[Cite as State v. Corchardo, 2017-Ohio-4390.]


                           STATE OF OHIO, MAHONING COUNTY
                                  IN THE COURT OF APPEALS
                                       SEVENTH DISTRICT

STATE OF OHIO                                   )
                                                )
        PLAINTIFF-APPELLEE                      )
                                                )            CASE NO. 16 MA 0155
VS.                                             )
                                                )                   OPINION
BRENDALIZE CORCHADO                             )
                                                )
        DEFENDANT-APPELLANT                     )

CHARACTER OF PROCEEDINGS:                       Criminal Appeal from the Municipal
                                                Court of Youngstown, Mahoning County,
                                                Ohio
                                                Case No. 16 CRB 778

JUDGMENT:                                       Affirmed.

APPEARANCES:
For Plaintiff-Appellee                          Attorney Dana Lantz
                                                Youngstown City Prosecutor
                                                Attorney Jeffrey Moliterno
                                                Assistant Prosecutor
                                                26 S. Phelps Street, 4th Floor
                                                Youngstown, Ohio 44503

For Defendant-Appellant                         Attorney Edward Czopur
                                                Attorney James Gentile
                                                42 North Phelps Street
                                                Youngstown, Ohio 44503


JUDGES:

Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Carol Ann Robb


                                                Dated: June 16, 2017
[Cite as State v. Corchardo, 2017-Ohio-4390.]
DeGENARO, J.

        {¶1}    Defendant-Appellant Brendalize Corchado appeals the trial court
judgment convicting her of one count of assault and imposing a 90-day sentence.
Corchado argues her sentence was erroneous because it resulted from the trial
court's bias against her. She also argues that trial counsel was constitutionally
ineffective for failing to move for disqualification of the trial court judge following the
announcement of the verdict. As Corchado's assignments of error are meritless, the
judgment of the trial court is affirmed.
        {¶2}    Corchado was charged with one count of assault, R.C. 2903.13, a first-
degree misdemeanor, in connection with a road rage incident. She pled not guilty,
retained counsel, and the matter proceeded to a bench trial.
        {¶3}    Testimony by the victim Tanya Trevathan and her boyfriend Joseph
McGraw established that Trevathan was riding as a front passenger in McGraw's car.
As they were driving, a vehicle operated by Corchado disregarded a stop sign and
almost struck McGraw's vehicle. McGraw yelled obscenities at Corchado and the two
vehicles parted ways. Soon thereafter, Corchado drove up behind the victim, and,
along with another vehicle driven by Corchado's boyfriend, boxed McGraw's vehicle
in, forcing it to a stop. Corchado's four-month-old child was in her vehicle during the
incident.
        {¶4}    Corchado and her boyfriend then approached McGraw's vehicle.
Corchado struck Trevathan through the open passenger window, causing
Trevathan's face to bleed; she hit Corchado in return. McGraw got out of the car and
according to Trevathan and McGraw, Corchado's boyfriend grabbed a machete from
his vehicle, causing McGraw to retreat and drive away with Trevathan until police
could arrive. Trevathan later found Corchado's keys on the front passenger-side floor
of the McGraw's vehicle. A machete was never recovered by police.
        {¶5}    Corchado testified in her own defense and agreed that a road rage
incident occurred and that McGraw's car did end up blocked in the road. She blamed
McGraw for starting the incident, alleging he had gestured with his middle finger to
her and "brake-checked" while driving in front of her. She admitted she left her child
                                                                            -2-


in her vehicle and approached McGraw's vehicle. Although she denied throwing the
first punch into the car, she admitted exchanging blows with Trevathan. Photographs
of Trevathan and Corchado's injuries were admitted into evidence.
      {¶6}   During closing arguments, the State focused on the issue of credibility
and argued the testimony of Corchado was not credible in that she wanted the trial
court to believe that although she left her vehicle and approached the victim's car
with keys in hand, she was not the primary aggressor.
      {¶7}   The trial court found Corchado guilty of assault as charged. Sentencing
was continued so that a pre-sentence investigation could be prepared. Following a
sentencing hearing, the trial court ordered a mental health evaluation, anger
management counseling and imposed a 90-day jail term as recommended by the
PSI, to be followed by two years of intensive probation. Corchado was also ordered
to pay a fine, plus court and supervision costs. Finally, Corchado was ordered to
have no contact with the victim. Corchado successfully moved the trial court for a
stay of her sentence pending appeal.
                            Misdemeanor Sentencing
      {¶8}   In her first of two assignments of error, Corchado asserts:

      Appellant was denied due process of law issued a sentence that is
      contrary to law when the trial court showed prejudice against Appellant
      both during the trial phase and sentencing phase.

      {¶9}   "The overriding purposes of misdemeanor sentencing are to protect the
public from future crime by the offender and others and to punish the offender." R.C.
2929.21(A). "To achieve those purposes, the sentencing court shall consider the
impact of the offense upon the victim and the need for changing the offender's
behavior, rehabilitating the offender, and making restitution to the victim of the
offense, the public, or the victim and the public." Id. See also R.C. 2929.21(B) (the
sentence "shall be reasonably calculated to achieve the two overriding purposes* * *
commensurate with and not demeaning to the seriousness of the offender's conduct
                                                                                -3-


and its impact on the victim, and consistent with sentences imposed for similar
offenses committed by similar offenders.")
       {¶10} Pursuant to R.C. 2929.22(A), trial courts imposing a misdemeanor
sentence have the "discretion to determine the most effective way to achieve the
purposes and principles of sentencing" provided in R.C. 2929.21. Unless a specific
sentence is required, a court that imposes a sentence upon an offender for a
misdemeanor may impose any sanction or combination of sanctions under R.C.
2929.24 through 2929.28. R.C. 2929.22(A).
       {¶11} Under R.C. 2929.22(B)(1), the court shall consider seven factors in
determining the appropriate sentence for a misdemeanor, including the nature and
circumstances of the offense, whether the offender has a history of criminal activity,
the offender's history and character relative to the risk of being a danger to others
and the circumstances of the victim. Additionally, the sentencing court may consider
any other relevant factor. R.C. 2929.22(B)(2). Before imposing a jail term, the trial
court is to consider the appropriateness of imposing a community control sanction.
R.C. 2929.22(C). Here, the maximum sentence is 180 days; the trial court imposed
90 days as recommended in the PSI.
       {¶12} "A misdemeanor sentence is reviewed for an abuse of discretion." Id. at
¶ 11, citing State v. Nuby, 7th Dist. No. 16 MA 0036, 2016-Ohio-8157, ¶ 10, citing
State v. Reynolds, 7th Dist. No. 08-JE-9, 2009-Ohio-935, ¶ 9. An abuse of discretion
means the trial court's decision is unreasonable based upon the record; that the
appellate court may have reached a different result is not enough to warrant reversal.
State v. Dixon, 7th Dist. No. 10 MA 185, 2013–Ohio–2951, ¶ 21.
       {¶13} Corchado argues that her sentence was erroneous because the trial
court showed prejudice against her both during the trial and sentencing phases.
Corchado has conceded that this court generally cannot consider judicial bias
arguments regarding sentencing because disqualification is beyond our jursidiction.
See State v. Power, 7th Dist. No. 12 CO 14, 2013-Ohio-4254. "The only avenue for
disqualifying a common pleas court judge is via an affidavit of disqualification with the
                                                                                  -4-


Ohio Supreme Court pursuant to R.C. 2701.03. A defendant cannot forgo this
procedure and present the issue to the court of appeals in order to avoid Supreme
Court jurisdiction." State v. Donald, 7th Dist. No. 09 MA 172, 2011-Ohio-3400, ¶ 2.
       {¶14} Still, as this court in Power noted, under rare circumstances "biased
comments at sentencing can be reviewed for due process violations." Power at ¶ 22.
We cautioned though that "this is typically reserved for extreme cases or those
involving a constitutionally protected status." Id., citing State v. Arnett, 88 Ohio St.3d
208, 218, 724 N.E.2d 793 (2000) (addressing a comment alleged to involve religion).
       {¶15} In Power, the defendant argued that the trial court demonstrated bias
against him during sentencing and should have recused, due to comments the trial
court made to the victim's mother (calling her a bad mother because she failed to
report the abuse to her daughter sooner), and telling the defendant: " "What you did
here is despicable. It's beyond understanding." Power at ¶ 13. We concluded that
these comments by the trial court "do not come near the level of a due process
violation or otherwise constitute reversible sentencing error." We continued:

              [O]pinions formed by the judge on the basis of facts in the record
       do not constitute a basis for a bias or partiality motion unless they
       display a deepseated antagonism that would make fair judgment
       impossible. State v. Dean, 127 Ohio St.3d 140, 2010–Ohio–5070, 937
       N.E.2d 97, ¶ 49. Hence, critical, disapproving, or even hostile
       statements ordinarily do not support a bias or partiality challenge. Id.
              It is not reversible error for a sentencing judge, in explaining his
       sentence, to make critical statements about a defendant's conduct
       based upon the facts of the case presented to the court. See, e.g.,
       State v. Cemino, 2d Dist. No. 24442, 2011–Ohio–5690, ¶ 8, 18–20
       (scolding defendant and characterizing what he did as nasty,
       despicable, disgusting, and awful was not indicative of bias); State v.
       Coomer, 12th Dist. Nos. CA2009–09–016, CA2009–09–017, 2010–
       Ohio–3474, ¶ 18 (trial court's statement that the defendant was a
                                                                                 -5-


       psychopath may have been ill-advised, but it was not reversible).

Power at ¶ 26-27.
       {¶16} Corchado takes issue with comments made by the trial court during the
trial and at sentencing. First, after the prosecutor made his rebuttal closing argument
and stated Corchado was simply not credible, the trial court stated that Corchado's
testimony was "totally incredible, absolutely incredible. Shame on you. I have
absolutely no difficulty at all in finding that you are guilty of assault as charged." The
trial court made further comments that were intemperate in nature.
       {¶17} The PSI revealed that Corchado had been convicted of another road
rage incident 11 years prior. During sentencing several weeks later, in addition to
other intemperate comments, the trial court expressed its disgust for Corchado's
"immature" and "ridiculous" conduct and shamed Corchado as a mother for acting in
such a manner.
       {¶18} These comments, and others made by the trial court, are akin to those
in Power, and were at times ill-advised and inappropriate. Nonetheless, the trial
court's statements do not rise to the level of a due process violation or reversible
sentencing error. Moreover, Corchado cannot demonstrate prejudice. Corchado had
a criminal record that included a road rage conviction 11 years earlier where
Corchado attacked another driver. After the initial confrontation in this case,
Corchado returned with her boyfriend who was driving a second vehicle and pursued
Trevathan and McGraw, blocking that vehicle in and forcing it to stop. Corchado then
left her four-month-old baby in her car in order to assault Trevathan.
       {¶19} Despite the strong language used by the trial court, it still imposed the
sentence recommended in the PSI, which was well short of the 180-day maximum
sentence Corchado could have received for the conviction. See R.C. 2929.24(A)(1).
Thus, the 90-day sentence imposed by the trial court does not constitute an abuse of
discretion. Accordingly, Corchado's first assignment of error is meritless.


                         Ineffective Assistance of Counsel
                                                                                  -6-


       {¶20}    In her second and final assignment of error, Corchado asserts:

       Appellant was denied the effective assistance of counsel as evinced by
       trial counsel's failure to move for disqualification of the trial judge
       following the announcement of the verdict.

       {¶21} To prove ineffective assistance of counsel, the defendant must satisfy a
two-prong test; that counsel's performance has fallen below an objective standard of
reasonable representation, and that he was prejudiced by counsel's performance.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), at paragraph two of the
syllabus. To demonstrate prejudice, the defendant must prove that, but for counsel's
errors, the result of the trial would have been different. Id., paragraph three of the
syllabus. In Ohio, a properly licensed attorney is presumed to be competent and the
burden is on the defendant to prove otherwise. State v. Hamblin, 37 Ohio St.3d 153,
155, 524 N.E.2d 476 (1988). Moreover, counsel is not deemed deficient for failing to
file meritless motions, State v. Kelly, 179 Ohio App.3d 666, 2008–Ohio–6598, 903
N.E.2d 365, ¶ 76 (7th Dist.).
       {¶22} The Ohio Supreme Court has explained: "Because a sentencing judge
must ordinarily explain the reasons for imposing a sentence, judicial comments
during sentencing, even if disapproving, critical, or heavy-handed, do not typically
give rise to a cognizable basis for disqualification." In re Disqualification of Zmuda, ---
N.E.3d ----, 2017-Ohio-317, ¶ 6, quoting In re Disqualification of Winkler, 135 Ohio
St.3d 1271, 2013-Ohio-890, 986 N.E.2d 996, ¶ 9. The Court continued:

               [t]he judge who presides at trial may, upon completion of the
       evidence, be exceedingly ill disposed towards the defendant, who has
       been shown to be a thoroughly reprehensible person. But the judge is
       not thereby recusable for bias or prejudice, since his knowledge and the
       opinion it produced were properly and necessarily acquired in the
                                                                              -7-


       course of the proceedings, and are indeed sometimes (as in a bench
       trial) necessary to completion of the judge's task.

Zmuda at ¶ 6, quoting Liteky v. United States, 510 U.S. 540, 550–551, 114 S.Ct.
1147, 127 L.Ed.2d 474 (1994).
       {¶23} Thus, although the trial court's comments here were at times ill-advised
and could be characterized as inappropriate, an affidavit of disqualification would not
have succeeded. Further, Corchado was not prejudiced. Corchado cannot show that
the sentence would have been any different with a different judge in light of her prior
conviction for road rage and the facts of this case as discussed above. Most notably,
the trial court imposed the sentence recommended in the PSI, well short of the 180
day maximum sentence Corchado could have received. See R.C. 2929.24(A)(1).
Thus, the sentence imposed is reasonable.
       {¶24} In sum, both of Corchado's assignments of error are meritless and the
judgment of the trial court is affirmed.

Waite, J., concurs.

Robb, P. J., concurs.
