[Cite as State v. Oviedo, 2015-Ohio-135.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                       WOOD COUNTY


State of Ohio                                        Court of Appeals Nos. WD-13-085
                                                                           WD-13-087
        Appellee
                                                     Trial Court Nos. 13 CR 337
v.                                                                    12 CR 571

Ricardo Oviedo                                       DECISION AND JUDGMENT

        Appellant                                    Decided: January 16, 2015

                                              *****

        Paul A. Dobson, Wood County Prosecuting Attorney, and
        David T. Harold, Assistant Prosecuting Attorney, for appellee.

        Tim A. Dugan, for appellant.

                                              *****

        JENSEN, J.

                                            Introduction

        {¶ 1} Appellant, Ricardo Oviedo, appeals his conviction for failure to appear, a

fourth degree felony, in violation of R.C. 2937.29 and 2937.99. Appellant argues that his

conviction was against the manifest weight of the evidence and that he received

ineffective assistance of counsel. For the reasons that follow, we affirm the judgment of

the trial court.
                                 I. Factual Background


       {¶ 2} On October 18, 2014, a grand jury sitting in Wood County, Ohio indicted

appellant on two felony offenses: illegal conveyance of weapons onto the grounds of a

specified governmental agency, in violation of R.C. 2921.36(A)(1)(G)(1), a felony in the

third degree (Count I) and receiving stolen property, in violation of R.C. 2913.51(A)(C),

a felony in the fourth degree (Count II). (Wood County case No. 12 CR 571.) On

October 29, 2012, the trial court released appellant on his own recognizance after

appellant signed a bond wherein he promised, among other things, to appear in court as

required.

       {¶ 3} On April 22, 2013, the state dismissed the weapon’s charge in exchange for

appellant’s guilty plea to the receiving stolen property charge. The plea required

appellant to make restitution to the owner of the vehicle, appellant’s cousin, in the

amount of $1,476.78. At the conclusion of the hearing, at which appellant was present,

the trial court found appellant guilty, ordered a presentence investigation report, and set

the matter for sentencing on June 24, 2013, at 9:30 a.m. A notice of hearing was sent to

appellant at the address provided by him on his bond form.

       {¶ 4} Appellant failed to appear at the June 24, 2013 sentencing hearing, although

his court-appointed attorney did attend. The attorney told the court that appellant’s

girlfriend had contacted his office that morning to explain that appellant was suffering

some significant health problems necessitating a trip to the hospital. The prosecutor




2.
requested that the court issue a statewide warrant but added that, if appellant provided

proof of his hospitalization, then the state would not object to the court vacating the

warrant. The trial court authorized the issuance of the warrant, and a copy was sent to

appellant.

       {¶ 5} On July 14, 2013, appellant was arrested and charged with failure to appear, in

violation of R.C. 2937.29 and 2937.99(A) and (B). (Wood County case No. 13 CR 337).

       {¶ 6} On September 16, 2013, the sentencing hearing was held on appellant’s

conviction for receiving stolen property. In lieu of prison, the court sentenced appellant

to community control for a period of two years. While advising appellant of his rights

and obligations, the trial court specifically instructed appellant against consuming

alcoholic beverages during the two-year period. The court advised appellant that his

failure to abide by the terms of the community control sanction could result in more

restrictive sanctions, including the imposition of a prison term up to 18 months.

       {¶ 7} One week later, on September 23, 2013, the parties were back in court.

According to the record, appellant had reported to his probation officer while inebriated.

After testing positive for alcohol, appellant was taken into custody. The state filed a

petition to revoke appellant’s community control, and the matter was set for hearing. By

this time, appellant’s attorney had withdrawn his representation as to both matters, and a

new attorney had been appointed.

       {¶ 8} On November 20, 2013, two matters came before the court: the trial of

appellant for his failure to appear and a pretrial hearing for his alleged community control




3.
violation. With regard to the latter, appellant conceded the violation and waived his right

to a full hearing. Finding that appellant was no longer amenable to community control,

the trial court sentenced appellant to serve 17 months in prison for receiving stolen

property.

       {¶ 9} The state then presented its case for appellant’s failure to appear. The state

called Mario Rodriguez to testify. Mr. Rodriguez is appellant’s cousin and was the

person whose vehicle appellant was found to have been riding in when arrested for

receiving stolen property. Rodriguez lived near appellant. On June 24, 2013, the day of

appellant’s sentencing, Rodriguez testified that he saw appellant around noon, in their

neighborhood. Rodriguez observed that appellant acted normally and did not appear to

be in any distress. Rodriguez claimed that appellant was drinking from a paper bag at the

time, which Rodriguez assumed was beer. Rodriguez added he frequently saw appellant

walking in their neighborhood drinking beer.

       {¶ 10} The trial court’s criminal bailiff testified that the court never received any

records explaining appellant’s whereabouts on June 24, 2013.

       {¶ 11} Appellant called J. Scott Hicks, his first attorney, to testify. Hicks recalled

very little relative about the June 24, 2013 hearing. He did recall that, on that day or the

next, appellant’s girlfriend, Cheryl Gensler, contacted Hicks about appellant’s failure to

attend the hearing. Hicks confirmed that he received medical records from St. Luke’s

Hospital relative to appellant’s hospitalization.




4.
       {¶ 12} Appellant’s girlfriend testified on appellant’s behalf. Gensler testified that

appellant suffers from several health conditions including colon cancer and heart

problems. Gensler testified that appellant’s heart was racing on the morning of June 24,

2013, and that she took him to St. Luke’s Hospital around 5:00 or 6:00 a.m. She

estimated that appellant was released between 11:00 a.m. and 3:00 p.m. Around noon,

Gensler contacted Hicks’ office to let him know that appellant had been hospitalized.

She also requested that the hospital send records to Mr. Hicks’ office, confirming

appellant’s hospital visit. Gensler denied that appellant was outside drinking following

his release from the hospital.

       {¶ 13} At the conclusion of the hearing, the court found appellant guilty of failing to

appear. By judgment entry journalized on December 6, 2013, the trial court sentenced

appellant to a prison term of six months for failing to appear, in addition to the 17 months

for receiving stolen property. The court ordered that the sentences be served consecutively.

       {¶ 14} Appellant obtained new counsel and filed a notice of appeal on December 13,

2013. Appellant alleges two assignments of error:

              1. Appellant’s conviction fell against the manifest weight of the

       evidence.

              2. Appellant received ineffective assistance of counsel.




5.
                                    II. Law and Analysis

       {¶ 15} Appellant does not challenge his conviction for receiving stolen property.

Appellant does claim, however, that his conviction for failure to appear was against the

manifest weight of the evidence. R.C. 2937.99 provides, in part,

               (A) No person shall fail to appear as required, after having been

       released pursuant to section 2937.29 of the Revised Code. Whoever

       violates this section is guilty of failure to appear and shall be punished as

       set forth in division (B) or (C) of this section.

               (B) If the release was in connection with a felony charge or pending

       appeal after conviction of a felony, failure to appear is a felony of the fourth

       degree.

       {¶ 16} To demonstrate that a defendant violated the statute, the state “must show

that the offender (1) was released on his own recognizance, and (2) recklessly failed to

appear at the court proceeding as required by the Court.” State v. Hicks, 4th Dist.

Highland No. 08CA6, 2009-Ohio-3115, ¶ 31, quoting State v. Platz, 4th Dist.

Washington No. 00CA36, 2001 WL 925410, *2 (Aug. 6, 2001). A person acts recklessly

when, “with heedless indifference to the consequences, he perversely disregards a known

risk that his conduct is likely to cause a certain result or is likely to be of a certain

nature.” R.C. 2901.22(C).

       {¶ 17} In this case, appellant argues that the state failed to show that he acted

recklessly. Appellant blames his first lawyer whom he was relying upon to “keep him




6.
informed of what he needed to do and when he needed to turn himself in.” Appellant

also argues that the trial court “lost its way” in accepting the testimony of Rodriguez who

had a “clear bias” against him.

       {¶ 18} “In determining whether a conviction is against the manifest weight of the

evidence, we do not view the evidence in a light most favorable to the state. Instead, we

sit as a ‘thirteenth juror’ and scrutinize ‘the factfinder’s resolution of the conflicting

testimony.’” State v. Robinson, 6th Dist. Lucas No. L-10-1369, 2012-Ohio-6068, ¶ 15,

citing State v. Thompkins, 78 Ohio St.3d 380, 388, 678 N.E.2d 541 (1997). Reversal on

manifest weight grounds is reserved for “the exceptional case in which the evidence

weighs heavily against the conviction.” Thompkins at 387.

       {¶ 19} In a bench trial, as in this case, the court assumes the fact-finding function

of the jury. Accordingly, to warrant reversal from a bench trial under a manifest weight

of the evidence claim, it must be determined that the court clearly lost its way and created

such a manifest miscarriage of justice that the judgment must be reversed and a new trial

ordered. State v. Archie, 6th Dist. Lucas Nos. L-02-1225, L-02-1262, 2004-Ohio-4844,

¶ 8, citing Thompkins, supra, at 387. “Due deference must be accorded the findings of

the trial court because the trial judge is best able to view the witnesses and observe their

demeanor, gestures and voice inflections, and use these observations in weighing the

credibility of the proffered testimony.” Id. at ¶ 8.




7.
       {¶ 20} We have thoroughly reviewed the evidence in this case and find no

indication that the trial court lost its way or created a manifest miscarriage of justice by

finding that appellant was reckless.

       {¶ 21} There is no dispute that appellant was out on bond or that he failed to

appear for his hearing, set for 9:30 a.m. on June 24, 2013. Appellant’s girlfriend,

Gensler, testified that appellant was released from the hospital between 11:00 a.m. and

3:00 p.m. while Rodriguez testified that he saw appellant drinking around noon.

Appellant argues that the trial court lost its way in accepting the testimony of Rodriguez,

over that of Gensler. Under either scenario, however, appellant would have missed the

9:30 a.m. hearing. What this court is struck by is appellant’s failure to communicate his

alleged inability to attend the hearing. That is, assuming that appellant was hospitalized

at the start of his 9:30 a.m. hearing, he admittedly made no effort to contact the trial court

or his lawyer at that time to explain his absence. Instead, through his girlfriend, he

waited at the very least, two and one-half hours, at noon, to contact his lawyer. By then,

the hearing was long over.

       {¶ 22} Moreover, upon his release from the hospital, his girlfriend asked the

hospital to send papers to appellant’s lawyer. In other words, appellant did not personally

request documentation then and there, nor did he personally take responsibility to get the

records into the hands of his lawyer or the court, instead relying on a third party to act on

his behalf.




8.
       {¶ 23} We are most puzzled by appellant’s failure to act after being served with a

statewide warrant. That is, he did not contact his lawyer, the court, or the sheriff’s office.

Instead, he waited. Three weeks later, he was arrested. He then blamed his lawyer for

failing to tell him “about what needed to happen after missing [his] sentencing date.”

       {¶ 24} In State v. Smith, 10th Dist. Franklin No. 14AP-240, 2014-Ohio-4945, the

Tenth Appellate District recently upheld a finding of recklessness by a defendant who

was convicted for failing to appear. In that case, the defendant overslept and missed her

trial. An hour after the hearing was set to begin, the defendant awoke and contacted the

courtroom bailiff. She then attempted to turn herself in but was turned away because a

warrant had not yet been issued. Despite her efforts, the defendant was found guilty for

failing to appear. The court of appeals affirmed the conviction. It found that “the jury

still could have found appellant acted recklessly when, after not sleeping all night, she

allowed herself to fall asleep just prior to the time she needed to prepare for court. * * *

We cannot find that the jury, as the trier of fact, clearly lost its way and created such a

manifest miscarriage of justice * * *.” Id. at ¶ 13. See also State v. Platz, 4th Dist.

Washington No. 00CA36, 2001-Ohio-2541 (affirming failure to appear conviction

because jury gave little weight to defendant’s assumption that his attorney obtained a

continuance and his alleged health problems).

       {¶ 25} In this case, we find substantial evidence upon which the trier of fact could

reasonably conclude that appellant, “with heedless indifference to the consequences,




9.
* * * perversely disregarded a known risk that his conduct [was] likely to cause a certain

result,” namely his arrest for failing to appear. R.C. 2901.22(C).

       {¶ 26} Based upon all of the above, we cannot say that the court, sitting as the trier

of fact, clearly lost its way and created such a manifest miscarriage of justice that

appellant’s conviction must be reversed and a new trial granted. Therefore, we find that

appellant’s failure to appear conviction is not against the manifest weight of the evidence.

Appellant’s first assignment of error is not well-taken.

       {¶ 27} A claim of ineffective assistance of counsel is evaluated under the

deficiency standard set forth in State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373

(1989), paragraphs two and three of the syllabus:

              2. Counsel’s performance will not be deemed ineffective unless and

       until counsel’s performance is proved to have fallen below an objective

       standard of reasonable representation and, in addition, prejudice arises from

       counsel’s performance. (State v. Lytle, 48 Ohio St.2d 391, 358 N.E.2d 623

       (1976); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

       L.Ed.2d 674 (1984), followed.)

              3. To show that a defendant has been prejudiced by counsel’s

       deficient performance, the defendant must prove that there exists a

       reasonable probability that, were it not for counsel’s errors, the result of the

       trial would have been different.




10.
       {¶ 28} Ohio law presumes the competence of a properly licensed attorney. State

v. Robinson, 6th Dist. No. L-10-1369, 2012-Ohio-6068, ¶ 72. There is thus “a strong

presumption that counsel’s performance falls within the wide range of reasonable

professional performance.” Bradley at 142. Even if counsel’s performance fell below an

objective standard of reasonable representation, the level of prejudice must be such that,

but for counsel’s deficiencies and errors there is a reasonable probability that the trial’s

outcome would have been different. Id. Trial strategies and tactical choices do not

constitute ineffective assistance merely because in hindsight they appear questionable or

ineffective. State v. Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980).

       {¶ 29} In support of his second assignment of error, appellant complains that his

second trial attorney “failed to obtain” the hospital records, and that, if the records had

been admitted into evidence he “would have been acquitted at trial.”

       {¶ 30} We disagree. First, the record indicates that both attorneys had possession

of the hospital records. Appellant has failed to demonstrate, however, that the records

would have exonerated him. That is, as discussed previously, whether he was

hospitalized for all or part of the day, he was still reckless in his conduct. Therefore,

appellant failed to demonstrate a reasonable probability that, if the records had been

admitted, he would have been acquitted. Therefore, appellant’s claim for ineffective

assistance of counsel fails as a matter of law. Appellant’s second assignment of error is

found not well-taken.




11.
       {¶ 31} For the foregoing reasons, we affirm the judgment of the Wood County

Court of Common Pleas. Appellant is ordered to pay the costs of this appeal pursuant to

App.R. 24.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
James D. Jensen, J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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