[Cite as State v. Rocha,
2017-Ohio-1485.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PUTNAM COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 12-16-11
v.
LUIS M. ROCHA, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 12-16-12
v.
LUIS M. ROCHA, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 12-16-13
v.
LUIS M. ROCHA, OPINION
DEFENDANT-APPELLANT.
Case Nos. 12-16-11, 12-16-12 and 12-16-13
Appeals from Putnam County Common Pleas Court
Trial Court Nos. 2016-CR-45, 2016-CR-74 and 2013-CR-70
Judgment Affirmed
Date of Decision: April 24, 2017
APPEARANCES:
F. Stephen Chamberlain for Appellant
WILLAMOWSKI, J.
{¶1} Defendant-appellant Luis M. Rocha (“Rocha”) brings this appeal
from the judgments of the Court of Common Pleas of Putnam County accepting
Rocha’s guilty pleas to various drug charges. On appeal, Rocha claims that his
trafficking in cocaine offense should have only been based upon the weight of the
actual cocaine and not included the weight of the filler. For the reasons set forth
below, the appeals in cases numbered 12-16-12 and 12-16-13 are dismissed and the
appeal in case number 12-16-11 is affirmed.
Procedural Background
Appellate Case No. 12-16-13
{¶2} On December 19, 2013, the Putnam County Grand Jury indicted
Rocha on the following offenses: Count I, trafficking in drugs (cocaine) in violation
of R.C. 2925.03(A)(1)&(C)(4)(a), a felony of the fifth degree; Count II trafficking
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Case Nos. 12-16-11, 12-16-12 and 12-16-13
in drugs (cocaine) in violation of R.C. 2925.03(A)(1)&(C)(4)(c), a felony of the
fourth degree; Count III, permitting drug abuse in a vehicle in violation of R.C.
2925.13(A), a felony of the fifth degree; Count IV, trafficking in drugs (cocaine) in
violation of R.C. 2925.03(A)(1)&(C)(4)(d), a felony of the third degree; and Count
V, permitting drug abuse in a vehicle in violation of R.C. 2925.13(A), a felony of
the fifth degree. Doc. 1. The case was assigned a trial court number 2013-CR-70.
Rocha entered pleas of not guilty to all of the counts at arraignment. Doc. 18. On
March 18, 2014, Rocha entered a plea agreement wherein he agreed to enter pleas
of guilty to counts one and two. Doc. 29. In exchange, the State agreed to remain
silent at sentencing. Id. The trial court accepted the plea and found Rocha guilty.
Id. On May 8, 2014, the sentencing hearing was held. Doc. 36. The trial court
placed Rocha on community control and dismissed the remaining counts.
Id.
{¶3} On December 23, 2014, the State filed a motion to revoke Rocha’s
community control. Doc. 61. Rocha admitted to a violation at the hearing. Doc.
67. As a result of the violation, Rocha was placed under stricter community control
sanctions. Doc. 75. A second motion to revoke Rocha’s community control was
filed on September 22, 2015. Doc. 80. Before the hearing on this motion occurred,
the State filed a third motion to revoke Rocha’s community control. Doc. 85. A
hearing on both the second and third motions was held on November 24, 2015. Doc.
92. Rocha admitted the violations and the trial court continued the community
control sanctions. Id.
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Case Nos. 12-16-11, 12-16-12 and 12-16-13
{¶4} On April 11, 2016, the State filed a fourth motion to revoke Rocha’s
community control. Doc. 99. A hearing was held on the motion on May 10, 2016.
Doc. 109. Rocha admitted to the violations at the hearing. Id. As a result, on
November 2, 2016, the trial court revoked the community control and imposed an
aggregate prison term of 30 months in prison with credit for 456 days of time served.
Doc. 143. Rocha filed his notice of appeal on November 14, 2016. Doc. 148.
Appellate Case No. 12-16-11
{¶5} On June 15, 2016, the Putnam County Grand Jury indicted Rocha on
two counts: Count I, trafficking in drugs (cocaine) in violation of R.C.
2925.03(A)(1)&(C)(4)(c), a felony of the fourth degree and Count II trafficking in
drugs (cocaine) in violation of R.C. 2925.03(A)(1)&(C)(4)(d), a felony of the third
degree. Doc. 2. The case was assigned a trial court number of 2016-CR-45. Rocha
entered pleas of not guilty at the arraignment. Doc. 10. On October 16, 2016, Rocha
agreed to enter a plea of guilty to Count I of the indictment. Doc. 33. In exchange
the State agreed to remain silent at sentencing. Id. The trial court accepted the plea
and found Rocha guilty of Count I.
Id. On October 27, 2016, the sentencing hearing
was held. Doc. 37. The trial court ordered Rocha to serve a prison term of 18
months, which was to be served concurrently to the sentence in Case No. 2013-CR-
70.
Id. Count II of the indictment was dismissed.
Id. Rocha filed his notice of
appeal on November 3, 2016. Doc. 40.
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Case Nos. 12-16-11, 12-16-12 and 12-16-13
Appellate Case No. 12-16-12
{¶6} On September 21, 2016, the Putnam County Grand Jury indicted
Rocha on four counts: Count I, escape in violation of R.C.
2921.34(A)(1)&(C)(2)(a), a felony of the third degree; Count II, illegal conveyance
of prohibited items (heroin) onto the grounds of a detention facility in violation of
R.C. 2921.36(A)(2), a felony of the third degree; Count III, trafficking in drugs
(heroin) onto the grounds of a detention facility in violation of R.C. 2921.36(A)(2),
a felony of the third degree; Count III, trafficking in drugs (heroin) in violation of
R.C. 2925.03(A)(1)&(C)(6)(a), a felony of the fifth degree; and Count IV,
tampering with evidence in violation of R.C. 2921.12(A)(1), a felony of the third
degree. Doc. 1. The case was assigned a trial court number of 2016-CR-74. Rocha
entered pleas of not guilty at the arraignment. Doc. 13. On October 5, 2016, Rocha
agreed to enter a plea of guilty to Count I and Count II of the indictment. Doc. 23.
In exchange the State agreed to remain silent at sentencing. Id. The trial court
accepted the plea and found Rocha guilty of Count I and Count II.
Id. On October
27, 2016, the sentencing hearing was held. Doc. 29. The trial court ordered Rocha
to serve a prison term of 36 months on each count with the sentences to run
consecutive to each other.
Id. These prison terms were also to run consecutive to
the sentences in Case No. 2013-CR-70 and Case No. 2016-CR-45.
Id. Counts III
and IV of the indictment were dismissed.
Id. Rocha filed his notice of appeal on
November 14, 2016. Doc. 32.
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Case Nos. 12-16-11, 12-16-12 and 12-16-13
Appeal
{¶7} On appeal from all of the above cases, Rocha raises the following
assignment of error.
The trial court committed error that prejudiced the defendant in
Case No. 2016-CR-45 in sentencing him for violation of a felony
of the fourth degree in that the offense level for cocaine offenses
must be determined only by weight of actual cocaine, not by total
weight of cocaine plus any filler pursuant to State v. Gonzales,
2016-Ohio-8319. Furthermore, the holding in Gonzales should be
extended to trafficking offenses in violation of R.C. 2925.03(A)(1)
& (C).
This court initially notes that Rocha only alleges that there was error in the sentence
of appellate case no. 12-16-11. An appellant is required to provide a statement of
the assignment of error and an argument as to that assignment of error in the brief.
App.R.16(A). “The failure to assign an error or to argue it as required by Appellate
Rule 16 may result in the appellate court disregarding the argument and dismissing
the appeal.” State v. Helmstetter, 3d Dist. Auglaize Nos. 2-13-07, 2-13-08, 2013-
Ohio-3982, ¶4, and App. R. 12(A)(2). Since no assignment of error was made and
no argument was presented as to the sentences in appellate case nos. 12-16-12, and
12-16-13, those cases are dismissed.
Measurement of Cocaine
{¶8} As to appellate case no. 12-16-11, Rocha argues that the trial court
erred by including the weight of the filler when determining the total weight of the
cocaine. This argument is based upon the Supreme Court of Ohio’s opinion in State
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Case Nos. 12-16-11, 12-16-12 and 12-16-13
v. Gonzales, ____ Ohio St.3d _____, 2016-Ohio-8319, _____ N.E.2d _____ and this
court’s holding, pursuant to Gonzales in State v. Valdez, 3d Dist. Marion No. 9-16-
01,
2017-Ohio-241. On December 23, 2016, the Supreme Court of Ohio held that
to enhance the offense the State was required to prove the actual weight of the
cocaine itself, not the cocaine with the filler. State v. Gonzales, _____ Ohio St.3d
_____,
2016-Ohio-8319, ____ N.E.2d ____. In Gonzales, Court was asked to
resolve a conflict between the districts and answer the following certified question:
“Must the state, in prosecuting cocaine offenses involving mixed substances under
R.C. 2925.11(C)(4)[(b)] through (f), prove that the weight of the cocaine meets the
statutory threshold, excluding the weight of any filler materials used in the
mixture?”
Gonzales, supra at ¶1. The Court, in a plurality opinion with four justices
agreeing for different reasons, answered the question in the affirmative.
Id. This
conclusion was then expanded to include those charged with trafficking in cocaine
as charged under R.C. 2925.03. State v. Sanchez, _____ Ohio St.3d _____, 2016-
Ohio-8470, ____N.E.3d____. However, the State filed a motion for reconsideration
of the decision in Gonzales and the motion was granted. On March 6, 2017, the
Court vacated its prior opinion and answered the certified question in the negative.
State v. Gonzales, ____ Ohio St.3d ____,
2017-Ohio-777, ____ N.E.3d ____. The
Court concluded “that the applicable offense level for cocaine possession under R.C.
2925.11(C)(4) is determined by the total weight of the drug involved, including any
fillers that are part of the usable drug.” Id. at ¶ 18. Based upon the Supreme Court’s
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Case Nos. 12-16-11, 12-16-12 and 12-16-13
ruling in its reconsideration of Gonzales, this court’s prior holding in Valdez was,
in effect, reversed. Thus, Valdez has no precedential value.
{¶9} Since the Supreme Court of Ohio has now determined that the weight
of any filler can be included in determining the weight of the cocaine, the trial court
in this case did not err in doing so. The assignment of error is overruled.
{¶10} Having found no assignment of error or argument as to appellate cases
numbered 12-16-12 and 12-16-13, those appeals are dismissed. Having found no
error in the particulars assigned and argued in appellate case number 12-12-11, the
judgment of the Court of Common Pleas of Putnam County is affirmed.
Appeals Dismissed in 12-16-12 and 12-16-13
Judgment Affirmed in 12-16-11
PRESTON, P.J. and SHAW, J., concur.
/hls
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