State v. Gomez

2017 Ohio 9072

Opinion

[Cite as State v. Gomez, 2017-Ohio-9072.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 17 MA 0001 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) ROLANDO PENA GOMEZ ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 16 CR 599

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503

For Defendant-Appellant: Atty. Christopher P. Lacich Roth, Blair, Roberts, Strasfeld & Lodge, LPA 100 East Federal Street, Suite 600 Youngstown, Ohio 44503

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Carol Ann Robb Dated: December 15, 2017 [Cite as State v. Gomez, 2017-Ohio-9072.] WAITE, J.

{¶1} Appellant Rolando Pena Gomez appeals the conviction and sentence

of the Mahoning County Court of Common Pleas following his plea of guilty to three

counts of trafficking in cocaine, one count of trafficking in heroin and one count of

possession of heroin as well as a forfeiture specification that involved a motor

vehicle. Appellant contends his plea was not made knowingly, intelligently and

voluntarily and that he should be permitted to withdraw his plea. Appellant also

asserts his trial counsel was ineffective for failing to seek a withdrawal of his guilty

plea. Based on the following, we find Appellant’s guilty plea was knowing, voluntary

and intelligent and his sentence was not clearly and convincingly contrary to law.

Moreover, trial counsel was not ineffective as Appellant has failed to establish that

counsel’s performance was deficient and that Appellant was prejudiced. Therefore,

the judgment of the trial court is affirmed.

Factual and Procedural History

{¶2} Appellant was indicted on a number of drug-related offenses relating to

the possession and trafficking of cocaine and heroin. Appellant was aided by an

interpreter throughout all trial court proceedings as he speaks only Spanish. On

October 6, 2016, Appellant pleaded guilty to counts one, two, and three, trafficking in

cocaine in violation of R.C. 2925.03(A)(1), (C)(4)(f), felonies of the first degree; count

four, trafficking in heroin in violation of R.C. 2925.03(A)(1), (C)(6)(f), a felony in the

first degree; and count six, possession of heroin in violation of R.C. 2925.11(A),

(C)(6)(e), a felony in the first degree; with a forfeiture specification pursuant to R.C.

2981. -2-

{¶3} An initial sentencing hearing was held on December 1, 2016. The state

recommended a term of eight to ten years of incarceration. Appellant’s counsel

asked for a three-year sentence. At the sentencing hearing, there was some

discrepancy regarding the presentence investigation (“PSI”) report. The PSI

contained no prior criminal history but the prosecutor said he was aware Appellant

served a prior federal prison sentence on drug-related charges. The sentencing was

postponed pending a review of Appellant’s prior criminal history.

{¶4} Sentencing resumed on December 8, 2016, and a discussion regarding

Appellant’s criminal history was held. The updated PSI reflected that Appellant had

been convicted of numerous misdemeanors in other jurisdictions and had two prior

felony convictions. (12/8/16 Sentencing Hrg. Tr., p. 5.) Appellant’s counsel again

requested a shorter term than the eight to ten years recommended by the state.

Appellant, through the interpreter, gave a statement where he discussed the death of

both parents when he was a child and his struggle with substance abuse.

{¶5} After noting Appellant’s prior criminal history, his addiction, and the

large amount of cocaine and heroin confiscated in the instant matter, the trial court

sentenced Appellant to eight years on each count to be served concurrently, for a

total prison term of eight years. Appellant filed this timely appeal.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED AND IMPOSED A SENTENCE CLEARLY

AND CONVINCINGLY CONTRARY TO LAW, BY FAILING TO CALL A

RECESS OR MAKE FURTHER INQUIRY AS TO WHETHER -3-

DEFENDANT-APPELLANT WANTED TO WITHDRAW HIS GUILTY

PLEA TO COUNTS ONE, TWO, THREE, FOUR AND SIX, UPON HIS

STATEMENT ON THE RECORD AT HIS SENTENCING HEARING,

THAT HE MISUNDERSTOOD THE TERMS OF HIS RULE 11 PLEA

AGREEMENT AND/OR THAT HE WAS INNOCENT OF COUNT SIX,

TRAFFICKING IN HEROIN.

{¶6} It should be noted that in reviewing a felony sentence, “an appellate

court may vacate or modify a felony sentence on appeal only if it determines by clear

and convincing evidence that the record does not support the trial court’s findings

under relevant statutes or that the sentence is otherwise contrary to law.” State v.

Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1.

{¶7} “When a defendant enters a plea in a criminal case, the plea must be

made knowingly, intelligently, and voluntarily. Failure on any of those points renders

enforcement of the plea unconstitutional under both the United States Constitution

and the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450

(1996). Crim.R. 11 requires the trial court to follow a certain procedure for accepting

guilty pleas in felony cases. Before the court can accept a guilty plea to a felony

charge, it must conduct a colloquy with the defendant to determine that he or she

understands the plea being entering and the rights voluntarily waived. Crim.R.

11(C)(2).

{¶8} Crim.R. 11(C)(2)(c) sets forth the constitutional rights that the defendant

waives by entering the guilty plea. -4-

A trial court must strictly comply with Crim.R. 11(C)(2)(c) and orally

advise a defendant before accepting a felony plea that the plea waives

(1) the right to a jury trial, (2) the right to confront one’s accusers, (3)

the right to compulsory process to obtain witnesses, (4) the right to

require the state to prove guilt beyond a reasonable doubt, and (5) the

privilege against compulsory self-incrimination. When a trial court fails

to strictly comply with this duty, the defendant’s plea is invalid. (Crim.R.

11(C)(2)(c), applied.)

State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, syllabus.

{¶9} Crim.R. 11(C) also sets forth the nonconstitutional rights that a

defendant must be informed of prior to the trial court’s acceptance of the plea. These

rights include that: (1) a defendant must be informed of the nature of the charges; (2)

the defendant must be informed of the maximum penalty involved; (3) the defendant

must be informed, if applicable, that he is not eligible for probation or the imposition

of community control sanctions, and (4) the defendant must be informed that after

entering a guilty plea or a no contest plea, the court may proceed to judgment and

sentence. Crim.R. 11(C)(2)(a)(b); State v. Philpott, 8th Dist. No. 74392 (Dec. 14,

2000), citing McCarthy v. U.S., 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418

(1969). When discussing nonconstitutional rights, the trial court must substantially

comply with the Criminal Rules. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d

474 (1990). Substantial compliance is defined as whether, under the totality of the

circumstances, the defendant subjectively understands the implications of his plea -5-

and the rights he is waiving. Id. Moreover, when nonconstitutional aspects of the

Crim.R. 11 plea colloquy are at issue, the defendant must show prejudice before a

plea will be vacated. Veney at ¶ 17. “To demonstrate prejudice in this context, the

defendant must show that the plea would otherwise not have been entered.” Id. at

¶ 15, citing Nero at 108.

{¶10} Appellant contends that he did not enter his plea in a knowing,

voluntary or intelligent fashion. Hence, his sentence is clearly and convincingly

contrary to law. Appellant contends that because he indicated at the final sentencing

hearing that he did not think he was going to get sentenced to an eight year term of

imprisonment and he professed his innocence to the charge of trafficking in heroin,

the trial court failed to substantially comply with Crim.R. 11 because the court was

required to grant a recess to give Appellant an opportunity to speak with his counsel.

{¶11} A review of the transcript from Appellant’s plea hearing reveals the trial

court fully complied with Crim.R. 11(C)(2)(c) and fully advised Appellant of the

constitutional rights he was waiving by entering a plea of guilty on all of the counts

including count six, trafficking in heroin. The trial court substantially complied when

advising Appellant regarding the nonconstitutional aspects of the Crim.R. 11

colloquy. Through his interpreter, Appellant stated several times that he fully and

completely understood his rights, both constitutional and nonconstitutional, and all

aspects of his plea agreement. (10/6/16 Plea Hrg. Tr., pp. 5-15.) In fact, there is no

indication in the record that there was any point during his plea hearing where

Appellant misunderstood or was not completely aware of the circumstances -6-

surrounding his guilty plea. The trial court discussed Appellant’s potential sentences

at the plea hearing:

[Appellant], when we come back here for sentencing, the state [sic] of

Ohio is going to recommend a period of imprisonment between eight to

ten years. Attorney Smith is going to ask for something less than that.

I don’t know enough about you, and I don’t know enough about this

case to tell you what sentence I’m going to impose, but I will tell you

based upon your acceptance of responsibility, that I will not exceed

what the prosecutor is asking for. So the worst sentence that can be

imposed would be ten years, but you are free to ask for something less.

Do you understand all of that?

(10/6/16 Plea Hrg. Tr., p. 12.)

{¶12} Appellant answered that he understood the statement. At the first

sentencing hearing the record is equally devoid of any indication from Appellant or

Appellant’s counsel that he did not understand the terms of his plea agreement or

wished to withdraw his plea. There was extensive discussion about Appellant’s prior

criminal history and it was agreed by the state, Appellant’s counsel and the trial court

that it would be unwise to proceed with sentencing without a correct presentence

investigation report.

{¶13} At his second sentencing hearing, after a discussion regarding the

updated presentence investigation, there was again no indication that Appellant

misunderstood the terms of his plea or any of his rights. The trial court asked -7-

Appellant if he wished to make a statement, and Appellant, via the interpreter, told

the trial court about his mother and father dying when he was eleven years old and

that he has had a severe drug problem. (12/8/16 Sentencing Hrg. Tr., p. 4.) Given

the opportunity to make a statement, Appellant at no time expressed that he was

unsure about his plea, that he had questions regarding his plea, or that he wished to

withdraw his plea. He also did not profess innocence on any of the charges or offer

any evidence regarding his innocence. The trial court proceeded to sentence

Appellant, considering the appropriate statutory factors, including his criminal history

and the large amount of cocaine and heroin recovered from Appellant, to a term of

eight years of incarceration on each count to be served concurrently. Only then did

Appellant make the following statement:

But you said to me that if I -- when I submitted my plea that I wasn’t

going to get eight years, or I wouldn’t have pled guilty. And also tell him

that I pled guilty for trafficking in heroin, and I didn’t sell heroin to

anybody.

(12/8/16 Sentencing Hrg. Tr., p. 9.)

{¶14} Appellant contends that at this point the trial court should have called a

recess so that he could confer with his counsel. However, there is no requirement for

recess. Appellant’s alleged surprise at the sentence and protestations of innocence

of the trafficking in heroin charge are belied by his repeated indications at the plea

hearing and two sentencing hearings that he understood the terms of his plea

agreement. Moreover, Appellant’s comments at the hearing do not reflect that he -8-

was confused or sought explanation. His comments show that he completely

understood the process but simply disagrees with the number of years to which he

was sentenced. This, despite the fact that the trial court indicated at the first plea

hearing that Appellant’s potential sentence could be ten years. Finally, Appellant’s

counsel filed a motion for reconsideration of sentence based upon the discrepancy

between Appellant’s sentence and the sentence received by his co-defendant, but at

no time was a motion to withdraw his guilty plea filed nor was there any indication

that Appellant’s plea was not validly entered.

{¶15} Therefore, Appellant’s first assignment of error is without merit and is

overruled. There is no indication that his plea was not knowingly, voluntarily or

intelligently made.

ASSIGNMENT OF ERROR NO. 2

PLEA COUNSEL WAS INEFFECTIVE FOR FAILING TO CALL FOR A

RECESS OR MAKE FURTHER INQUIRY TO PROTECT

DEFENDANT-APPELLANT'S RIGHTS WHEN HIS CLIENT

INDICATED AT THE SENTENCING HEARING, AND BEFORE THE

RECORD CLOSED, THAT HE MISUNDERSTOOD THE TERMS OF

THE RULE 11 PLEA AGREEMENT AND/OR WAS INNOCENT OF

COUNT SIX, TRAFFICKING IN HEROIN.

{¶16} Appellant contends he received ineffective assistance of trial counsel

when counsel failed to call for a recess after Appellant indicated he disagreed with

the sentence imposed. -9-

{¶17} In a claim for ineffective assistance of counsel, a court must indulge in a

strong presumption that counsel’s performance fell within a wide range of reasonable

professional assistance. Appellant bears the burden of demonstrating that counsel’s

performance fell below an objective standard of professional competence. If

successful, the appellant must then show that he was prejudiced by that deficiency.

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

“Deficient performance” means performance falling below an objective standard of

reasonable representation. Id. at 687-688. “Prejudice,” in this context, means a

reasonable probability that, but for counsel's errors, the result of the proceeding

would have been different. Id. at 694.

{¶18} An “ineffectiveness claim * * * is an attack on the fundamental fairness

of the proceeding whose result is challenged,” and that, “the ultimate focus of inquiry

must be on the fundamental fairness of the proceeding whose result is being

challenged.” Id. at 697, 670. An appellant's burden when challenging the

effectiveness of counsel is to demonstrate that some action or inaction by counsel

operated to undermine or call into question the integrity of the process that resulted

in conviction. State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999).

{¶19} There is no indication here that trial counsel’s performance fell below

the standard of professional assistance. Counsel advocated for a lesser sentence for

Appellant based on the mitigating factors presented to the court not only at the first

sentencing hearing, but also when sentencing resumed one week later. Appellant

indicated that he had been fully informed of his plea agreement by his counsel and -10-

never indicated otherwise. Trial counsel was not required to ask for a recess after

Appellant was sentenced based on Appellant’s statement that he thought he would

receive less time and his comment (for the first time) that he was innocent of the

trafficking in heroin charge. There is no evidence in the record to support Appellant’s

claim of innocence. Without more, trial counsel had no basis on which to argue that

Appellant’s plea was not valid. Finally, trial counsel did file a motion for

reconsideration after sentencing based on the discrepancy in sentencing between

Appellant and his co-defendant.

{¶20} Appellant has failed to establish deficient performance by trial counsel.

As he cannot show even one prong of the Strickland test, Appellant’s second

assignment of error is without merit and is overruled.

{¶21} Based on the foregoing, Appellant’s sentence is not clearly and

convincingly contrary to law. Moreover, Appellant has not demonstrated that his trial

counsel was ineffective. Therefore, Appellant’s assignments of error are without

merit and the judgment of the trial court is affirmed.

Donofrio, J., concurs.

Robb, P.J., concurs.