[Cite as State v. Perez, 2013-Ohio-1178.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 98417

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

RAFAEL PEREZ 

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-555340 

BEFORE: McCormack, J., Celebrezze, P.J., and Rocco, J. 

RELEASED AND JOURNALIZED: March 28, 2013 
ATTORNEY FOR APPELLANT

Joseph F. Salzgeber 

Foth & Foth Co. L.P.A. 

11221 Pearl Road 

Strongsville, OH 44136 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Andrew Rogalski 

Assistant County Prosecutor 

9th Floor, Justice Center 

1200 Ontario Street 

Cleveland, OH 44113 
TIM McCORMACK, J.: 

{¶1} Defendant-appellant, Rafael Perez (“Perez”), appeals his conviction and 

sentence, following a jury trial in the Cuyahoga County Court of Common Pleas. Perez 

was convicted of burglary, theft, and vandalism. The trial court sentenced Perez to four 

years in prison. For the reasons that follow, we affirm. 

Substantive Facts and Procedural History

{¶2} This appeal is a companion case arising out of the same events contained in 

State v. Calimeno, 8th Dist. No. 98376, where Perez’s codefendant, Angel Calimeno 

(“Calimeno” or “codefendant”), appealed from his conviction. For a recitation of the 

facts of this case, the reader is referred to the companion opinion rendered today. See 

Calimeno at ¶ 1-13. 

{¶3} At the conclusion of the joint trial, the jury found Perez and Calimeno 

guilty on all counts. On May 11, 2012, the trial court held a sentencing hearing and 

ordered Perez to pay restitution in the amount of $1,000 and serve an aggregate four-year 

term of imprisonment. 

{¶4} Perez now appeals, raising two assignments of error for review. 

Assignments of Error

I. There was insufficient evidence to support the jury’s verdicts of 

“Guilty’” as to the charged burglary, grand theft, and vandalism offenses, 

and those convictions are against the manifest weight of the evidence. 
II. The prison sentence imposed on defendant-appellant for the 

second-degree felony burglary conviction was contrary to law where it was 

inconsistent with, and greater than, the prison sentence imposed upon the 

codefendant who was charged and convicted of the same offenses. 

Law and Analysis

I. Manifest Weight and Sufficiency of the Evidence

{¶5} In his first assignment of error, Perez argues that his convictions are against 

the manifest weight of the evidence and are not supported by sufficient evidence. 

Specifically, Perez argues that there was no evidence that he was one of the persons 

inside the Wee residence and who perpetrated the burglary, vandalism, and grand theft. 

{¶6} Perez’s codefendant raises this argument in the companion case referenced 

above. In Calimeno, we conclude that the state presented sufficient evidence to support 

the jury’s conviction on all counts. We further conclude that, in reviewing all of the 

evidence in the record and deferring to the jury’s assessment of the credibility of the 

witnesses, we cannot say that the trier of fact lost its way and performed a miscarriage of 

justice in convicting Calimeno of burglary, theft, and vandalism. Because Perez’s 

conviction stemmed from the same incident that led to Calimeno’s conviction, we refer to 

¶ 16-29 in Calimeno for our analysis on these claims, and similarly, we overrule Perez’s 

first assignment of error. See Calimeno at ¶ 16-29. 
II. Sentence 

{¶7} In his second assignment of error, Perez argues that the trial court erred 

when it sentenced him to four years of prison for the burglary conviction. Specifically, 

Perez argues that the four-year prison sentence is inconsistent and contrary to law where 

his codefendant received a three-year sentence for the same offense. 

{¶8} Appellate courts must apply a two-step process in reviewing felony 

sentences. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. First, 

the reviewing court must examine the sentencing court’s compliance with all applicable 

rules and statutes in imposing the sentence in order to determine whether the sentence is 

clearly and convincingly contrary to law. Id. at ¶ 4. If this first prong is satisfied, and 

the sentence is not “clearly and convincingly contrary to law,” then this court must 

determine whether the trial court abused its discretion. Id. If, for example, the trial 

court’s sentence is outside of the statutory range and, therefore, is clearly and 

convincingly contrary to law, this court’s review has ended and the sentence cannot stand. 

Id. at ¶ 15. 

{¶9} According to R.C. 2929.11(A), in a felony sentencing, the court is guided by 

certain overriding purposes and principles: 

The overriding purposes 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. 
R.C. 2929.11(A). 

{¶10} Moreover, R.C. 2929.14(A)(2) provides that a second-degree felony, such as 

the burglary offense at issue in this case, is punishable by two, three, four, five, six, 

seven, or eight years in prison. 

{¶11} Additionally, a felony sentence shall be “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). The trial court has full discretion to determine whether 

the sentence it imposes satisfies “the overriding purpose of Ohio’s sentencing structure.” 

Kalish at ¶ 17. 

{¶12} R.C. 2929.11(B) provides that a felony sentence must be “consistent with 

sentences imposed for similar crimes committed by similar offenders,” however, 

“consistent” does not mean identical. “The goal of felony sentencing is to achieve 

‘consistency’ not ‘uniformity.’” State v. Pruitt, 8th Dist. No. 98080, 2012-Ohio-5418, ¶ 

26, citing State v. Marshall, 8th Dist. No. 89551, 2008-Ohio-1632; State v. Klepatzki, 8th 

Dist. No. 81676, 2003-Ohio-1529. While the offense may be similar, distinguishing 

factors may justify dissimilar treatment. See State v. Dawson, 8th Dist. No. 86417, 

2006-Ohio-1083, ¶ 31. Moreover, there is no requirement that codefendants receive 

equal sentences. Pruitt at ¶ 26, citing State v. Nelson, 11th Dist. No. 2008-L-072, 

2008-Ohio-5535, ¶ 21. 
{¶13} In this case, Perez argues that his sentence of four years on the burglary 

conviction is contrary to law because the trial court failed to consider the principles of 

R.C. 2929.11(B) in imposing a greater sentence on Perez than his codefendant for the 

same offense.1

 We disagree. 

{¶14} Perez and Calimeno were sentenced on May 11, 2012, for burglary, a second 

degree felony, among other charges. At the sentencing hearing, the trial court properly 

considered the purposes and principles of felony sentencing under R.C. 2929.11 as well 

as the seriousness and recidivism factors outlined in R.C. 2929.12, stating that the 

criminal activity is a serious offense that necessitates a prison sentence, and a sentence 

other than prison would seriously demean the offense and would not protect the public. 

The court also stated that the amount of harm caused and the nature and extent of the 

crime required a sentence greater than the minimum sentence. It referred to the victim 

impact statement, noting that the crime caused the victim much trauma. 

{¶15} The trial court also referred to the presentence investigation report (“PSI”) 

and indicated that there was nothing substantial to report concerning the prior criminal 

history of either defendant. With respect to Perez, however, the court noted some 

differences. The PSI stated that Rafael Perez’s true identity is Farley Efron Garcia 

Conseco. There is also information in the PSI that associates Perez, a.k.a. Farley Efron 

Garcia Conseco, with criminal gangs from the country of Columbia. Furthermore, the 

 1

 Perez and Calimeno received identical sentences for the remaining charges, and, therefore, 

Perez does not assert any error by the trial court with respect to those charges. 
trial court stated that it would consider Calimeno’s sincere expression of remorse in terms 

of sentencing.2

 

{¶16} In light of the foregoing facts, we do not find that Perez’s sentence on the 

burglary charge is clearly and convincingly contrary to law. In the first place, the 

four-year sentence imposed upon Perez was within the statutory guidelines for a second 

degree felony. Additionally, the trial court properly considered the relevant factors 

outlined in R.C. 2929.11 and 2929.12. Although both Perez and Calimeno were 

convicted of the same offense, the court took into account unique factors that 

distinguished the codefendants, such as the PSI, which indicated Perez’s use of an alias 

and his association with criminal gangs, and the fact that Calimeno expressed remorse for 

his actions. The law does not require that identical sentences be imposed. Thus, Perez’s 

four-year sentence, while greater than his codefendant’s sentence, is not clearly and 

convincingly contrary to law. 

{¶17} Because we find that Perez’s sentence was not clearly and convincingly 

contrary to law, we must now determine whether the trial court abused its discretion in 

imposing the four-year sentence. An abuse of discretion “implies that the court’s attitude 

is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 

 2

 During the sentencing hearing, when given the opportunity to speak, Calimeno offered a 

sincere expression of remorse for his part in the burglary. Perez chose not to speak on his own 

behalf. The trial court indicated that it would not hold Perez’s decision not to speak against him. 

Rather, it considered Calimeno’s remorse in imposing a lesser sentence upon Calimeno. 
217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 

N.E.2d 144 (1980). 

{¶18} As we stated above, the trial court properly considered the factors and 

principles outlined in the statutes, the victim impact statement, the PSI, and the 

codefendant’s expression of remorse as applied to his lesser sentence. Moreover, the 

sentence imposed upon Perez was within the statutory guidelines for a second degree 

felony. There is nothing in the record to suggest that the trial court’s decision in 

sentencing Perez to four years for the burglary, rather than the three years imposed upon 

his codefendant, was unreasonable, arbitrary, or unconscionable. Accordingly, Perez’s 

second assignment of error is without merit. 

{¶19} Judgment affirmed. 

It is ordered that appellee recover of 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. 
______________________________________________ 

TIM McCORMACK, JUDGE 

FRANK D. CELEBREZZE, JR., P.J., and 

KENNETH A. ROCCO, J., CONCUR