[Cite as State v. Rocha, 2017-Ohio-1485.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              PUTNAM COUNTY


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                   CASE NO. 12-16-11

        v.

LUIS M. ROCHA,                                OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                   CASE NO. 12-16-12

        v.

LUIS M. ROCHA,                                OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                   CASE NO. 12-16-13

        v.

LUIS M. ROCHA,                                OPINION

        DEFENDANT-APPELLANT.
Case Nos. 12-16-11, 12-16-12 and 12-16-13


             Appeals from Putnam County Common Pleas Court
          Trial Court Nos. 2016-CR-45, 2016-CR-74 and 2013-CR-70

                               Judgment Affirmed

                        Date of Decision: April 24, 2017




APPEARANCES:

       F. Stephen Chamberlain for Appellant



WILLAMOWSKI, J.

       {¶1}   Defendant-appellant Luis M. Rocha (“Rocha”) brings this appeal

from the judgments of the Court of Common Pleas of Putnam County accepting

Rocha’s guilty pleas to various drug charges. On appeal, Rocha claims that his

trafficking in cocaine offense should have only been based upon the weight of the

actual cocaine and not included the weight of the filler. For the reasons set forth

below, the appeals in cases numbered 12-16-12 and 12-16-13 are dismissed and the

appeal in case number 12-16-11 is affirmed.

                              Procedural Background

                           Appellate Case No. 12-16-13

       {¶2} On December 19, 2013, the Putnam County Grand Jury indicted

Rocha on the following offenses: Count I, trafficking in drugs (cocaine) in violation

of R.C. 2925.03(A)(1)&(C)(4)(a), a felony of the fifth degree; Count II trafficking

                                         -2-
Case Nos. 12-16-11, 12-16-12 and 12-16-13


in drugs (cocaine) in violation of R.C. 2925.03(A)(1)&(C)(4)(c), a felony of the

fourth degree; Count III, permitting drug abuse in a vehicle in violation of R.C.

2925.13(A), a felony of the fifth degree; Count IV, trafficking in drugs (cocaine) in

violation of R.C. 2925.03(A)(1)&(C)(4)(d), a felony of the third degree; and Count

V, permitting drug abuse in a vehicle in violation of R.C. 2925.13(A), a felony of

the fifth degree. Doc. 1. The case was assigned a trial court number 2013-CR-70.

Rocha entered pleas of not guilty to all of the counts at arraignment. Doc. 18. On

March 18, 2014, Rocha entered a plea agreement wherein he agreed to enter pleas

of guilty to counts one and two. Doc. 29. In exchange, the State agreed to remain

silent at sentencing. Id. The trial court accepted the plea and found Rocha guilty.

Id. On May 8, 2014, the sentencing hearing was held. Doc. 36. The trial court

placed Rocha on community control and dismissed the remaining counts. Id.

       {¶3} On December 23, 2014, the State filed a motion to revoke Rocha’s

community control. Doc. 61. Rocha admitted to a violation at the hearing. Doc.

67. As a result of the violation, Rocha was placed under stricter community control

sanctions. Doc. 75. A second motion to revoke Rocha’s community control was

filed on September 22, 2015. Doc. 80. Before the hearing on this motion occurred,

the State filed a third motion to revoke Rocha’s community control. Doc. 85. A

hearing on both the second and third motions was held on November 24, 2015. Doc.

92. Rocha admitted the violations and the trial court continued the community

control sanctions. Id.

                                         -3-
Case Nos. 12-16-11, 12-16-12 and 12-16-13


       {¶4} On April 11, 2016, the State filed a fourth motion to revoke Rocha’s

community control. Doc. 99. A hearing was held on the motion on May 10, 2016.

Doc. 109. Rocha admitted to the violations at the hearing. Id. As a result, on

November 2, 2016, the trial court revoked the community control and imposed an

aggregate prison term of 30 months in prison with credit for 456 days of time served.

Doc. 143. Rocha filed his notice of appeal on November 14, 2016. Doc. 148.

                           Appellate Case No. 12-16-11

       {¶5} On June 15, 2016, the Putnam County Grand Jury indicted Rocha on

two counts:     Count I, trafficking in drugs (cocaine) in violation of R.C.

2925.03(A)(1)&(C)(4)(c), a felony of the fourth degree and Count II trafficking in

drugs (cocaine) in violation of R.C. 2925.03(A)(1)&(C)(4)(d), a felony of the third

degree. Doc. 2. The case was assigned a trial court number of 2016-CR-45. Rocha

entered pleas of not guilty at the arraignment. Doc. 10. On October 16, 2016, Rocha

agreed to enter a plea of guilty to Count I of the indictment. Doc. 33. In exchange

the State agreed to remain silent at sentencing. Id. The trial court accepted the plea

and found Rocha guilty of Count I. Id. On October 27, 2016, the sentencing hearing

was held. Doc. 37. The trial court ordered Rocha to serve a prison term of 18

months, which was to be served concurrently to the sentence in Case No. 2013-CR-

70. Id. Count II of the indictment was dismissed. Id. Rocha filed his notice of

appeal on November 3, 2016. Doc. 40.



                                         -4-
Case Nos. 12-16-11, 12-16-12 and 12-16-13


                           Appellate Case No. 12-16-12

        {¶6} On September 21, 2016, the Putnam County Grand Jury indicted

Rocha    on    four   counts:      Count       I,   escape   in   violation   of   R.C.

2921.34(A)(1)&(C)(2)(a), a felony of the third degree; Count II, illegal conveyance

of prohibited items (heroin) onto the grounds of a detention facility in violation of

R.C. 2921.36(A)(2), a felony of the third degree; Count III, trafficking in drugs

(heroin) onto the grounds of a detention facility in violation of R.C. 2921.36(A)(2),

a felony of the third degree; Count III, trafficking in drugs (heroin) in violation of

R.C. 2925.03(A)(1)&(C)(6)(a), a felony of the fifth degree; and Count IV,

tampering with evidence in violation of R.C. 2921.12(A)(1), a felony of the third

degree. Doc. 1. The case was assigned a trial court number of 2016-CR-74. Rocha

entered pleas of not guilty at the arraignment. Doc. 13. On October 5, 2016, Rocha

agreed to enter a plea of guilty to Count I and Count II of the indictment. Doc. 23.

In exchange the State agreed to remain silent at sentencing. Id. The trial court

accepted the plea and found Rocha guilty of Count I and Count II. Id. On October

27, 2016, the sentencing hearing was held. Doc. 29. The trial court ordered Rocha

to serve a prison term of 36 months on each count with the sentences to run

consecutive to each other. Id. These prison terms were also to run consecutive to

the sentences in Case No. 2013-CR-70 and Case No. 2016-CR-45. Id.             Counts III

and IV of the indictment were dismissed. Id. Rocha filed his notice of appeal on

November 14, 2016. Doc. 32.

                                         -5-
Case Nos. 12-16-11, 12-16-12 and 12-16-13


                                       Appeal

       {¶7} On appeal from all of the above cases, Rocha raises the following

assignment of error.

       The trial court committed error that prejudiced the defendant in
       Case No. 2016-CR-45 in sentencing him for violation of a felony
       of the fourth degree in that the offense level for cocaine offenses
       must be determined only by weight of actual cocaine, not by total
       weight of cocaine plus any filler pursuant to State v. Gonzales,
       2016-Ohio-8319. Furthermore, the holding in Gonzales should be
       extended to trafficking offenses in violation of R.C. 2925.03(A)(1)
       & (C).

This court initially notes that Rocha only alleges that there was error in the sentence

of appellate case no. 12-16-11. An appellant is required to provide a statement of

the assignment of error and an argument as to that assignment of error in the brief.

App.R.16(A). “The failure to assign an error or to argue it as required by Appellate

Rule 16 may result in the appellate court disregarding the argument and dismissing

the appeal.” State v. Helmstetter, 3d Dist. Auglaize Nos. 2-13-07, 2-13-08, 2013-

Ohio-3982, ¶4, and App. R. 12(A)(2). Since no assignment of error was made and

no argument was presented as to the sentences in appellate case nos. 12-16-12, and

12-16-13, those cases are dismissed.

                              Measurement of Cocaine

       {¶8} As to appellate case no. 12-16-11, Rocha argues that the trial court

erred by including the weight of the filler when determining the total weight of the

cocaine. This argument is based upon the Supreme Court of Ohio’s opinion in State


                                         -6-
Case Nos. 12-16-11, 12-16-12 and 12-16-13


v. Gonzales, ____ Ohio St.3d _____, 2016-Ohio-8319, _____ N.E.2d _____ and this

court’s holding, pursuant to Gonzales in State v. Valdez, 3d Dist. Marion No. 9-16-

01, 2017-Ohio-241. 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 and answered the certified question in the negative.

State v. Gonzales, ____ Ohio St.3d ____, 2017-Ohio-777, ____ N.E.3d ____. The

Court concluded “that the applicable offense level for cocaine 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. Based upon the Supreme Court’s

                                         -7-
Case Nos. 12-16-11, 12-16-12 and 12-16-13


ruling in its reconsideration of Gonzales, this court’s prior holding in Valdez was,

in effect, reversed. Thus, Valdez has no precedential value.

       {¶9} Since the Supreme Court of Ohio has now determined that the weight

of any filler can be included in determining the weight of the cocaine, the trial court

in this case did not err in doing so. The assignment of error is overruled.

       {¶10} Having found no assignment of error or argument as to appellate cases

numbered 12-16-12 and 12-16-13, those appeals are dismissed. Having found no

error in the particulars assigned and argued in appellate case number 12-12-11, the

judgment of the Court of Common Pleas of Putnam County is affirmed.

                                      Appeals Dismissed in 12-16-12 and 12-16-13
                                                  Judgment Affirmed in 12-16-11


PRESTON, P.J. and SHAW, J., concur.

/hls




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