[Cite as State v. Munoz, 2023-Ohio-1896.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 112007 v. :
ERIC MUNOZ, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: June 8, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-626156-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Carl M. Felice, Assistant Prosecuting Attorney, for appellee.
Patituce & Associates, LLC, Joseph C. Patituce, Megan M. Patituce, and Erin M. Branham, for appellant.
KATHLEEN ANN KEOUGH, P.J.:
Defendant-appellant, Eric Munoz, appeals from the trial court’s
judgment finding him in violation of community-control sanctions and sentencing
him to 18 months in prison. Finding no merit to the appeal, we affirm. I. Background
In 2018, in Cuyahoga C.P. No. CR-18-626156, Munoz was indicted in
a five-count indictment on one count each of drug possession, having weapons while
under disability, carrying concealed weapons, improperly handling firearms in a
motor vehicle, and possessing criminal tools. Under a plea agreement, Munoz
pleaded guilty to improperly handling firearms in a motor vehicle with a forfeiture
specification, in violation of R.C. 2923.16(B), a fourth-degree felony, and the
remaining counts were nolled. The trial court sentenced Munoz to 18 months of
community-control sanctions and advised him that if he violated the terms of his
probation, he could be sentenced to 18 months in prison. Tr. 32.
Subsequently, on four separate occasions, the trial court found
Munoz in violation of the terms of his community-control sanctions. Each time, the
trial court placed him back on probation with an extended probation term. On
September 7, 2022, the trial court again found Munoz in violation of his community-
control sanctions as a result of his convictions by a jury in Cuyahoga C.P. No. CR-
20-648577 on one count each of gross sexual imposition and endangering children.
The trial court terminated Munoz’s community-control sanctions and sentenced
him to 18 months in prison to be served consecutive to the three-year prison
sentence imposed in CR-648577. This appeal followed. II. Law and Analysis
A. Ineffective Assistance of Counsel
During the combined probation violation and sentencing hearing,
defense counsel stated that he would stipulate to Munoz’s probation violation. Tr.
76. In his first assignment of error, Munoz contends that counsel’s stipulation
deprived him of his constitutional right to effective assistance of counsel.
The Sixth Amendment to the United States Constitution and Article
I, Section 10 of the Ohio Constitution provide that defendants in all criminal
proceedings shall have the assistance of counsel for their defense. The United States
Supreme Court has recognized that “the right to counsel is the right to effective
assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984).
To establish ineffective assistance of counsel, a defendant must
demonstrate (1) that counsel’s performance fell below an objective standard of
reasonable performance, and (2) that he was prejudiced by the deficient
performance such that but for counsel’s error, the result of the proceedings would
have been different. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-854 N.E.2d
1038, ¶ 205, citing Strickland at 687-688. In evaluating a claim of ineffective
assistance of counsel, reviewing courts should “indulge a strong presumption” that
counsel’s performance fell within the wide range of reasonable professional
assistance. State v. Houston, 8th Dist. Cuyahoga No. 108156, 2019-Ohio-4787, ¶ 13,
citing Strickland at 689. The evidence required to support a probation violation “simply needs
to be evidence of a substantial nature,” which may be satisfied by a preponderance
of the evidence standard. State v. Harrington, 3d Dist. Union Nos. 14-03-34 and
14-03-35, 2004-Ohio-1046, ¶ 19; “Therefore, the state only has to introduce
evidence tending to show that it was more probable than not that the probationer
violated the terms of his or her probation.” Id.; see also State v. Reese, 8th Dist.
Cuyahoga No. 109055, 2020-Ohio-4747, ¶ 21 (the evidence necessary to establish a
probation violation and revoke community control is “substantial” evidence).
The evidence establishing Munoz’s probation violation was more
than merely substantial evidence; the conduct underlying his violation had been
proved beyond a reasonable doubt by the jury’s convictions in CR-648577. Thus,
despite Munoz’s argument that counsel should have contested the probation
violation, there was no legitimate basis upon which counsel could have disputed the
already-proven violation. In fact, the trial court could have considered any challenge
to the obviously proven violation to be demonstrative of Munoz’s failure to show
remorse or accept responsibility for his actions and increased his sentence
accordingly. See State v. Caver, 8th Dist. Cuyahoga No. 91443, 2009-Ohio-1272,
¶ 122 (whether an offender shows genuine remorse is a factor for the court to
consider at sentencing under R.C. 2929.12(D)(5)); State v. Lawrence, 12th Dist.
Butler Nos. CA-2017-06-078 and CA-2019-03-178 (at sentencing, courts may
properly consider a defendant’s lack of remorse or failure to take responsibility for
his actions). It is apparent that counsel acted reasonably in conceding the
probation violation and focusing instead at the sentencing hearing on mitigating
Munoz’s sentence. See tr. 80-84 (where counsel argued that the court should
consider a community control sanction instead of prison because Munoz was
gainfully employed, had support from his family, and would benefit from sex
offender treatment, which he could not get in prison).
Because Munoz has not demonstrated that counsel’s performance fell
below an objective standard of reasonable representation — the first prong of the
Strickland test — we need not consider whether he was prejudiced by counsel’s
performance. State v. Copeland, 8th Dist. Cuyahoga No. 102952, 2016-Ohio-1537,
¶ 40 (the failure to prove one prong of the Strickland two-part test makes it
unnecessary for a court to consider the other prong). The first assignment of error
is overruled.
B. The Trial Court’s Finding of a Probation Violation
In his second assignment of error, Munoz asserts that the trial court
erred in finding him to be in violation of his community-control sanctions. Other
than asserting that the trial court “erred in multiple ways” in CR-648577, he makes
no argument to support his contention that the trial court erred in finding him in
violation of his community-control sanctions in this case, nor does he point to
anything in the record or offer any legal analysis to support his argument.
It is fundamental that the appellant bears the burden of affirmatively
demonstrating error on appeal. Catudal v. Catudal, 10th Dist. Franklin No. 14AP- 749, 2015-Ohio-1559, ¶ 23, citing Pennant Moldings, Inc. v. C&J Trucking Co., 11
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Munoz, 2023-Ohio-1896.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 112007 v. :
ERIC MUNOZ, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: June 8, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-626156-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Carl M. Felice, Assistant Prosecuting Attorney, for appellee.
Patituce & Associates, LLC, Joseph C. Patituce, Megan M. Patituce, and Erin M. Branham, for appellant.
KATHLEEN ANN KEOUGH, P.J.:
Defendant-appellant, Eric Munoz, appeals from the trial court’s
judgment finding him in violation of community-control sanctions and sentencing
him to 18 months in prison. Finding no merit to the appeal, we affirm. I. Background
In 2018, in Cuyahoga C.P. No. CR-18-626156, Munoz was indicted in
a five-count indictment on one count each of drug possession, having weapons while
under disability, carrying concealed weapons, improperly handling firearms in a
motor vehicle, and possessing criminal tools. Under a plea agreement, Munoz
pleaded guilty to improperly handling firearms in a motor vehicle with a forfeiture
specification, in violation of R.C. 2923.16(B), a fourth-degree felony, and the
remaining counts were nolled. The trial court sentenced Munoz to 18 months of
community-control sanctions and advised him that if he violated the terms of his
probation, he could be sentenced to 18 months in prison. Tr. 32.
Subsequently, on four separate occasions, the trial court found
Munoz in violation of the terms of his community-control sanctions. Each time, the
trial court placed him back on probation with an extended probation term. On
September 7, 2022, the trial court again found Munoz in violation of his community-
control sanctions as a result of his convictions by a jury in Cuyahoga C.P. No. CR-
20-648577 on one count each of gross sexual imposition and endangering children.
The trial court terminated Munoz’s community-control sanctions and sentenced
him to 18 months in prison to be served consecutive to the three-year prison
sentence imposed in CR-648577. This appeal followed. II. Law and Analysis
A. Ineffective Assistance of Counsel
During the combined probation violation and sentencing hearing,
defense counsel stated that he would stipulate to Munoz’s probation violation. Tr.
76. In his first assignment of error, Munoz contends that counsel’s stipulation
deprived him of his constitutional right to effective assistance of counsel.
The Sixth Amendment to the United States Constitution and Article
I, Section 10 of the Ohio Constitution provide that defendants in all criminal
proceedings shall have the assistance of counsel for their defense. The United States
Supreme Court has recognized that “the right to counsel is the right to effective
assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984).
To establish ineffective assistance of counsel, a defendant must
demonstrate (1) that counsel’s performance fell below an objective standard of
reasonable performance, and (2) that he was prejudiced by the deficient
performance such that but for counsel’s error, the result of the proceedings would
have been different. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-854 N.E.2d
1038, ¶ 205, citing Strickland at 687-688. In evaluating a claim of ineffective
assistance of counsel, reviewing courts should “indulge a strong presumption” that
counsel’s performance fell within the wide range of reasonable professional
assistance. State v. Houston, 8th Dist. Cuyahoga No. 108156, 2019-Ohio-4787, ¶ 13,
citing Strickland at 689. The evidence required to support a probation violation “simply needs
to be evidence of a substantial nature,” which may be satisfied by a preponderance
of the evidence standard. State v. Harrington, 3d Dist. Union Nos. 14-03-34 and
14-03-35, 2004-Ohio-1046, ¶ 19; “Therefore, the state only has to introduce
evidence tending to show that it was more probable than not that the probationer
violated the terms of his or her probation.” Id.; see also State v. Reese, 8th Dist.
Cuyahoga No. 109055, 2020-Ohio-4747, ¶ 21 (the evidence necessary to establish a
probation violation and revoke community control is “substantial” evidence).
The evidence establishing Munoz’s probation violation was more
than merely substantial evidence; the conduct underlying his violation had been
proved beyond a reasonable doubt by the jury’s convictions in CR-648577. Thus,
despite Munoz’s argument that counsel should have contested the probation
violation, there was no legitimate basis upon which counsel could have disputed the
already-proven violation. In fact, the trial court could have considered any challenge
to the obviously proven violation to be demonstrative of Munoz’s failure to show
remorse or accept responsibility for his actions and increased his sentence
accordingly. See State v. Caver, 8th Dist. Cuyahoga No. 91443, 2009-Ohio-1272,
¶ 122 (whether an offender shows genuine remorse is a factor for the court to
consider at sentencing under R.C. 2929.12(D)(5)); State v. Lawrence, 12th Dist.
Butler Nos. CA-2017-06-078 and CA-2019-03-178 (at sentencing, courts may
properly consider a defendant’s lack of remorse or failure to take responsibility for
his actions). It is apparent that counsel acted reasonably in conceding the
probation violation and focusing instead at the sentencing hearing on mitigating
Munoz’s sentence. See tr. 80-84 (where counsel argued that the court should
consider a community control sanction instead of prison because Munoz was
gainfully employed, had support from his family, and would benefit from sex
offender treatment, which he could not get in prison).
Because Munoz has not demonstrated that counsel’s performance fell
below an objective standard of reasonable representation — the first prong of the
Strickland test — we need not consider whether he was prejudiced by counsel’s
performance. State v. Copeland, 8th Dist. Cuyahoga No. 102952, 2016-Ohio-1537,
¶ 40 (the failure to prove one prong of the Strickland two-part test makes it
unnecessary for a court to consider the other prong). The first assignment of error
is overruled.
B. The Trial Court’s Finding of a Probation Violation
In his second assignment of error, Munoz asserts that the trial court
erred in finding him to be in violation of his community-control sanctions. Other
than asserting that the trial court “erred in multiple ways” in CR-648577, he makes
no argument to support his contention that the trial court erred in finding him in
violation of his community-control sanctions in this case, nor does he point to
anything in the record or offer any legal analysis to support his argument.
It is fundamental that the appellant bears the burden of affirmatively
demonstrating error on appeal. Catudal v. Catudal, 10th Dist. Franklin No. 14AP- 749, 2015-Ohio-1559, ¶ 23, citing Pennant Moldings, Inc. v. C&J Trucking Co., 11
Ohio App.3d 248, 251, 464 N.E.2d 175 (12th Dist.1983). Under App.R. 16(A)(7), an
appellant “must present [his or] her contentions with respect to each assignment of
error presented for review, in addition to the reasons in support of those
contentions, with citations to the authorities, statutes, and parts of the record upon
which [the appellant] relies.” Catudal at id. “Absent the foregoing, unsubstantiated
assertions will not be considered on appeal.” Id. It is not appropriate for this court
to construct legal arguments in support of an appellant’s appeal, id., and “we are not
obliged to scour the record in search of evidence to support an appellant’s
assignment of error.” State v. Patterson, 2017-Ohio-8318, 99 N.E.3d 970, ¶ 37 (8th
Dist.).
Munoz has not presented any record evidence or reasons in support
of the argument advanced in his second assignment of error. Thus, we need not
consider his assignment of error. Nevertheless, we note that in a contemporaneous
decision, this court affirmed Munoz’s convictions for gross sexual imposition and
endangering children in CR-648577, upon which his probation violation in this case
was based. See State v. Munoz, 8th Dist. Cuyahoga No. 112006, __-Ohio-__.
Accordingly, there is no merit to Munoz’s argument and the second assignment of
error is overruled.
Judgment 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.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and SEAN C. GALLAGHER, J., CONCUR