State v. Cruz

• Decision Date: 23 September 2022
• Docket Number: E-21-057
• Citation: 2022 Ohio 3356
• Parties: State of Ohio Appellee v. Exavier I. Cruz Appellant
• Court: Ohio Court of Appeals

2022-Ohio-3356

State of Ohio Appellee v. Exavier I. Cruz Appellant

No. E-21-057

Court of Appeals of Ohio, Sixth District, Erie

September 23, 2022

Trial Court No. 2020 CR 0420

Kevin J. Baxter, Erie County Prosecuting Attorney, and Kristin R Palmer, Assistant Prosecuting Attorney, for appellee.

Robert Cabrera, for appellant.

DECISION AND JUDGMENT

DUHART, J.

{¶ 1} Appellant, Exavier I. Cruz, appeals from a judgment entered by the Erie County Court of Common Pleas sentencing him to serve a term of imprisonment of three years plus life, with parole eligibility after 30 years. For the reasons that follow, we affirm the judgment of the trial court.

Statement of the Case

{¶ 2} This case arises out of the shooting death of the victim on or about December 5, 2020. Appellant, acting in concert with two other individuals, purposefully caused the victim's death while committing, or attempting to commit or while fleeing immediately after committing or attempting to commit, aggravated robbery of the victim, at the victim's home.

{¶ 3} On December 22, 2020, appellant was named in a 12-count indictment, charging him with: (1) one count of aggravated murder, in violation of R.C. 2903.01(B) and R.C. 2929.02(A), an unclassified felony; (2) two counts of aggravated robbery, in violation of R.C. 2911.01(A)(1) and (C), felonies of the first degree; (3) two counts of aggravated burglary, in violation of R.C. 2911.11(A) and (B), felonies of the first degree; (4) two counts of felonious assault, in violation of R.C. 2903.11(A)(2) and (D)(1)(a), felonies of the second degree; (5) one count of improperly discharging a firearm at or into a habitation or a school safety zone, in violation of R.C. 2923.161(A)(1) and (C), a felony of the second degree; (6) one count of having weapons while under disability, in violation of R.C. 2923.13(A)(2) and (B), a felony of the third degree; (7) one count of having weapons while under disability, in violation of R.C. 2923.13(A)(3) and (B), a felony of the third degree; (8) one count of tampering with evidence, in violation of R.C. 2921.12(A)(1) and (B), a felony of the third degree; and (9) one count of theft, in violation of R.C. 2913.02(A) and (B)(2), a felony of the fifth degree. Nine of the twelve counts included firearm specifications.

{¶ 4} After appellant initially pleaded not guilty, his counsel successfully negotiated a plea agreement with the state. Pursuant to the plea agreement, appellant agreed to plead guilty to one count of aggravated murder, an unclassified felony, with a firearm specification. In exchange, the state agreed to dismiss the remaining counts of the indictment. In addition, the parties jointly recommended a sentence of life in prison with the possibility of parole after 20 years, with an additional three years for the firearm specification. The state also agreed to remain mute at any future parole proceedings

{¶ 5} The plea sheet and plea transcript demonstrate that appellant understood that the victim's family was not in agreement with the recommended sentence.

{¶ 6} Prior to accepting the plea, the trial court engaged appellant in a lengthy Crim.R. 11 colloquy to ensure that the plea was being made voluntarily, knowingly, and intelligently. During the colloquy, the trial court advised appellant:

Now, you understand that any recommendation as to sentence the Court will consider, but is not required to follow. You and your attorney and the State are making a recommendation. You're all in agreement on that. Probation's going to do a PSI. They make a recommendation. The victims may have an input. A lot of people may have an input. The Court will consider all that, but is not required to follow it, even if everybody agrees to the same recommendation. Their job is to make a recommendation. It's this Court's job to hand down the sentence. Do you understand that?

Appellant confirmed his understanding.

{¶ 7} The trial court further advised appellant that he was facing a mandatory 3-year sentence on the firearm specification and a possible sentence of life imprisonment without the possibility of parole on the aggravated murder charge. After being fully advised of his rights and the potential penalties he was facing, appellant pleaded guilty to one count of aggravated murder with a firearm specification. The judgment entry of plea, which was signed by appellant, expressly states: "I understand the Judge sentencing me does not have to follow any Recommended sentence when sentencing me." (Emphasis in original.)

{¶ 8} Appellant's sentencing hearing was held on November 29, 2021. After a thorough review of all of the relevant statutory factors, the trial court rejected the joint recommendation for sentencing. Instead, the court imposed a sentence of three years plus life imprisonment, with parole eligibility after 30 years. Appellant timely appealed.

Statement of Facts

{¶ 9} The offense in this case arose in connection with a robbery involving appellant, his two co-defendants, and the victim. The victim was a career drug dealer. As appellant was fleeing after committing the robbery, the victim came running out of his house with a firearm and started shooting, hitting one of appellant's co-defendants. Appellant returned fire. The victim was shot and was later pronounced dead at the hospital. Although appellant and his two co-defendants were all charged with the victim's death, appellant, as the shooter, was identified as the principal offender.

{¶ 10} At the November 29, 2021 sentencing hearing, the trial court confirmed that it had reviewed impact statements from the victim's mother, his two children, his aunt, as well as one of his friends. The victim's mother and wife then spoke directly to the court. The family asked the court to impose a sentence of life in prison without the possibility of parole. Defense counsel asked the court to follow the joint recommendation of the parties and impose a sentence of life in prison with the possibility of parole after 20 years, plus three years for the firearm specification. The state adhered to the joint recommendation. The court then gave appellant the opportunity to make a statement.

{¶ 11} After hearing from the parties, the trial court explained that it had considered the purposes and principles of sentencing identified in R.C. 2929.11 and the seriousness and recidivism factors identified in R.C. 2929.12. First, the court noted appellant's juvenile record:

You have adjudications for delinquency going all the way back to 2012. You have adjudications for domestic violence three different times.

You have drug convictions for possession and conveyance on property detention centers and things of that nature. Carrying a concealed weapon, attempted burglary, criminal trespass, theft. Those all kind of mirror what happened here in the adult court. We have violence, we have drugs, we have a weapon, and we have trespass, all of 'em, and theft. We have all of 'em. Mirror this offense.

You've had DYS commitments, Department of Youth Services commitments in the past. You've had electronic monitoring in the past.

And let me digress for a second. This Court has a lot of respect for your counsel. This has nothing to do with him. As I said, it has to do with the facts and the law, okay? He indicated you had mental health issues. The Court saw that in the presentence report and investigation.

The Court looked at your juvenile record. You had counseling back then in your juvenile years. So you've had electronic monitoring, counseling, probation, psychological evaluation. DYS commitment I've already talked about, more electronic monitoring, more probation. You * * * were committed to the DYS, Department of Youth Services, and granted judicial release, let out early from that. That was your juvenile record.

Next, the court considered appellant's adult criminal record:

Your adult record, what do we have there. Well, since you're 23, it's kind of small because you turned 18. It's only been a few years, but 2018, possession of cocaine. You received two years of probation, intensive supervision probation. You received counseling. You had violations of that, probation violation. You were then sent to a community-based correctional facility, one step under a prison, to try to help you, to get you counseling, to teach you things that your counsel talked about here, and what happened there? You were unsuccessfully terminated from that program at the CBCF. And then you were still on probation when you committed this offense, and your probation for that offense, the possession of cocaine, which you were on probation when you committed this offense, that probation was terminated unsuccessful.

The court also considered appellant's "attitude offenses":

Okay. Then you have what I deem attitude offenses. What are those. Well, they're not misdemeanors or felonies, and we usually see 'em in traffic-related offenses, and let me say everybody that drives gets a traffic offense. * * * But when someone constantly gets the same ones over and over again, it says something about a person. They know what the law is, but they're choosing to do what they want to do because they want to do it. That's attitude offenses.

Why do I say that about you. 2018, turn signal violation; 2018, going 87 in a 60 mile an hour zone, 27 miles over. 2019,reckless operation, willfull, * * * wanton disregard, physical control; 2019, oh three weeks later, driving on a suspended license, stop sign violation; 2019, about two weeks later, driving on a suspended license, improper display of plates.

2020,driving on a suspended license; 2020, about four months later, driving on a suspended license and tinted glass. Now, you know you got to have a license to drive in Ohio, but you

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