[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.
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{¶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
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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.
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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
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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
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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
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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
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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.
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{¶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
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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.
