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State v. Gomez

Court of Appeals of Ohio, Seventh District, Mahoning

December 15, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
ROLANDO PENA GOMEZ DEFENDANT-APPELLANT

         CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 16 CR 599

          For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney

          For Defendant-Appellant: Atty. Christopher P. Lacich Roth, Blair, Roberts, Strasfeld & Lodge, LPA

          Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Carol Ann Robb

          OPINION

          WAITE, JUDGE.

         {¶1} Appellant Rolando Pena Gomez appeals the conviction and sentence of the Mahoning County Court of Common Pleas following his plea of guilty to three counts of trafficking in cocaine, one count of trafficking in heroin and one count of possession of heroin as well as a forfeiture specification that involved a motor vehicle. Appellant contends his plea was not made knowingly, intelligently and voluntarily and that he should be permitted to withdraw his plea. Appellant also asserts his trial counsel was ineffective for failing to seek a withdrawal of his guilty plea. Based on the following, we find Appellant's guilty plea was knowing, voluntary and intelligent and his sentence was not clearly and convincingly contrary to law. Moreover, trial counsel was not ineffective as Appellant has failed to establish that counsel's performance was deficient and that Appellant was prejudiced. Therefore, the judgment of the trial court is affirmed.

         Factual and Procedural History

         {¶2} Appellant was indicted on a number of drug-related offenses relating to the possession and trafficking of cocaine and heroin. Appellant was aided by an interpreter throughout all trial court proceedings as he speaks only Spanish. On October 6, 2016, Appellant pleaded guilty to counts one, two, and three, trafficking in cocaine in violation of R.C. 2925.03(A)(1), (C)(4)(f), felonies of the first degree; count four, trafficking in heroin in violation of R.C. 2925.03(A)(1), (C)(6)(f), a felony in the first degree; and count six, possession of heroin in violation of R.C. 2925.11(A), (C)(6)(e), a felony in the first degree; with a forfeiture specification pursuant to R.C. 2981.

         {¶3} An initial sentencing hearing was held on December 1, 2016. The state recommended a term of eight to ten years of incarceration. Appellant's counsel asked for a three-year sentence. At the sentencing hearing, there was some discrepancy regarding the presentence investigation ("PSI") report. The PSI contained no prior criminal history but the prosecutor said he was aware Appellant served a prior federal prison sentence on drug-related charges. The sentencing was postponed pending a review of Appellant's prior criminal history.

         {¶4} Sentencing resumed on December 8, 2016, and a discussion regarding Appellant's criminal history was held. The updated PSI reflected that Appellant had been convicted of numerous misdemeanors in other jurisdictions and had two prior felony convictions. (12/8/16 Sentencing Hrg. Tr., p. 5.) Appellant's counsel again requested a shorter term than the eight to ten years recommended by the state. Appellant, through the interpreter, gave a statement where he discussed the death of both parents when he was a child and his struggle with substance abuse.

         {¶5} After noting Appellant's prior criminal history, his addiction, and the large amount of cocaine and heroin confiscated in the instant matter, the trial court sentenced Appellant to eight years on each count to be served concurrently, for a total prison term of eight years. Appellant filed this timely appeal.

         ASSIGNMENT OF ERROR NO. 1

         THE TRIAL COURT ERRED AND IMPOSED A SENTENCE CLEARLY AND CONVINCINGLY CONTRARY TO LAW, BY FAILING TO CALL A RECESS OR MAKE FURTHER INQUIRY AS TO WHETHER DEFENDANT-APPELLANT WANTED TO WITHDRAW HIS GUILTY PLEA TO COUNTS ONE, TWO, THREE, FOUR AND SIX, UPON HIS STATEMENT ON THE RECORD AT HIS SENTENCING HEARING, THAT HE MISUNDERSTOOD THE TERMS OF HIS RULE 11 PLEA AGREEMENT AND/OR THAT HE WAS INNOCENT OF COUNT SIX, TRAFFICKING IN HEROIN.

         {¶6} It should be noted that in reviewing a felony sentence, "an appellate court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that the record does not support the trial court's findings under relevant statutes or that the sentence is otherwise contrary to law." ...


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