a 30-month prison term following appellant’s2. convictions on one count of illegal conveyance of drugs onto th e grounds of a government facility, in violation of R.C. 2921.36(A)(2), a felo ny of the third degree, two counts of conspiracy to commit illegal conveyance of drugs onto the grounds of government facility, in violation of R.C. 2923.01(A)(1), feloni es of the fourth degree, and two counts of complicity to commit illegal conveyance of drugs onto the grounds of the government facility, in violation of R.C. 2923.01(A)(3), feloni es of the third degree. {¶ 2} The sentence was ordered to be served consecutively to a separa te sentence that appellant was serving for prior drug convictions at the ti me that appellant committed the instant offenses while a prisoner at the Huron County Jail. This case stems from an attempted drug importation scheme orchestrated by appellant and his cellmates at the jail. For the reasons set forth below, this court affirms the judgmen t of the trial court. {¶ 3} Appellant, Serefino Juan Maltos, sets forth the following two a ssignments of

error: {¶ 4} “I. Whether appellant’s conviction[s] [were] supported by suff icient

evidence. {¶ 5} “II. Whether appellant’s sentence on a third-degree felony to a term of

incarceration was an abuse of discretion.” {¶ 6} The following undisputed facts are relevant to this appeal. On January 25, 2018, appellant began serving a prison sentence in the Huron Co unty jail for drug trafficking, drug possession, criminal tools, and weapons offen ses separate from the3. instant offenses. Appellant was serving time in the jail on th e above-referenced prior sentence when committing the crimes from which this appeal aris es. {¶ 7} At the jail, appellant was assigned to reside in a pod that he shared with fellow inmates Curtis Newsome and Randy Myers, the co-defendant s in the underlying offenses. The space shared by the three inmates placed them in close proximity to one another during their tenure in the jail so as to enable their a ttempted coordination of the failed plot to smuggle drugs into the jail. {¶ 8} The three podmates drew heightened scrutiny from jail personnel after the recovery of a letter containing suspicious content was discover ed during a routine search of the pod by staff. {¶ 9} On May 1, 2018, during a search conducted periodically for susp icious items in the jail pods, commonly referred to as a “shakedown”, a disc arded letter was retrieved from the trash in the pod shared by appellant and the co-defend ants. The correspondence was addressed to Myers’ girlfriend. Review of the content of t he correspondence revealed that Myers was concerned about a $250.00 drug debt owe d to podmate

Newsome. {¶ 10} Further surveillance efforts recovered a second letter that Mye rs had attempted to surreptitiously conceal within his power of attorn ey paperwork. This letter was addressed to Myers’ sister. In this correspondence, which was recovered before it4. could be sent, Myers requested that his sister to meet with New some’s wife, Aleesha Hardy, at a local store to pay off the drug debt that he owed t o Newsome. {¶ 11} Several weeks later, Myers’ father passed away. Accordingly, M yers was granted a two-day furlough on May 23-24, in order to attend the funeral. {¶ 12} The pending furlough invited further scrutiny of the podmates g iven that numerous attempts to smuggle unlawful items into the jail have been discovered and thwarted in connection to inmates temporarily out on furlough. Accordingly, jail staff began to more closely scrutinize the communications of the podm ates. {¶ 13} On May 23, 2018, the first day of Myers furlough, jail personne l monitored a phone conversation between appellant and one of his local fri ends. In that conversation, appellant advised his friend that appellant was g oing to have Hardy, Newsome’s wife, contact appellant’s friend by telephone. The s urveillance consistently discovered that Newsome had simultaneously furnished his wife w ith the telephone number of appellant’s friend who was going to be calling. {¶ 14} The coordination by the two podmates with two separate local pe ople to contact one another during Myers’ furlough was highly suspiciou s and triggered additional investigatory efforts into the trio. {¶ 15} Significantly, appellant’s telephone conversation with his frie nd then changed to a thinly-coded discussion about “glass,” which is co mmonly known by law enforcement to be lingo for the illegal drug methamphetamine. Appellant stated to the5. friend on a call, “[G]lass, glass, glass, glass it will fuck yo u up, the thicker the better * * * you for real for real know what I mean ?” (Emphasis added). {¶ 16} Shortly thereafter, appellant placed several more monitored cal ls to another friend. Appellant advised this person that he was going to hav e Hardy call him. Appellant requested that this friend secure some, “stripper hoe s,” which is commonly known by law enforcement to be lingo for the illegal drug subox one. The friend agreed in the recorded, monitored conversation to secure the drugs. A ppellant then gave the friend Hardy’s telephone number. {¶ 17} Simultaneous with appellant’s suspicious calls, Newsome likewis e made multiple suspicious calls to Hardy. The monitoring of these ca lls revealed that Newsome was requesting that Hardy likewise secure unlawful drugs, as we ll as the details of the funeral that Myers would be attending on furlough in order for Hardy to attend the funeral for purposes of pass the drugs to Myers prior to his re turn to the jail at the end of his furlough. {¶ 18} Based upon the trove of information garnered during the inmate surveillance, reflecting a criminal drug scheme was being hatch ed by appellant and his podmates, arrangements were put into place to have Myers under surveillance while outside of the jail on the funeral furlough. {¶ 19} Consistent with the surveillance knowledge, Hardy did appear at the funeral with unlawful drugs on her person intending to pass the m over to Myers prior to6. his return to the jail in adherence with the plan, but she was ultimately unable to do so due to her admitted inability to definitively identify Myers am ong the crowd at the

funeral. {¶ 20} At the conclusion of the funeral, the undercover officers condu cting the surveillance of the funeral, knowing that Hardy had failed to c omplete the handover of the drugs, initiated a traffic stop of Hardy. {¶ 21} The officers recovered the unlawful drugs from Hardy. During t heir investigation and interview of Hardy, she confessed to the plan to pass the drugs to Myers in order for him to transport drugs into the jail. {¶ 22} Hardy further conceded to communicating with appellant’s friend who had similarly agreed to secure drugs to pass along to Myers for tra nsport into the jail and delivery to appellant. {¶ 23} Notably, shortly after Hardy was picked up by the police, appel lant was monitored calling back one of the local friends and told him no t to call again because they had been, “blown down,” which is commonly known by law enf orcement to mean that criminal schemes or plans have been discovered by law enfo rcement. {¶ 24} On July 2, 2018, following these events, appellant was indicted on one count of illegal conveyance of drugs onto the grounds of govern ment facility, in violation of R.C. 2921.36(A)(2), a felony of the third degree, two counts of conspiracy to commit illegal conveyance of drugs onto the grounds of the government facility, in violation of7. R.C. 2923.01(A)(1), felonies of the fourth degree, and two coun ts of complicity to commit illegal conveyance of drugs onto the grounds of a govern ment facility, in violation of R.C. 2923.01(A)(3), felonies of the third degree. {¶ 25} Again, appellant was already in jail serving a sentence on prio r convictions at the time of engaging in this failed jailhouse drug importati on plot. {¶ 26} On November 6, 2018, appellant’s new cases proceeded to a jury trial. On November 8, 2018, the jury found appellant guilty on all charge s. {¶ 27} On November 9, 2018, appellant was sentenced to a 30-month term of incarceration on the first of the offenses. The remaining offe nses were merged into the first offense for sentencing purposes. The sentence was ordere d to be served consecutively with the sentence appellant was already serving a t the time of these crimes. This appeal ensued. {¶ 28} In the first assignment of error, appellant maintains that the convictions were not supported by sufficient evidence. We do not concur. {¶ 29} It is well-established that when evaluating a sufficiency of th e evidence claim on appeal, the relevant inquiry is whether, after reviewi ng all of the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime proven beyond a reasonable doubt. State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.8. {¶ 30} R.C. 2921.36(A) defines illegal conveyance of drugs onto the gr ounds of the government facility, in relevant part, as, “[N]o person sha ll knowingly convey, or attempt to convey , onto * * * [prison grounds] * * * any drug of abuse.” (Empha sis added). {¶ 31} R.C. 2923.01(A) defines conspiracy to commit illegal conveyance of drugs onto the grounds of a government facility, in relevant part, as , “[N]o person, with purpose to commit or to promote or facilitate the commission of * * * a felony drug trafficking * * * offense * * * shall * * * with another person or persons, p lan or aid in planning the commission of any of the specified offenses.” {¶ 32} R.C. 2923.03(A) defines complicity to commit illegal conveyance of drugs onto the grounds of government facility, in relevant part, as, “No person, acting with the kind of culpability required for the commission of an offense, shall * * * solicit or procure another to commit the offense.” {¶ 33} As applied to the instant case, the record reflects through the extensive trial testimony of the law enforcement officers and jail personnel in volved in this matter, as well as a multitude of exhibits introduced into evidence, inclu ding recorded telephone conversations and correspondence, that appellant contacted seve ral area individuals and instructed those individuals, using veiled drug lingo, to secur e unlawful drugs for purposes of transport into the county jail during Myers’ funera l furlough. These efforts9. were done in coordination with Newsome’s phone calls similarly arranging for the drugs to be passed along to Myers by Newsome’s wife at the funeral. {¶ 34} Although these efforts ultimately failed in their objective, an d the drugs were intercepted by the undercover officers, the record encompa sses ample evidence of appellant’s criminal culpability in the above-defined crimes. The record reflects evidence sufficient such that a rational trier of fact viewing the evide nce in the light most favorable to the prosecution could find the elements of the crimes to hav e been demonstrated. {¶ 35} In conjunction with this, appellant also maintains that the con victions were against the manifest weight of the evidence. We do not concur. {¶ 36} It is well-established that when determining whether a convicti on is against the manifest weight of the evidence, the appellate court must r eview the record, weigh the

evidence and all reasonable inferences drawn from said evidence , consider witness credibility and conflicts in the evidence, and determine whethe r the trier of fact clearly lost its way such that a manifest miscarriage of justice result ed, thereby necessitating a

new trial. State v. Prescott , 190 Ohio App.3d 702, 2010-Ohio-6048, 943 N.E.2d 1092, ¶ 48 (6th Dist.). {¶ 37} While appellant summarily concludes in support of the manifest weight argument that, “the jury lost its way [and] the evidence was co nfusing and discombobulated,” our review of the record does not bear out th is assertion.10. {¶ 38} The record reflects that all matters were properly explained, c onsidered, and understood. The nature of this case in terms of the multip le conspirators involved, both inside of outside of the jail, and the superficially coded communications between the parties, in no way negated the ultimately clear and persuasive evidence presented at trial. {¶ 39} There is nothing in the record of evidence reflecting that the trier of fact lost its way such that appellant’s convictions constituted a mi scarriage of justice. {¶ 40} Wherefore, we find appellant’s first assignment of error not we ll-taken. {¶ 41} In appellant’s second assignment of error, appellant contends t hat the trial court unlawfully imposed appellant’s sentence in this case cons ecutively with the sentence that appellant was serving at the time he committed th ese offenses. We do not

concur. {¶ 42} It is well-established that appellate court felony sentence rev iew is not done by the abuse of discretion standard. Rather, pursuant to R.C. 2953.08(G)(2), an appellate court may increase, decrease, modify, or vacate and remand a di sputed felony sentence if it clearly and convincingly finds that either the record of evi dence does not support applicable statutory findings, or the sentence is otherwise con trary to law. State v.

Tammerine , 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 11. {¶ 43} In support of this assignment, appellant unconvincingly asserts simply that appellant was, “the least culpable of the players in the conspi racy.” Appellant proceeds11. to summarily conclude that, “[appellant’s] consecutive sentence was disproportionate to

his conduct.” We do not concur. {¶ 44} We note that the record does not reflect, nor is it asserted, t hat appellant’s sentence was based upon applicable statutory findings not suppo rted by the record or that it was in any way facially unlawful. Rather, appellant subject ively asserts that the sentence should have been, “closer to the minimum.” {¶ 45} Appellant’s subjective perception of his level of culpability, in comparison to his cohorts, and his subjective belief that his non-maximum sentence should have been more on the minimum end of the scale is not germane to our dete rmination. The record reflects that while appellant, who possesses an extensive crimi nal record, was already in jail on prior drug and weapons offenses, undertook a brazen eff ort to capitalize on a cellmate’s funeral furlough in an effort to import illegal drug s into the jail. {¶ 46} These facts exemplify a case in which the need to protect the p ublic, the risk of recidivism, and the need to impose a sentence proportio nate to the seriousness of the crimes are irrefutable and compelling. The record reflects that the prosecution requested a 36-month term of incarceration ordered to be served consecutive to the term of incarceration already being served. The trial court ultimat ely imposed a consecutive 30-month term of incarceration, six months less than was reques ted. We find that the record is devoid of any evidence that the disputed trial court sentence was in any way improper or unlawful. We find appellant’s second assignment of error not well-taken.12. {¶ 47} On consideration whereof, we find that substantial justice has been done in this matter. The judgment of the Huron County Court of Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment affirmed.

A certified copy of this entry shall constitute the mandate pu rsuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ___________________________

_ JUDGE Thomas J. Osowik, J.

____________________________ Gene A. Zmuda, J. JUDGE CONCUR.

____________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.