[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.


                                         -2-
Case No. 4-16-16



                            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.


                                        -3-
Case No. 4-16-16



                            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?


                                         -4-
Case No. 4-16-16



      [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?

                                       -5-
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


                                          -6-
Case No. 4-16-16



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




                                         -7-
Case No. 4-16-16



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.

                                          -8-
Case No. 4-16-16



       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.

                                       -9-
Case No. 4-16-16



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


                                        -10-
Case No. 4-16-16



       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



                                       -11-
Case No. 4-16-16



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).



                                         -12-
Case No. 4-16-16



       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
                                         -13-
Case No. 4-16-16



       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.




                                        -14-
Case No. 4-16-16



       {¶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




                                       -15-
