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Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103353
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ROBERT GEBALLA, JR.
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-594775-A
BEFORE: S. Gallagher, J., Kilbane, P.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: June 9, 2016
ATTORNEY FOR APPELLANT
Raymond R. Froelich
2100 Salem Parkway
Westlake, Ohio 44145
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Carl Sullivan
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶1} Robert Geballa, Jr., appeals his conviction and eight-year aggregate
sentence imposed on nine counts of pandering of sexually oriented matter, 29 counts of
the illegal use of a minor in nudity-oriented material or performance, and one count of
possessing criminal tools. Geballa had over 400 pictures and one video depicting child
pornography on his computer. All the prison terms were imposed to be served
concurrently. Geballa claims his trial counsel rendered ineffective assistance of counsel
for failing to provide mitigating factors at sentencing and the trial court erred by failing to
make findings pursuant to R.C. 2929.11. We find no merit to the arguments presented.
{¶2} Geballa’s first assignment of error — that his attorney stood silent at
sentencing and failed to present mitigating evidence — is contrary to the record. As
noted by the state, Geballa’s counsel did in fact present mitigating factors before the
sentences were imposed, through the presentence investigation report and the reading of a
social worker’s recommended plan that would enable Geballa to avoid prison while
complying with the law. In addition, even if we presumed a deficient performance based
on that argument, Geballa has only addressed the first prong of the standard of review.
State v. Trimble,
(1984) (the
appellant must show that (1) counsel’s performance was deficient and (2) the deficient
performance prejudiced the defendant so as to deprive him of a fair trial). Geballa has
not demonstrated, let alone argued, that the deficient performance deprived him of a fair
proceeding. Nothing in the record demonstrates that more mitigation material, if any
existed, would have resulted in a lesser sentence. The failure to prove either prong is
fatal. State v. Madrigal,
. As a
result, we must overrule his first assignment of error.
{¶3} Finally, we summarily overrule the second assignment of error, in which
Geballa claims the trial court erred by not making any findings pursuant to R.C. 2929.11
or by imposing a maximum sentence without considering the statutory criteria, including
mitigating factors. Findings are not required pursuant to R.C. 2929.11. State v. Bement,
8th Dist. Cuyahoga No. 99914,
2013-Ohio-5437, ¶ 14
(findings for a maximum sentence
are not statutorily required). Further, at the sentencing hearing and again in the
sentencing entry, the trial court expressly indicated it considered all sentencing factors as
required by law, and as we already noted, the trial court fully considered the mitigating
factors presented. The second assignment of error is not based on the record or relevant
law and must be overruled.
{¶4} The conviction is affirmed.
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, JUDGE
MARY EILEEN KILBANE, P.J., and
EILEEN T. GALLAGHER, J., CONCUR
