[Cite as State v. Rodriquez, 2017-Ohio-1318.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
DEFIANCE COUNTY
STATE OF OHIO,
CASE NO. 4-16-16
PLAINTIFF-APPELLEE,
v.
SCOTTY RODRIQUEZ, OPINION
DEFENDANT-APPELLANT.
Appeal from Defiance County Common Pleas Court
Trial Court No. 15-CR-12330
Judgment Affirmed
Date of Decision: April 10, 2017
APPEARANCES:
Mary Catherine O’Neill and Bret Jordan for Appellant
Russell R. Herman for Appellee
Case No. 4-16-16
WILLAMOWSKI, J.
{¶1} Defendant-appellant Scotty Rodriquez (“Rodriquez’) brings this appeal
from the judgment of the Court of Common Pleas of Defiance County finding him
guilty after he entered a no contest plea and for imposing consecutive sentences.
Rodriquez also claims that he was denied the effective assistance of counsel. For
the reasons set forth below, the judgment is affirmed.
{¶2} On August 13, 2015, the Defiance County Grand Jury indicted
Rodriquez on three counts of trafficking in cocaine in violation of R.C.
2925.03(A)(1)(C)(4). Doc. 1. Rodriquez entered pleas of not guilty to all of the
charges. Doc. 6. On May 19, 2016, a change of plea hearing was held. Doc. 15.
At the hearing, Rodriquez entered pleas of no contest to all of the counts of the
indictment. Id. The trial court then accepted the plea of no contest and found
Rodriquez guilty of the offenses charged. Id. A sentencing hearing was then held
on July 12, 2016. Doc. 17. The trial court then ordered that Rodriquez serve prison
terms of five years each for Counts 1 and 3, with the terms to be served consecutive.
Id. The trial court also ordered Rodriquez to serve a prison term of 36 months for
Count 2 and ordered that this term be served concurrent to the others for an
aggregate prison term of ten years. Id. Rodriquez then filed a timely appeal from
this judgment. Doc. 19. On appeal, Rodriquez raises the following assignments of
error.
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First Assignment of Error
The trial court erred in finding [Rodriquez] guilty as [Rodriquez]
never entered a plea in the instant matter.
Second Assignment of Error
The trial court erred by proceeding to sentence after the State did
not adhere to their portion of the plea agreement.
Third Assignment of Error
[Rodriquez] received ineffective assistance of counsel.
Fourth Assignment of Error
The trial court erred by sentencing [Rodriquez] to consecutive
sentences by failing to engage in the three step analysis required
by [R.C. 2929.14(C)] and the supporting case law.
On January 25, 2017, Rodriquez filed a supplemental brief raising two additional
assignments of error based upon a ruling by the Supreme Court of Ohio in State v
Gonzales, ___ Ohio St.3d ___, 2016-Ohio-8319, ___ N.E.2d ___. Rodriquez raised
two additional assignments of error.
First Supplemental Assignment of Error
The trial court erred in finding [Rodriquez] guilty as
[Rodriquez’s] alleged plea was not made knowingly, intelligently
and voluntarily pursuant to Crim.R. 11 in the instant matter.
Second Supplemental Assignment of Error
[Rodriquez] received ineffective assistance of counsel.
For the purpose of clarity, we will address the assignments out of order.
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Entering a No Contest Plea
{¶3} In the first assignment of error, Rodriquez claims that he never actually
entered a plea of no contest. In cases involving felonies, a trial court may refuse to
accept a plea of no contest and may not accept such a plea without first personally
addressing the defendant and doing all of the following: 1) determining that the
plea is being voluntarily entered with knowledge of the nature of the charges,
potential sanctions, and eligibility for community control sanctions; 2) informing
the defendant of and determining that the defendant understands the effect of the
plea being entered, and informing the defendant that the trial court may proceed
directly to sentencing; and 3) informing the defendant and determining that the
defendant understands the rights he is waiving by entering the plea. Crim.R.
11(C)(2).
{¶4} A review of the record in this case indicates that the following dialogue
occurred.
The Court: Based upon those discussions at this time you’re
asking leave to withdraw the not guilty pleas previously tendered,
tendering pleas of no contest to all three counts, Trafficking in
Cocaine, A felony of the First Degree; Trafficking in Cocaine, a
Felony of the Third Degree; Trafficking in Cocaine, a Felony of
the First Degree?
Mr. Seibel [counsel for Rodriquez]: Correct.
The Court: Mr. Rodriquez, do you understand what’s being said
on your behalf there?
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[Rodriquez]: Yes, Sir.
The Court: Is that what you want to do?
[Rodriquez]: Yes, Sir.
The Court: Are you satisfied with Mr. Seibel’s legal services in
these matters?
[Rodriquez]: Yes, sir.
May 19, 2016 Tr. 3-4. The trial court then proceeded to conduct the Criminal Rule
11 colloquy with Rodriquez. Id. at 4-10. Following that, the trial court again
questioned Rodriquez about the plea.
The Court: In light of all the things I’ve told you about, all the
rights you give up by entering pleas of no contest, possible
penalties involved for these Two First Degree Felonies and the
Third Degree Felony, specifically the fact that those First Degree
Felonies are mandatory imprisonment offenses, mandatory fine
offenses, the fact again there’s no recommendation that is part of
the plea proposal here. Taking all those things into account; do
you believe the pleas here to be in your best interest?
[Rodriquez]: Yes, Sir.
The Court: Are those pleas then of your own free will?
[Rodriquez]: Yes, Sir.
The Court: Did anyone tell you how to answer the questions I’ve
asked you here today?
[Rodriquez]: No, Sir.
***
The Court: Are there any questions you want to ask me about
these plea proceedings?
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Case No. 4-16-16
[Rodriquez]: No, Sir.
***
The Court: The Court will accept the no contest pleas. * * * The
Court will enter findings of guilty. * * *
Id. at 10-12. Although Rodriquez did not specifically state that he was changing his
not guilty pleas to ones of no contest, that is what can be inferred from the record.
“A judge properly accepts a defendant's plea of guilty to an offense when the record
shows he substantially complied with the requirements of Crim.R. 11(C) and the
totality of the circumstances shows the defendant subjectively understood the
implications of his plea.” State v. McGuire, 8th Dist. Cuyahoga No. 86608, 2006-
Ohio-1330, ¶ 14. Although McGuire discussed accepting a guilty plea, the same
logic applies to the acceptance of a no contest plea. The record before this court
shows that the trial court fully complied with the requirements of Criminal Rule 11
Additionally, the record shows that the defendant was fully aware of what was
occurring and that he intended to change his pleas from not guilty to ones of no
contest. Thus, the trial court did not err in accepting the pleas of no contest as
entered by Rodriquez. The first assignment of error is overruled.
Knowingly Entering a Plea
{¶5} Rodriquez argues in his first supplemental assignment of error that he
did not voluntarily enter his plea of no contest because at the time of the plea, neither
he nor the State was aware of what the State was actually required to prove if the
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matter went to trial. Rodriquez claims that both sides were operating under the
mistaken belief that the State only had to prove the weight of the cocaine including
any filler used to “cut” the drug. 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. State v. Gonzales, ____ Ohio St.3d ____, 2017-
Ohio-777, ____ N.E.3d ____. This opinion answered the certified question in the
negative. The Court concluded “that the applicable offense level for cocaine
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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.
{¶6} At the time of the change of plea, both the State and Rodriquez
understood the law as allowing the weight of the filler to be considered when
determining the level of the offense. The prior opinion of the Supreme Court of
Ohio indicated that this interpretation was in error. However, the Court has vacated
that prior opinion and held that the law allowed for the weight of any filler to be
considered. There was no mistake by the parties as to what had to be proven by the
State to obtain a conviction on the offenses charged. The record contains no
evidence that the plea was not knowingly, voluntarily, and intelligently entered.
Thus, the first supplemental assignment of error is overruled.
Adherence to Plea Agreement
{¶7} Rodriquez argues in his second assignment of error that the trial court
erred by proceeding to sentencing when the State violated the terms of the plea
agreement. This court notes that no written plea agreement is found in the record.
Thus, the only indication we have as to the terms of the agreement is what is stated
at the hearing. At the May 19, 2016, hearing, the State recited the plea agreement
as follows.
Mr. Furnas: It’s my understanding the Defendant will be
entering no contest pleas with a stipulation of the facts to all three
counts. He would then be requesting that an open sentencing take
place. Right at this time we do not have any recommendation.
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The Court: Both mandatory prison and mandatory fines –
Mr. Furnas: Yes.
The Court: -- on the Ones, but not the Three?
Mr. Furnas: That’s correct. Had he had a prior drug abuse
offense it would be mandatory on the Three, but since he does not
it’s not mandatory.
The Court: But the Ones are mandatory threes – mandatory
three years up to eleven.
Mr. Furnas: Correct.
The Court: And $10,000.00 mandatory fines?
Mr. Furnas: Correct.
The Court: Mr. Siebel, is that your understanding?
Mr. Seibel: Yes, Sir, it is.
May 19, 2016 Tr. 2-3. Rodriquez then confirmed that this was his understanding as
well. Id. at 4.
{¶8} At the sentencing hearing, the State recommended an aggregate
sentence of twelve years. Counsel for Rodriquez then made the following
statements.
Mr. Seibel: * * * The reason that we have an open sentencing is
we weren’t able to reach an agreement during our pre-trial
negotiations. I think we had talked about a tail of five years and
a tail – and I personally felt that was excessive considering the
nature of the situation. And I talked to [Rodriquez] about it, and
I said why don’t we just plea this charge and you can make your
argument to the Court, I’ll make my argument to the Court.
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July 12, 2016 Tr. 3-4. The record clearly shows that Rodriquez and the State had
not reached an agreement as to the sentencing. When there is no agreement as to
sentencing, the State is free to request any sentence it wishes. State v. Shepherd, 3d
Dist. Hardin No. 6-09-14, 2010-Ohio-482, ¶ 18. As there was no agreement on
sentencing, the State did not violate the terms of the plea agreement. The second
assignment of error is overruled.
Ineffective Assistance of Counsel
{¶9} The third assignment of error and the second supplemental
assignment of error both allege that Rodriquez was denied the effective
assistance of counsel.
In evaluating whether a petitioner has been denied effective
assistance of counsel, this court has held that the test is “whether
the accused, under all the circumstances, * * * had a fair trial and
substantial justice was done.” State v. Hester (1976), 45 Ohio St.2d
71, 74 O.O.2d 156, 341 N.E.2d 304, paragraph four of the syllabus.
When making that determination, a two-step process is usually
employed. “First, there must be a determination as to whether
there has been a substantial violation of any of defense counsel's
essential duties to his client. Next, and analytically separate from
the question of whether the defendant's Sixth Amendment rights
were violated, there must be a determination as to whether the
defense was prejudiced by counsel's ineffectiveness.” State v. Lytle
(1976), 48 Ohio St.2d 391, 396–397, 2 O.O.3d 495, 498, 358 N.E.2d
623, 627, vacated on other grounds (1978), 438 U.S. 910, 98 S.Ct.
3135, 57 L.Ed.2d 1154.
On the issue of counsel's ineffectiveness, the petitioner has the
burden of proof, since in Ohio a properly licensed attorney is
presumably competent. See Vaughn v. Maxwell (1965), 2 Ohio
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St.2d 299, 31 O.O.2d 567, 209 N.E.2d 164; State v. Jackson, 64
Ohio St.2d at 110–111, 18 O.O.3d at 351, 413 N.E.2d at 822.
State v. Calhoun, 86 Ohio St.3d 279, 289, 1999-Ohio-102, 714 N.E.2d 905. “The
failure to prove either 1) a substantial violation or 2) prejudice caused by the
violation makes it unnecessary for a court to consider the other prong of the test.”
State v. Walker, 3d Dist. Seneca No. 13-15-42, 2016-Ohio-3499, ¶ 20.
{¶10} Rodriquez claims that his counsel was ineffective by not objecting to
the State making a sentencing recommendation. This claim was addressed in the
second assignment of error. This court determined that there was no agreement as
to sentencing. Thus, counsel did not err by not objecting to the State’s
recommendation. Without a substantial violation, there can be no ineffective
assistance of counsel. The third assignment of error is overruled.
{¶11} In the second supplemental assignment of error, Rodriquez argues that
his counsel was ineffective for failing to raise the issue of the actual amounts of
cocaine as was raised in Gonzales. As discussed above, the Supreme Court of Ohio
has vacated the original Gonzales opinion upon reconsideration and has since
determined that the actual amounts of cocaine are irrelevant. State v. Gonzales,
____ Ohio St.3d ____, 2017-Ohio-777, ____ N.E.3d ____. Instead the Court held
that the total weight includes the weight of any fillers that are part of the usable
drug. Id. at ¶ 18. Since this is the law Rodriquez’s counsel was not ineffective for
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not raising the issue of the actual amounts of cocaine. The second supplemental
assignment of error is overruled.
Consecutive Sentences
{¶12} Finally, Appellant claims in his fourth assignment of error that the trial
court erred by imposing consecutive sentences. Prior to imposing consecutive
sentences, the trial court must make certain findings.
If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court finds
that the consecutive service is necessary to protect the public from
future crime or to punish the offender and that consecutive
sentences are not disproportionate to the seriousness of the
offender's conduct and to the danger the offender poses to the
public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to [R.C. 2929.16, 2929.17, 2929.18], 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.
R.C. 2929.14(C)(4).
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In order to comply with R.C. 2929.14(C)(4), a trial court imposing
consecutive sentences must make at least three distinct findings:
'“(1) that consecutive sentences are necessary to protect the public
from future crime or to punish the offender; (2) that consecutive
sentences are not disproportionate to the seriousness of the
offender's conduct and to the danger the offender poses to the
public; and (3) that one of the subsections (a), (b) or (c) applies.”'
State v. Dixon, 10th Dist. Franklin No. 15AP-432, 2015-Ohio-5277, ¶ 11, quoting
State v. Hillman, 10th Dist. Franklin No. 14AP-252, 2014-Ohio-5760, ¶ 63, quoting
State v. Price, 10th Dist. Franklin No. 13AP-1088, 2014-Ohio-4696, ¶ 31, citing
State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177. Criminal Rule 32(A)
requires that at the time of imposing sentence in serious offenses, the trial court must
state its statutory findings. Crim.R. 32(A)(4). The Supreme Court of Ohio has held
that this means that “[w]hen imposing consecutive sentences, a trial court must state
the required findings as part of the sentencing hearing”. Bonnell, supra at ¶ 29.
Although the trial court need not give a “talismanic incantation of the words of the
statute”, the necessary findings must be found in the record and incorporated into
the sentencing entry. Id. at 37. Here, the trial court made the following relevant
statements regarding the sentence at the sentencing hearing.
He’ll be sentenced to basic prison terms of five years at the Ohio
Department of Rehabilitation and Corrections at Orient on each
of those First Degree Felonies. Those will be imposed
consecutively with each other for an accumulative ten years [sic]
term. Those will be designated mandatory prison terms.
Concurrent thirty-six month term on the Third Degree Felony
will be imposed. Costs will be assessed to the Defendant.
Reimbursement will be ordered to the MAN Unit in the amount
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of twenty-three hundred dollars. Court will accept his affidavit
of indigency and not impose mandatory fines, would otherwise be
required.
It’s the determination of the Court that the consecutive terms are
necessary to protect the public in light of the serious amount of
drugs involved in this matter, his ongoing significant criminal
history, the threat that he poses to the community by continued
criminal behavior.
Doc. 24 at 12-13. A review of the record indicates that the trial court determined
that consecutive sentences were necessary to protect the public, that Rodriquez had
a lengthy criminal history, and that his crimes involved a serious amount of drugs.
Although the trial court could have been clearer in the language used at the hearing,
the statements of the trial court regarding the serious amount of drugs involved and
the danger to the public equate “to a finding that consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public”. State v. Fields, 10th Dist. Franklin No. 16AP-417.
2017-Ohio-661, ¶20. These statements allow this court to determine that the trial
court engaged in the correct analysis as to the proportionality of the sentence. A
review of the record shows that the evidence was sufficient to support the trial
court’s findings. The trial court then made all the necessary findings in the
sentencing entry. Thus, the trial did not fail to consider the proportionality of the
sentence and the fourth assignment of error is overruled.
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{¶13} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Court of Common Pleas of Defiance
County is affirmed.
Judgment Affirmed
PRESTON, P.J. and SHAW, J., concur.
/hls
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