[Cite as State v. Saracco-Rios, 2016-Ohio-7192.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

MADISON COUNTY 

STATE OF OHIO, : 

 CASE NOS. CA2016-02-011 

 Plaintiff-Appellee, : CA2016-03-014 

 : O P I N I O N 

 - vs - 10/3/2016 

 : 

ALDO SAUL SARACCO-RIOS, : 

 Defendant-Appellant. : 

CRIMINAL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS 

Case No. CRI20150123 

Stephen J. Pronai, Madison County Prosecuting Attorney, Rachel M. Price, 59 North Main 

Street, London, Ohio 43140, for plaintiff-appellee 

Shannon M. Treynor, 63 North Main Street, P.O. Box 735, London, Ohio 43140, for 

defendant-appellant 

 S. POWELL, J.

{¶ 1} Defendant-appellant, Aldo Saul Saracco-Rios, appeals from his conviction in 

the Madison County Court of Common Pleas after he pled guilty to one count of possession 

of drugs. For the reasons outlined below, we affirm. 

{¶ 2} On October 15, 2015, the Madison County Grand Jury returned an indictment 

charging Saracco-Rios with one count of possession of drugs in violation of R.C. 2925.11(A), 

a first-degree felony. The charge arose after Saracco-Rios attempted to sell 124 grams of 
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heroin to an undercover officer at a gas station located in Madison County. It is undisputed 

that at the time of his arrest, Saracco-Rios was a 24-year-old Mexican citizen who had 

recently graduated from a Mexican university with a degree in law. 

{¶ 3} On January 21, 2016, Saracco-Rios entered a guilty plea to the charged 

offense of one count of possession of drugs. After accepting Saracco-Rios' plea, the trial 

court referred the matter for a presentence investigation report ("PSI"). Thereafter, on 

February 16, 2016, the trial court held a sentence hearing and sentenced Saracco-Rios to 

serve a mandatory term of nine years in prison, ordered him to pay the mandatory minimum 

fine of $10,000, and imposed a mandatory five-year postrelease control term. The trial court 

also suspended Saracco-Rios' driver's license for a period of five years. Saracco-Rios then 

moved the trial court to reconsider its sentencing decision, which the trial court denied. 

{¶ 4} Saracco-Rios now appeals from his conviction, raising two assignments of error 

for review. 

{¶ 5} Assignment of Error No. 1: 

{¶ 6} COUNSEL FOR THE DEFENDANT/APPELLANT WAS INEFFECTIVE FOR 

FAILING TO REQUEST THE COURT FOR A COMPLETE OR PARTIAL WAIVER OF THE 

MANDATORY FINE BASED UPON THE DEFENDANT'S INDIGENCE. 

{¶ 7} In his first assignment of error, Saracco-Rios argues he received ineffective 

assistance of counsel when his trial counsel did not "call the [trial court's] attention" to the 

issue of whether he had the present or future ability to pay the mandatory minimum $10,000 

fine that was imposed. We disagree. 

{¶ 8} Pursuant to R.C. 2929.18(B)(1), the trial court is obligated to impose mandatory 

fines when the offender commits certain drug-related felonies. State v. Johnson, 12th Dist. 

Butler No. CA2011-11-212, 2014-Ohio-3776, ¶ 10. As relevant here, this includes a firstdegree felony offense of possession of drugs in violation of R.C. 2925.11(A). However, the 
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statute further provides that (1) "if an offender alleges in an affidavit filed with the court prior 

to sentencing that the offender is indigent and unable to pay the mandatory fine," and (2) "if 

the court determines the offender is an indigent person and is unable to pay the mandatory 

fine described in this division," the court shall not impose such a mandatory fine. 

{¶ 9} Ohio courts, including this court, have held that the failure to file an affidavit 

alleging an offender's indigency and inability to pay a mandatory fine constitutes ineffective 

assistance of counsel only "'when the record shows a reasonable probability that the trial 

court would have found the defendant indigent and unable to pay the fine had the affidavit 

been filed.'" Johnson at ¶ 11, quoting State v. Gilmer, 6th Dist. Ottawa No. OT-01-015, 2002 

WL 737060, *2 (Apr. 26, 2002). Yet, even then, the filing of an affidavit of indigency by an 

offender does not automatically entitle the offender to a waiver of the mandatory fine. State 

v. Bolden, 12th Dist. Preble No. CA2003-03-007, 2004-Ohio-184, ¶ 35. Rather, "[t]he burden 

is upon the offender to affirmatively demonstrate that he or she is indigent and is unable to 

pay the mandatory fine." (Emphasis sic.) State v. Gipson, 80 Ohio St.3d 626, 635 (1998). 

{¶ 10} According to R.C. 2929.19(B)(5), before imposing a financial sanction, including 

a mandatory fine under R.C. 2929.18(B)(1), "the court shall consider the offender's present 

and future ability to pay the amount of the sanction or fine." There are no express factors 

that must be considered or specific findings that must be made regarding the offender's 

ability to pay. State v. Dandridge, 12th Dist. Butler No. CA2003-12-330, 2005-Ohio-1077, ¶ 

6. However, there must be some evidence in the record to show that the trial court acted in 

accordance with the legislative mandate that it consider the offender's present or future ability 

to pay. State v. Lang, 12th Dist. Brown No. CA2011-03-007, 2011-Ohio-5742, ¶ 12, citing 

State v. Adkins, 144 Ohio App.3d 633, 647 (12th Dist.2001). This can be shown through the 

trial court's use of a PSI, which often provides financial and personal information of the 

offender, in order to aid the trial court in making its determination. Johnson, 2014-Ohio-3776 
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at ¶ 12, citing State v. Simms, 12th Dist. Clermont No. CA2009-02-005, 2009-Ohio-5440, ¶ 9. 

{¶ 11} After a thorough review of the record, we find the record contains ample 

evidence indicating the trial court considered Saracco-Rios' present and future ability to pay 

the mandatory minimum $10,000 fine that was imposed. As noted above, it is undisputed 

that at the time of his arrest, Saracco-Rios was 24-year-old Mexican citizen who had recently 

graduated from a Mexican university with a degree in law. Yet, despite being educated in the 

law, the PSI indicates Saracco-Rios had instead started his own lawn care and painting 

business that earned him between $2,000 to $3,000 a month, a portion of which he would 

send to his mother and sister in Mexico. The PSI also indicated Saracco-Rios had never 

been fired from any prior employment, had no prior criminal record, and that he had 

considered himself in a good financial condition prior to his arrest. 

{¶ 12} As part of the sentencing hearing, the trial court noted that it had reviewed and 

considered the PSI in fashioning its sentence, specifically noting "that Mr. Saracco-Rios is a 

well-educated man, and, in fact, was trained to be a lawyer." In addition, as part of its 

sentencing entry, the trial court explicitly stated that it had "reviewed the [PSI] and heard 

statements in mitigation presented by [Saracco-Rios] and his counsel." As can be seen, 

there was ample evidence in the record to indicate the trial court properly considered 

Saracco-Rios' present and future ability to pay the mandatory minimum $10,000 fine that was 

imposed. Therefore, because Saracco-Rios has failed to demonstrate that the trial court 

failed to consider his present and future ability to pay, it cannot be said that Saracco-Rios' 

trial counsel provided ineffective assistance by not "call[ing] the [trial court's] attention" to that 

issue. Accordingly, Saracco-Rios' first assignment of error lacks merit and is overruled. 

{¶ 13} Assignment of Error No. 2: 

{¶ 14} THE COURT ABUSED ITS DISCRETION IN SENTENCING THE 

DEFENDANT, A FIRST TIME, NON-VIOLENT OFFENDER, TO A DETERMINATE TERM 
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OF NINE YEARS IN THE PENITENTIARY. 

{¶ 15} In his second assignment of error, Saracco-Rios argues the trial court abused 

its discretion by sentencing him to serve a mandatory nine-year prison term. We disagree. 

{¶ 16} Contrary to Saracco-Rios' claim, an appellate court does not review a trial 

court's sentencing decision for an abuse of discretion. State v. Julious, 12th Dist. Butler No. 

CA2015-12-224, 2016-Ohio-4822, ¶ 8, citing State v. Marcum, Slip Opinion No. 2016-Ohio1002, ¶ 10. Rather, as with all felony sentences, we review this sentence under the standard 

of review set forth in R.C. 2953.08(G)(2). State v. Crawford, 12th Dist. Clermont No. 

CA2012-12-088, 2013-Ohio-3315, ¶ 6. Pursuant to that statute, an appellate court may 

modify or vacate a sentence only if the appellate court finds by clear and convincing evidence 

that "the record does not support the trial court's findings under relevant statutes [addressed 

within R.C. 2953.08(G)(2)] or that the sentence is otherwise contrary to law." Marcum at ¶ 1. 

{¶ 17} Even in those cases where the sentence imposed does not require any of the 

statutory findings specifically addressed within R.C. 2953.08(G)(2), an appellate court will 

nevertheless review those sentences "under a standard that is equally deferential to the 

sentencing court." Marcum at ¶ 23. "That is, an appellate court may vacate or modify any 

sentence that is not clearly and convincingly contrary to law only if the appellate court finds 

by clear and convincing evidence that the record does not support the sentence." Id. Thus, 

this court may "increase, reduce, or otherwise modify a sentence only when it clearly and 

convincingly finds that the sentence is (1) contrary to law or (2) unsupported by the record." 

State v. Brandenburg, Slip Opinion No. 2016-Ohio-2970, ¶ 1, citing Id. at ¶ 7. 

{¶ 18} We find no error in the trial court's decision to sentence Saracco-Rios to serve 

a mandatory nine-year prison term. As the record reveals, Saracco-Rios' sentence is not 

clearly and convincingly contrary to law because the trial court properly considered the 

purposes and principles of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, 
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imposed the required mandatory five-year postrelease control term, and ordered him to serve 

a sentence that fell within the permissible statutory range for a first-degree felony. See R.C. 

2929.14(A)(1) ("[f]or a felony of the first degree, the prison term shall be three, four, five, six, 

seven, eight, nine, ten, or eleven years"). As this court has stated previously, a sentence is 

not clearly and convincingly contrary to law where the trial court "considers the principles and 

purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly imposes 

postrelease control, and sentences the defendant within the permissible statutory range." 

State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-Ohio-2890, ¶ 8. 

{¶ 19} The record also supports the trial court's sentencing decision. Specifically, the 

record indicates Saracco-Rios attempted to sell 124 grams of heroin to an undercover officer 

for hire or as part of an organized criminal activity. Saracco-Rios admitted as much in the 

PSI, which indicated he "would make 300 for the risk." As the trial court properly noted, 

pursuant to R.C. 2929.12(B)(7), this indicates Saracco-Rios' conduct was more serious than 

the conduct normally constituting the offense. The record also indicates that Saracco-Rios 

had a history of substance abuse and admitted use of marijuana, cocaine, and alcohol. 

Therefore, because we find Saracco-Rios' sentence was not clearly and convincingly 

contrary to law, and because the record fully supports the trial court's sentencing decision, 

Saracco-Rios' second assignment of error is also without merit and overruled. 

{¶ 20} Judgment affirmed. 

 M. POWELL, P.J., and HENDRICKSON, J., concur.