[Cite as State v. Rodriguez, 2020-Ohio-3242.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


STATE OF OHIO,                                     :        OPINION

                 Plaintiff-Appellee,               :
                                                            CASE NO. 2019-L-125
        - vs -                                     :

RANDY V. RODRIGUEZ,                                :

                 Defendant-Appellant.              :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2019 CR
000420.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).

Jason L. Fairchild, Andrews & Pontius LLC, 4810 State Road, P.O. Box 10, Ashtabula,
OH 44005 (For Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Randy V. Rodriguez, appeals the judgment of the Lake County

Court of Common Pleas.               After accepting appellant’s guilty plea to one count of

kidnapping, one count of felonious assault, and one count of tampering with evidence,

the trial court sentenced him to an indefinite term of imprisonment of 14 to 18 years.

Appellant challenges his counsel’s effectiveness as well as the trial court’s sentence.

We affirm.
       {¶2}   On the evening of April 20, 2019, appellant and his girlfriend, L.C. (“the

victim”), left a party in Cuyahoga County. While en route home to Wickliffe Ohio, in

Lake County, and without any ostensible warning, appellant indicated he was going to

kill the victim. Appellant began to strike the victim in the face and choked her to the

point of losing consciousness. When she regained consciousness, he repeated the

beating. Although the victim attempted to exit the vehicle, appellant would not allow

her.

       {¶3}   Upon arriving at their residence, appellant dragged the victim into the

garage and continued the assault; the victim again lost consciousness, at which point,

appellant poured gasoline on her and threatened to burn her alive.

       {¶4}   After apparently regaining his composure, appellant visited a neighbor,

Dana Silvestro, and advised her that the victim was next door and “f’d up.”          Ms.

Silvestro went next door and observed the victim badly beaten and laying on the garage

floor. The victim vomited blood and Ms. Silvestro noticed a strong smell of gasoline.

When the victim regained consciousness, she told Ms. Silvestro that appellant was

trying to kill her. Both women returned to Ms. Silvestro’s home where she called 911.

       {¶5}   Officers from the Wickliffe Police Department responded and found

appellant in the garage. There was no indication he had been involved in the altercation,

i.e., his clothing was clean, showing no signs of blood or stains. He advised them he

was the victim’s fiancé and explained that the victim became intoxicated at a party,

threatened suicide by pills, and poured gasoline on herself. At this point, appellant

stated he went to the neighbor for help.




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      {¶6}     Officers explained that they needed to check the home for other potentially

injured persons. Appellant declined to consent and advised the officers to obtain a

warrant.     Appellant was subsequently detained and taken to the Wickliffe Police

Department.

      {¶7}     Meanwhile, the victim had been taken to the hospital for treatment. While

there, officers obtained written consent to search both her vehicle and the couple’s

residence, which she owned. In the home, officers noticed blood stains on an area rug

in the garage. The victim advised officers appellant was wearing blue jeans, a dark

gray button-down shirt to the party they attended, and K-Swiss tennis shoes (clothing he

was not wearing when police arrived). Inside a bedroom closet, officers observed K-

Swiss tennis shoes with apparent blood on them. And, in the basement laundry, they

found a load in the washer that included, among other things, a dark gray button-down

shirt, blue jeans, and key to the victim’s Jeep Wrangler.

      {¶8}     After being assessed, the victim was transported to Metro Health Center in

Cleveland due to brain bleeds. After further assessment, officers learned the victim

suffered from two nasal fractures, three chips to her teeth, two subdural hematomas, a

concussion, a torn carotid artery, as well as multiple contusions to her face, neck, torso,

back, and arms.

      {¶9}     Appellant was indicted by the Lake County grand jury on nine counts,

including four counts of kidnapping, felonies of the first degree; two counts of felonious

assault, felonies of the second degree; tampering with evidence, a felony of the third

degree; possessing criminal tools, a felony of the fifth degree, and domestic violence, a

misdemeanor of the first degree. Appellant pleaded not guilty, but eventually withdrew




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the plea, entering a guilty plea to one count of kidnapping, in violation of R.C.

2905.01(B)(2); one count of felonious assault, in violation of R.C. 2903.11(A)(1); and a

lesser-included offense of attempted tampering with evidence, in violation of R.C.

2923.02 and R.C. 2921.12(A)(1). After conducting a sentencing hearing, the trial court

sentenced appellant to serve eight years imprisonment for kidnapping; six years

imprisonment for felonious assault; and 12 months imprisonment of the lesser-included

offense of tampering with evidence. The kidnapping and felonious assault counts were

ordered to run consecutively with one another, and the remaining count was ordered to

run concurrent with those sentences, for an indefinite term of 14-18 years. Appellant

was ordered to pay restitution and was placed on the violent offender database. This

appeal follows.

       {¶10} Appellant’s first and second assignments of error are related.           They

provide:

       {¶11} “[1.] The trial court erred when it accepted appellant’s guilty plea because

appellant received ineffective assistance of counsel in violation of his Sixth and

Fourteenth Amendment rights and as a result appellant’s guilty plea was not made

knowingly, voluntarily, and/or intelligently.

       {¶12} “[2.] The trial court erred and appellant received ineffective assistance of

counsel when the convictions of kidnapping and felonious assault were not merged for

purposes of sentencing.”

       {¶13} Under his first assignment of error, appellant asserts his trial counsel was

ineffective for failing to challenge the search of his residence with a motion to suppress.




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      {¶14} To prevail on a claim of ineffective assistance of counsel, an appellant

must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668

(1984). State v. Ziefle, 11th Dist. Ashtabula No. 2007-A-0019, 2007-Ohio-5621, ¶20. As

such, appellant must show that counsel’s performance was deficient and must

additionally show prejudice resulting from the deficient performance. State v.

Jackson, 11th Dist. Ashtabula No. 2002-A-0027, 2004-Ohio-2442, ¶9.

      {¶15} “‘Failure to file a suppression motion does not constitute per se ineffective

assistance of counsel.’” State v. Madrigal, 87 Ohio St.3d 378, 389 (2000), quoting

Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). “‘When claiming ineffective

assistance due to failure to file or pursue a motion to suppress, an appellant must point

to evidence in the record showing there was a reasonable probability the result of [the

proceeding] would have differed if the motion had been filed or pursued.’” State v.

Weimer, 11th Dist. Lake No. 2013-L-008, 2013-Ohio-5651, ¶38, quoting State v.

Walker, 11th Dist. Lake No. 2009-L-155, 2010-Ohio-4695, ¶15.

      {¶16} Generally, “searches and seizures inside a home without a warrant are

presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980). It is a

fundamental Fourth Amendment principle, however, that neither a search warrant nor

probable cause is required if valid consent to search, an exception to the constitutional

requirements, is given. Schneckloth v. Bustamonte (1973), 412 U.S. 218, 219 (1973).

Consent to search is valid by someone other than a defendant where the third-party

granting consent possessed common authority over the premises sought to be

searched. United States v. Matlock, 415 U.S. 164, 171 (1974).




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       {¶17} With the foregoing in mind, “a warrantless search of a shared dwelling for

evidence over the express refusal of consent by a physically present resident cannot be

justified as reasonable as to him on the basis of consent given to the police by another

resident.”    Georgia v. Randolph, 547 U.S. 103, 120 (2006).         In Randolph, the

defendant’s estranged wife had given police consent to search the marital home for

items of drug use. The defendant, who was present at the home, refused to give police

consent.     In concluding the consent of the estranged wife could not override the

objection of the defendant, the United States Supreme Court recognized two

“complementary rules,” “one recognizing the co-tenant’s permission when there is no

fellow occupant on hand, the other according dispositive weight to the fellow occupant’s

contrary indication when he expresses it.” Id.       at 121-122.    The latter rule is

fundamentally premised upon the objecting occupant’s express objection as well as his

physical presence. Id. at 120.

       {¶18} Later, in Fernandez v. California, 571 U.S. 292 (2014), the consent of a

joint occupant of a residence was deemed valid, despite the objection of a defendant,

who had been arrested and removed from the home before subsequent consent was

obtained.    In Fernandez, police knocked on an apartment door when they heard

screams from the residence. The door was answered by a woman who appeared

battered and bloody. The defendant came to the door and objected to the officer’s

entry. Suspecting the defendant had assaulted the woman, the officer placed him under

arrest and removed him. An officer later returned to the apartment and obtained oral

and written consent to search the same. In declining to give Randolph, supra, an overly

expansive interpretation, the Court upheld the search, holding a lawful occupant of a




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home has the right to invite police to enter the dwelling to conduct a search, despite the

absent co-occupant’s previous objection. Fernandez, supra, at 307.

      {¶19} In this matter, appellant objected to the search, but was subsequently

arrested and taken to the police department. The co-occupant of the home, the victim,

subsequently provided consent to officers from the hospital to search the residence.

This fact pattern is similar to the facts in Fernandez and thus, we conclude the victim’s

consent and the officers’ subsequent search were valid.

      {¶20} We recognize that, in Fernandez, consent was obtained by a co-occupant

who was in the residence when consent was given.            We do not think this factual

distinction affects the legal analysis, however. That is, in Randoph, supra, the majority

consistently   repeated   it   was   the   defendant’s physical   presence and immediate

objection to his wife’s consent that distinguished it from prior case law.      The Court

reinforced this point in its conclusion, holding “a warrantless search of a shared dwelling

for evidence over the express refusal of consent by a physically present resident cannot

be justified as reasonable as to him on the basis of consent given to the police by

another resident.” Id. at 120. (emphasis added).      The crucial point, therefore, is the

presence or absence of the objector, not the consenting co-occupant; simply because

the victim was in the hospital when she gave consent should not invalidate that consent.

To conclude otherwise would allow a coincidental formality (the co-occupant’s physical

presence in the residence) to vitiate consent that is otherwise valid and voluntary. In

effect, an absent, expressly-objecting co-occupant has “assumed the risk” that another

co-occupant “might permit the common area to be searched.” Matlock, supra, at fn. 7.




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      {¶21} Notwithstanding the foregoing, appellant relies upon United States v.

Hudsputh, 459 F.3d 922 (8th Cir.2006) (“Hudsputh I”) in support of his argument that

counsel should have filed a motion to suppress. In that case, the defendant objected to

the search of his home computer while officers were searching his place of business,

pursuant to a valid warrant.       Subsequently, police obtained consent from the

defendant’s wife to conduct the search. The Eighth Circuit invalidated the search; later,

however, on rehearing en banc, the court upheld the search relying principally upon the

authority of Fernandez, supra. See United States v. Hudsputh, 518 F.3d 954 (8th

Cir.2008). Appellant requests this court to adopt the reasoning of Hudsputh I which

would, in his apparent view, demonstrate that counsel had a reasonable probability of

success on the hypothetical motion to suppress. We decline to accept this invitation.

      {¶22} Our role in evaluating counsel’s performance is, in light of controlling

authority, to assess whether counsel’s performance was deficient because, given the

evidence, there was a reasonable probability of success. To adopt the defunct ruling in

Hudsputh I would be advisory (because we are not addressing the merits of the denial

of an actual motion to suppress) and would transcend the narrow scope of our review.

Here, there is evidence of valid consent by a co-occupant after appellant, over

objection, was removed from the residence. Randolph and Fernandez are controlling

authority from the United States Supreme Court, regardless of any potential argument

counsel could have made vis-à-vis Hudputh I in a hypothetical motion to suppress.

And, as discussed above, the facts of the instant case, when viewed in relation to the

holdings in Randolph and Fernandez, demonstrate no reasonable probability of




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succeeding on a motion to suppress. We therefore hold counsel’s performance was not

deficient for failing to file such a motion.

       {¶23} Appellant also argues counsel should have filed a motion to suppress due

to an alleged invalid protective sweep of his residence. He asserts that, at no point, did

the officers at the scene have any reason to believe others were inside the home, let

alone that other potential occupants who were in danger or posed a danger to the

officers. Thus, he maintains the officers lacked “articulable facts which, taken together

with the rational inferences from those facts, would warrant a reasonably prudent officer

in believing that the area to be swept harbors an individual posing a danger to those on

the * * * scene.” State v. Koon, 2d Dist. Montgomery No. 26296, 2015-Ohio-1326, ¶14.

       {¶24} Even assuming the officers had no reasonable basis for conducting the

protective sweep, no evidence was removed as a result of the sweep. Only after the

victim gave valid consent to search the residence did officers obtain evidence relating to

the incident. Where nothing was seized, there would be no basis to file a motion to

suppress based upon an unreasonable seizure, even if the search is arguably

problematic.

       {¶25} Next, appellant contends counsel was ineffective for failing to argue that

the kidnapping and felonious assault counts should be merged. We do not agree.

       {¶26} R.C. 2941.25 reflects the General Assembly's intent to prohibit or allow

multiple punishments for two or more offenses resulting from the same conduct. State v.

Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, ¶ 11. R.C. 2941.25 provides:

       {¶27} (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.



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       {¶28} (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 * * * may contain
             counts for all such offenses, and the defendant may be convicted of
             all of them.

       {¶29} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, the Ohio Supreme

Court held:

       {¶30} 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. Ruff, supra, at paragraph
             three of the syllabus.

       {¶31} At sentencing, the issue of merger was raised by the trial court at which

point defense counsel conceded that the kidnapping and felonious assault offenses did

not merge. The following exchange occurred on record:

       {¶32} THE COURT: As far as merger, do you believe that any of the
             three counts that your client plead to merge?

       {¶33} [DEFENSE COUNSEL]: Not in this case, your honor. As we
             discussed with [the prosecutor] and the state at length, there were
             essentially two separate incidents and the way the state had crafted
             its offer, it was one count from one incident, one count from another
             incident. So it’s our opinion - - it’s our belief that this is - - there is
             no merger.

       {¶34} While the trial court did not further inquire into why the counts would not

merge, the prosecutor, at the change-of-plea hearing, set forth the following factual

basis for the plea:

       {¶35} Had this case gone to trial the evidence would have shown that on
             April 20, 2019 initiating in Cuyahoga County and continuing into
             Lake County, specifically in Wickliffe, Lake County, Ohio the
             defendant and the victim * * * were in a vehicle that they got into in
             Cuyahoga County and drove to Lake County, Ohio. While in the



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              vehicle the defendant continuously struck [the victim] in the face
              and head, [and] strangled her to the point of her losing
              consciousness.        When she would come to and regain
              consciousness, he would repeat that. He prevented her from
              getting out of the car on at least one occasion.

       {¶36} After dragging [the victim] into the garage of her residence once
             they arrived, he continued to assault her in this manner to the point
             of her losing consciousness. He then poured gasoline on her
             threatening to burn her alive. As a result of the assault [the victim]
             suffered a broken nose, two subdural hematomas, a concussion, a
             torn carotid artery in her neck, and various contusions and bruises
             on her face, head, neck, torso, back and arms.

       {¶37} Appellant pleaded guilty to Count 3, kidnapping and Count 4, felonious

assault. The kidnapping count alleged appellant, by force, threat, or deception,

knowingly, under circumstances creating a substantial risk of serious physical harm to

the victim, restrained her liberty.     The felonious assault count alleged appellant

knowingly caused serious physical harm to the victim. Given the factual basis, one

could reasonably infer that appellant committed two separate kidnappings and at least

two felonious assaults. The victim was, under circumstances creating substantial risk of

serious physical harm, knowingly, by force, restrained by appellant both in the vehicle

and when she was dragged from the vehicle. Further, both in the vehicle and in the

garage, appellant knowingly caused serious physical harm to the victim. In light of

defense counsel’s representation at sentencing, that the kidnapping and felonious

assault counts were from separate incidents, as well as the prosecutor’s factual basis

demonstrating that at least one kidnapping and one felonious assault occurred

separately, each with a separate animus, we conclude defense counsel’s performance

was not deficient for failing or declining to seek merger.

       {¶38} Appellant’s first and second assignments of error lack merit.




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       {¶39} Appellant’s third assignment of error states:

       {¶40} “The trial court erred when it imposed a consecutive sentence on

appellant because a consecutive sentence is not supported by the facts of the record

and is contrary to law.”

       {¶41} In an appeal of a felony sentence, “R.C. 2953.08(G)(2)(a) compels

appellate courts to modify or vacate sentences if they find by clear and convincing

evidence that the record does not support any relevant findings under ‘division * * *

(C)(4) of section 2929.14.’” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

¶22.

       {¶42} Pursuant to R.C. 2929.14(C)(4), the trial court must find that consecutive

service “is necessary to protect the public from future crime or to punish the offender.”

The trial court must also 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. The trial court must further find that at least one of the following applies:

       {¶43} (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 section 2929.16, 2929.17, or 2929.18
             of the Revised Code, or was under post-release control for a prior
             offense.

       {¶44} (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.

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




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      {¶46} During the sentencing hearing, the court made the following statements on

record:

      {¶47} The court finds that consecutive sentences are necessary to protect
            the public from future crime and to punish this offender, they are
            not disproportionate to the seriousness of the offender’s conduct
            and the danger he poses to the public. I also find that these acts
            were committed while awaiting trial in Ashtabula County and while
            on community control in Geauga County. I find that 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
            your conduct and I find that your history of criminal conduct
            demonstrates that consecutive sentences are necessary to protect
            the public from future crimes by you.

      {¶48} The trial court complied with its statutory duty by making the requisite

findings under R.C. 2929.14(C)(4).        Appellant maintains, however, consecutive

sentences were improper because the record does not support the trial court’s

conclusion that the sentence was necessary to protect the public from dangers he

poses to it. He asserts that he has strong family support and this ensures that he would

not revert back to his violent behavior. And, he underscores, these are the first felonies

of which he has been convicted.

      {¶49} Initially, even if he has a sound family support structure, this does not

necessarily imply such support will negate the dangers appellant could pose to the

public. In light of the circumstances surrounding the crimes to which appellant pleaded,

most importantly the sudden and violent nature of appellant’s assault on the victim, his

then-fiancé, the trial court could reasonably conclude that consecutive terms were

necessary to protect the public from future, potentially very violent, criminal activity.

Moreover, even though appellant had not been previously convicted of a felony, he was



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previously convicted of assault on a female victim.      We conclude the trial court’s

findings are sufficiently supported by the record to support consecutive terms of

imprisonment.

      {¶50} Appellant’s third assignment of error lacks merit.

      {¶51} For the reasons discussed in this opinion, the judgment of the Lake

County Court of Common Pleas is affirmed.




TIMOTHY P. CANNON, P.J.,

MARY JANE TRAPP, J.,

concur.




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