State v. Rodriguez

[Cite as State v. Rodriguez, 2020-Ohio-4464.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 108998
v. :

RICHARD RODRIGUEZ, SR., :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: September 17, 2020

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-629860-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kristin M. Karkutt, Assistant Prosecuting
Attorney, for appellee.

Paul Mancino, Jr., for appellant.

PATRICIA ANN BLACKMON, P.J.:

Defendant-appellant, Richard Rodriguez, Sr., appeals from his guilty

plea to murder, burglary, and felonious assault.
 For the sake of clarity, we shall address the assigned errors out of their

predesignated order. Rodriguez assigns the following errors for our review:

I. [Rodriguez] was denied due process of law when the court
imposed consecutive sentences.

II. [Rodriguez] was denied due process of law when the court
imposed consecutive sentences without any information or
evidence.

III. [Rodriguez] was denied due process of law when the court
accepted a guilty plea without informing the defendant of the
nature of the offense.

IV. [Rodriguez] was denied due process of law when the court
recommended that [he] never be in the same prison as his son.

Having reviewed the record and the controlling case law, we affirm

the decision of the trial court.

On June 25, 2018, following the shooting death of Steven Ray

Heading, Rodriguez and his son, Richard Rodriguez, Jr. (“Richard, Jr.”), were

indicted in a multicount indictment. As is relevant herein, Rodriguez was charged

with two counts of aggravated murder, in violation of R.C. 2903.01(A) and (B), one

count of murder in violation of R.C. 2903.02(B), one count of felonious assault in

violation of R.C. 2903.11(A)(1), two counts of felonious assault in violation of R.C.

2903.11(A)(2), one count of aggravated burglary in violation of R.C. 2911.11(A)(1),

two counts of aggravated burglary in violation of R.C. 2911.11(A)(2), and one count

of kidnapping in violation of R.C. 2905.01(A)(3), all with one and three-year firearm

specifications. Rodriguez was also charged with one count of having weapons while

under disability in violation of R.C. 2923.13(A)(3), and one count of felonious
assault in violation of R.C. 2903.11(A)(2). On June 26, 2019, Rodriguez entered into

a plea agreement with the state. The charge of aggravated murder in violation of

R.C. 2903.01(A) was amended to murder in violation of R.C. 2903.03(A), and the

charge of aggravated burglary was amended to burglary in violation of R.C.

2911.12(A). Rodriguez pled guilty to the amended charges, having a weapon while

under disability, and felonious assault. All remaining charges were nolled.1

On August 14, 2019, the trial court sentenced Rodriguez. The court

sentenced him to 15 years to life for murder, six years for burglary, and two years for

having a weapon while under disability. The court ordered that these terms be

served concurrently, but consecutively to a three-year sentence for felonious assault,

for a total of 21 years to life.

Guilty Plea

Considering the events chronologically, we begin our review with

consideration of the guilty plea. In the third assigned error, Rodriguez argues that

the trial court erred in accepting his guilty plea to murder without first explaining

the elements of this offense, and thereby failed to inform him of the nature of the

offense as required under Crim.R. 11(C).

Under Crim.R. 11(C)(2), the trial court shall not accept a guilty plea in

a felony case without personally addressing the defendant and:

(a) Determining that the defendant is making the plea voluntarily, with
understanding of the nature of the charges and of the maximum

1 Richard, Jr. pled guilty to involuntary manslaughter with a three-year firearm
specification, burglary with a three-year firearm specification, and having a weapon while
under disability. He was sentenced to thirteen years in prison.
 penalty involved, and, if applicable, that the defendant is not eligible
for probation or for the imposition of community control sanctions at
the sentencing hearing.

(b) Informing the defendant of and determining that the defendant
understands the effect of the plea of guilty or no contest, and that the
court, upon acceptance of the plea, may proceed with judgment and
sentence.

(c) Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights to a
jury trial, to confront witnesses against him or her, to have compulsory
process for obtaining witnesses in the defendant’s favor, and to require
the state to prove the defendant’s guilt beyond a reasonable doubt at a
trial at which the defendant cannot be compelled to testify against
himself or herself.

In determining whether a plea was entered knowingly, intelligently,

and voluntarily, “an appellate court examines the totality of the circumstances

through a de novo review of the record.” State v. Spock, 8th Dist. Cuyahoga No.

99950, 2014-Ohio-606, ¶ 7; see also State v. Petitto, 8th Dist. Cuyahoga No. 95276,

2011-Ohio-2391, ¶ 4.

The trial court must strictly comply with those provisions of Crim.R.

11(C) that relate to the waiver of constitutional rights. State v. Veney, 120 Ohio St.3d

176, 2008-Ohio-5200, 897 N.E.2d 621, syllabus; State v. Ballard, 66 Ohio St.2d 473,

423 N.E.2d 115 (1981), at paragraph one of the syllabus. The constitutional rights

include the right to a jury trial, to confront witnesses, to have compulsory process to

obtain witnesses in the defendant’s favor, and to require the state to prove the

defendant’s guilt beyond a reasonable doubt at a trial at which the defendant cannot
be compelled to testify against himself or herself. Crim.R. 11(C)(2)(c); State v.

Hinton, 8th Dist. Cuyahoga No. 102710, 2015-Ohio-4907, ¶ 21.

As to the nonconstitutional rights, substantial compliance is

sufficient. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d

462, ¶ 31; State v. Hedenberg, 8th Dist. Cuyahoga No. 102112, 2015-Ohio-

4673, ¶ 12; Veney at ¶ 14. The nonconstitutional aspects of Crim.R. 11(C)(2) include

the defendant’s right to be informed of the nature of the charges, the maximum

penalty involved, that the defendant is not eligible for community control sanctions

(if applicable), and that the defendant understands the effect of his or her plea. State

v. Austin, 8th Dist. Cuyahoga No. 105981, 2019-Ohio-1983, ¶ 13. “Substantial

compliance means that under the totality of the circumstances the defendant

subjectively understands the implications of his plea and the rights he is waiving.”

Id., citing State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).

As to the elements of the offense that is the subject of the guilty plea,

this court stated in State v. Reeves, 8th Dist. Cuyahoga No. 100560, 2014-Ohio-

3497, as follows:

In determining whether a defendant is making a plea with an
understanding of the nature of the charge, a trial court has no
obligation to advise the defendant of the elements of the crime or to
specifically ask whether he or she understands the charge, provided the
totality of the circumstances support the trial court’s determination
that the defendant understands the charge. State v. Minifee, 8th Dist.
Cuyahoga No. 99202, 2013-Ohio-3146, ¶ 14. In fact, “[w]here a
defendant indicates that he understands the nature of the charge, in the
absence of evidence to the contrary or anything in the record that
indicates confusion, it is typically presumed that the defendant actually
understood the nature of the charge against him.” State v. Wangul, 8th
 Dist. Cuyahoga No. 84698, 2005-Ohio-1175, ¶ 10. And where a
defendant enters a guilty plea without asserting innocence, it is
presumed that the defendant understands that he or she has admitted
guilt. State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d
51, ¶ 19.

Id. at ¶ 12. Accord State v. Boyd, 8th Dist. Cuyahoga No. 98342, 2013-Ohio-30,

¶ 16.

Here, the record indicates that the trial court fully complied with

Crim.R. 11. Prior to accepting the guilty plea, the trial court held a hearing and

engaged in a colloquy with Rodriguez. At this time, the prosecutor outlined the

offense, degree felony, and penalty. The trial court also outlined the offense, Revised

Code provision, degree of felony, and range of penalties. Nothing in the record

indicates that Rodriguez was confused about the nature of the offenses, and

Rodriguez affirmatively stated that he understood the nature of the charges. After a

review of the record and applicable law, we have determined that the trial court

substantially complied with the nonconstitutional requirements of Crim.R.

11(C)(2)(a), and that Rodriguez understood the nature of the charges against him.

In accordance with all of the foregoing, we conclude that the trial court complied

with Crim.R. 11, and Rodriguez knowingly, voluntarily, and intelligently entered

guilty pleas to the charges.

The third assigned error is without merit.

Consecutive Sentences

In the first assigned error, Rodriguez argues that the trial court did

not consider the purposes and principles of felony sentencing under R.C. 2929.11 in
imposing sentence and erred in failing to impose concurrent sentences. In the

second assigned error, Rodriguez argues that the record does not support the

consecutive sentence imposed for felonious assault.

In considering the first assigned error, the Ohio Supreme Court

recently explained that an appellate court may only review individual felony

sentences under R.C. 2929.11 and 2929.12. R.C. 2953.08(G)(2)(a) and 2929.14(C)

set forth the exclusive means of appellate review of consecutive sentences. Gwynne,

158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169, ¶ 16-17.

For individual sentences, the trial court must consider the purposes

and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing

factors listed in R.C. 2929.12, but the court is not required to make findings or give

reasons for imposing more than the minimum sentence. State v. Pavlina, 8th Dist.

Cuyahoga No. 99207, 2013-Ohio-3620, ¶ 15, citing State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, 845 N.E.2d 470. Courts have “refused to find that a sentence is

contrary to law when the sentence is in the permissible range and the court’s journal

entry states that it ‘considered all required factors of the law’ and ‘finds that prison

is consistent with the purposes of R.C. 2929.11.’” State v. Williams, 8th Dist.

Cuyahoga No. 100042, 2014-Ohio-1618, ¶ 17, quoting State v. May, 8th Dist.

Cuyahoga No. 99064, 2013-Ohio-2697, ¶ 16.

Pursuant to R.C. 2903.02(A), murder, an unclassified felony, carries

a sentence of 15 years to life imprisonment. Rodriguez was sentenced to fifteen years

to life. Pursuant to R.C. 2911.12(A), burglary, a second-degree felony, carries a
sentence of two to eight years. Rodriguez was sentenced to six years. Under R.C.

2923.13, having a weapon while under disability, a third-degree felony, carries a

sentence of nine to 36 months incarceration. Rodriguez was sentenced to 24

months. Pursuant to R.C. 2903.11, felonious assault, a second-degree felony, carries

a sentence of two to eight years. Rodriguez was sentenced to three years.

Rodriguez’s sentence for each of these offenses is within the correct statutory range.

Further, the trial court stated, and the journal entries also reflect, that the court

considered the “sentencing laws.” Therefore, nothing in the record supports

Rodriguez’s claim that the court failed to consider R.C. 2929.11 or 2929.12 in

fashioning the sentences imposed for the individual offenses.

We further note that sentences are presumed to run concurrently

unless the trial court makes the findings required under R.C. 2929.14(C)(4). State

v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 16, 23. The

Gwynne court instructed that in reviewing consecutive sentences, an appellate court

must “review the record, including the findings underlying the sentence or

modification given by the sentencing court.” Id. If an appellate court clearly and

convincingly finds either that (1) “the record does not support the sentencing court’s

findings under [R.C. 2929.14(C)(4)],” or (2) “the sentence is otherwise contrary to

law,” then “the appellate court may increase, reduce, or otherwise modify a sentence

* * * or may vacate the sentence and remand the matter to the sentencing court for

resentencing.” 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169, ¶ 16-17. The

imposition of consecutive sentences is contrary to law if a trial court fails to make
the findings mandated by R.C. 2929.14(C)(4). State v. Morris, 2016-Ohio-7614, 73

N.E.3d 1010, ¶ 24 (8th Dist.), citing Bonnell at ¶ 37.

Under R.C. 2929.14(C)(4), the trial court must first find that

“consecutive service is necessary to protect the public from future crime or to punish

the offender[.]” R.C. 2929.14(C)(4). Second, the trial court must find that

“consecutive sentences are not disproportionate to the seriousness of the offender’s

conduct and to the danger the offender poses to the public.” Id. Third, the trial court

must find that one of the following applies:

(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
* * *, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the
courses of conduct adequately reflects the seriousness of the offender’s
conduct.

(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
Id.

“The [trial] court must note that it engaged in the analysis and that it

has considered the statutory criteria and specifie[d] which of the given bases

warrants its decision.” Bonnell at ¶ 26, quoting State v. Edmonson, 86 Ohio St.3d

324, 326, 1999-Ohio-110, 715 N.E.2d 131. Further, the reviewing court must be able

to discern that the record contains evidence to support the findings. Id. at ¶ 29. A

trial court is not, however, required to state its reasons to support its findings, nor
is it required to precisely recite the statutory language, “provided that the necessary

findings can be found in the record and are incorporated in the sentencing entry.”

Id. at ¶ 37. The court is not required to engage in “a word-for-word recitation” of

R.C. 2929.14(C)(4). Id. at ¶ 29. Rather, if the reviewing court can discern that the

trial court engaged in the correct analysis and can determine that the record

contains evidence to support the findings, consecutive sentences should be upheld.

Id.

In this matter, in the sentencing hearing the trial court stated:

Mr. Rodriguez, Sr. on Count 1 in this case, the murder of Steven
Ray Heading, you are ordered to serve an indefinite prison term of 15
years by [sic] life, but on that count you are also ordered to serve three
years on the two firearm specifications.

Those three years are ordered to be served prior and
consecutively to beginning the indefinite term of 15 years to life,
meaning, in effect, on Count 1, you have a prison term of 18 years to life
indefinite.

On Count 8, the burglary, you are ordered to serve six years in a
state prison.

On Count 11, the weapons under disability, you are ordered to
serve two years at a state prison.

Finally, on Count 13, which is the June 3, 2018 felonious assault,
you are ordered to serve three years at a state prison. I am going to
order for Mr. Rodriguez, Sr. that Counts 1, 8, and 11 be served
concurrently, that is to say at the same time, but Count 13 is ordered to
be served prior and consecutively to.

The reason being that was a separate crime. That crime in and
of itself would have been bad enough, but then we know what happened
two days later.
 So I do want you to know in imposing consecutive sentences, I
find that consecutive service is necessary to protect the public from
future crime. It is also necessary to appropriately punish you, and I do
find consecutive sentences are not disproportionate to the seriousness
of your conduct and to the danger that you pose to the public.

I also find that at least two or more of the multiple offenses were
committed as part of one or more courses of conduct and that the harm
caused by two or more of the multiple offenses was so great or unusual
that no single prison term for any of the offenses committed as part of
the course of conduct adequately reflects the seriousness of your
conduct.

Which is really a way of saying to me that felonious assault
should not go unpunished. I concur with your lawyer * * * that it is
unlikely that you will be released at first parole eligibility of 18 years,
but it is certainly not impossible.

If that occurred, that is a statutory minimum for murder and the
felonious assault would be going unpunished.

Second, I am inclined to agree with the prosecutor, that what
appears to be the motivation here for the conduct on June 5th is
[inimical] to any sort of civilized system of government, of self-
government, I should say.

I recognize that even in a civil society people do commit crimes,
but the rules, so to speak, require people to deal with what they are
charged with as opposed to taking the matter into their own hands and
trying to literally eliminate witnesses against them.

So for those reasons, I think that consecutive service of the
felonious assault is justified in this case.

In this case, a review of the record shows that the trial court

complied with R.C. 2929.14(C)(4) by making the required statutory findings.

Beginning with the first finding required under the statute, the court found, both

orally and in its judgment entry, that consecutive sentences were necessary to

protect the public or to punish Rodriguez. Secondly, the court found that
consecutive sentences were not disproportionate to the seriousness of his conduct

and to the danger that he posed to the public. Turning to the third aspect of required

consecutive sentence findings, the trial court concluded that multiple offenses were

committed as part of one or more courses of conduct, and that the harm was so great

or unusual that no single prison term for the offenses committed as part of the

course of conduct adequately reflects the seriousness of Rodriguez’s conduct. All of

these findings were in turn properly included in the court’s journalized sentencing

entry.

Accordingly, the first assigned error lacks merit.

Turning to the second assignment of error, Rodriguez asserts that

there was a plea agreement in this case and no record was created to support the

sentence. Here, although there was a plea agreement in this case, the trial court

created an extensive record. The court also stated:

I want you to know for both of you that imposing the sentences I’m
about to announce in open court, I have taken into account everything
that I know about you and your case. * * * That includes, of course,
everything said by all of the participants on the oral record here today.
It includes the sentencing memoranda of record and filed with the
Clerk.

It includes the presentence report requested in this particular
case * * *. It includes the Clinic reports and any other written
documents that I mentioned. Finally, it includes consideration of the
sentencing laws under Chapter 2929 of the Ohio Revised Code.

After carefully reviewing the record in its entirety, we do not clearly

and convincingly find that the record fails to support the trial court’s imposition of

consecutive sentences. To the contrary, the record properly supports the trial court’s
R.C. 2929.14(C) findings relative to its imposition of consecutive sentences. The

record demonstrates that the court reviewed Rodriguez’s file and record. Further,

the record indicates that this matter began with the theft of a tablet. It escalated

when Rodriguez assaulted the victim, assaulted him again, and finally, acting

together with Richard, Jr., killed the victim in order to prevent him from testifying

regarding the assaults. The record fully supports the determinations that

consecutive sentences are necessary to protect the public or punish Rodriguez,

consecutive sentences are not disproportionate to the seriousness of his conduct and

the danger he posed to the public. The record also supports the conclusion that the

offenses were part of a course of conduct, and the harm caused by two or more of

the multiple offenses so committed was so great or unusual that no single prison

term for any of the offenses committed as part of any of the courses of conduct

adequately reflects the seriousness of the offender’s conduct. This satisfies the

requirements of R.C. 2929.14(C)(4).

Because we are able to discern that the trial court engaged in the

correct, requisite analysis and the record contains evidence to support the finding,

we must uphold the sentence. See, e.g., State v. O’Conner, 8th Dist. Cuyahoga No.

2019-Ohio-702, ¶ 12; State v. Jackson, 8th Dist. Cuyahoga No. 104991, 2017-Ohio-

7167, ¶ 15.

The second assigned error lacks merit.
 Serving Sentence Apart from Richard, Jr.

In the fourth assigned error, Rodriguez argues that the trial court

erred in determining that Rodriguez and Richard, Jr. may not serve their sentences

at the same institution.

The court’s sentencing entry indicates that the court “recommended”

that Rodriguez and Richard, Jr. be held in separate prisons. This recommendation

was never “ordered” by the court. Accordingly, we find no reversible error.

The fourth assigned error is without merit.

Judgment is 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.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

______________________________________
PATRICIA ANN BLACKMON, PRESIDING JUDGE

RAYMOND C. HEADEN, J., and
MARY EILEEN KILBANE, J., CONCUR
Guilty plea; consecutive sentences; penal institution.

The trial court did not err in accepting a guilty plea to murder and other offenses
where the court properly set forth the nature of the offenses; consecutive sentences
were imposed in compliance with R.C. 2929.14(C) and were supported by the
record; the court’s recommendation regarding the place of imprisonment was not
prejudicial error.