State v. Rivera

2021 Ohio 1343

• Court: Ohio Court of Appeals
• Decided: April 16, 2021
• Docket: WD-19-085, WD-19-086
• Status: Published

Opinion

[Cite as State v. Rivera, 2021-Ohio-1343.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY

State of Ohio/City of Perrysburg Court of Appeals Nos. WD-19-085 WD-19-086 Appellee Trial Court Nos. CRB1900947 v. CRB1900984

William J. Rivera DECISION AND JUDGMENT

Appellant Decided: April 16, 2021

*****

Chynna L. Fifer, City of Perrysburg Prosecutor, and Melissa R. Bergman, Assistant Prosecutor, for appellee.

Dan M. Weiss, for appellant.

MAYLE, J.

Introduction

{¶ 1} Appellant, William Rivera, pled guilty to a fourth-degree misdemeanor

charge of domestic violence in the Perrysburg Municipal Court. The court sentenced him

to serve ten days in jail and imposed various community control measures. On appeal, Rivera alleges that his trial counsel was ineffective for allowing him to plead guilty and

that the trial court abused its discretion in imposing the sentence. Finding no error, we

affirm.

Background

{¶ 2} Rivera was charged with first degree domestic violence on August 30, 2019,

against his “live-in partner.” According to the citation, Rivera “did knowingly cause

physical harm to [the victim] by grabbing and squeezing her arms while pushing her

causing her pain.” The incident was reported to the police by the victim’s daughter.

Following Rivera’s arrest, the trial court issued a temporary protection order, directing

that he have no contact with the victim.

{¶ 3} On September 9, 2019, Rivera was charged with violating the protection

order. According to the affidavit, police responded to a local hotel “for a report of a TPO

violation.” Rivera told police that the victim “contacted him for help” and she “came to

his room and stayed the night [there] [and] asked him to go with her to a doctor

appointment which he did.”

{¶ 4} At the October 25, 2019 change-of-plea hearing, the prosecutor asked the

trial court to dismiss the TPO-violation charge and to downgrade the domestic violence

charge to a fourth-degree misdemeanor. In support, the prosecutor said that he had

spoken with the victim, who was unable to appear in court because she was ill. The

prosecutor stated that the victim agreed with the plea and wanted the court to vacate the

no-contact order. The prosecutor recommended a 30-day jail sentence, suspended, “with

2. probation terms in place with * * * whatever services would be appropriate to help

prevent any recidivism being that the parties will still likely have contact.”

{¶ 5} After expressing some initial reservations, the trial court accepted the plea.

It then explained to Rivera the rights he was waiving by pleading guilty and told him that,

despite the sentencing recommendation, the court was “not bound” by it. Rivera said he

understood. The trial court then sentenced Rivera as follows: “30 days in [jail]. You are

to serve ten days, which will include credit for time served, so you will serve a total of

ten days. The remainder will be suspended.” In addition, the trial court placed Rivera on

probation for 36 months and ordered him to complete assessments for mental health,

domestic violence, and substance abuse. The trial court also ordered “no contact” with

the victim “until the counselor says that contact is safe,” and imposed a $50 fine.

{¶ 6} Rivera appealed and assigns the following errors:

I. Appellant received ineffective assistance of counsel.

II. The trial court abused its discretion when it sentenced appellant

to complete assessments for substance abuse, mental health, and domestic

violence and follow recommendations violating the purpose of

misdemeanor sentencing.

Rivera received effective assistance of trial counsel.

{¶ 7} Rivera claims that he received ineffective assistance during the change-of-

plea hearing. Rivera’s argument is based upon the following exchange between the trial

court and Rivera, which occurred after the state proffered the terms of the proposed plea:

3. THE COURT: Mr. Rivera, if I accept this—and I’m still on the

fence—the understanding would be that you would be entering a plea to the

amended charge of Domestic Violence, a misdemeanor of the fourth

degree. It carries a maximum penalty of 30 days in jail, a $250 fine. * * *

Sir, if I accept this, the understanding would be upon entering the plea—

there is a sentencing recommendation that I’m not bound by, you

understand that?

THE DEFENDANT: Yes.

{¶ 8} On appeal, Rivera claims that the trial court’s statement was a “clear

indication” that it was not going “to follow the agreement.” And, according to Rivera,

any reasonable attorney “would have * * * stop[ped] the process and not permit[ted]

[him] to enter a guilty plea.” Rivera argues that, had he not entered a guilty plea, the

“outcome would have been different” because “the State could not have proceeded

because it did not have any witnesses, and its alleged victim had stated no desire to assist

the State’s prosecution.” For that reason, Rivera alleges that he received ineffective

assistance of counsel.

{¶ 9} A properly licensed attorney is presumed effective in his or her

representation of a defendant. State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128

(1985). In order to prevail on a claim of ineffective assistance of counsel, a defendant

must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 686,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord State v. Bradley, 42 Ohio St.3d 136, 142,

4. 538 N.E.2d 373 (1989). Specifically, a defendant must show “(1) deficient performance

of counsel, i.e., performance falling below an objective standard of reasonable

representation, and (2) prejudice, i.e., a reasonable probability that, but for counsel’s

errors, the proceeding’s result would have been different.” State v. Hale, 119 Ohio St.3d

118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, citing Strickland at 687-688.

{¶ 10} Here, Rivera claims that his attorney rendered ineffective assistance by

allowing him to enter a guilty plea. As a general proposition, the Ohio Supreme Court

has said that

[A] guilty plea represents a break in the chain of events which has

preceded it in the criminal process. When a criminal defendant has

solemnly admitted in open court that he is in fact guilty of the offense with

which he is charged, he may not thereafter raise independent claims relating

to the deprivation of constitutional rights that occurred prior to the entry of

the guilty plea. He may only attack the voluntary and intelligent character

of the guilty plea.

State v. Spates, 64 Ohio St.3d 269, 272, 595 N.E.2d 351 (1992). In other words, a

defendant’s guilty plea waives the right to assert an ineffective-assistance-of-counsel

claim unless the defendant argues that “counsel’s errors affected the knowing and

voluntary character of the plea.” (Internal quotations omitted.) State v. Green, 11th Dist.

Trumbull No. 2017-Ohio-0073, 2018-Ohio-3536, ¶ 18-19 (Waiver found where

defendant claimed that counsel was ineffective for failing to perform “an adversarial

5. function during the course of the plea negotiations” and for failing to file a motion to

suppress evidence); see also State v. Hill, 10th Dist. Franklin No. 10AP-634, 2011-Ohio-

2869, ¶ 15.

{¶ 11} Here, although Rivera does not expressly argue that his plea was made

unknowingly or involuntarily, that is essentially what he is arguing. That is, he claims

that he would not have entered his guilty plea but for his counsel’s deficient performance.

Accordingly, we find that Rivera has not waived his ineffective-assistance claim. But,

although not waived, his ineffective-assistance claim is meritless for various reasons.

{¶ 12} First, counsel’s performance was not deficient. Generally speaking, trial

counsel’s negotiation of a plea bargain is usually a “trial tactic.” State v. Bird, 81 Ohio

St.3d 582, 585, 692 N.E.2d 1013 (1998) (recognizing that a plea bargain can be a “trial

tactic”). And, as the Supreme Court of Ohio has recognized, trial tactics—even debatable

trial tactics—do not establish ineffective assistance of counsel. State v. Conway, 109

Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810. Moreover, trial counsel does not

render deficient representation by negotiating a favorable plea bargain for the defendant.

See State v. Fowler, 10th Dist. Franklin No. 09AP-622, 2010-Ohio-747, ¶ 7 (finding that

nothing in the record supported ineffective assistance claim where counsel “entered into a

very favorable plea bargain,” defendant’s guilt “was clear,” and he “openly

acknowledged that guilt during his sentencing hearing”).

{¶ 13} Here, we find that trial counsel’s negotiation of the plea bargain at issue

was a trial tactic—and, apparently, a beneficial one given that Rivera openly admitted his

6. guilt to the amended charge of domestic violence. Indeed, Rivera does not claim that the

terms of the plea were unfavorable, only that he may have fared better if the state had

been forced to proceed on the original charges. But, to his point, both parties had to

balance the risk of going forward (on the original charges) versus the benefit that comes

with the certainty of a conviction—which was a matter of trial strategy for his defense

counsel. And for Rivera, the reduction of the domestic violence charge to a fourth-degree

misdemeanor and the dismissal of the TPO violation reduced his potential sentence from

a maximum of 12 months in jail, if run consecutively, to a maximum of 30 days.

{¶ 14} Moreover, even if we assume that trial counsel’s performance at the

change-of-plea hearing was somehow deficient, Rivera cannot demonstrate prejudice. In

order to satisfy the prejudice element for an ineffective-assistance claim following a plea,

“the defendant must show that there is a reasonable probability that, but for counsel’s

errors, he would not have pleaded guilty and would have insisted on going to

trial.” (Internal quotations omitted.) State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-

5283, 855 N.E.2d 48, ¶ 89.

{¶ 15} Rivera does not claim that he would have “insisted on going to trial.”

Instead, he argues that, if his trial counsel had stopped Rivera from entering his guilty

plea, the state would have dismissed all charges because “it did not have any witnesses.”

The record, however, does not support this claim. Indeed, a trial date had not yet been

assigned, and the record does not contain any evidence to suggest that the state would

have been unable to secure witnesses to testify against Rivera—including the arresting

7. officers (in both cases), the complaining witness (the victim’s daughter), and even the

victim herself. Although the victim may have expressed some unwillingness to testify

against Rivera, the state could have exercised its subpoena power to force her to testify.

Moreover, as noted by the trial court, it is not unusual for the state to try domestic

violence cases without the assistance of the victim.

{¶ 16} In sum, because we conclude that Rivera cannot establish a claim of

ineffective assistance of counsel, we find his first assignment of error not well-taken.

Sentencing

{¶ 17} In his second assignment of error, Rivera claims that the trial court abused

its discretion by sentencing him to ten days in jail and ordering him to undergo

assessments for mental health, domestic violence and substance abuse. We disagree.

{¶ 18} We review misdemeanor sentences for an abuse of discretion. State v.

Johnson, 6th Dist. Lucas No. L-18-1214, 2019-Ohio-4613, ¶ 31, citing State v.

Ostrander, 6th Dist. Fulton No. F-10-011, 2011-Ohio-3495, ¶ 28. An abuse of discretion

connotes that the trial court’s attitude is unreasonable, arbitrary, or unconscionable. State

v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

{¶ 19} When imposing a sentence for a misdemeanor offense, a trial court must

consider the purposes and principles of misdemeanor sentencing as set forth in R.C.

2929.21, as well as the sentencing factors set forth in R.C. 2929.22. Under R.C. 2929.21,

a trial court “shall be guided by the overriding purposes of misdemeanor sentencing,”

which are to protect the public from future crime by the offender and to punish the

8. offender. To achieve those purposes, R.C. 2929.21 provides that a trial court “shall

consider [1] the impact of the offense upon the victim and the need for changing the

offender’s behavior, [2] rehabilitating the offender, and [3] making restitution to the

victim * * *.” The failure to follow these statutes constitutes an abuse of

discretion. State v. Dominijanni, 6th Dist. Wood No. WD-02-008, 2003-Ohio-792, ¶ 6.

Nevertheless, when a misdemeanor sentence is imposed within the statutory limits, a

reviewing court will presume that the judge followed the statutes, absent evidence to the

contrary. State/Division of Wildlife v. Coll, 6th Dist. Sandusky No. S-16-022, 2017-

Ohio-7270, ¶ 23, citing Toledo v. Reasonover, 5 Ohio St.2d 22, 213 N.E.2d 179 (1965),

paragraph one of the syllabus.

{¶ 20} Here, Rivera complains that his sentence was “not typical[]” for a fourth-

degree misdemeanor offense. But, Rivera’s conviction for a fourth-degree misdemeanor

offense carried a potential of 30 days in jail (R.C. 2929.24(A)(4)), a $250 fine (R.C.

2929.28(A)(2)(a)(iv)), and the potential for community control sanctions (R.C. 2929.25).

Thus, Rivera’s sentence—consisting of 30 days in jail, 20 days suspended, a fine of $50,

and community control sanctions that included probation, a no contact order and

completing various assessments—was well within the statutory guidelines.

{¶ 21} Rivera also complains that his punishment was “excessively punitive,”

given that the victim “incurred no harm and was not fearful of [him].” But the trial court

rejected this same argument at sentencing and reminded Rivera that he had just

9. “threatened to harm” a 67-year-old woman with “health problems”—and Rivera admitted

that he had done so. We therefore reject this argument.

{¶ 22} Rivera also argues that the imposition of “multiple assessments” was

“unreasonable and arbitrary.” We disagree. The community control sanctions that were

imposed upon Rivera are specifically authorized by R.C. 2929.27. See R.C.

2929.27(A)(6) (probation); (A)(8) (drug and alcohol use monitoring); and (A)(14)

(counseling for domestic violence). Moreover, the parties’ joint sentencing

recommendation included the request that the court impose “whatever services would be

appropriate to help prevent any recidivism being that the parties will still likely have

contact.” (Emphasis added.) To that end, the court imposed the assessments that, it

concluded, would be most beneficial. In addition, we cannot conclude that the trial

court’s imposition of drug and alcohol assessments was somehow unreasonable or

arbitrary given Rivera’s acknowledgement of two recent convictions—one for “driving

without consent and drug paraphernalia” and another for “DUI.” Likewise, we cannot

find that the trial court’s imposition of assessments for mental health and domestic

violence was unreasonable or arbitrary given the nature of Rivera’s conviction and his

“incredibly lengthy” criminal record.

{¶ 23} Finally, Rivera argues that the trial court failed to consider the effect of this

sentence on the victim, whom he described as dependent on him for her “daily care.” As

noted by the trial court, although “90 percent” of victims of domestic violence “will come

[to court] and indicate a historical change or that they do not wish the prosecution to

10. proceed,” a victim’s wishes are “not the determining factor.” The imposition of a “no

contact order,” while inconvenient for the parties, reflects the court’s balancing of a

number of factors, including the court’s “very grave concerns” for the victim’s “health

and safety.” We find that its sentence was not unreasonable or arbitrary.

{¶ 24} In sum, the trial court imposed a misdemeanor sentence within the statutory

limits, and Rivera has not put forth any evidence to suggest that the court did not follow

R.C. 2929.21 when imposing his sentence. Accordingly, we presume that the trial court

properly followed the statutory guidelines when imposing Rivera’s sentence. We

therefore find that the trial court did not abuse its discretion in sentencing Rivera, and

Rivera’s second assignment of error is not well-taken.

Conclusion

{¶ 25} For the foregoing reasons, the October 25, 2019 judgment of the

Perrysburg Municipal Court is affirmed. Rivera is ordered to pay the costs of this appeal

pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

11. State v. Rivera C.A. Nos. WD-19-085 WD-19-086

Thomas J. Osowik, J. _______________________________ JUDGE Christine E. Mayle, J. _______________________________ Myron C. Duhart, J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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