State v. Alvarez

[Cite as State v. Alvarez, 

.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA
STATE OF OHIO,                             :

                 Plaintiff-Appellee,                :
                                                             No. 109148
                 v.                                 :

ISRAEL ALVAREZ,                                     :

                 Defendant-Appellant.               :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: APPLICATION DENIED
                 RELEASED AND JOURNALIZED: May 7, 2021


                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-17-614708-A
                                  Application for Reopening
                                      Motion No. 543780


                                              Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Tasha L. Forchione, Assistant Prosecuting
                 Attorney, for appellee.

                 Israel Alvarez, pro se.


MARY J. BOYLE, A.J.:

                   On January 25, 2021, the applicant, Israel Alvarez, pursuant to

App.R. 26(B), applied to reopen this court’s judgment in State v. Alvarez, 8th Dist.

Cuyahoga No. 109148, 

, in which this court affirmed Alvarez’s
convictions for aggravated vehicular homicide, driving under the influence, failure

to stop after an accident, and drug possession. Alvarez now argues that his appellate

counsel was ineffective and should have argued: (1) that aggravated vehicular

homicide and failure to stop after an accident were allied offenses and (2) that his

trial counsel was ineffective for failing to pursue a motion to suppress.           On

February 24, 2021, the state of Ohio filed its brief in opposition. For the following

reasons, this court denies the application.

               On the morning of January 24, 2017, Officer David Fahey was setting

up flares on I-90 to divert traffic away from a car accident. Alvarez, driving in excess

of the speed limit, hit and killed Officer Fahey; the force of the collision flung the

officer into the air. Alvarez kept going as if no accident had occurred. Witnesses

were able to give a description of the car, a white Toyota Camry, and a partial license

plate number. Later that morning a peace officer saw a white Toyota Camry that

matched the partial license plate in a driveway in Lorain. The front of the car had

extensive damage, and remnants of a police raincoat were on the hood and

windshield. After a Lorain SWAT team surrounded the house, Alvarez came out of

the house, admitted to driving on I-90 earlier that day, and thought he had hit

something in the median. Later that day Alvarez’s blood tested positive for cocaine

and marijuana. A bag of cocaine was found in the Camry, and DNA on the bag

matched Alvarez’s DNA.

               The grand jury indicted Alvarez for the following offenses:           (1)

aggravated vehicular homicide in violation of R.C. 2903.06(A)(1)(a), a second-
degree felony, with a peace officer specification that would require a mandatory five-

year sentence to be served prior and consecutively to the underlying sentence for

aggravated vehicular homicide; (2) aggravated vehicular homicide in violation of

R.C. 2903.o6(A)(2)(a), a third-degree felony; (3) driving while under the influence

of alcohol or drugs in violation of R.C. 4511.19(A)(1)(a), a first-degree misdemeanor;

(4) failure to stop after an accident in violation of R.C. 4549.02(A), a third-degree

felony; and (5) drug possession in violation of R.C. 2925.11(A), a fifth-degree felony.

               Alvarez’s trial attorney filed a motion to suppress the fruits of a

warrantless, unconstitutional search. This motion argued that the peace officer

conducted a warrantless entry onto the curtilage of Alvarez’s residence to inspect the

front of the car, confirm the damage, and see remnants of the police raincoat. Thus,

all of the incriminating physical evidence and all of the evidence derived from

Alvarez’s statement to a detective after his arrest should be suppressed. The state

replied that the officer did not trespass on the curtilage of Alvarez’s property, but

used the other side of a shared driveway to observe the car and did not search the

car itself.   The state also asserted the independent source exception to the

exclusionary rule.

               The trial court did not rule on the motion to suppress. Instead,

Alvarez agreed to a negotiated plea. The state dismissed Count 1, Alvarez pled guilty

to the remaining four counts, and the parties agreed to a sentence of no less than

eight years and no more than twelve years. The trial court imposed an aggregate

sentence of twelve years. Alvarez’s appellate counsel argued that he did not enter a
voluntary, knowing, and intelligent plea. Alvarez now asserts that his appellate

counsel was ineffective.

              In order to establish a claim of ineffective assistance of appellate

counsel, the applicant must demonstrate that counsel’s performance was deficient

and that the deficient performance prejudiced the defense. Strickland v.

Washington, 

, 

, 

 (1984); State v. Bradley,

, 

 (1989); and State v. Reed, 

,

, 

.

              In Strickland, the United States Supreme Court ruled that judicial

scrutiny of an attorney’s work must be highly deferential. The court noted that it is

all too tempting for a defendant to second-guess his lawyer after conviction and that

it would be all too easy for a court, examining an unsuccessful defense in hindsight,

to conclude that a particular act or omission was deficient. Therefore, “a court must

indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be

considered sound trial strategy.’” 

.

              Specifically, in regard to claims of ineffective assistance of appellate

counsel, the United States Supreme Court has upheld the appellate advocate’s

prerogative to decide strategy and tactics by selecting what he thinks are the most

promising arguments out of all possible contentions.             The court noted:

“Experienced advocates since time beyond memory have emphasized the
importance of winnowing out weaker arguments on appeal and focusing on one

central issue if possible, or at most on a few key issues.” Jones v. Barnes, 

, 

, 

 (1983). Indeed, including weaker

arguments might lessen the impact of the stronger ones. Accordingly, the court

ruled that judges should not second-guess reasonable professional judgments and

impose on appellate counsel the duty to raise every “colorable” issue. Such rules

would disserve the goal of vigorous and effective advocacy. The Supreme Court of

Ohio reaffirmed these principles in State v. Allen, 

, 

,

.

               Moreover, even if a petitioner establishes that an error by his lawyer

was professionally unreasonable under all the circumstances of the case, the

petitioner must further establish prejudice: but for the unreasonable error there is

a reasonable probability that the results of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome. A court need not determine whether counsel’s

performance was deficient before examining prejudice suffered by the defendant as

a result of alleged deficiencies.

               Alvarez first argues that the charges of aggravated vehicular homicide

and failure to stop after an accident should have merged as allied offenses. R.C.

2941.25 provides in pertinent part as follows:

      (A) Where the same conduct by defendant can be construed to
      constitute two or more allied offenses of similar import, the indictment
      … may contain counts for all such offenses, but the defendant may
      be convicted of only one. (B) Where the defendant’s conduct
      constitutes two or more offenses of dissimilar import, or where his
      conduct results in two or more offenses of the same or similar kind
      committed separately or with a separate animus as to each, the
      indictment or information may contain counts for all such offenses,
      and the defendant may be convicted of all of them.

               In State v. Ruff, 

, 

, 

,

paragraph one of the syllabus, the Supreme Court of Ohio clarified that “[i]n

determining whether offenses are allied offenses of similar import within the

meaning of R.C. 2941.25, courts must evaluate three separate factors ─ the conduct,

the animus, and the import.” Offenses are of dissimilar import when the defendant’s

conduct results in harms that are separate and identifiable. “Under R.C. 2941.25(B),

a defendant whose conduct supports multiple offenses may be convicted of all the

offenses if any one of the following is true: (1) the conduct constitutes offenses of

dissimilar import, (2) the conduct shows that the offenses were committed

separately, or (3) the conduct shows that the offenses were committed with separate

animus.” 

 paragraph three of the syllabus.

               Alvarez argues that aggravated vehicular homicide and failure to stop

after an accident are allied offenses in his case. He asserts that he had no knowledge

of the motor vehicle accident or collision with a person and, thus, did not have the

necessary mens rea for failure to stop after the accident. The collision and the failure

to stop were all one continuous action. The conduct is the same and the animus was

the same. Therefore, the offenses should have merged, and his appellate counsel

was ineffective for not arguing this issue.
               However, Alvarez’s argument is not persuasive. The court notes that

he cites no case authority that holds that vehicular homicide or assault and failure

to stop after an accident are allied offenses of similar import. The Fourth Appellate

District in State v. Mullins, 4th Dist. Scioto No. 15CA3716, 

,

explained that those two offenses have dissimilar import. In that case, Mullins was

speeding through the city of Portsmouth, when he struck another vehicle containing

two people, did not stop, and continued speeding, trying to elude the police. He was

convicted, inter alia, of two counts of vehicular assault and failure to stop after an

accident. On appeal, Mullins argued that the offenses should have merged. The

court of appeals rejected that argument:

      Mullins’s vehicular assault offenses do not merge with his failure to
      stop after an accident offense because they were committed with
      separate animus and resulted in separate harms. His animus for
      vehicular assault was to enjoy the thrill of reckless, high-speed driving
      and his animus for failure to stop after causing an accident was to avoid
      liability to the occupants of the vehicle. And the harm caused by
      vehicular assault was serious physical injury to the vehicle’s occupants
      while the harm caused by his failure to stop is the victim’s inability to
      identify him and seek redress for their injuries.

. The court reasoned that the two offenses identify and punish

different harms; therefore, they are not allied offenses.

               In State v. Ward, 8th Dist. Cuyahoga No. 104012, 

, the

defendant failed to obey the signal of an officer and fled at a high rate of speed. He

crashed into a jogging pedestrian and then fled the scene of the accident. Ward pled

guilty to aggravated vehicular homicide, failure to stop after an accident, and failure

to comply with the signal of a police officer. On appeal, he argued that all of these
offenses were allied offenses. This court ruled that although Ward’s actions were

interconnected, they were independent acts committed with separate animus.

Other Ohio courts have also concluded that vehicular assault or homicide and failure

to stop after an accident are not allied offenses. State v. Moore, 9th Dist. Summit

No. 28914, 

; and State v. Kulasa, 10th Dist. Franklin No. 11AP-826,

.1 Accordingly, appellate counsel in the exercise of professional

judgment properly declined to argue this issue.

               Alvarez’s second argument is that his appellate counsel was

ineffective for failing to argue that his trial counsel was ineffective for failing to

pursue the motion to suppress. In his supporting affidavit, Alvarez avers that there

was a reasonable probability that the motion to suppress would have been successful

and changed the outcome of the case. He further avers that his trial counsel’s failure

to pursue the motion rendered the guilty plea less than knowing, intelligent, and

voluntary. “But for counsel’s error of failing to pursue the motion to suppress, he




      1  In State v. Wheeler, 6th Dist. Lucas No. L-06-1125, 

, the court
of appeals ruled that aggravated vehicular homicide and failure to stop after an accident
were not allied offenses under the old analysis of allied offenses before the Supreme Court
of Ohio issued State v. Johnson, 

, 

, 

.
In State v. Temaj-Felix, 1st Dist. Hamilton No. C-120040, 2013-Ohi0-4463, the court
implicitly held that aggravated vehicular homicide and failure to stop after an accident
were not allied offenses. The appellant had pled guilty to one count of aggravated
vehicular homicide, one count of vehicular assault, and two counts of failure to stop after
an accident. After the appellant’s lawyer filed an Anders brief, the court determined that
determining whether the two counts of failure to stop were allied offenses was an arguable
legal issue, but the court did not extend the scope of arguable legal issues to whether
aggravated vehicular homicide and failure to stop were allied offenses.
would not have pleaded guilty and would have insisted on going to trial.”

(Applicant’s supporting affidavit.)

               However, the court is not persuaded. The state opposed the motion

to suppress with multiple arguments. The state insisted that the investigating officer

did not violate the curtilage of Alvarez’s property; the officer was on the property

next door, an area in which Alvarez had no expectation of privacy. The officer did

not search the car, but merely observed it from a distance. The state also argues that

under the independent source doctrine, there was sufficient evidence upon which to

obtain a search warrant, and the state would have obtained the evidence anyway.

Thus, the state argues that Alvarez was not prejudiced.

               Moreover, defense counsel is not required to obtain rulings on all

pending pretrial motions before negotiating a plea agreement. If such pretrial

motions, such as motions to suppress, are denied, counsel’s ability to negotiate a

favorable plea agreement are diminished. Thus, declining to obtain a ruling on a

motion to suppress prior to entering into a plea agreement is within the realm of

trial strategy and tactics and does not deprive a defendant of the effective assistance

of counsel. State v. McDonall, 8th Dist. Cuyahoga No. 75245, 

 (Dec. 16, 1999); and State v. Lewis, 11th Dist. Trumbull No. 92-T-4687, 

 (Aug. 19, 1994).

               In the present case, in determining whether Alvarez’s plea was

voluntary, this court observed that “if Alvarez had gone to trial on all counts, he

would have been exposed to additional nine years of potential prison time.” 2020-
Ohio-5182, ¶ 25.      This court also noted that “Alvarez told the presentence

investigator that he pleaded guilty to receive a shorter sentence.” 

               Furthermore, pleading guilty restricts the grounds for appealing. By

“entering a guilty plea, a defendant waives the right to contest non-jurisdictional

defects that occurred before the plea was entered.” State v. Szidik, 8th Dist.

Cuyahoga No. 95644, 

; State v. Moree, 8th Dist. Cuyahoga No.

90894, 

; quoting State v. Salter, 8th Dist. Cuyahoga No.

82488, 

. (Citations omitted.) “A guilty plea waives any error in

pretrial suppression motions.” State v. Chichester, 1st Dist. Hamilton No. C-

050381, 

; State v. Bogan, 8th Dist. Cuyahoga No. 84468, 2005-

Ohio-3412; and State v. Collier, 8th Dist. Cuyahoga No. 95572, 

.

Given that it was not certain that the trial court would have granted the motion to

suppress, that declining to pursue a motion to suppress in obtaining a favorable plea

agreement comes with strategy and tactics, and that a guilty plea limits the scope of

an appeal, this court rules that appellate counsel was not deficient for failing to argue

Alvarez’s second issue.

               Accordingly, this court denies the application to reopen.




MARY J. BOYLE, ADMINISTRATIVE JUDGE

FRANK D. CELEBREZZE, JR., J., and
LISA B. FORBES, J., CONCUR